8-K
LU false 0001525773 0001525773 2021-12-16 2021-12-16

 

 

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): December 16, 2021

 

 

INTELSAT S.A.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Grand Duchy of Luxembourg   001-35878   98-1009418
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (I.R.S. Employer
Identification No.)

 

4 rue Albert Borschette

Luxembourg

Grand Duchy of Luxembourg

L-1246

(Address of principal executive offices)

+352 27-84-1600

(Registrant’s telephone number, including area code)

 

 

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: None

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

Emerging growth company

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

 

 

 


ITEM 1.03.

BANKRUPTCY OR RECEIVERSHIP.

As previously reported, on May 13, 2020, Intelsat S.A. (the “Company”) and certain of its subsidiaries (together with the Company, the “Company Parties”) commenced voluntary cases (the “Chapter 11 Cases”) under chapter 11 of the United States Bankruptcy Code (“Chapter 11”) in the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”). Also as previously reported, on August 24, 2021, the Company Parties entered into that certain Plan Support Agreement (together with all exhibits and schedules thereto, the “PSA”), with certain of the Company Parties’ prepetition secured and unsecured creditors (the “Consenting Creditors” and together with the Company Parties, the “PSA Parties”).

On December 17, 2021, the Company Parties filed the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates (the “Plan”) and the Bankruptcy Court entered the Order Confirming the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates and Approving the Settlement Pursuant to Section 1123(B)(3)(A) of the Bankruptcy Code and Rule 9019 of the Federal Rules of Bankruptcy Procedure, filed at docket number 3894 (the “Confirmation Order”), which approved and confirmed the Plan. The effective date of the Plan will occur once all conditions precedent to the Plan have been satisfied (such date, the “Effective Date”). The Company Parties expect that the Effective Date will occur once all necessary regulatory approvals are obtained and certain other transactions necessary to consummate the Plan have been implemented.

The following is a summary of the material terms of the Plan as approved and confirmed by the Bankruptcy Court. This summary highlights only certain provisions of the Plan and is not intended to be a complete description of the Plan. This summary is qualified in its entirety by reference to the full text of the Confirmation Order (attached hereto as Exhibit 99.1), which includes the Plan as an exhibit, which is attached hereto as Exhibit 2.1 and incorporated herein by reference. Capitalized terms used but not defined herein have the meanings ascribed to them in the Plan or the Secured Creditor Settlement (as defined in the Plan), as applicable.

The Plan and Treatment of Claims and Interests

Restructuring Transactions

On or before the Effective Date, among other things, the Plan provides that:

 

 

the Equity Issuer means (a) Holdings or (b), with the consent of the Required Consenting Unsecured Creditors, any successor or assign, by merger, consolidation, reorganization, or otherwise (unless the Required Consenting Unsecured Creditors and the Debtors (excluding the Company and Holdings SARL) agree to designate a different Entity);

 

 

the Equity Issuer will distribute (a) New Common Stock, (b) New Warrants, (c) CVRs and (d) Cash to applicable Holders of Claims against the Debtors in accordance with the terms of the Plan;

 

 

Reorganized S.A. will distribute Reorganized S.A. Common Stock to applicable Holders of Claims against the Debtors in accordance with the terms of the Plan;

 

 

all of the Company’s common shares will be diluted through the issuance of Reorganized S.A. Common Stock and deemed extinguished (to the fullest extent practicable under Luxembourg law and the procedures of DTC) by the equity distributions made pursuant to the Plan under the Restructuring Transactions;

 

 

all Guarantee Claims will be withdrawn with prejudice and not entitled to any distribution under the Plan; and

 

 

Holders of the Company’s common shares may have the opportunity to opt into a settlement as set forth in the Stipulation Resolving Ad Hoc Equity Group’s Objection to Confirmation of the Debtors’ Second Amended Joint Chapter 11 Plan of Reorganization filed at docket number 3729 (the “Equity Group Settlement”), if the Bankruptcy Court approves the Equity Group Settlement, and receive their pro rata share of ISA Warrants (subject to certain limitations, including limitations on the number of recipients of the ISA Warrants) for up to 10 percent (10%) of the Reorganized S.A. Common Stock.


Please see “–Treatment of Claims and Interests” below for more information on the distributions under the Plan.

New Capital Structure & DIP-to-Exit Financing

Prior to or on the Effective Date, the Debtors may obtain funding for the New Capital Structure. Pursuant to the Debtors’ Motion for Entry of a Final Order (A) Authorizing the DIP Debtors to Obtain Postpetition Financing, (B) Granting Liens and Superpriority Administrative Expense Claims, (C) Extending the Use of Cash Collateral, (D) Authorizing Repayment of the Existing Debtor-In-Possession Financing and Prepetition First Lien Debt, (E) Granting Adequate Protection to the Prepetition Secured Parties, (F) Modifying the Automatic Stay, and (G) Granting Related Relief, filed at docket number 3819 (the “Exit Financing Motion”), the Debtors are seeking approval to obtain $7.875 billion in New Debt through a debtor-in-possession financing that, subject to the satisfaction of certain conditions precedent, will convert into an exit financing upon the Debtors’ emergence from chapter 11 (such financing, the “DIP-to-Exit Financing”). The DIP-to-Exit Financing is expected to consist of: (a) a superpriority revolver in an aggregate principal amount of $500.0 million; (b) a $1.0 billion superpriority term loan A facility; (c) a $3.375 billion first lien term loan B facility; and (d) $3.0 billion in secured senior notes, each of which will be secured by a lien on substantially all of the assets of the Debtors or Reorganized Debtors, as applicable, and their subsidiaries. The Bankruptcy Court is scheduled to hear the Exit Financing Motion on January 6, 2022.

Management Incentive Plan

On the Effective Date, the Equity Issuer will institute the Management Incentive Plan, enact and enter into related policies and agreements, and distribute the New Common Stock to participants consistent with the terms and allocations set forth in the Management Incentive Plan Term Sheet. The Management Incentive Plan is filed at docket number 3718.

Releases and Exculpations

The Plan provides releases and exculpations for the benefit of the Company Parties, certain of the Company Parties’ creditors, backstop parties, arrangers, book-running managers, lead placement agents, or similar parties with respect to the procurement of the New Capital Structure, other parties in interest and various parties related thereto, each in their official capacities, from various claims and causes of action, as further set forth in the Plan.

Treatment of Claims or Interests

The Plan contemplates the following treatment of claims against and interests in the Company Parties:

 

 

Term Loan Facility Claims. Each Holder of an Allowed Term Loan Facility Claim shall receive payment in full in Cash as compromised in accordance with the Term Loan Facility Claims Settlement (discussed below).

 

 

8.00% First Lien Notes Claims. Each Holder of an Allowed 8.00% First Lien Notes Claim shall receive its Pro Rata share of the Cash payment pursuant to the First Lien Notes Recovery as compromised in accordance with the Secured Creditor Settlement (discussed below).

 

 

9.50% First Lien Notes Claims. Each Holder of an Allowed 9.50% First Lien Notes Claim shall receive its Pro Rata share of the Cash payment pursuant to the First Lien Notes Recovery as compromised in accordance with the Secured Creditor Settlement (discussed below).

 

 

Unsecured Claims against Jackson. Each Holder of an Allowed Unsecured Claim against Jackson shall receive its pro rata share of (i) ninety-six percent (96%) of New Common Stock, (ii) one hundred percent (100%) of the Series A CVRs, (iii) sixty-seven and one-half percent (67.5%) of the Series B CVRs, and (iv) $625 million in Cash in accordance with the Value Allocation set forth in Exhibit A of the Plan.

 

 

Unsecured Claims against Jackson Subsidiaries. Each Holder of an Allowed Unsecured Claim against Jackson Subsidiaries shall receive its pro rata share of (i) ninety-six percent (96%) of New Common Stock, (ii) one hundred percent (100%) of the Series A CVRs, (iii) sixty-seven and one-half percent (67.5%) of the Series B CVRs, and (iv) $625 million in Cash in accordance with the Value Allocation set forth in Exhibit A of the Plan.


 

Unsecured Claims against ICF. Each Holder of an Allowed Unsecured Claim against ICF will receive its pro rata share of, (i) after payment of Restructuring Expenses, funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with the Plan, and payment of the Incremental Connect Contribution, all remaining Cash at ICF, (ii) thirty two and one-half percent (32.5%) of the Series B CVRs, (iii) four percent (4.0%) of New Common Stock, (iv) one hundred percent (100%) of the New Series A Warrants, (v) 46.447 percent (46.447%) of the New Series B Warrants.

 

 

Unsecured Claims against Envision. Each Holder of an Allowed Unsecured Claim against Envision will receive its pro rata share of, (i) after payment of Restructuring Expenses and funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with the Plan, all remaining Cash at Envision, which will divided so that (a) seventy percent (70%) of such Cash will be distributed pro rata to Holders of the Connect Senior Notes Claims against Envision and (b) thirty percent (30%) of such Cash will be distributed pro rata to Holders of the Convertible Senior Notes Claims against Envision and (ii) 47.301 percent (47.301%) of the New Series B Warrants.

 

 

Unsecured Claims against LuxCo. Each Holder of an Allowed Unsecured Claim against LuxCo will receive its pro rata share of, subject to payment of Restructuring Expenses and funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with this Plan, (i) all remaining Cash at LuxCo and (ii) $10.0 million of the Cash proceeds of the New Debt.

 

 

Unsecured Claims against the Company. Each Holder of an Allowed Unsecured Claim against the Company shall receive its pro rata share of (i) any remaining Cash at the Company, (ii) $37.5 million in Cash from the proceeds of the New Debt, (iii) solely with respect to Holders of Allowed Unsecured Claims against the Company that are not subject to the HoldCo Creditor Ad Hoc Group Waiver, the Incremental J1 Recovery, in the case of preceding clauses (i) and (ii), subject to the payment of Restructuring Expenses, if any, solely to the extent payable by the Company in accordance with Article II.C.2 of the Plan, and the Reorganized TopCo Formation Costs, and the funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with the Plan (which will not be made from the Incremental J1 Recovery), (iv) 6.252 percent (6.252%) of the New Series B Warrants, and (v) 100 percent (100%) of the Reorganized S.A. Common Stock (subject to dilution by the exercise of the ISA Warrants, if any).

 

 

Interests in the Company. No distributions will be made under the Plan in respect of Interests in the Company. On the Effective Date, Holders of Interests in the Company will have their Interests diluted and extinguished by the equity distributions made pursuant to the Plan and will receive no distribution on account of their Interests. However, if the Equity Group Stipulation Settlement Order is entered and is not stayed, and a Holder of an Interest in the Company successfully opts into the Equity Group Settlement, then such Holder will receive its pro rata share of ISA Warrants for up to 10 percent (10%) of Reorganized S.A. Common Stock.

All distributions of Securities of the Equity Issuer are subject to the following dilution principles: (a) New Common Stock is subject to dilution of (i) up to nine percent (9.0%) by shares of New Common Stock issued pursuant to the exercise of the New Series A Warrants, (ii) up to two and a half percent (2.5%) by shares of New Common Stock issued pursuant to the exercise of the New Series B Warrants, and (iii) 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; (b) New Common Stock issued pursuant to the exercise of the New Series A Warrants shall be subject to dilution of (i) up to two and a half percent (2.5%) by shares of New Common Stock issued pursuant to the exercise of the New Series B Warrants and (ii) 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; (c) New Common Stock issued pursuant to the exercise of the New Series B Warrants shall be subject to dilution of 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; and (d) New Common Stock issued pursuant to the Management Incentive Plan shall not be subject to any dilution.

Secured Creditor Settlement

The Plan incorporates the Term Loan Facility Claims Settlement, part of the Secured Creditor Settlement, which is attached as Exhibit 1 to the Order Approving the Secured Creditor Settlement Agreement and Granting Relief entered by the Bankruptcy Court on December 16, 2021 at docket number 3853 (the “Settlement Order”). The First Lien Notes Claims Settlement was approved pursuant to the Settlement Order. The Secured Creditor Settlement includes, among other things, the following key terms:

 

 

8.00% First Lien Notes Claims are Allowed in the amount equal to: (a) the full outstanding principal amount; (b) any accrued and unpaid interest on the principal amount calculated through and including the later of (i) the date on which the 8.00% First Lien Notes Claims (as settled in the Secured Creditor Settlement) and Term Loan Facility Claims (as settled in the Secured Creditor Settlement) are paid in full in cash after entry of the Confirmation Order or (ii) the closing of the DIP-to-Exit Financing (if authorized), or, (iii) solely with respect to the 8.00% First Lien Notes Claims, January 31, 2022 (the “Funding Date”) at the contractual rate; and (c) 77 percent (77%) of the aggregate amount of any premium and/or make-whole amounts so claimed to be payable under the 8.00% First Lien Notes Indentures, along with interest thereon at the contractual rate calculated through and including the Funding Date minus $3,690,072.17;

 

 

9.50% First Lien Notes Claims are Allowed in the amount equal to: (a) the full outstanding principal amount; (b) any accrued and unpaid interest on the principal amount calculated through and including the later of (i) the date on which the 9.50% First Lien Notes Claims (as settled in the Secured Creditor Settlement) and Term Loan Facility Claims (as settled in the Secured Creditor Settlement) are paid in full in cash after entry of the Confirmation Order or (ii) the closing of the DIP-to-Exit Financing (if authorized), or, (iii) solely with respect to the 9.50% First Lien Notes Claims, the Funding Date, at the contractual rate; and (c) 77 percent (77%) of the aggregate amount of any premium and/or make-whole amounts so claimed to be payable under the 9.50% First Lien Notes Indentures, along with interest thereon at the contractual rate calculated through and including the Funding Date minus $14,309,927.83; and


 

Term Loan Facility Claims are Allowed in the amount equal to: (i) the full outstanding principal amount; (ii) any accrued interest calculated through and including the Funding Date at the contractual rate applicable to ABR Loans (in the case of Tranche B-3 Term Loans and Tranche B-4 Term Loans) and applicable to Fixed Rate Loans (in the case of Tranche B-5 Term Loans); and (iii) 90 percent (90%) of the accrued default interest through the Funding Date on the ABR Loans and Fixed Rate Loans.

Settlement

The Plan will effectuate the settlement, release, compromise, discharge, and other resolution of all outstanding claims, interests and causes of action. Additionally, the Plan incorporates the settlement, release, compromise, discharge, and other resolution of all known and unknown claims, interests, causes of action, and disputes, by and among the Company and its direct and indirect subsidiaries who are debtors and debtors in possession in the Chapter 11 Cases, arising prior to the Effective Date, on the terms set forth in the Settlement Agreement filed at docket number 3156 (the “Settlement”). The Settlement was approved by the Bankruptcy Court and became effective upon entry of the Confirmation Order.

The Settlement resolves numerous potential claims and issues, regarding, among other things, the Debtors’ post-emergence organizational structure, numerous considerations regarding the Debtors’ Luxembourg tax profile (including, among other things, preservation of the Luxembourg tax unity and the use of certain tax attributes), the receipt and allocation of any accelerated relocation payments and related reimbursements, intercompany transactions that arose in the course of the Debtors’ business prior to the Petition Date (including certain transactions and/or balances that, absent the Settlement, could potentially be the subject of fact-intensive and time-consuming litigation), and allocation of certain administrative expenses and postpetition intercompany balances.

New Common Stock

As of December 17, 2021, there were 142,184,518 of shares of the Company’s common stock outstanding. On the Effective Date, pursuant to the Plan and the Confirmation Order, all outstanding equity interests in the Company will be deemed extinguished following the Restructuring Transactions (to the fullest extent practicable under Luxembourg law and the procedures of DTC) and holders of the common shares will not receive a distribution on account of their equity interests. Therefore, trading prices for the common stock may bear little or no relationship to the actual recovery, if any, by holders of the common shares in the Chapter 11 Cases.

As discussed above, the Reorganized S.A. Common Stock and Equity Issuer’s new common shares issued pursuant to the Plan will be issued without registration under the Securities Act or any similar federal, state, or local law in reliance upon section 1145 of the Bankruptcy Code and/or Section 4(a)(2) of the Securities Act and Regulation D thereunder. Additionally, the Company intends to file a Notice of Suspension of Duty to File Reports under Section 13 and 15(d) of the Securities Exchange Act of 1934 on Form 15 with the U.S. Securities and Exchange Commission prior to or on the Effective Date of the Plan.

Certain Information Regarding Assets and Liabilities of the Company Parties

In the Company’s most recent monthly operating report filed with the Bankruptcy Court on December 15, 2021, the Company reported total assets of approximately $14.4 billion and total liabilities of approximately $20.8 billion as of


October 31, 2021. This financial information has not been audited or reviewed by the Company’s independent registered public accounting firm and may be subject to future reconciliation or adjustments. This information should not be viewed as indicative of future results.

The Company Parties’ emergence from the Chapter 11 Cases is subject to, among other things, certain regulatory approvals. This summary is qualified in its entirety by reference to the full text of the Confirmation Order and the Plan, which are attached hereto as Exhibit 99.1 and Exhibit 2.1, respectively, and incorporated herein by reference.

 

ITEM 8.01.

OTHER EVENTS.

On December 16, 2021, the Company issued a press release announcing the confirmation of the Plan, which is attached hereto as Exhibit 99.2 and incorporated herein by reference.

Cautionary Note Regarding the Company’s Securities

The Company cautions that trading in the Company’s securities during the pendency of the Chapter 11 Cases is highly speculative and poses substantial risks. Trading prices for the Company’s securities may bear little or no relationship to the actual recovery, if any, by holders of the Company’s securities in the Chapter 11 Cases.

Forward-Looking Statements

This Current Report on Form 8-K contains “forward-looking statements” related to future events. Forward-looking statements contain words such as “expect,” “anticipate,” “could,” “should,” “intend,” “plan,” “believe,” “seek,” “see,” “may,” “will,” “would,” or “target.” Forward-looking statements are based on management’s current expectations, beliefs, assumptions and estimates and may include, for example, statements regarding the Chapter 11 Cases, the Company’s ability to complete a financial restructuring and its ability to continue operating in the ordinary course while the Chapter 11 Cases are pending. These statements are subject to significant risks, uncertainties, and assumptions that are difficult to predict and could cause actual results to differ materially and adversely from those expressed or implied in the forward-looking statements, including risks and uncertainties regarding the Company’s ability to successfully complete a restructuring under the Chapter 11 Cases, including: consummation of the Plan or another plan of reorganization; potential adverse effects of the Chapter 11 Cases on the Company’s liquidity and results of operations; the Company’s ability to obtain timely approval by the Bankruptcy Court with respect to the motions filed in the Chapter 11 Cases; pleadings filed that could protract the Chapter 11 Cases; employee attrition and the Company’s ability to retain senior management and other key personnel due to the distractions and uncertainties imposed by the Chapter 11 Cases; the Company’s ability to comply with the conditions and restrictions imposed by the terms and conditions of our debtor-in-possession financing, including the potential DIP-to-Exit Financing, and other financing arrangements and the risk that these conditions may not be satisfied for various reasons, including for reasons outside of the Company’s control; the Company’s ability to maintain relationships with suppliers, customers, employees and other third parties and regulatory authorities as a result of the Chapter 11 Cases; the effects of the Chapter 11 Cases on the Company and on the interests of various constituents, including holders of the Company’s securities; the Bankruptcy Court’s rulings in the Chapter 11 Cases, including the approvals of the terms and conditions of the Plan or any plan of reorganization, and the outcome of the Chapter 11 Cases generally; the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of the Chapter 11 Cases; risks associated with third-party motions in the Chapter 11 Cases, which may interfere with the Company’s ability to consummate the Plan or an alternative restructuring; increased administrative and legal costs related to the Chapter 11 process; potential delays in the Chapter 11 process due to the effects of the COVID-19 virus; interference with the Company’s ability to interact with its regulators, including the U.S. Federal Communications Commission (the “FCC”) and compliance with FCC orders; and other litigation and inherent risks involved in a bankruptcy process.

Any forward-looking statements are also subject to the risk factors and cautionary language described from time to time in the reports the Company files with the SEC, including those in the Company’s most recent Annual Report on Form 10-K and any updates thereto in the Company’s Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. These risks and uncertainties may cause actual future results to be materially different than those expressed in such forward-looking statements. The Company has no obligation to update or revise these forward-looking statements and does not undertake to do so.


ITEM 9.01.

FINANCIAL STATEMENTS AND EXHIBITS.

(d)      Exhibits

 

Exhibit
No.
  

Description

2.1    Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates (included as Exhibit A to the Order Confirming the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates)
99.1    Order Confirming the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates
99.2    Press Release
104    Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document


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.

 

    INTELSAT S.A.
    By:  

/s/ Michelle Bryan

Date: December 20, 2021     Name:   Michelle Bryan
    Title:   General Counsel, Chief Administrative Officer and Secretary
EX-99.1

Exhibit 99.1

 

Edward O. Sassower, P.C. (admitted pro hac vice)    Michael A. Condyles (VA 27807)
Steven N. Serajeddini, P.C. (admitted pro hac vice)    Peter J. Barrett (VA 46179)
Aparna Yenamandra (admitted pro hac vice)    Jeremy S. Williams (VA 77469)
KIRKLAND & ELLIS LLP    KUTAK ROCK LLP
KIRKLAND & ELLIS INTERNATIONAL LLP    901 East Byrd Street, Suite 1000
601 Lexington Avenue    Richmond, Virginia 23219-4071
New York, New York 10022    Telephone:          (804) 644-1700
Telephone:            (212) 446-4800    Facsimile:           (804) 783-6192
Facsimile:             (212) 446-4900   

 

Co-Counsel to the Debtors and Debtors in Possession

  

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

 

     )   
In re:    )    Chapter 11
   )   
INTELSAT S.A., et al.,1    )    Case No. 20-32299 (KLP)
   )   
Debtors.    )    (Jointly Administered)
     )   

ORDER CONFIRMING THE FOURTH AMENDED JOINT

CHAPTER 11 PLAN OF REORGANIZATION OF INTELSAT S.A.

AND ITS DEBTOR AFFILIATES AND APPROVING THE SETTLEMENT

PURSUANT TO SECTION 1123(B)(3)(A) OF THE BANKRUPTCY CODE

AND RULE 9019 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE

 

WHEREAS, Intelsat S.A. and the other above-captioned debtors and debtors in possession (collectively, the “Debtors”) have, among other things:

 

  a.

commenced, on May 13, 2020 (the “Petition Date”), these chapter 11 cases (the “Chapter 11 Cases”) by filing voluntary petitions in the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Court”) for relief under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”);2

 

1 

Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the Debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.stretto.com/intelsat. The location of the Debtors’ service address is: 7900 Tysons One Place, McLean, VA 22102.

2

Capitalized terms used but not otherwise defined in these findings of fact, conclusions of law, and order (collectively, the “Confirmation Order”) have the meanings given to them in the Plan (as defined herein), the Confirmation Brief (as defined herein), or the Settlement Agreement (as defined herein), as applicable. The rules of interpretation set forth in Article I.B of the Plan apply to this Confirmation Order; provided that the captions and titles of sections of this Confirmation Order are intended to affect the interpretation.


  b.

continued to operate their businesses and manage their properties as debtors in possession in accordance with sections 1107(a) and 1108 of the Bankruptcy Code;

 

  c.

filed, on February 12, 2021, the Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 1467], the Disclosure Statement for the Joint Chapter 11 Plans of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 1468], and the Debtors Motion for Entry of an Order (I) Approving the Adequacy of the Disclosure Statement, (II) Approving the Solicitation Procedures with Respect to Confirmation of the Debtors Chapter 11 Plan, (III) Approving the Forms of Ballots and Notices in Connection Therewith, (IV) Scheduling Certain Dates with Respect Thereto, and (V) Granting Related Relief [Docket No. 1469];

 

  d.

filed, on August 24, 2021, the Notice of Filing of Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 2692] and the Notice of Filing of Amended Proposed Order (I) Approving the Adequacy of the Disclosure Statement, (II) Approving the Solicitation Procedures with Respect to Confirmation of the Debtors Proposed Amended Chapter 11 Plan, (III) Approving the Forms of Ballots and Notices in Connection Therewith, (IV)Scheduling Certain Dates with Respect Thereto, and (V) Granting Related Relief [Docket No. 2694];

 

  e.

filed, on August 31, 2021 the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 2773], the Second Amended Disclosure Statement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 2774] and the Notice of Filing of Second Amended Proposed Order (I) Approving Adequacy of the Disclosure Statement, (II) Approving the Solicitation Procedures with Respect to Confirmation of the Debtors Proposed Amended Chapter 11 Plan, (III) Approving the Forms of Ballots and Notices in Connection Therewith, (IV) Scheduling Certain Dates with Respect Thereto, and (V) Granting Related Relief [Docket No. 2776];

 

  f.

filed, on September 2, 2021, the Notice of Filing of Third Amended Proposed Order (I) Approving the Adequacy of the Disclosure Statement, (II) Approving the Solicitation Procedures with Respect to Confirmation of the Debtors Proposed Chapter 11 Plan, (III) Approving the Forms of Ballots and Notices in Connection Therewith, (IV) Scheduling Certain Dates with Respect Thereto, and (V) Granting Related Relief [Docket No. 2794];

 

  g.

obtained, on September 7, 2021, entry of the Order (I) Approving the Adequacy of the Disclosure Statement, (II) Approving the Solicitation Procedures with Respect to Confirmation of the Debtors Proposed Plan of Reorganization, (III) Approving the Forms of Ballots and Notices in Connection Therewith, (IV) Scheduling Certain Dates with Respect Thereto, and (V) Granting Related Relief [Docket No. 2815]

 

2


  (the “Disclosure Statement Order”) approving the Disclosure Statement, voting and solicitation procedures (the “Solicitation Procedures”), and related notices, forms, and ballots (collectively, the “Solicitation Packages”) and related dates and deadlines;

 

  h.

caused the Solicitation Packages and notice of the Confirmation Hearing and the deadline for objecting to Confirmation of the Plan to be distributed on or about September 8, 2021 (the “Solicitation Date”), in accordance with the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), the Disclosure Statement Order, and the Solicitation Procedures, as evidenced by, among other things, the Affidavit of Service [Docket No. 2979] (the “Solicitation Affidavits”);

 

  i.

filed, on October 19, 2021, the Notice of Filing Plan Supplement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3156], which included: (A) Shareholders Agreement, (B) Articles of Association, (C) Registration Rights Agreement, (D) New Series A Warrant Agreement, (E) New Series B Warrant Agreement, (F) Settlement Agreement, (G) Restructuring Steps Memorandum, (H) Series A CVR Agreement, (I) Series B CVR Agreement, (J) Rejected Executory Contract and Unexpired Lease List, (K) Assumed Executory Contract and Unexpired Lease List, and (L) Schedule of Retained Causes of Action; filed, on October 21, 2021, the Notice of Filing Second Plan Supplement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3188], which included a disclosure regarding the members of the Equity Issuer Board; filed on November 19, 2021, the Notice of Filing of Revised Exhibit M to Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat, S.A. and Its Debtor Affiliates [Docket No. 3529], which included members of the Equity Issuer Board; filed, on November 23, 2021, the Notice of Filing Fourth Plan Supplement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3624], which included the Amended Assumed Executory Contract and Unexpired Lease List; filed, on December 3, 2021, the Notice of Filing Fifth Plan Supplement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3718], which included the Second Amended Assumed Executory Contract and Unexpired Lease List, the Amended Schedule of Retained Causes of Action, and Management Incentive Plan Documents (collectively, together with each Notice of Filing Plan Supplement and as amended or supplemented thereafter, the “Plan Supplement”);

 

  j.

filed, on November 1, 2021, the Notice of Filing of Revised Agreed Proposed Pre-Trial Order Governing the Confirmation Hearing and Amending Certain Confirmation Dates in these Chapter 11 Cases [Docket No. 3278];

 

  k.

filed, on November 22, 2021, the Certification of Stretto Regarding Tabulation of Votes and Opt-Out Forms In Connection with the Debtors Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3588] (the “Voting Report”);

 

3


  l.

filed, on November 23, 2021, the Memorandum of Law in Support of (I) Confirmation of the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates Pursuant to Section 1129 of the Bankruptcy Code and (II) Settlement Pursuant to Section 1123(B)(3)(A) of the Bankruptcy Code and Rule 9019 of the Federal Rules of Bankruptcy Procedure [Docket No. 3629] (the “Confirmation Brief”);

 

  m.

filed, on November 30, 2021, the Declaration and Direct Testimony of Michelle Bryan in Support of the Second Amended Plan of Reorganization [Docket No. 3662] (the “Bryan Declaration”), Declaration and Direct Testimony of Stephen Spengler in Support of the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3664] (the “Spengler Declaration”), Declaration and Direct Testimony of David Tolley in Support of the Second Amended Plan of Reorganization [Docket No. 3670] (the “Tolley Declaration”), Trial Declaration of Professor Andrè Prüm in Support of the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A., and Its Debtor Affiliates [Docket No. 3672] (the “Prum Declaration”), and the Submission of Edouard Authamayou, In Support of the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A., and Its Debtor Affiliates [Docket No. 3673] (the “Authamayou Declaration”); filed, on December 5, 2021, the Declaration of Gary Begeman, Member of Jackson Special Committee, in Support of Debtors Second Amended Plan [Docket No. 3721] (the “Begeman Declaration”), the Declaration of Jeffrey E. Clegg, in Support of the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A., and Its Debtor Affiliates [Docket No. 3723] (the “Clegg Declaration”), the Declaration and Direct Testimony of James C. Murray in Support of the Second Amended Plan of Reorganization [Docket No. 3725] (the “Murray Declaration”), the Declaration and Direct Testimony of John T. Nakahata [Docket No. 3726] (the “Nakahata Declaration”), the Declaration of Edward Kangas [Docket No. 3727] (the “Kangas Declaration”), and the Declaration of John Diercksen [Docket No. 3728] (the “Diercksen Declaration”); filed, on December 6, 2021, the Declaration and Direct Testimony of Zach Georgeson in Support of the Second Amended Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3738] (the “Georgeson Declaration”), Declaration of Justin P. Schmaltz in Support of the Third Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A., and Its Debtor Affiliates [Docket No. 3740] (the “Schmaltz Declaration”), Declaration and Direct Testimony of Jeffrey S. Stein in Support of the Third Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3741] (the “Stein Declaration”); filed, on December 7, 2021, the Declaration and Direct Testimony of Steven Zelin [Docket No. 3757] (the “Zelin Declaration” and together with the Bryan Declaration, the Spengler Declaration, the Tolley Declaration, the Prum Declaration, the Authamayou Declaration, the Begeman Declaration, the Clegg Declaration, the Murray Declaration, the Nakahata Declaration, the Kangas Declaration, the Diercksen Declaration, the Georgeson Declaration, the Schmaltz Declaration, the Stein Declaration, and the Zelin Declaration, the “Declarations”);

 

4


  n.

filed, on December 4, 2021, the Notice of Resolution of SES Americom, Inc.’s Objection to Second Amended Joint Chapter 11 Plan of Intelsat S.A. and its Debtor Affiliates [Docket No. 3719];

 

  o.

filed, on December 4, 2021, the Third Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3720];

 

  p.

filed, on December 5, 2021, the Notice of Resolution of Ad Hoc Equity Group’s Objection to Confirmation of the Debtors’ Second Amended Joint Chapter 11 Plan of Reorganization [Docket No. 3729] (the “Equity Group Stipulation”);3

 

  q.

filed, on December 14, 2021, the Notice of Filing of Proposed Order Confirming the Third Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates and Approving the Settlement Pursuant to Section 1123(B)(3)(A) of The Bankruptcy Code and Rule 9019 of the Federal Rules of Bankruptcy Procedure [Docket No. 3828];

 

  r.

filed, on December 15, 2021, the Notice of Resolution of the First Lien Notes Claims [Docket No. 3847];

 

  s.

filed, on December 17, 2021, the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates (as amended, modified, or supplemented in accordance with its terms from time to time, the “Plan”); and

 

  t.

filed, on December 17, 2021, the Notice of Filing of Revised Proposed Order Confirming the Fourth Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates and Approving the Settlement Pursuant to Section 1123(B)(3)(A) of The Bankruptcy Code and Rule 9019 of the Federal Rules of Bankruptcy Procedure.

This Bankruptcy Court having:

 

  a.

entered the Order (I) Authorizing and Approving Procedures to Reject or Assume Executory Contracts and Unexpired Leases, (II) Approving the Form and Manner of the (A) Rejection Notice and (B) Assumption Notice, and (III) Granting Related Relief [Docket No. 731] (the “Procedures Order”) on September 1, 2020;

 

  b.

entered the Disclosure Statement Order on September 7, 2021 [Docket No. 2815];

 

  c.

entered the Pre-Trial Order Governing the Confirmation Hearing and Amending Certain Confirmation Dates in These Chapter 11 Cases [Docket No. 3289] (the “Scheduling Order”) on November 2, 2021;

 

 

3 

For the avoidance of doubt, nothing in this Confirmation Order affects, authorizes, or approves the relief contemplated by the Equity Group Stipulation, and such relief, if any, shall be presented to the Bankruptcy Court via a separate motion and subject to approval by a separate order.

 

5


  d.

entered the Order Approving the Secured Creditor Settlement and Granting Related Relief [Docket No. 3853] on December 16, 2021;

 

  e.

set October 29, 2021, at 5:00 p.m. (prevailing Eastern Time), as the deadline to vote on the Plan (the “Voting Deadline”);

 

  f.

set November 12, 2021 as the deadline to file objections to the Plan (the “Plan Objection Deadline”);

 

  g.

set November 23, 2021 as the deadline to file replies in support of Confirmation, standing, and objections to the Guarantee Claims litigation (the “Reply Deadline”);

 

  h.

set December 2, 2021, at 10:00 a.m. (prevailing Eastern Time) as the date and time for the commencement of the Confirmation Hearing, which hearing was subsequently adjourned to December 6, 2021, at 10:00 a.m. (prevailing Eastern Time) in accordance with rules 3017 and 3018 of the Bankruptcy Rules and sections 1126, 1128, and 1129 of the Bankruptcy Code;

 

  i.

reviewed the Plan, the Disclosure Statement, the Confirmation Brief, the Voting Report, the Declarations and all pleadings, exhibits, statements, objections, responses, and comments regarding Confirmation, including all objections, statements, and reservations of rights filed by parties in interest on the docket of the Chapter 11 Cases;

 

  j.

reviewed the discharge, compromises, settlements, releases, exculpations, and injunctions set forth in Article VIII of the Plan and the Settlement Agreement;

 

  k.

held the Confirmation Hearing;

 

  l.

considered the statements, arguments, and objections made by counsel at the Confirmation Hearing with respect to Confirmation;

 

  m.

considered all oral representations, live testimony, written direct testimony, exhibits, documents, filings, and other evidence presented at the Confirmation Hearing;

 

  n.

entered rulings on the record at the Confirmation Hearing commenced on December 6, 2021 (the “Confirmation Ruling”);

 

  o.

overruled any and all objections to the Plan and Confirmation, and all statements and reservations of rights not consensually resolved, agreed to, or withdrawn, unless otherwise stated or indicated on the record; and

 

  p.

taken judicial notice of all papers and pleadings filed in the Chapter 11 Cases.

NOW, THEREFORE, the Bankruptcy Court having found that notice of the Confirmation Hearing and the opportunity for any party in interest to object to Confirmation have

 

6


been adequate and appropriate as to all parties affected or to be affected by the Plan and the transactions contemplated thereby; and the record of the Chapter 11 Cases and the legal and factual bases set forth in the documents filed in support of Confirmation and presented at the Confirmation Hearing including, without limitation, the Voting Report and the Declarations, establish just cause for the relief granted in this Confirmation Order; and after due deliberation thereon and good cause appearing therefor, the Bankruptcy Court hereby makes and issues the following findings of fact, conclusions of law, and order:4

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

IT IS HEREBY FOUND AND DETERMINED THAT:

 

A.

General Findings

1.    The evidence before the Bankruptcy Court supports the confirmation of the Plan and approval of the Settlement incorporated therein.

2.    The Debtors satisfied all procedural and due process requirements with regard to the Plan (including the Settlement incorporated therein). Due and proper notice and opportunity to be heard have been given as to the Plan and the Settlement incorporated therein.

3.    Among other considerations set forth herein, it is particularly compelling that the Plan is near-unanimously supported by the Debtors, the Disinterested Directors, the Committee, ad hoc groups representing nearly all of the Debtors’ funded debt, the Equity Group, SES, and all Plan Classes in which votes were cast.

 

B.

Jurisdiction and Venue

4.    The Bankruptcy Court has subject matter jurisdiction over this matter under 28 U.S.C. §§ 157 and 1334 and the Standing Order of Reference from the United States

 

4 

If any finding is in truth a conclusion of law, or if any conclusion stated is in truth a finding of fact, it shall be deemed so and adopted as such.

 

7


District Court for the Eastern District of Virginia, dated July 10, 1984. The Bankruptcy Court has exclusive jurisdiction to determine whether the Plan complies with the applicable provisions of the Bankruptcy Code and should be confirmed. The Debtors confirm their consent, pursuant to Bankruptcy Rule 7008, to entry of a final order by the Bankruptcy Court in connection with Confirmation to the extent that it is later determined that the Bankruptcy Court, absent consent of the parties, cannot enter final orders or judgments in connection herewith consistent with Article III of the United States Constitution. Venue in this Bankruptcy Court was proper as of the Petition Date and continues to be proper under 28 U.S.C. §§ 1408 and 1409. Confirmation of the Plan is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2).

 

C.

Eligibility for Relief

5.    The Debtors were and continue to be entities eligible for relief under section 109 of the Bankruptcy Code.

 

D.

Commencement and Joint Administration of the Chapter 11 Cases

6.    On the Petition Date, the Debtors commenced the Chapter 11 Cases by filing voluntary petitions for relief under chapter 11 of the Bankruptcy Code.

7.    The Debtors’ decision to commence these Chapter 11 Cases was primarily driven by two major, unexpected challenges that constrained liquidity and increased the needs of the Debtors (together with their non-Debtor affiliates, the “Company”) for financing immediately prior to the Petition Date:5

 

   

Compliance with the FCC Order. On March 3, 2020, the Federal Communications Commission (the “FCC”) issued its Final Order (as defined below) compelling Intelsat License LLC (“License LLC”) to vacate a portion of the C-band for use by new fifth-generation (“5G”) terrestrial wireless networks.6 According to the FCC Order, License LLC, as an FCC licensee authorized to operate in the C-band, is required to cease

 

5 

See Tolley Decl. ¶ 8.

6 

FCC Order (Ex. No. DCX 0053).

 

8


 

transmitting from the lower 300 MHz over the continental United States no later than December 5, 2025. To be eligible for approximately $4.87 billion in payments (the “Accelerated Relocation Payments” or “ARPs”), License LLC must have ceased using the lowest 120 MHz (3700–3820 MHz) of the C-band by December 5, 2021, and ceased using the remaining 180 MHz (3820–4000 MHz) range no later than December 5, 2023. While significant, the ARPs offered in the FCC Order were far below the amount the Company had hoped to receive, and also placed an additional strain on the Company’s liquidity, given it will need to spend more than $1.5 billion in the spectrum clearing process (of which approximately $1 billion had already been invested).7

 

   

The COVID-19 Pandemic. The COVID-19 pandemic had a devastating impact on many of the Company’s important customers in the airline and maritime industries. As a result of both the spread of COVID-19 and the various governmental responses thereto, consumer travel declined precipitously in 2020. The Company, among other things, is one of the largest providers of broadband services to airlines and cruise ship customers for passenger Internet connectivity, and the business prospects and creditworthiness of the Company’s customers serving those industries declined accordingly. Notably, the pandemic and its attendant economic contraction were material factors in the chapter 11 filings of several of the Company’s customers, distributors, or other stakeholders.8

8.    On May 15, 2020, the Bankruptcy Court entered an order [Docket No. 89] authorizing the joint administration of the Chapter 11 Cases in accordance with Bankruptcy Rule 1015(b).

 

E.

Appointment of the Creditors’ Committee

9.    On May 27, 2020, the U.S. Trustee appointed the Official Committee of Unsecured Creditors (the “Committee”) to represent the interests of the unsecured creditors of the Debtors in the Chapter 11 Cases [Docket No. 193].

 

F.

Transition Into Chapter 11

10.    Since the commencement of these Chapter 11 Cases, the Debtors have operated their business and managed their properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code. The Debtors obtained authority from the Bankruptcy Court to

 

7 

Id.

8 

Id.

 

9


operate their business in a manner substantially consistent with their prepetition practices through a variety of “first day motions” and related court orders.9 On June 9, 2020, the Court authorized the Debtors to enter into the Original DIP Credit Agreement,10 which was subsequently amended in connection with the Gogo Transaction (as defined in the Disclosure Statement), and which provided the Debtors with access to liquidity during these Chapter 11 Cases.11

 

G.

Formulation of the Business Plan

11.    Over the course of these Chapter 11 Cases, the Debtors and their advisors devoted considerable time and effort to formulating a go-forward business plan (the “Business Plan”).

12.    The Business Plan is a detailed comprehensive plan developed over a period of time that describes the Company’s expected performance over the next five years.12 The Company originally presented the Business Plan to stakeholders in October 2020 so that it could serve as one foundational element of negotiations of a plan of reorganization. The Company further updated the Business Plan, including in August of 2021.13

 

9 

See, e.g., Final Order (A) Authorizing the Debtors to (I) Continue to Operate Their Cash Management System, (II) Maintain Existing Business Forms and Books and Records, and (III) Perform Intercompany Transactions and Granting Administrative Expense Status to Intercompany Transactions and (B) Granting Related Relief [Docket No. 260] (the “Cash Management Order”); Final Order (A) Authorizing the Debtors to (I) Pay Prepetition Wages, Compensation, and Benefit Obligations and (II) Continue Employee Compensation and Benefits Programs, and (B) Granting Related Relief [Docket No. 262]; Final Order (A) Authorizing the Payment of (I) Foreign Claims, (II) Lien Claims, (III) 503(b)(9) Claims, and (IV) Critical Vendor Claims, (B) Confirming Administrative Expense Priority of Outstanding Purchase Orders, and (C) Granting Related Relief [Docket No. 263]; Final Order (A) Authorizing the Debtors to Continue to Honor Customer-Related Obligations in the Ordinary Course of Business and (B) Granting Related Relief [Docket No. 275]; Final Order (A) Authorizing the Payment of Certain Prepetition Taxes and Fees and (B) Granting Related Relief [Docket No. 277]; Final Order (A) Authorizing the Debtors to (I) Maintain, Renew, or Supplement Their Insurance Policies and Honor All Obligations in Respect Thereof, and (II) Maintain, Renew, or Supplement Their Surety Bond Program, and (B) Granting Related Relief [Docket No. 279]; Final Order (A)(I) Approving the Debtors’ Proposed Adequate Assurance of Payment for Future Utility Services, (II) Approving the Debtors’ Proposed Procedures for Resolving Additional Assurance Requests, (III) Prohibiting Utility Providers from Altering, Refusing, or Disconnecting Services, and (IV) Authorizing Fee Payments to the Debtors’ Third-Party Utility Service Vendor and (B) Granting Related Relief [Docket No. 280].

10 

See Final Order (A) Authorizing the Debtors to Obtain Postpetition Financing, (B) Authorizing the Debtors to Use Cash Collateral (C) Granting Liens and Superpriority Administrative Expense Claims, (D) Granting Adequate Protection to the Prepetition Secured Parties, (E) Modifying the Automatic Stay, and (F) Granting Related Relief [Docket No. 285] (the “Original DIP Order”); see also Original DIP Credit Agreement (Ex. No. DCX 0164).

11 

See Order (I) Authorizing the Debtors to (A) Consummate a Proposed Transaction and (B) Enter Into an Amendment to the DIP Credit Agreement and (II) Granting Related Relief [Docket No. 720] (the “Sale Order”).

12 

Tolley Decl. ¶ 11.

13 

Id.

 

10


13.    The Business Plan was prepared in good faith by the finance team under the direction of David Tolley, with the assistance of sophisticated restructuring advisors at Alvarez & Marsal North America LLC (“A&M”) and PJT Partners (“PJT”).14

 

H.

Diligence, Investigation of Claims and Causes of Action; Special Committees

14.    To ensure a thorough and disinterested investigation, analysis, and negotiation of many complicated issues across the Debtor entities, the Debtors worked with outside counsel to identify different funded debt creditors at various levels of the Company.15 The Debtors identified Intelsat S.A., LuxCo, Intelsat Envision Holdings LLC (“Envision”), ICF, and Jackson as entities that might face potential conflicts relating to the large funded debt claimants with valid claims at such entities.16 Following a search process led by Ms. Bryan,17 disinterested and independent directors were appointed to serve on special committees representing Intelsat S.A., LuxCo, Envision, ICF, and Jackson (collectively, the “Special Committees”).18

15.    The Special Committees were vested with exclusive rights, authority, and powers over any matters pertaining to any strategic transaction or transactions in which a conflict of interest existed or was reasonably likely to exist as between Debtor entities and other stakeholders (including equityholders, affiliates, subsidiaries, directors, managers, and officers or other

 

14 

Id.

15 

Bryan Decl. ¶ 56; Kangas Decl. ¶ 20; Diercksen Decl. ¶ 20.

16 

Bryan Decl. ¶ 56.

17 

Id. ¶ 56.

18 

Bryan Decl. ¶ 58; Kangas Decl. ¶¶ 19–25; Diercksen Decl. ¶¶ 19–25.

 

11


stakeholders) (such transactions, the “Conflict Matters”).19 The Special Committee members have an obligation to identify conflicts and, where there is a conflict, make decisions for their respective entities.20 Each Special Committee is separately represented by its own legal and financial advisors,21 and consists of disinterested directors appointed to act in the best interests of their entity only.22

 

(19) 

See, e.g., Intelsat Envision Holdings LLC, Action by Written Consent of the Board of Managers (March 27, 2020) (Ex. No. DCX 0176); Intelsat (Luxembourg) S.A., Written Resolutions of the Board of Directors on Director Appointments and Establishing a Special Committee (March 27, 2020) (Ex. No. DCX 0177); Intelsat Connect Finance S.A., Written Resolutions of the Board of Directors on Director Appointments and Establishing a Special Committee (March 27, 2020) (Ex. No. DCX 0178); Intelsat Jackson Holdings S.A., Written Resolutions of the Board of Directors on Director Appointments and Establishing a Special Committee (March 27, 2020) (Ex. No. DCX 0179); Intelsat S.A., Resolutions Establishing Special Committee (June 18, 2020) (Ex. No DCX 0180).

Intelsat S.A. did not appoint new directors because, unlike the other entities that required special committees, Intelsat S.A. had directors that were not affiliated with other Intelsat entities and believed that these directors could act solely in the best interests of Intelsat S.A., such that hiring additional new outside directors who knew nothing about the business or capital structure would have been wasteful. Bryan Decl. ¶ 61.

 

20 

See, e.g., Bryan Decl. ¶ 59.

21 

Order Granting Application of Intelsat S.A. Authorizing the Employment and Retention of McDonald Hopkins LLC as Special Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of November 8, 2020 [Docket No. 1193]; Order Granting Application of Intelsat S.A. Authorizing the Employment and Retention of Michael Wilson PLC as Special Local Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of November 18, 2020 [Docket No. 1385]; Order Approving Application of Debtor Intelsat S.A. for Entry of an Order Authorizing the Employment and Retention of Portage Point Partners, LLC as Financial Advisor Pursuant to Sections 327(a) and 328(a) of the Bankruptcy Code Effective as of June 23, 2021 [Docket No. 2574]; Order Granting the Application of Intelsat (Luxembourg) S.A. Authorizing the Employment and Retention of Jenner & Block LLP as Special Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of May 1, 2020 [Docket No. 422]; Order Granting the Application of Intelsat (Luxembourg) S.A. Authorizing the Employment and Retention of Ronald Page, PLC as Virginia Special Counsel Pursuant to Sections 327(e) and 328(a) of the Bankruptcy Code Effective as of June 5, 2020 [Docket No. 424]; Order Granting the Application of Intelsat (Luxembourg) S.A. Authorizing the Employment and Retention of Berkeley Research Group, LLC as Financial Advisor Effective as of June 1, 2020 [Docket No.436]; Order Granting Application of Intelsat Envision Holdings LLC Authorizing the Employment and Retention of Katten Muchin Rosenman LLP as Special Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of May 13, 2020 [Docket No. 457]; Order Granting the Application of Intelsat Envision Holdings LLC Authorizing the Employment and Retention of Crenshaw, Ware & Martin, PLC as Virginia Counsel Pursuant to Sections 327(a) and 328(a) of the Bankruptcy Code Effective as of May 13, 2020 [Docket No. 459]; Order Granting Application of Intelsat Envision Holdings LLC Authorizing the Employment and Retention of Province, Inc. as Financial Advisor Pursuant to Sections 327(a), 328(a) and 1107(b) of the Bankruptcy Code Effective as of June 2, 2020 [Docket No. 458]; Order Granting the Application of Intelsat Connect Finance S.A. Authorizing the Employment and Retention of Willkie Farr & Gallagher LLP as Co-Counsel to the Special Committee of Intelsat Connect Finance S.A. Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of May 13, 2020 [Docket No. 437]; Order Granting the Application of Intelsat Connect Finance S.A. for Entry of an Order Authorizing the Employment and Retention Sands Anderson PC as Co-Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of June 4, 2020 [Docket No. 438]; Order Approving Application of Intelsat Connect Finance S.A. to Retain Ankura Consulting Group, LLC as Financial Advisor to the Special Committee of Intelsat Connect Finance S.A. Effective as of June, 1 2020 [Docket No. 493]; Order Granting Application of Debtor Intelsat Jackson Holdings S.A. for Entry of Order Authorizing Employment and Retention of Quinn Emanuel Urquhart & Sullivan, LLP as Special Counsel Pursuant to Sections 327(e), 328(a), and 1107(b) of the Bankruptcy Code Effective as of May 13, 2020 [Docket No. 465]; Order Granting Application of Debtor Intelsat Jackson Holdings S.A. for Entry of Order Authorizing Employment and Retention of Spotts Fain PC Pursuant to Sections 327(e), 328(a) and 1107(b) of the Bankruptcy Code Effective as of May 13, 2020 [Docket No. 466]; Order Authorizing the Retention and Employment of AlixPartners, LLP as Financial Advisor to Intelsat Jackson Holdings S.A. Effective as of May 29, 2020 [Docket No. 467].

22 

See, e.g., Tolley Decl. ¶ 30; Bryan Decl. ¶¶ 59, 85.

 

12


16.    Concurrently with the preparation and entry into the Chapter 11 Cases and formulation of the Business Plan, the Debtors also initiated a large, transparent diligence process in an effort to educate key constituents—including the Jackson First Lien Noteholder Group, the Jackson Crossover Ad Hoc Group, the HoldCo Creditor Ad Hoc Group, the Jackson Ad Hoc Group, the Convert Ad Hoc Group, the Equity Group, the Special Committees, and, after its formation, the Committee—on the complex issues in these cases.23 The Debtors and their advisors also made themselves available for hundreds of formal and informal telephone conferences and presentations to assist parties in interest with their investigations and analyses.24

17.    The Debtors facilitated an exhaustive and independent discovery and diligence process for the benefit of the Special Committees and the ad hoc groups.25 Within this process, each Special Committee spent months gathering and assessing information related to the complex issues within these Chapter 11 Cases, including tax, corporate, litigation, issues of foreign law, and other intercompany issues.26 The Special Committees engaged with one another and relevant creditor groups, including each of the ad hoc groups, as they conducted this due diligence, all of which amounted to a robust and comprehensive investigation of potential claims, including, but not necessarily limited to, the following potential claims or conflict issues:

 

   

the valuation and ownership of the Debtors’ Luxembourg tax attributes (including, among other things, the tax attributes associated with the Luxembourg fiscal unity (the “Tax Unity”)) and the cooperation necessary to preserve these attributes from the perspective of various Debtors;

 

23 

Tolley Decl. ¶ 12.

24 

Id.

25 

See Bryan Decl. ¶ 86.

26 

Bryan Decl. ¶ 86.

 

13


   

which Debtor was entitled to the $4.87 billion of potential payments the Debtors could receive if they met the deadlines in the FCC Order;

 

   

the means and relative leverage points for implementing a chapter 11 transaction of Luxembourg-domiciled entities;

 

   

intercompany claims resulting from historical transactions among Debtor entities;

 

   

claims related to the release of certain bond guarantees in advance of these Chapter 11 Cases;

 

   

the valuation of the Debtors’ highly complex businesses; and

 

   

other claims against the Debtors.27

18.    Each of these issues had potentially significant ramifications for the respective Estates, and analysis of these issues was a key element to the compromises contained in the Plan.28

 

I.

Plan Negotiations.

19.    Discussions on a potential plan structure began toward the end of 2020. In the weeks and months that followed, more creditors signed confidentiality agreements, continuing their diligence efforts. These negotiations continued in earnest until mid-February 2021,29 with each of the restricted parties agreeing to extend their confidentiality agreements multiple times throughout the process. The Debtors (including the Special Committees) expended substantial time and effort engaging with each creditor constituency on the terms of potential plan support agreements, plan term sheets, and a chapter 11 plan that would enjoy the broadest support possible among the Debtors’ stakeholders.30

 

27 

Zelin Decl. ¶ 37.

28 

Id. ¶ 19.

29 

Bryan Decl. ¶ 87.

30 

Zelin Decl. ¶¶ 20-25; Tolley Decl. ¶ 32; Bryan Decl. ¶ 87; Begeman Decl. ¶¶ 13–17.

 

14


20.    Each creditor constituency expressed widely divergent views on substantive issues related to the restructuring, resulting in markedly divergent proposals.31 The Debtors (including the Special Committees) spent an immense amount of time working through the various arguments presented by all sides and pushing the creditors towards reasonable compromises of their positions.32

21.    The negotiations were robust and took place at arm’s length and in good faith.33 In February, after carefully and closely considering every option on the table, the Debtors determined that pursuing the transaction negotiated with the Jackson Ad Hoc Group, the Jackson First Lien Noteholder Group, and the HoldCo Creditor Ad Hoc Group—holders of approximately $4.9 billion of the Company’s funded debt—was in the best interests of the Debtors’ estates at the time. The Debtors entered into a plan support agreement that set forth the agreed upon deal terms between the Debtors and their supporting creditors,34 and on February 12, 2021, filed an initial plan of reorganization reflecting the commitments set forth in such plan support agreement.35 Each Special Committee authorized its respective Debtor entity to support the Initial PSA.36

 

31 

See Tolley Decl. ¶ 33; Begeman Decl. ¶ 13 n.11; Dec. 14 proposal from the HoldCo Creditor Ad Hoc Group (Ex. No. DCX 0211); Dec. 21 proposal from Company (Ex. No. DCX 0217); Dec. 23 proposal from Jackson Crossover Ad Hoc Group (Ex. No. DCX 0218).

32 

Tolley Decl. ¶ 33.

33 

See Zelin Decl. ¶¶ 21-25; Tolley Decl. ¶ 34, Bryan Decl. ¶ 88.

34 

See Disclosure Statement for the Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 1468], Exhibit G (the “Initial PSA”); see also Tolley Decl. ¶ 34; Bryan Decl. ¶ 88.

35 

See Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 1467] (the “Initial Plan”); see also Zelin Decl. ¶¶ 25-27; Tolley Decl. ¶ 34; Bryan Decl. ¶ 88.

36 

Zelin Decl. ¶ 25; Tolley Decl. ¶ 34; Bryan Decl. ¶ 88.

 

15


22.    After the Debtors filed the Initial Plan, they remained committed to continuing to work with all parties in interest.37 The Debtors (including the Special Committees) continued to work with all parties in interest, and further negotiations were productive, with the economic divide between the parties continuing to narrow.38 When it appeared that the entire divide would not be bridged by conventional negotiations, the Debtors filed a motion to compel mediation focused on plan and confirmation-related issues.39

23.    The Court ordered the mediation (the “Mediation”)40 and directed numerous parties in interest41 to participate in mediation led by Chief Judge Frank Santoro as judicial mediator (the “Mediator”).42 The Mediation involved numerous sessions by phone and in person, and the Debtors’ key creditor constituencies engaged actively with each other, both directly and through the Mediator.43 While the specifics of the Mediation process are confidential, the parties emerged from Mediation in August with an agreement in principle between the Jackson Crossover Ad Hoc Group and the HoldCo Creditor Ad Hoc Group who then submitted a joint proposal to the Debtors.44

 

37 

See Debtors’ Second Motion to Extend Their Exclusive Period to File and Solicit Acceptances of a Chapter 11 Plan [Docket No. 1479] at 14 (“The Debtors believe that the Plan . . . represents the first step towards a viable path to resolving these cases. The Debtors will continue to engage with all stakeholders to gain additional support for the Plan during the extended Exclusivity Periods.”); see also Tolley Decl. ¶ 35; Bryan Decl. ¶ 89.

38 

Zelin Decl. ¶¶ 28-29; Tolley Decl. ¶ 35.

39 

See Debtors’ Motion for Entry of an Order Compelling Mediation of Plan and Confirmation-Related Disputes [Docket No. 1797] (the “Mediation Motion”); see also Bryan Decl. ¶ 89; Zelin Decl. ¶ 29.

40 

See Order Compelling Mediation of Plan and Confirmation-Related Disputes and Appointing Judicial Mediator [Docket No. 2049] (the “Mediation Order”).

41 

The parties in interest compelled to participate in the mediation included: (a) the Debtors; (b) the Jackson Crossover Ad Hoc Group; (c) the HoldCo Creditor Ad Hoc Group; (d) the Jackson Ad Hoc Group; (e) the Jackson First Lien Noteholders Group; (f) the Convert Ad Hoc Group; (g) U.S. Bank National Association, in its capacity as Indenture Trustee for the Jackson Senior Notes (“U.S. Bank”); (h) the Official Committee of Unsecured Creditors; (i) the Equity Group; and (j) SES. See id.

42 

Id.

43 

Zelin Decl. ¶¶ 30–31; Tolley Decl. ¶ 37; Bryan Decl. ¶ 90.

44 

Zelin Decl. ¶¶ 31-33; Tolley Decl. ¶ 37; Bryan Decl. ¶ 90.

 

16


24.    Several more weeks of negotiation then followed, during which the Debtors drove consensus among the Jackson Crossover Ad Hoc Group, the HoldCo Creditor Ad Hoc Group, the Jackson Ad Hoc Group, and the Jackson First Lien Noteholder Group on a comprehensive restructuring.45 These good-faith, hard-fought negotiations culminated in the execution of an amended plan support agreement and filing of the Plan.46 On August 24, 2021, the Debtors, with the approval of the Special Committees, filed the Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. and Its Debtor Affiliates [Docket No. 2692], and a related disclosure statement [Docket No. 2693], and executed a plan support agreement (the “PSA”) with the support of the Jackson Crossover Ad Hoc Group, the HoldCo Creditor Ad Hoc Group, the Jackson Ad Hoc Group, and the Jackson First Lien Noteholder Group.

 

J.

Settlement Negotiations

25.    The Plan incorporates the Settlement of numerous intercompany Claims and Causes of Action, issues, and disputes by and among the HoldCos and the Jackson Debtors (collectively, the “Settling Debtors”) on the terms memorialized in the Settlement Agreement by and among the parties thereto [Docket No. 3156, Exhibit F] (as may be modified, amended, and/or supplemented from time to time in accordance with the Plan, the “Settlement Agreement”). The resolution embodied in the Settlement is the culmination of more than a year of analysis and negotiation by the Settling Debtors, including the Special Committees, as applicable, during which time the Special Committees and their independent advisors47 devoted considerable time and energy to independently analyzing the legal and financial aspects of the various Conflict Matters.48

 

45 

Zelin Decl. ¶ 33; Tolley Decl. ¶ 37; Bryan Decl. ¶ 91.

46 

Zelin Decl. ¶ 33; Bryan Decl. ¶ 91.

47 

See Begeman Decl. ¶ 4; see supra note 21.

48 

Zelin Decl. ¶ 36.

 

17


26.    From the commencement of the Chapter 11 Cases, the advisors to the Special Committees were given access to copious amounts of information and data, including the data and information that was made available to advisors for the Committee, the Jackson Ad Hoc Group, the Jackson First Lien Noteholder Group, the Jackson Crossover Ad Hoc Group, the HoldCo Creditor Ad Hoc Group, the Convert Ad Hoc Group, and the Equity Group. The Special Committees dedicated significant time to gaining an intimate understanding of the various intercompany issues and disputes among the Debtors and their respective creditors.49 Among other things, the Special Committees and their independent advisors (a) reviewed presentations, analyses, and other work product prepared on behalf of the Debtors by Kirkland & Ellis LLP (“Kirkland”); A&M; PJT; Elvinger Hoss Prussen, S.A. (“Elvinger”); and Deloitte Tax & Consulting (“Deloitte” and together with Kirkland, A&M, PJT, Elvinger, and Deloitte, the “Debtors’ Advisors”) and by the other Special Committees’ independently retained advisors;50 (b) reviewed documents that either were available in the Debtors’ data room or provided in response to the Special Committees’ multiple document and information requests;51 (c) attended meetings and/or presentations hosted by the Debtors or the Debtors’ Advisors or by the Special Committees’ independently retained advisors or counsel to the various ad hoc groups;52 and (d) prepared independent analyses of, among other things, the Debtors’ enterprise value, Business Plan, and potential sources of value.53

27.    Each Special Committee spent months diligently gathering and assessing information related to the issues presented by the Debtors’ complex and unique capital structure,

 

49 

Begeman Decl. ¶ 4.

50 

See, e.g., Kangas Decl. ¶ 39; see also supra note 21 (listing the advisors retained by the Special Committees).

51 

Stein Decl. ¶ 15.

52 

Begeman Decl. ¶ 4; Kangas Decl. ¶ 39; Diercksen Decl. ¶ 39; Stein Dec. ¶ 15.

53 

Stein Decl. ¶ 15.

 

18


including tax, corporate, litigation, foreign law, and other intercompany issues.54 The Special Committees also engaged with one another and their respective creditor groups, including each of the ad hoc groups.55

28.    Throughout these Chapter 11 Cases, in an effort to increase recoveries for their respective stakeholders, the Special Committees, on behalf of their respective Debtors, raised the prospect of substantial intercompany litigation,56 took into account their stakeholders’ settlement positions,57 and continued to advocate for the highest possible value to their respective stakeholders.58 Regardless of the perceived merits of the particular claims, the Special Committees reasonably determined that absent a settlement, litigation efforts would continue to metastasize and devour significant time and expense to the detriment of each Debtor entity and its respective stakeholders.59 The Special Committees therefore engaged extensively with each other to try to settle the various inter-estate disputes.60

29.    The Special Committees began arm’s-length negotiations of an intercompany settlement in earnest in mid-December 2020, which extended over several weeks and multiple sessions,61 multiple formal proposals,62 and included telephone conferences, correspondences, and

 

54 

Zelin Decl. ¶ 21.

55 

Id.

56 

Begeman Decl. ¶ 6.

57 

Zelin Decl. ¶¶ 20–22, 36, 46; Stein Decl. ¶¶ 13, 18, 30; Begeman Decl. ¶ 6; Kangas Decl. ¶ 66.

58 

See e.g., Kangas Decl. ¶¶ 42–43, 66–73; Diercksen Decl. ¶¶ 42–43, 66–73.

59 

Begeman Decl. ¶ 6.

60 

Id. ¶¶ 6, 13–17.

61 

Begeman Decl. ¶ 13; Stein Decl. ¶¶ 21–26.

62 

See Jackson Special Committee proposals Ex. No. DCX 0204 (Jan. 26), Ex. No. DCX 0212 (Jan. 22), Ex. No. DCX 0203 (Jan. 20), Ex. No. DCX 0202 (Jan. 18), Ex. No. DCX 0206 (Jan. 14), Ex. No. DCX 0213 (Jan. 12), Ex. No. DCX 0210 (Jan. 8); HoldCo Special Committee proposals Ex. No. DCX 0207 (Jan. 17); Ex. No. DCX 0208 (Jan. 25), Ex. No. DCX 0216 (Jan. 21), Ex. No. DCX 0205 (Jan. 20); See also e.g., Begeman Decl. ¶ 16.

 

19


a multi-day video negotiation session63 that sought to reproduce the conditions of a pre-COVID in-person meeting. During this multi-day virtual session, the Special Committees and their independent advisors engaged in discussions around the clock on a one-on-one as well as a collective basis in an effort to reach consensus.

30.    When all of the Debtors and the initial plan support parties ultimately reached agreement on the terms of the Initial Plan, the Initial Plan incorporated a settlement of these intercompany issues on terms that the Special Committees were willing to support.64 The settlement did not allocate value to each of the individual inter-estate issues settled under the Initial Plan but, instead, served as a global settlement of all claims.65

31.    Following filing of the Initial Plan, the Debtors recognized that many of their creditors continued to have widely diverging views regarding the merits of potential claims. The Special Committees’ approval of the Initial Plan also contained a fiduciary out, which was a critical feature for the Special Committees.66 The Special Committees thus retained their ability to continue to investigate and analyze all Conflict Matters in connection with the negotiation and implementation of the Initial Plan.67

32.    During the months that followed, and throughout the court-supervised Mediation, the Special Committees and their advisors continued to negotiate, investigate, and analyze

 

63 

Stein Decl. ¶ 21.

64 

Begeman Decl. ¶ 18. The Jackson Special Committee was particularly focused on closing out litigation risk facing Jackson and facilitating prompt emergence, having the support of the HoldCo Creditor Ad Hoc Group, representing the interests of $3.6 billion of HoldCo debt, and the fact that the Initial Plan’s economics did not materially differ from proposals under consideration at the time by the Jackson Crossover Ad Hoc Group. Begeman Decl. ¶ 20. See also Reply of Special Committee of Intelsat Jackson Holdings S.A. In Support of Debtors’ Second Motion to Extend Their Exclusive Period to File and Solicit Acceptances of a Chapter 11 Plan and In Response to Jackson Crossover Group Objection [Docket No. 1970] ¶¶ 3, 12.

65 

Begeman Decl. ¶ 19; Kangas Decl. ¶ 74; Diercksen Decl. ¶ 74.

66 

Begeman Decl. ¶ 18 (citing Ex. No. DCX 0229).

67 

Zelin Decl. ¶ 25.

 

20


potential Claims. During the Mediation, the Special Committees received numerous circulated term sheets and attended frequent telephone conferences to receive updates on developments in the Mediation.

33.    In July 2021, the Special Committees began to independently negotiate revised terms of an intercompany settlement agreement, outside of the Mediation process, and in parallel with the negotiations within the Mediation, taking into account the latest facts and circumstances and input from the various parties in interest through the Mediation. The Debtors believed that this way, if the ad hoc groups were unable to crystalize a resolution of the complex intercompany issues plaguing these cases on terms that the Special Committees were willing to support, the Debtors, through their independent Special Committees, would have the prospect of reaching a resolution that could, ultimately, pave the way for a confirmable chapter 11 plan.

34.    On July 6, 2021, the Special Committees began negotiating in earnest, with in-person, face-to-face negotiation sessions by the Special Committees’ advisors at Kirkland’s New York offices.68 These negotiations marked the first time that representatives for all of the Special Committees had been able to come together for in-person meetings since the onset of the COVID-19 pandemic and the beginning of these Chapter 11 Cases, as previous inter-Special Committee negotiation sessions had taken place entirely remotely because of the COVID-19 pandemic. During these in-person, diligent, adversarial, live negotiations, and in the days that followed, the Special Committees advanced their respective Debtor entity’s views on the strengths and weaknesses of the various inter-Debtor claims, frequently conferring with their respective advisors on the terms and conditions of a reasonable settlement.69

 

68 

Begeman Decl. ¶ 22; Stein Decl. ¶ 30.

69 

Stein Decl. ¶ 30.

 

21


35.    Concurrently, certain of the Debtors’ major creditor constituencies—the Jackson Crossover Ad Hoc Group and the HoldCo Creditor Ad Hoc Group, who had advanced opposing positions throughout these Chapter 11 Cases—reached an agreement in principle on the terms of an amended chapter 11 plan. The Debtors, informed by their Special Committees, analyzed this proposal and engaged with their stakeholders to determine whether it could be distilled into a transaction that could gain the support of all of the Debtors.70 This process culminated in the Plan and, ultimately, the Settlement.

36.    In total, the Special Committees spent over nine months evaluating more than twenty-three different iterations of term sheets and proposals related to the settlement of these various intercompany matters. The proposals were reviewed and evaluated by and between the Special Committees and their advisors, who exchanged hundreds of emails analyzing intercompany issues, held frequent calls, and attended numerous meetings over the course of these Chapter 11 Cases.71

37.    Based on this diligence, the Plan incorporates the Settlement of numerous intercompany Claims and Causes of Action, issues, and disputes by and among the Settling Debtors on the terms memorialized in the Settlement Agreement. The Special Committees did not allocate value to each of the individual inter-estate issues settled under the Plan and instead agreed to the Settlement because the Settlement presents a reasonable global settlement of all claims.72

 

70 

See Kangas Decl. ¶¶ 90–94; Diercksen Decl. ¶¶ 90–94.

71 

Begeman Decl. ¶ 4; Kangas Decl. ¶ 39; Stein Dec. ¶ 15; Ex. No. DCX 0202; Ex. No. DCX 0203; Ex. No. DCX 0204; Ex. No. DCX 0205; Ex. No. DCX 0206; Ex. No. DCX 0207; Ex. No. DCX 0208; Ex. No. DCX 0209; Ex. No. DCX 0210; Ex. No. DCX 0211; Ex. No. DCX 0212; Ex. No. DCX 0213; Ex. No. DCX 0214; Ex. No. DCX 0215; Ex. No. DCX 0216; Ex. No. DCX 0217; Ex. No. DCX 0218; Confirmation Hr’g Tr., 62:9–12, Dec. 8, 2021 (Kangas: “We spent, I think — I keep track of time — well over 400 hours and many thousands of documents. We did the job carefully and with diligence, and I believe we did what we were asked to do.”); see also id. at 6:19-16:7 (Stein); Confirmation Hr’g Tr., 186:18–192:22, Dec. 7, 2021 (Begeman).

72 

Begeman Decl. ¶ 22; Zelin Decl. ¶ 45; Confirmation Hr’g Tr., 20:12, 35:2–3, 35:23-36:1, Dec. 9, 2021 (Zelin).

 

22


K.

Plan Supplement

38.    On October 19, 2021, October 21, 2021, November 19, 2021, November 23, 2021, and December 3, 2021, the Debtors filed the Plan Supplement with the Bankruptcy Court. The Plan Supplement complies with the terms of the Plan, and the Debtors provided good and proper notice of the filings in accordance with the Bankruptcy Code, the Bankruptcy Rules, the Disclosure Statement Order, the Scheduling Order, and the facts and circumstances of the Chapter 11 Cases.73 No other or further notice is or will be required with respect to the Plan Supplement. All documents included in the Plan Supplement are integral to, part of, and incorporated by reference into the Plan. Subject to the terms of the Plan and this Confirmation Order, the Debtors reserve the right to alter, amend, update, or modify the Plan Supplement before the Effective Date, subject to compliance with the Bankruptcy Code and the Bankruptcy Rules.

 

L.

Modifications to the Plan

39.    Pursuant to section 1127 of the Bankruptcy Code, any modifications to the Plan since the commencement of Solicitation constitute technical or clarifying changes with respect to particular Claims or Interests made pursuant to the agreement of the Holders of such Claims or Interests and do not materially and adversely affect the treatment of any Claims or Interests. Pursuant to Bankruptcy Rule 3019, these modifications do not require additional disclosure under section 1125 of the Bankruptcy Code or the resolicitation of votes under section 1126 of the Bankruptcy Code, nor do they require that the Holders of Claims or Interests be afforded an opportunity to change previously cast acceptances or rejections of the Plan.

 

73 

See Plan Supplement (Ex. No. DCX 0004, 0005, 0007) [Docket Nos. 3156, 3188, 3529, 3624, 3718].

 

23


40.    This Confirmation Order contains modifications to the Plan that were made to address objections and informal comments received from parties in interest. Modifications to the Plan since entry of the Disclosure Statement Order, if any, are consistent with the disclosures previously made pursuant to the Disclosure Statement and solicitation materials served pursuant to the Disclosure Statement Order and the provisions of the Bankruptcy Code. The disclosure of any Plan modifications prior to or on the record at the Confirmation Hearing constitutes due and sufficient notice of any and all Plan modifications. For the avoidance of doubt, nothing in this Confirmation Order affects, authorizes, or approves the relief contemplated by the Equity Group Stipulation, and such relief, if any, shall be presented to the Bankruptcy Court via a separate motion and subject to approval by a separate order. The Plan as modified shall constitute the Plan submitted for Confirmation.

 

M.

Objections Overruled

41.    Any resolution or disposition of objections to Confirmation ruled upon by the Bankruptcy Court on the record at the Confirmation Hearing is hereby incorporated by reference. Unless otherwise expressly provided herein, all unresolved objections, statements, reservations of rights, or joinders in opposition to Confirmation to the extent any have not been resolved, withdrawn, waived, adjourned, or settled prior to entry of this Confirmation Order, are hereby overruled on the merits with prejudice based on the record before the Bankruptcy Court.

 

N.

Disclosure Statement Order and Scheduling Order

42.    On September 7, 2021, the Bankruptcy Court entered the Disclosure Statement Order, which, among other things, fixed October 29, 2021, at 5:00 p.m. (prevailing Eastern Time), as the Voting Deadline. The Disclosure Statement Order also set the date to commence the Confirmation Hearing to November 8, 2021, subject to change.74

 

74 

See Disclosure Statement Order (Ex. No. DCX 0195).

 

24


43.    On November 2, 2021, the Bankruptcy Court entered the Scheduling Order, which, among other things, extended the Plan Objection Deadline to November 12, 2021 and amended the date and time to commence the Confirmation Hearing to December 2, 2021, at 10:00 a.m. (prevailing Eastern Time), subject to change.75

 

O.

Transmittal and Mailing of Materials; Notice

44.    As evidenced by the Solicitation Affidavits and the Voting Report, (a) the Debtors provided due, adequate, and sufficient notice of the Plan, the Disclosure Statement, the Disclosure Statement Order, the Solicitation Packages, the Confirmation Hearing Notice,76 the Plan Supplement, and the Scheduling Order, and all the other materials that the Debtors distributed in connection with the Confirmation of the Plan; and (b) all such materials are in compliance with the Bankruptcy Rules, including Bankruptcy Rules 2002(b), 3017, 3019, and 3020(b), the Local Rules of the United States Bankruptcy Court for the Eastern District of Virginia (the “Bankruptcy Local Rules”), and the procedures set forth in the Disclosure Statement Order and the Scheduling Order. The Debtors provided due, adequate, and sufficient notice of the Voting Deadline and Plan Objection Deadline, the Confirmation Hearing (as may be continued from time to time), and any applicable bar dates and hearings described in the Disclosure Statement Order and the Scheduling Order in compliance with the Bankruptcy Code, the Bankruptcy Rules, the Bankruptcy Local Rules, the Disclosure Statement Order, and the Scheduling Order. No other or further notice is or shall be required.

 

75 

See Scheduling Order.

76 

Confirmation Hearing Notice” has the meaning set forth in the Disclosure Statement Order.

 

25


P.

Solicitation

45.    The Debtors solicited votes for acceptance and rejection of the Plan in good-faith, and such solicitation complied with sections 1125 and 1126, and all other applicable sections, of the Bankruptcy Code; Bankruptcy Rules 3017, 3018, and 3019; the Disclosure Statement Order; the Bankruptcy Local Rules; and all other applicable rules, laws, and regulations.

 

Q.

Executory Contracts and Unexpired Leases; Assumption Schedule, Rejection Schedule, and Cure Notices

46.    The Debtors filed a schedule of cure amounts and adequate assurance of future performance in the Plan Supplement [Docket No. 3156, Exhibit K] (as amended, modified, or supplemented from time to time, the “Assumption Schedule”) for Executory Contracts and Unexpired Leases that shall be deemed assumed as of the Effective Date in accordance with Article V.A. of the Plan. The Debtors also filed and served counterparties to the Executory Contracts and Unexpired Leases listed on the Assumption Schedule with the Notice of Assumption of Certain Unexpired Leases [Docket No. 1003], the Notice of Assumption of Certain Executory Contracts [Docket No. 1077], the Notice of Amendment to Assumption of Certain Executory Contracts [Docket No. 1133], the Notice of Assumption of Certain Executory Contracts [Docket No. 1141], the Notice of Amendment to Assumption of Certain Executory Contracts [Docket No. 1224], the Notice of Assumption of Certain Executory Contracts and/or Unexpired Leases [Docket No. 3328], and the Notice of (I) Executory Contracts and Unexpired Leases to be Assumed by the Debtors Pursuant to the Plan, (II) Cure Amounts, If Any, and (III) Related Procedures In Connection Therewith (collectively, the “Cure Notice”) in accordance with the Procedures Order and the Disclosure Statement Order. See Affidavits of Service [Docket Nos. 1128, 1222, 1223, 1286, 1302, 3355, and 3398]. Each of the Assumption Schedule and the Cure Notice constitutes adequate and proper notice of the proposed cure amount for each Executory Contract or Unexpired Lease to be assumed under the Plan.

 

26


47.    Additionally, the Debtors filed a schedule of Executory Contracts and Unexpired Leases in the Plan Supplement [Docket No. 3156, Exhibit J] (as amended, modified, or supplemented from time to time, the “Rejection Schedule”) that shall be deemed rejected as of the Effective Date in accordance with Article V.B. of the Plan. The Debtors also served counterparties to the Executory Contracts and Unexpired Leases listed on the Rejection Schedule with the Notice Regarding Executory Contracts and Unexpired Leases to be Rejected Pursuant to the Plan (the “Rejection Notice”) in accordance with the Procedures Order and the Disclosure Statement Order. See Affidavit of Service [Docket No. 3355]. Each of the Rejection Schedule and the Rejection Notice constitutes adequate and proper notice for each Executory Contract or Unexpired Lease to be rejected under the Plan.

 

R.

Voting Report

48.    Before the Confirmation Hearing, the Debtors filed the Voting Report. The Voting Report was admitted into evidence during the Confirmation Hearing.77 The procedures used to tabulate ballots were fair and conducted in accordance with the Disclosure Statement Order, the Bankruptcy Code, the Bankruptcy Rules, the Bankruptcy Local Rules, the Scheduling Order and all other applicable rules, laws, and regulations.

49.    As set forth in the Plan, Holders of Claims in Classes A6, A7, A8, B1, C1, D1, E1, F1, G1, H1, I1, and J1 (collectively, the “Voting Classes”) were eligible to vote on the Plan in accordance with the Bankruptcy Code and the Solicitation Procedures. Holders of Claims in Classes A1, A2, and A9 (collectively, the “Deemed Accepting Classes”) are Unimpaired and conclusively presumed to accept the Plan and, therefore, did not vote to accept or reject the Plan.

 

77 

See Ex. No. DCX 0008.

 

27


Holders of Claims in Classes A3, A4, and A5 are either Unimpaired and conclusively presumed to have accepted the Plan (to the extent reinstated) or Impaired and conclusively deemed to reject the Plan and, therefore, are not entitled to vote to accept or reject the Plan. Holders of Interests in Class J3 (the “Deemed Rejecting Class”) are Impaired under the Plan and are entitled to no recovery under the Plan and are, therefore, deemed to have rejected the Plan. Classes G1, H1, and I1 did not have a Holder of an Allowed Claim or Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court as of the Confirmation Hearing that was entitled to vote and are therefore deemed eliminated from the Plan for purposes of voting to accept or to reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to Article III.D of the Plan and section 1129(a)(8) of the Bankruptcy Code.

50.    As evidenced by the Voting Report, Classes A6, A7, A8, B1, C1, D1, E1, and F1, and, as set forth herein, J1, voted to accept the Plan in accordance with section 1126 of the Bankruptcy Code.

51.    Further, as set forth in paragraph 312 herein, each and every member of the Convert Ad Hoc Group is, as of the date of entry of this Confirmation Order, deemed to have changed any vote to reject the Plan to a vote to accept the Plan.

 

S.

Burden of Proof

52.    The Debtors, as proponents of the Plan, have met their burden of proving all applicable elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by a preponderance of the evidence, the applicable evidentiary standard for Confirmation. Further, the Debtors have proven the elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by clear and convincing evidence.

53.    Each witness who testified on behalf of the Debtors in connection with Confirmation was credible, reliable, and qualified to testify as to the topics addressed in his or her

 

28


testimony. Among other things, Ms. Michelle Bryan contributed her knowledge and experience gained while serving as General Counsel, Chief Administrative Officer, and Secretary for Intelsat S.A. and in other capacities for the Debtors and their non-Debtor affiliates, with particular knowledge of the facts and circumstances surrounding the Accelerated Relocation Payments described in the FCC Order, the formation of the Special Committees (as defined herein) at several Debtor entities, and the negotiation and development of the Settlement and the Plan. Ms. Bryan, together with Mr. Stephen Spengler, who served as Chief Executive Officer of certain of the Debtors and in other capacities for the Company, also contributed knowledge of the facts and circumstances surrounding certain purported securities fraud claims asserted against certain shareholders of Intelsat S.A. Mr. David Tolley contributed his extensive knowledge of the Debtors’ prepetition and postpetition business activities, the circumstances surrounding the commencement of these Chapter 11 Cases, the Debtors’ Business Plan, the Debtors’ tax attributes, the facts and circumstances surrounding the development of the Plan and, in particular his knowledge and experience gained while serving as Chief Financial Officer and in other capacities for the Debtors and their non-Debtor affiliates. Mr. Edouard Authamayou was qualified to serve as an expert as to the utilization of certain of the Debtors’ tax attributes under particular transaction structures and as to certain technical positions related to the Debtors’ historic tax positions. Professor Andrè Prüm was qualified to serve as an expert on certain aspects of Luxembourg law. Mr. Gary Begeman, a disinterested director and member of the Jackson Special Committee, contributed knowledge of the diligence process and positions undertaken by the Special Committees with respect to negotiation of the Settlement and the Plan. Mr. James C. Murray contributed his expertise on the Reorganized Debtors’ total enterprise value based on Mr. Murray’s knowledge and experience of financial transactions, including valuing businesses and financial

 

29


Instruments in the satellite communications industry. Mr. John T. Nakahata was qualified to serve as an expert on communications law, including the FCC generally and certain orders issued by the FCC related to the C-band. Mr. Zach Georgeson contributed his expertise on the size and structure of the proposed Management Incentive Plan based on relevant market data as well as Mr. Georgeson’s experience in designing comparable programs for similarly-situated companies. Mr. Jeffrey S. Stein, a disinterested director and member of the ICF Special Committee, contributed knowledge of the diligence process and positions undertaken by the Special Committees with respect to negotiation of the Settlement and the Plan, as did Mr. Edward Kangas, a disinterested director and members of the Intelsat S.A. Special Committee. Mr. Steven Zelin contributed his particular knowledge of the facts and circumstances surrounding the good-faith negotiations and development of the Settlement and the Plan, including the releases provided therein, as well as the reasonableness of the Settlement embodied in the Plan given the numerous facts and circumstances of these cases. Mr. Jeffrey E. Clegg contributed his expertise on the 2018 Reorganization based on Mr. Clegg’s knowledge and expertise on mergers and acquisition transactions and corporate restructurings in various jurisdictions around the world.

 

T.

Bankruptcy Rule 3016

54.    The Plan and all modifications thereto were dated and identified the entities submitting such modification, thus satisfying Bankruptcy Rule 3016(a). The Debtors appropriately filed the Disclosure Statement and the Plan with the Bankruptcy Court, thereby satisfying Bankruptcy Rule 3016(b). The injunction, release, and exculpation provisions in the Disclosure Statement and the Plan describe, in bold font and with specific and conspicuous language, all claims and acts to be enjoined, released, and exculpated and identify the entities that will be subject to the injunction, releases, and exculpations, thereby satisfying Bankruptcy Rule 3016(c).

 

30


U.

Compliance with the Requirements of Section 1129 of the Bankruptcy Code

55.    The Plan complies with all applicable provisions of section 1129 of the Bankruptcy Code as follows:

 

  a.

Section 1129(a)(1)—Compliance of the Plan with Applicable Provisions of the Bankruptcy Code

56.    The Plan complies with all applicable provisions of the Bankruptcy Code, including sections 1122 and 1123, as required by section 1129(a)(1) of the Bankruptcy Code.

 

  i.

Sections 1122 and 1123(a)(1)—Proper Classification

57.    The classification of Claims and Interests under the Plan is proper. In accordance with sections 1122(a), 1122(b), and 1123(a)(1) of the Bankruptcy Code, Article III of the Plan provides for the separate classification of Claims and Interests into twenty-one different Classes based on differences in the legal nature or priority of such Claims and Interests (other than Administrative Claims, DIP Claims, Professional Fee Claims, and Priority Tax Claims, which are addressed in Article II of the Plan and are not required to be classified by section 1123(a)(1) of the Bankruptcy Code). Valid business, factual, and legal reasons exist for the separate classification of such Claims and Interests, and such classifications were not implemented for any improper purpose and do not unfairly discriminate between or among Holders of Claims and Interests. Accordingly, the Debtors have a rational and legitimate basis for the separate classification of such Claims. No so-called “gerrymandering” has taken place. In addition, given that (among other things) the Plan, which provides for the withdrawal of the HoldCo Guarantee Claims on the Effective Date (provided that, at the time of entry of this Confirmation Order or prior thereto, neither of the following events has occurred: (x) Consenting Creditors that hold at least two-thirds (2/3) of the Connect Senior Notes (excluding any Connect Senior Notes held by the Debtors) cease to be party to the Plan Support Agreement or (y) the Required Consenting

 

31


HoldCo Creditors have terminated the Plan Support Agreement) is supported by over 90% of the holders of Jackson Senior Notes, the Plan properly provides for the withdrawal of such Claims, and the Debtors were not required to classify such Claims in the Plan.

58.    In accordance with section 1122(a) of the Bankruptcy Code, each Class of Claims or Interests contains only Claims or Interests that are substantially similar to the other Claims or Interests within that Class. Accordingly, the Plan satisfies the requirements of sections 1122(a), 1122(b), and 1123(a)(1) of the Bankruptcy Code.

 

  ii.

Sections 1123(a)(2) and 1123(a)(3)—Specification of Unimpaired Classes and Treatment of Impaired Classes

59.    Article III of the Plan specifies that Claims in Classes A1, A2, and A9 are Unimpaired under the Plan, that Claims and Interests, as applicable, in Classes B1, C1, D1, E1, F1, G1, H1, I1, J1, and J3 are Impaired under the Plan, and that Claims in Classes A3, A4, and A5 are either Impaired or Unimpaired under the Plan. In addition, Article II of the Plan specifies that Administrative Claims (including Professional Fee Claims), DIP Claims, and Priority Tax Claims are not classified. Accordingly, the Plan satisfies the requirements of section 1123(a)(2) of the Bankruptcy Code. Article III of the Plan specifies the treatment of each Impaired Class under the Plan. Accordingly, the Plan satisfies the requirements of section 1123(a)(3) of the Bankruptcy Code.

 

  iii.

Section 1123(a)(4)—No Discrimination

60.    Article III of the Plan provides the same treatment to each Claim or Interest in each Class unless the Holder of a particular Claim or Interest has agreed to a less favorable treatment with respect to such Claim or Interest. Accordingly, the Plan satisfies the requirements of section 1123(a)(4) of the Bankruptcy Code.

 

32


  iv.

Section 1123(a)(5)—Adequate Means for the Plan’s Implementation

61.    The Plan and the various documents included in the Plan Supplement provide adequate and proper means for the Plan’s implementation, including: (a) the restructuring of the Debtors’ balance sheet and other financial transactions provided for by the Plan and further contemplated under the Restructuring Steps Memorandum; (b) the global settlement of claims under section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019; (c) the authorization, issuance, and distribution under and borrowings or deemed borrowings under the New Debt Documents; (d) the authorization of New Corporate Governance Documents; (e) the retention of certain Causes of Actions; (f) the assumption and rejection of Executory Contracts and Unexpired Leases; (g) the cancellation of certain existing agreements, obligations, instruments, and Interests; (h) the vesting of the assets of the Debtors’ Estates in the applicable Reorganized Debtors; (i) the execution, delivery, filing, or recording of all contracts, instruments, releases, and other agreements or documents in furtherance of the Plan; and (j) the implementation of certain restructuring transactions consistent with the Restructuring Steps Memorandum. Accordingly, the Plan satisfies the requirements of section 1123(a)(5) of the Bankruptcy Code.

 

  v.

Section 1123(a)(6)—Non-Voting Equity Securities

62.    The Plan satisfies the requirements of section 1123(a)(6) of the Bankruptcy Code. In accordance with Article VI.D of the Plan, on or immediately before the Effective Date, the New Corporate Governance Documents shall be adopted by the applicable Reorganized Debtors in accordance with applicable law. The New Corporate Governance Documents will prohibit the issuance of non-voting equity securities, thereby satisfying section 1123(a)(6) of the Bankruptcy Code.

 

33


  vi.

Section 1123(a)(7)—Directors, Officers, and Trustees

63.    The Plan satisfies the requirements of section 1123(a)(7) of the Bankruptcy Code. The Plan Supplement sets forth the structure of the Equity Issuer Board,78 and the Plan sets forth the structure of the Reorganized S.A. Board. The Equity Issuer Board shall initially consist of seven (7) members, consistent with the Plan Supplement. The Reorganized S.A. Board shall initially consist of three (3) members, consistent with the Plan. By and after the Effective Date, each director, officer, or manager of the Reorganized Debtors shall be appointed and serve pursuant to the terms of their respective articles of association and other formation and constituent documents and the New Corporate Governance Documents, and applicable laws of the respective Reorganized Debtor’s jurisdiction of formation.

64.    The manner for selection of any officer, director, or manager (or any successor of any officer, director, or manager) of the Reorganized Debtors is set forth in the Plan, which is consistent with the interests of creditors and equity holders and with public policy. Accordingly, the Plan satisfies the requirements of section 1123(a)(7) of the Bankruptcy Code.

 

  b.

Section 1123(b)—Discretionary Contents of the Plan

65.    The Plan’s discretionary provisions comply with section 1123(b) of the Bankruptcy Code and are not inconsistent with the applicable provisions of the Bankruptcy Code. Thus, the Plan satisfies section 1123(b) of the Bankruptcy Code.

 

  i.

Impairment/Unimpairment of Any Class of Claims or Interests

66.    Pursuant to the Plan, Article III of the Plan Impairs or leaves Unimpaired, as the case may be, each Class of Claims and Interests, as contemplated by section 1123(b)(1) of the Bankruptcy Code.

 

78 

See Notice of Filing Second Plan Supplement for the Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat S.A. And Its Debtor Affiliates [Docket No. 3188]; see also Notice of Filing of Revised Exhibit M to Second Amended Joint Chapter 11 Plan of Reorganization of Intelsat, S.A. and Its Debtor Affiliates [Docket No. 3529].

 

34


  ii.

Assumption and Rejection of Executory Contracts and Unexpired Leases

67.    Article V of the Plan provides that all Executory Contracts and Unexpired Leases are deemed assumed by the Reorganized Debtors, as applicable, in accordance with the provisions and requirements of sections 365 and 1123 of the Bankruptcy Code on the Effective Date, other than Executory Contracts and Unexpired Leases that (a) were assumed, assumed and assigned, or rejected previously by the Debtors; (b) previously expired or terminated pursuant to their own terms; (c) were the subject of a motion to reject such Executory Contracts or Unexpired Leases filed on or before the Effective Date; or (d) were identified on the Rejected Executory Contract and Unexpired Lease List. The assumption of Executory Contracts and Unexpired Leases may include the assignment of certain of such contracts and leases as set forth in the Restructuring Steps Memorandum attached as Exhibit G to the Plan Supplement. Additionally, all contracts, unless otherwise rejected, to which Intelsat S.A. or Holdings SARL is a party shall be assumed and assigned by Intelsat S.A. or Holdings SARL, as applicable, to either any other Debtor that is a party to such contract (excluding Intelsat S.A. or Holdings SARL), or if Intelsat S.A. or Holdings SARL, as applicable, is (or are) the only party(ies) to such contract, the Equity Issuer; provided that, notwithstanding the foregoing, all Insurance Contracts to which Intelsat S.A. and/or Holdings SARL are a party shall be deemed to have been assumed and assigned by Intelsat S.A. and/or Holdings SARL, as applicable, to the Equity Issuer, with the Equity Issuer or any of its subsidiaries paying all cure costs, as applicable. Therefore, the Plan satisfies section 1123(b)(2) of the Bankruptcy Code.

 

  iii.

Compromises and Settlements

68.    In accordance with section 1123(b)(3)(A) of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the distributions and other benefits provided under

 

35


the Plan and with the support of the various creditors, stakeholders, and other parties in interest, including the Committee, the provisions of the Plan, including the Settlement, the Value Allocation, and the Term Loan Facility Claims Settlement, constitute a good-faith compromise of all Claims, Interests, and Causes of Action, as applicable, and controversies released, settled, compromised, or otherwise resolved pursuant to the Plan. In particular, the Plan constitutes a good-faith compromise and settlement of all Claims, Interests, and Causes of Action resolved pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, including, but not limited to, the settlement of issues and disputes related to (a) the Settlement Agreement and (b) the Term Loan Facility Claims Settlement. Those settlements and compromises are fair, equitable, and reasonable and approved as being in the best interests of the Debtors and their Estates.

69.    The Plan incorporates an integrated compromise and global settlement of numerous Claims, issues, and disputes implemented to achieve a beneficial and efficient resolution of the Chapter 11 Cases for all parties in interest. Each component of the compromise and settlement, including the treatment of Claims and Interests pursuant to the Plan, is an integral, integrated, and inextricably linked part of such global settlement.

70.    The Plan also incorporates the Settlement of certain Claims and an allocation of distributable value attached as Exhibit A to the Plan (the “Value Allocation”) among Debtor entities, which further takes into account the SES Settlement (as defined herein) filed at Docket No. 3719 and as incorporated into the Plan and Confirmation Order. The Settlement maximizes value for the Debtors’ Estates.

 

  A.

The Settlement

71.    The Settlement resolves numerous potential claims and issues (and eliminates the costs and risks associated with litigating them), including the Debtors’ post-emergence

 

36


organizational structure, numerous highly complex considerations regarding the Luxembourg tax profile of the Debtors (including, among other things, (i) preservation of the Luxembourg tax unity and potential alternative restructuring outcomes that would not have preserved the Luxembourg tax unity and (ii) the use of certain tax attributes), the receipt and allocation of any Accelerated Relocation Payments (as defined herein) and related reimbursements, intercompany transactions that arose in the course of the Debtors’ business prior to the Petition Date (including certain transactions and/or balances that could potentially be the subject of fact-intensive and time-consuming fraudulent transfer or preference litigation), and allocation of certain administrative expenses and postpetition intercompany balances. These matters have been heavily contested throughout these Chapter 11 Cases, including through voluminous correspondence and motion practice.

72.    The Settlement results from thorough, independent review by the Debtors, including the Special Committees with respect to actual or potential Conflict Matters, of alleged Claims and Causes of Action and of the settlements and compromises contained in the Settlement, including settlements and compromises between the Debtors with respect to inter-Debtor Claims, and substantial arm’s-length negotiations taking place among various parties throughout Mediation.79 The Debtors and the Special Committees have determined, in the valid exercise of their business judgment, that entry into the Settlement is in the best interests of the Debtors’ estates and their creditors.

 

  a.

Settlement Terms

73.    The Settlement resolves a host of intercompany issues between the Debtors, through releases of discrete claims including potential fraudulent transfer claims, avoidance action

 

79 

See Mediation Order.

 

37


claims, preference claims, and recharacterization actions on account of historical transactions, covenants to support the necessary transactions to implement a restructuring for all of the Debtors, and other agreements to support the restructuring and the Plan, which will inure to the benefit of the Debtors’ estates.

74.    These issues are briefly summarized below, but the factual and legal analysis for any one of these issues would be substantially more detailed if actually litigated.80 Litigation of any one of these issues would be time-consuming and expensive, and, in many cases, involve untested theories of Luxembourg corporate law. For the avoidance of doubt, the Settlement does not reflect agreement among the parties thereto as to the value of any one component part of the Settlement; rather, the parties agreed to a holistic resolution that avoids the need for exhaustive and value-destructive litigation on the value of each component part of the Settlement.81

 

  i.

Tax Matters.

75.    Issues related to the Debtors’ tax profile—and, in particular, the ability to utilize and ascribe value to, the Debtors’ Luxembourg NOLs (the “Lux NOLs”)—have consistently been a source of contention and disagreement among all constituencies over the course of these Chapter 11 Cases. These issues include, among other things, the perceived value associated with preserving the Tax Unity (which is influenced by many considerations, including the Debtors’ historical and go-forward tax treatment of various transactions, including the 2018 Reorganization (as defined herein) and tax positions and the possibility of tax reform (both in the U.S. and abroad)), the perceived value to Jackson and/or the HoldCos of not preserving the Tax Unity, and potential claims related to the consumption of Tax Unity NOLs (as defined herein) and movement of other tax assets in the 2018 Reorganization.

 

80 

See In re Three Rivers Woods, No. 98-38685-DOT, 2001 WL 720620, at *6 (Bankr. E.D. Va. Mar. 20, 2001) (quoting In re Austin, 186 B.R. 397, 400 (Bankr. E.D. Va. 1995)) (holding that, when evaluating a settlement, rather than conduct “a mini-trial” of the lawsuit at issue, “[t]he Court’s fundamental determination is . . . whether the settlement falls ‘below the lowest point in the range of reasonableness’”).

81 

Begeman Decl. ¶ 22; Kangas Decl. ¶ 95; Diercksen Decl. ¶ 95; Stein Decl. ¶ 31.

 

38


76.    Stakeholders’ arguments further described below generally went to the issue of how much value (if any) should be delivered to the HoldCos based on the value associated with preserving the Reorganized Debtors’ access to the Tax Unity NOLs.82 To preserve those benefits for Jackson going forward, Jackson must remain a member of the Tax Unity. For Jackson to remain a member of the Tax Unity, Jackson must, directly or indirectly, continue to be 95 percent owned by Holdings.

77.    To evaluate this value distribution, over the course of these Chapter 11 Cases, the Debtors’ advisors conducted extensive analysis of and tax modeling with respect to the Tax Unity NOLs. That analysis and modeling has, in turn, contributed to further analyses performed by other advisors. The tax modeling, in particular, has been performed on a “with and without” basis: It has compared the expected Luxembourg taxes that would be paid by Jackson if the Tax Unity is preserved (“with”) to the expected Luxembourg taxes that would be paid by Jackson if the Tax Unity is not preserved (“without”), and the difference between those two figures has been reduced to an expected value (after being subject to discounting, because the value is expected to be received over a long period of time).83 The reason the tax modeling was focused on this “with and without” approach that focused on the value of the Tax Unity NOLs from the perspective of the cash tax savings to Jackson is that the Debtors have consistently been strongly advised by their tax advisors that alternative, “stand-alone” proposals for utilizing the Tax Unity NOLs (as discussed in greater detail below) would be extremely likely to violate applicable Luxembourg anti-abuse rules. For that same reason, the Debtors never ascribed value to the Luxembourg NOLs that exist outside of the Tax Unity (the “Non-Unity NOLs”).

 

82 

Clegg Decl. ¶ 27.

83 

Clegg Decl. ¶¶ 5, 28; Tolley Decl. ¶ 24; Zelin Decl. ¶¶ 48–49.

 

39


78.    The value of the Tax Unity NOLs is informed by the inputs that feed into the Debtors’ Luxembourg tax modeling. Those inputs include, among other things, (a) various tax positions related to historic transactions, including the 2018 Reorganization, and how those tax positions related to the go-forward tax profile of Jackson on a standalone basis; (b) anticipated go-forward tax positions, company performance, capital expenditure plans, and other operational issues, overlaid with “change in law” risk that is particularly pronounced right now, at a time when “tax reform is in the air” both domestically and internationally; (c) the appropriate discount rate for potential tax savings that do not begin to accrue until the mid-2030’s and reach past 2040; and (d) as set forth above, whether “with and without” is the right basis to value the Lux NOLs. Additionally, as facts and underlying assumptions changed over the course of these Chapter 11 Cases, Deloitte produced many versions of the tax modeling to reflect then-current facts and assumptions obtained from the Debtors and their other advisors.84

79.    Various parties in the case have asserted that the Luxembourg tax modeling performed by the Debtors’ advisors is flawed.85 Some of those arguments (generally asserted by the HoldCo stakeholders) would, if accurate, increase the value of preserving the Tax Unity, while other arguments (generally asserted by the Jackson stakeholders) would, if accurate, reduce the value of preserving the Tax Unity. Each side asserts that the other’s arguments are incorrect. The Debtors have generally stood behind the “baseline” modeling scenario while acknowledging the risks and acknowledging that changes in facts and assumptions could—and would necessarily—

 

84 

Clegg Decl. ¶ 28.

85 

See, e.g., Convert Obj. ¶ 86; BOKF Obj. ¶ 27; Equity Group Obj. ¶ 15.

 

40


lead to different outcomes. In particular, because the “baseline” modeling scenario recognizes that the Debtors would not need the net operating losses preserved by the Tax Unity for at least 15 years,86 and tax reform in the intervening 15 years could substantially change the value associated with preserving the Tax Unity in the interim,87 the value of preserving the Tax Unity at all is debatable.

80.    Stakeholders have had widely diverging views on these issues, along with certain related issues, as they addressed the fundamental question of how much (if anything) the HoldCo stakeholders should receive for the value being brought to the table by preserving the Tax Unity, including, among others, the following issues. These arguments and negotiations were taken into account by the Special Committees as they negotiated the Settlement.88 The Settlement provides for the preservation of the Tax Unity, to the benefit of the Debtors and their respective Estates, at a minimum insofar as it avoids further disputes on these issues.

 

  I.

Tax Claims Related to 2018 Reorganization.

81.    In July 2018, the Debtors implemented a series of internal transactions and related steps that reorganized the ownership of certain of their assets among entities in order to enhance their ability to efficiently transact business (such transactions, collectively, the “2018 Reorganization”). Certain key steps of the 2018 Reorganization were as follows:

 

   

Jackson formed two new subsidiaries: Intelsat Genesis Inc. (“Genesis”), a Delaware corporation, and Ventures, a Luxembourg corporation. Genesis also formed a new subsidiary, Intelsat Genesis GP LLC (“Genesis GP”), a Delaware limited liability company.

 

86 

Zelin Decl. ¶ 51; Confirmation Hr’g Tr. 181:2–182:2, Dec. 7, 2021 (Clegg); Confirmation Hr’g Tr. 127:14–18, Dec. 10, 2021 (Cowan); Confirmation Hr’g Tr. 29:11–13, Dec. 9, 2021 (Zelin).

87 

Confirmation Hr’g Tr. 181:5–181:9, Dec. 7, 2021 (Clegg).

88 

These arguments were also vetted extensively by the Debtors and their U.S. and Luxembourg counsel, who disagree with the Convert Ad Hoc Group’s position. Bryan Decl. ¶ 93.

 

41


   

Jackson transferred all of its equity interests in Intelsat Corporation (“Corporation”) to Genesis, and all of its equity interests in Intelsat Global Sales and Marketing Limited (“IGSM”), as well as certain other assets, to Ventures.

 

   

Corporation transferred all of its equity interests in PanAmSat Satellite Europe Limited (“PSEL”), as well as its liabilities arising under a number of pre-existing intercompany debts, to Genesis. Corporation kept its employees and the majority of its assets and operations, and was then converted into a Delaware limited liability company that is now known as Intelsat US LLC (“US LLC”).

 

   

Certain other pre-existing intercompany debts were rationalized, either by being set off against each other to reduce the net amounts owing, or cancelled entirely by way of the creditor contributing its receivable to the debtor.

 

   

US LLC and Ventures entered into an agreement (Ex. No. DCX 0032) (including all amendments thereto, the “Bilateral Agreement”), pursuant to which they agreed that the profits of the global Intelsat business would be split based on the relative contributions made by US LLC and its subsidiaries (on the one hand) and Ventures and its subsidiaries (on the other hand) to the global business.

 

   

Alliance, a Delaware limited partnership, was formed between Jackson and Genesis (as limited partners) and Genesis GP (as the general partner). Both Jackson and Genesis contributed certain assets to Alliance in exchange for their partnership interests in Alliance. Jackson’s contribution comprised its equity interests in Ventures and certain other assets, and Genesis’ contribution was its equity interests in US LLC. When Alliance was formed, the partnership interests of Jackson and Genesis were documented as 92.2 percent and 7.8 percent respectively, although these were retrospectively amended to 92.5 percent and 7.5 percent, respectively, on December 7, 2018.

 

   

Alliance contributed to Ventures certain assets that it received from Jackson as part of Jackson’s partnership contribution in exchange for an interest free loan (the “IFL”) issued by Ventures to Alliance. The amount of the IFL was $13,286,195,000. This loan was initially documented in a single Interest Free Loan Agreement, and was subsequently split into two separate Interest Free Loan Agreements in the amounts of $11,256,195,000 and $2,030,000,000,89 with the receivable in respect of the smaller loan being transferred from Alliance to US LLC, with US LLC subsequently transferring it to Intelsat US Finance LLC (“US Finance”).

 

   

US LLC, Ventures, and certain subsidiaries of US LLC and Ventures entered into a modified Master Intercompany Services Agreement (Ex. No. DCX 0033) (the “MISA”), pursuant to which certain services are provided among the subsidiaries.90 The MISA also established the role of Intelsat Clearinghouse LLC (“Clearinghouse”), which acts as a payment intermediary among entities receiving and providing services under the MISA.

 

89 

The balances of these Intercompany Loan Agreements have subsequently been reduced by partial repayments.

90 

The 2018 MISA replaced a certain Amended and Restated Master Intercompany Services Agreement, dated as of January 12, 2011, as amended from time to time, in order to reflect changes in intercompany services relationships resulting from the 2018 Reorganization.

 

42


82.    The Debtors, through their Special Committees, evaluated a number of claims with respect to the 2018 Reorganization and their impact on the value of preserving the Tax Unity. The Debtors’ position is that these claims have no merit,91 a position vigorously disputed by the Holdco Creditor Ad Hoc Group, which takes the position that the claims are meritorious. No evidence was presented at the Confirmation Hearing attempting to substantiate the claims raised with respect to the 2018 Reorganization.

 

  II.

[Reserved]

83.    [Reserved]

 

  ii.

Accelerated Relocation Payments.

84.    The allocation of the Accelerated Relocation Payments among the Debtors was the subject of substantial analysis by the Debtors including, as applicable, their Special Committees, as well as many stakeholders in these Chapter 11 Cases.92 Certain of these stakeholders asserted that US LLC alone93 or Intelsat S.A. alone94 is the rightful recipient of the Accelerated Relocation Payments. These positions have been vigorously contested in various Debtor and Special Committee pleadings.95 This allocation was also prominently featured in months of analysis among the Debtors, including the Special Committees and their advisors.96

 

91 

See, e.g., Authamayou Decl. ¶¶ 44–55; Tolley Decl. ¶ 48; Zelin Decl. ¶ 80; Clegg Decl. ¶ 29; Confirmation Hr’g Tr., 129:12–130:22, Dec. 7, 2021 (Clegg); Confirmation Hr’g Tr., 138:15–22, Dec. 6, 2021 (Bryan); Confirmation Hr’g Tr., 34:10–11, Dec. 9, 2021 (Zelin).

92 

See, e.g., Begeman Decl. ¶ 11.

93 

See SES Obj. ¶ 75.

94 

See Convert Obj. ¶ 19.

95 

See, e.g., Objection to SES Standing Motion, Objection to Converts’ Standing Motion.

96 

See, e.g., Nakahata Decl. ¶ 2; Kangas Decl. ¶ 49.

 

43


  I.

Accelerated Relocation Payments Background

85.    On March 3, 2020, the FCC entered the FCC Order,97 reallocating a significant portion of the mid-band radio frequency spectrum, the 3700 to 4200 MHz range of the C-band, for 5G terrestrial wireless networks. Pursuant to 47 C.F.R. § 27.1412(d), and as a result of the FCC Order, License LLC and other eligible space station operators are required to clear their transponders from the 3.7-4.2 GHz band of the C-band spectrum by December 2025 and to migrate the existing services of incumbent earth stations in the contiguous United States to the 4.0-4.2 GHz band.98 The FCC Order narrowed the scope of the licenses that were previously issued to License and others.99 Additionally, the FCC arranged for License LLC and other eligible space station operators to be eligible for compensation in the form of Accelerated Relocation Payments if they clear on an accelerated timeframe, including ceasing to use the 3.7-3.82 GHz range of the C-band by December 2021100 and the 3.82-4.0 GHz range of the C-band by December 2023.101

86.    If License LLC completes the required clearing and ceases to use the lower 300 MHz of the C-band by the accelerated target dates set forth by the FCC Order, then License LLC stands to receive a total of up to $4,865 million in payments, payable in two separate installments.102 The Debtors have already completed the phase I clearing, entitling License LLC to receive $1,198 million in Accelerated Relocation Payments (the “Phase I Amount”).103 If the remaining clearing is completed by a phase II deadline of December 5, 2023, then License LLC will be entitled to receive an additional $3,668 million (the “Phase II Amount”).

 

97 

FCC Order (Ex. No. DCX 0053).

98 

Nakahata Decl. ¶ 34.

99 

Nakahata Decl. ¶ 19; see also e.g., Confirmation Hr’g Tr. 133:2–134:11, 150:12–14, Dec. 6, 2021 (Bryan).

100 

The final 20 MHz of the Phase I clearing is a temporary “guard band,” which prevents interference in the cleared frequencies while the Phase II clearing is performed. Once Phase II is complete, the unused “guard band” shifts to the final 20 MHz in the cleared range for the same purpose.

101 

See Nakahata Decl. ¶ 19.

102 

Bryan Decl. ¶ 30; Confirmation Hr’g Tr. 144:4–9, Dec. 6, 2021 (Bryan).

103 

See In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, Order, DA 20-1251 (WTB Nov. 12, 2021) (Ex. No. DCX 0136) (the “Validation Order”).

 

44


87.    The Jackson Debtors are forecasted to have incurred approximately $1,106 million in reimbursable costs as of December 31, 2021.104 The clearing has and will continue to require, among other things, multiple new satellites to be procured and launched into service, and the purchase of new video compression technology and radio frequency filters. The changes needed to facilitate the clearing have come at a substantial initial expense to the Jackson Debtors with reimbursement and Accelerated Relocation Payments deferred until significantly later. That said, the Jackson Debtors have cleared the C-band spectrum in accordance with the earliest phase I deadlines and anticipate clearing such C-band spectrum in accordance with the earliest phase II deadlines and thus realizing the full Phase I and Phase II Amounts.

88.    In accordance with the Phase I requirements of the FCC Order, License LLC has stopped broadcasting in the 3.7–3.82 GHz frequency of the C-band.105 On October 4, 2021, consistent with the FCC Order, the FCC regulations, and the explicit direction the Debtors received from the Wireless Telecommunications Bureau, License LLC submitted certification to the FCC that it has done so.106 License LLC filed an amended certification on October 15, 2021.107 On November 12, 2021, the Wireless Telecommunications Bureau entered an order validating License LLC’s Phase I Certification.108 The Validation Order expressly recognizes that License LLC is, and has performed the obligations of, an eligible space station operator.109

 

104 

See Disclosure Statement, Exhibit D.

105 

Phase I Certification of Accelerated Relocation, Intelsat License LLC, GN Docket Nos. 18-122 and 21-320 (filed Oct. 4, 2021) (Ex. No. DCX 0141).

106 

Bryan Decl. ¶ 35.

107 

Phase I Certification of Accelerated Relocation (Amendment), Intelsat License LLC, GN Docket Nos. 18-122 and 21-320 (filed Oct. 15, 2021) (Ex. No. DCX 0174).

108 

See Validation Order; Nakahata Decl. ¶ 22.

109 

Nakahata Decl. ¶ 21.

 

45


89.    License LLC will receive the Accelerated Relocation Payments from the Relocation Payment Clearinghouse (as defined in the FCC Order) appointed by the FCC.110 License LLC will receive $1,197,842,000 for meeting this deadline. The Wireless Telecommunications Bureau has verified License LLC’s clearance, and ordered the Clearinghouse to disperse these ARPs to License LLC.111 License LLC now awaits payment from the Relocation Payment Clearinghouse, which payment will be made by the Relocation Payment Clearinghouse to License LLC in accordance with the terms of the FCC Order, the Validation Order and upon entry and effectiveness of this Confirmation Order.

90.    License LLC is also on pace to comply with the Phase II clearing deadlines. If, however, the Debtors were unable to confirm the Plan and were instead faced with a potential liquidation, such event would be disruptive and would severely hamper the Debtors’ ability to continue clearing the C-Band and meet the Phase II clearing schedule. Failing to meet this schedule would result in License LLC not receiving $3,667,524,000 in Accelerated Relocation Payments.

 

  II.

License LLC’s Entitlement to the Accelerated Relocation Payments

91.    License LLC is entitled to the Accelerated Relocation Payments. Among other things:

 

   

First, the FCC Order defines “Intelsat” as License LLC.112 In doing so, the FCC cites a filing that was made by License LLC that was admitted into evidence.113

 

110 

Draft Clearinghouse Agreement dated August 27, 2021 (Ex. No. DCX 0072).

111 

In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, Order, DA 20-1251 (WTB Nov. 12, 2021) (Ex. No. DCX 0136).

112 

FCC Order ¶ 11 (Ex. No. DCX 0053).

113 

See FCC Order ¶ 11 (Ex. No. DCX 0053).

 

46


   

Second, the FCC Order establishes “two Accelerated Relocation Deadlines . . . for incumbent space station operators that voluntarily relocate on an accelerated schedule (with additional obligations and incentives for such operators).”114 The FCC Order characterizes the Accelerated Relocation Payments as providing an incentive to encourage incumbent space station operators (i.e., existing licensees) to stop operating in the lower C-band as quickly as possible, so that they can be replaced by new terrestrial licensees. In other words, the payments are designed to encourage entities with the right to broadcast in the C-band to relinquish that right by specific early deadlines prior to the otherwise-applicable deadline.115

 

   

Third, the FCC Order expressly provides that the Accelerated Relocation Payments will go to the “eligible space station operators,” which are the “operators authorized to provide service to any part of the contiguous U.S. pursuant to an FCC-issued license… as of June 21, 2018…”116 Other portions of the FCC Order also use similar language to refer to the entities that are eligible to receive accelerated relocation payments, describing them as “incumbent C-band users,”117 “existing C-band FSS [fixed satellite services] users,”118 “eligible space station operators,”119 “satellite incumbents,”120 and “incumbent licensees.”121 All of these terms most naturally refer to the entities that actually hold the FCC licenses, not entities higher up the corporate chain.122 License LLC is the only Debtor entity authorized to provide service pursuant to FCC-issued licenses.123

 

   

Fourth, the Debtors’ decisions to have License LLC certify compliance with the accelerated clearing deadlines were supported by express direction that the Debtors received from the FCC’s Wireless Telecommunications Bureau,124 which was the part of

 

114 

See Ex. No. DCX 0092 (cited in FCC Order ¶ 11).

115 

Nakahata Decl. 34.

116 

An “eligible space station operator” must be an “incumbent space station operator,” which is “authorized to provide C-band service to any part of the contiguous United States pursuant to an FCC-issued license.” FCC Order ¶ 115 (emphasis added) (Ex. No. DCX 0053); see also Nakahata Report ¶ 29.

117 

FCC Order ¶ 46 (Ex. No. DCX 0053).

118 

Id. ¶ 113.

119 

Id. ¶¶ 169, 233.

120 

Id. ¶ 187.

121 

Id. ¶ 196.

122 

Nakahata Decl. ¶¶ 34, 39–47, 59–68.

123 

Id. ¶ 34.

124 

Bryan Decl. ¶ 34.

 

47


 

the FCC delegated authority to administer the FCC Order.125 The FCC has since validated submissions from every satellite firm’s holder of licenses or holder of market access rights (the equivalent of licenses),126 which is consistent with the FCC’s direction that the accelerated relocation payments be made to the licensee.

92.    In reaching that conclusion, the Bankruptcy Court has considered and evaluated arguments to the contrary set forth by stakeholders in these Chapter 11 Cases, some of which are further described below.

93.    License LLC is an indirect subsidiary of Jackson and the holder of materially all of the Debtors’ orbital slot licenses from the FCC127 that allow it to operate certain Company satellites at certain orbital locations with coverage of North America and to send and receive signals to and from those satellites using certain portions of the C-band spectrum, specifically at radio frequencies of 3.7–4.2 GHz.128 License LLC holds 45 FCC-issued licenses or grants of market access to provide Fixed Satellite Service in the 3.7–4.2 GHz band.129 License LLC has long held the relevant C-band licenses and has been the Intelsat entity permitted to utilize the C-band for over a decade.130 Each relevant license was listed as property of License LLC on its schedule of assets and liabilities filed on July 11, 2020 [Docket No. 7].131 No other Debtor possesses similar licenses with North America coverage or listed any similar assets on its schedule of assets and liabilities.132 And, the plain text of the FCC Order expressly references License LLC.133

 

125 

See e.g., FCC Order App’x A, § 27.1412.

126 

See, e.g., Embratel Validation Order, DA 21-1421, GN Docket 18-122, released on November 12, 2021 (Ex. No. DCX 0136); Eutelsat Americas Validation Order, DA 21-1344, GN Docket 18-122, released on October 27, 2021 (Ex. No. DCX 0081); Telesat Validation Order, as amended, GN Docket Nos. 18-122 & 21-320, DA 21-1442 (rel. Nov. 17, 2021); Expanding Flexible Use in the 3.7-4.2 GHz Band; TVSAT Telecomunicacoes S.A. Validation Order, GN Docket Nos. 18-122 & 21-320, DA 21-1421 (rel. Nov. 12, 2021).

127 

While Horizons-3 License LLC (“Horizons 3”) holds a space station license, see, e.g., FCC public notice dated September 24, 2021, it is not a Debtor. See Order (I) Directing Joint Administration of Chapter 11 Cases And (II) Granting Related Relief [Docket No. 89]. Additionally, Horizons 3 has only one satellite orbital license.

128 

Bryan Decl. ¶ 18; Begeman Decl. ¶ 11; Nakahata Decl. ¶ 13.

129 

Bryan Decl. ¶ 18. Intelsat Satellite LLC (“Satellite LLC”) owns all but one of the satellites operated by Company entities, including those that operate from the C-Band. Bryan Decl. ¶ 19.

130 

Bryan Decl. ¶ 18.

131 

See No. 20-32311-KLP [Docket No. 7].

132 

Debtor entity PanAmSat Europe Corporation has a $4 million carrying value for orbital slot licenses on its balance sheet as of March 31, 2021. These orbital slot licenses do not provide coverage of North America.

133 

Paragraph 11 of the FCC Order contains the Order’s first reference to Intelsat, where it references “Intelsat License LLC [sic]”, and then follows that with “(Intelsat).” FCC Order ¶ 11 (Ex. No. DCX 0053). By its plain language and common convention, this parenthetical establishes that “Intelsat” throughout the document means License LLC. Nakahata Decl. ¶¶ 14, 35–36.

 

48


94.    License LLC was the Company entity that was authorized to participate in the processes established by the FCC’s FCC Order, and it was the entity that actually participated in those processes.134 Because the relevant licenses belong to License LLC, License LLC was the primary Intelsat entity that participated in the notice and comment rulemaking process that led to the FCC Order.135 License LLC is the entity that has submitted an Accelerated Relocation Election pursuant to 47 C.F.R. § 27.1412(c), the FCC Order, and the Wireless Bureau’s May 11, 2020 Public Notice.136 License LLC is also the entity that filed the C-Band Transition Plan required by the FCC Order, which provided License LLC’s plan for clearing the band.137 License LLC provided quarterly status reports to the FCC on its clearing efforts in accordance with the FCC Order.138

 

134 

Bryan Decl. ¶ 29.

135 

See Bryan Decl. ¶¶ 23–26; see also e.g., Joint Comments of Intelsat License LLC and Intel Corporation, GN Docket No. 17-183 (filed Oct. 2, 2017) (Ex. No. DCX 0087); Joint Reply Comments of Intelsat License LLC and Intel Corporation, GN Docket No. 17-183 (filed Nov. 15, 2017) (Ex. No. DCX 0135); Joint Comments of Intel Corporation, Intelsat License LLC, and SES Americom, Inc., GN Docket Nos. 18-122 and 17-183 (filed Oct. 29, 2018) (Ex. No. DCX 0089); Joint Reply Comments of Intel Corporation, Intelsat License LLC, and SES Americom, Inc., GN Docket Nos. 18-122 and 17-183 (filed Dec. 7, 2018) (Ex. No. DCX 0090); Nos. 18-122 and 17-183 (filed Dec. 7, 2018).

136 

Letter from Michelle V. Bryan, Secretary, Intelsat License LLC, and Executive Vice President, General Counsel and Chief Administrative Officer, Intelsat US LLC, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 18-122 (filed May 26, 2020) (Ex. No. DCX 0093). Although Company management referenced Intelsat US in a footnote in the election form, this reference did not indicate that Intelsat US was electing to clear the C-Band, as the Company understood that Intelsat US was not (and is not) eligible to do so. Rather, Company management was informing the FCC that Intelsat US would be providing operational services on behalf of License LLC, and, as a result, it would be eligible to receive reimbursements for expenses it incurred during the clearing, but would not be eligible to receive the Accelerated Relocation Payments. Bryan Decl. ¶ 29. Intelsat US provides administrative services to License LLC, but License LLC is responsible for the clearing. Id. ¶ 32.

137 

License Submission for the Record–Transition Plan and Appendices to the Transition Plan, Michelle V. Bryan, Secretary, Intelsat License LLC, Executive Vice President, General Counsel, and Chief Administrative Officer Intelsat US LLC, GN Docket No. 18-122 (filed June 19, 2020) (Ex. No. DCX 0094). Ms. Bryan signed this filing on behalf of License LLC. Bryan Decl. ¶ 32.

138 

Submission for the Record—First Quarterly Report, Michelle V. Bryan, Secretary, Intelsat License LLC, Executive Vice President, General Counsel, and Chief Administrative Officer, Intelsat US LLC, GN Docket Nos. 18-122 and 20-173 (filed Dec. 28, 2020) (Ex. No. DCX 0148); Submission for the Record—Second Quarterly Report, Michelle V. Bryan, Secretary, Intelsat License LLC, GN Docket Nos. 18-122 and 20-173 (filed March 31, 2021) (Ex. No. DCX 0149); Submission for the Record—Third Quarterly Report, Michelle V. Bryan, Secretary, Intelsat License LLC, GN Docket Nos. 18-122 and 20-173 (filed June 29, 2021) (Ex. No. DCX 0150); Bryan Decl. ¶ 32.

 

49


95.    Certain stakeholders’ assertion that Intelsat S.A. has a “unique” claim to the Accelerated Relocation Payments is not credible.139 No principles of communications law generally, and nothing in the FCC’s promulgations with respect to C-band specifically, support providing the Accelerated Relocation Payments to Intelsat S.A.140 Intelsat S.A. has no licenses or hard assets, no satellites, and no operations; Intelsat S.A. is not mentioned in the FCC Order, FCC regulations or any other communication with the FCC related to the C-band; the FCC has expressly named License LLC in its Validation Order,141 further has expressly validated the C-band clearing orders of every satellite firm and, for each, has validated and directed payments to the entity that is the current holder of C-Band licenses or market access rights (like License LLC), not to the ultimate parent.142 As Mr. Nakahata credibly testified, the fact that Intelsat S.A. is the ultimate controlling party of Intelsat Licensees, or could potentially be held secondarily liable for a violation of FCC rules should the FCC direct that result in an appropriate case, has nothing to do with which entity is the eligible space station operator under the FCC Order.143

 

139 

During the pendency of these Chapter 11 Cases, the same assertions have been made by stakeholders of every Debtor.

140 

See Nakahata Decl. ¶¶ 4, 23.

141 

See Validation Order.

142 

See, e.g., Begeman Decl. ¶ 11; Nakahata Decl. ¶ 22.

143 

See Nakahata Decl. ¶¶ 23–24, 39–47, 59–68.

 

50


96.    The involvement of the Intelsat S.A. board on matters regarding the C-Band is not evidence of any claim to the Accelerated Relocation Payments; rather, it is only evidence that the board of Intelsat S.A., as the ultimate parent of the Debtors, was advised of the largest transaction that the Intelsat entities had ever been involved in and provided the corporate approvals that were necessary (such as capital expenditure approvals).144 All of the Debtors’ material assets are housed within Jackson and its subsidiaries. Intelsat S.A. has been “responsible” for managing the entire Company as the board of directors of the ultimate parent. But, that does not make Intelsat S.A. “responsible” for the Accelerated Relocation Payments any more than approving the construction of the Debtors’ satellites gives Intelsat S.A. rights to the value of the Debtors’ satellites.145 Because of the Debtors’ licenses and because the Debtors have agreed to stop using the C-Band by the deadlines in the FCC Order, the Accelerated Relocation Payments are properly paid to the entity that must stop (and will stop) using the C-Band, which is License LLC.146

 

  iii.

Administrative Expenses.

97.    Over the course of these Chapter 11 Cases, the Debtors have accrued significant administrative expenses, including for estate professionals. Because these professionals provide services on behalf of all the Debtors, the proportional responsibility of each Debtor for payment of such expenses and the methodology for determination of the allocation, could be subject to expensive and time-consuming dispute.

98.    The Settlement, as incorporated into the Plan, allocates fees for professionals retained by the Debtors and other Restructuring Expenses based on the distributable cash before

 

144 

Bryan Decl. ¶¶ 48, 51.

145 

Zelin Decl ¶ 75.

146 

This finding is also consistent with findings of the Internal Revenue Service and Securities and Exchange Commission, both of which have characterized the Accelerated Relocation Payments as partial compensation for the modifications of the licenses held by License LLC. See Ex. No. DCX 30-31. See also, e.g., Confirmation Hr’g Tr., 147:19–21, 149:3–4; 149:23–150:7, Dec. 6, 2021 (Bryan).

 

51


fees at each of the entities, resulting in 23 percent of Debtor professionals’ fees being allocated as HoldCo expenses (subject to allocation among the HoldCos based on distributable cash before fees to, among things, avoid the administrative insolvency of any HoldCo entity),147 and 77 percent of the fees being allocated as Jackson expenses.148 This allocation is reasonable and avoids the need to review thousands of pages of invoices line-by-line to assess which estate is at issue for each time entry.149

99.    Under the facts and circumstances of these Chapter 11 Cases, this fee allocation is appropriate. The actual cost of these Chapter 11 Cases to each entity has very little to do with the amount of prepetition funded debt at each entity.150 Measurements of prepetition funded debt also vary greatly based on whether the measurement is taken before or after the Guarantee Releases (as defined herein).151

100.    Under the Settlement, Intelsat S.A. will be paying approximately $12 million of the shared professional fees.152 Total professional fees in these cases have exceed $200 million.153 As

 

147 

Zelin Decl. ¶ 88.

148 

Notwithstanding anything to the contrary in the Plan, the Convert Ad Hoc Group Fees shall be paid in Cash solely from any distributions of the Incremental J1 Recovery to Holders of Unsecured Claims in Class J1 that are members of the Convert Ad Hoc Group. For the avoidance of doubt, other than the Reorganized TopCo Formation Costs, neither the Convert Ad Hoc Group nor any of its members, experts, professionals, or other advisors shall be entitled to any additional claims on account of fees and expenses incurred in connection with these Chapter 11 Cases, including, but not limited to, any “substantial contribution” claims under section 503(b) of the Bankruptcy Code or otherwise; provided for the avoidance of doubt, no Debtor or Reorganized Debtor, other than Intelsat, shall pay the Convert Ad Hoc Group Fees.

149 

Zelin Decl. ¶ 89.

150 

Id. ¶ 91.

151 

Absent the Guarantee Releases (as defined herein), if one were to allocate professional fees based on prepetition funded debt at each entity hours before the bankruptcy filings, it would allocate substantially more of the shared professional fees to Intelsat S.A., since Intelsat S.A. had guaranteed nearly all of the Debtors’ prepetition funded debt until shortly before the Debtors’ bankruptcy filing. Zelin Decl. ¶ 90. Notably, other than addressing the claims filed by SES (which were asserted against every Debtor entity), one of the largest expenses in these Chapter 11 Cases was in response to the litigation and delay caused by the Convert Ad Hoc Group. Zelin Decl. ¶ 91.

152 

Id. ¶ 88.

153 

Bryan Decl. ¶ 99 n.55.

 

52


matters specific to Intelsat S.A. have required a material percentage of the total time and effort encompassed by the shared professional fees (which the Court observed throughout the case and at the Confirmation Hearing in particular), the amount allocated to Intelsat S.A. is reasonable.154

 

  iv.

Emergence Considerations.

101.    The Debtors explored numerous post-emergence organizational structures—both public and private—and have analyzed the various tax, corporate, and restructuring considerations associated therewith. The Debtors’ position is that many of these structures presented unique challenges given the interplay of U.S. and Luxembourg law and that litigating the ability for the Debtors to pursue alternative emergence structures would be, at best, time-consuming and expensive. The Jackson Crossover Ad Hoc Group vigorously disputes these points.

102.    The Debtors’ position is that: (a) to craft an implementable corporate structure that allowed any of the Debtors to emerge from chapter 11, the Debtors’ emergence structure needed to result in a value-maximizing and deleveraging restructuring and also comply with Luxembourg corporate law; (b) if an emergence structure were to provide for Jackson alone to emerge pursuant to a plan of reorganization confirmed by the Bankruptcy Court, creditors and other stakeholders could theoretically attempt to seek relief in Luxembourg courts if such plan was not consummated in accordance with Luxembourg law; (c) challenges in Luxembourg could potentially include attempts to unwind a confirmed plan in order to effectuate alternative restructuring transactions under Luxembourg bankruptcy laws; and (d) Luxembourg tax corporate law formalities vary from those in the United States. The Jackson Crossover Ad Hoc Group vigorously disputes many of these points.

 

154 

E.g., Zelin Decl. ¶¶ 12, 60, 71.

 

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  v.

Historical Intercompany Transactions.

103.    Well over one hundred historical intercompany transactions were reviewed by the Special Committees, including, among many others, transactions that fell into the following categories: (a) dividends originating from Jackson and ending with LuxCo; (b) the creation of ICF (including the Envision Note); (c) the creation of Envision;155 (d) a cash contribution from ICF to Jackson; (e) a notes contribution from ICF to Jackson; and (f) other smaller transactions including loans, a one-off cash dividend, non-cash dividends, guarantee releases, and others.156

104.    Advisors have expended hundreds of hours tracing and analyzing the historical intercompany transactions. As part of this broader analysis, a bank tracing analysis was performed and determined that there was no unencumbered cash as of the Petition Date. Litigating the issues presented by these transactions would be an expensive and time consuming exercise, likely requiring thousands of hours, including pretrial hearings on jurisdictional issues, extended discovery disputes, and expert testimony and reports.

 

  vi.

Guarantee Releases.

105.    The Debtors’ purported release of certain parent guarantees has generated significant litigation in these cases. The Debtors’ funded-debt obligations include certain unsecured notes issued by LuxCo and Jackson, which were guaranteed by certain parent

 

155 

In particular, in connection with the creation of Envision, Intelsat S.A. advanced $150 million to Envision through a note with an interest rate of 12.5 percent per annum and a maturity date in 2026 (the “Envision Note”). Based on the Envision Note, and Envision’s guaranty of the Convertible Notes, the Intelsat S.A. Special Committee viewed cash at Envision as a significant source of potential value for Intelsat S.A. Kangas Decl. ¶ 63; Diercksen Decl. ¶ 63. During negotiations, the Envision Special Committee argued for recharacterization of the Envision Note as equity, which would, if successful, block Intelsat S.A.’s right to receive any cash from the Envision estate on account of the Envision Note and eliminating any value to Intelsat S.A. on account of the Envision Note. Kangas Decl. ¶ 64. Accordingly, the Intelsat S.A. Special Committee instructed its counsel to review the recharacterization claim, as well as Intelsat S.A.’s potential liability for approximately $28 million in interest payments made to date on the Envision Note. Kangas Decl. ¶ 65.

156 

The Special Committees’ review was broad-ranging, covering well over 100 transactions and net balances. The list of categories of transactions included herein is illustrative and not exhaustive.

 

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companies of LuxCo and Jackson (the “Parent Guarantees”):157 the Lux Notes were guaranteed by Intelsat S.A., Investment Holdings, Holdings, and Investments; and the Jackson Notes were guaranteed by Intelsat S.A., Investment Holdings, Holdings, Investments, LuxCo, and ICF (each a “Parent Guarantor”). Prior to the filing of the Debtors’ chapter 11 petitions, each of the Parent Guarantors sent written notice to the applicable indenture trustee that they had released their respective Parent Guarantees (such releases, the “Guarantee Releases”).

106.    The Guarantee Releases have since become the subject of (a) numerous proofs of claim filed by either the applicable indenture trustees or certain individual members of the Convert Ad Hoc Group,158 (b) two objections to the Jackson Notes Guarantee Claims and one objection to

 

 

157 

The Parent Guarantees related to the following issuances:

 

   

Those certain 7.75% senior notes due 2021, issued by LuxCo in aggregate principal amount of $2,000,000,000 pursuant to an indenture dated April 5, 2013 (Ex. No. DCX 0117) (the “Lux Notes Indenture”). As of the Petition Date, $421,200,000 was outstanding under LuxCo’s 7.75% notes.

 

   

Those certain 8.125% senior notes due 2023, issued by LuxCo in an aggregate principal amount of $1,000,000,000 (the notes issued by LuxCo described herein, together, the “Lux Notes”), pursuant to the Lux Notes Indenture. As of the Petition Date, and $888,000,000 remains outstanding under LuxCo’s 8.125% notes.

 

   

Those certain 5.50% senior notes due 2023 issued by Jackson in an aggregate principal amount of $2,000,000,000 pursuant to an indenture dated June 5, 2013 (Ex. No. DCX 0119) (the “2023 Jackson Senior Notes”). As of the Petition Date, $1,985,000,000 was outstanding under Jackson’s 5.50% notes.

 

   

Those certain 8.50% senior notes due 2024, issued by Jackson in a total aggregate principal amount of $2,950,000,000 (Ex. No. DCX 0127) (the “2024 Jackson Senior Notes”) pursuant to an indenture dated September 19, 2018. As of the Petition Date, $2,950,000,000 was outstanding under Jackson’s 8.50% notes.

 

   

Those certain 9.75% senior notes due 2025, issued by Jackson in a total aggregate principal amount of $1,900,000,000 (the “2025 Jackson Senior Notes,” and, together with the other notes issued by Jackson described herein, the “Jackson Notes” and, together with the Lux Notes, the “Notes”) pursuant to an indenture dated July 5, 2017 (Ex. No. DCX 0130) (the indentures for the Notes, the “Indentures”). As of the Petition Date, $1,885,000,000 was outstanding under Jackson’s 9.75% notes.

 

158 

U.S. Bank, in its capacity as trustee under each of the Jackson Senior Notes Indentures, filed proofs of claim numbered: 551 (Ex. No. DCX 0253), 552 (Ex. No. DCX 0254), 553(Ex. No. DCX 0255), 554 (Ex. No. DCX 0256), 555 (Ex. No. DCX 0257), 556 (Ex. No. DCX 0258), 583 (Ex. No. DCX 0259), 584 (Ex. No. DCX 0260), 585(Ex. No. DCX 0261), 586 (Ex. No. DCX 0262), 587 (Ex. No. DCX 0263), 588 (Ex. No. DCX 0264), 615 (Ex. No. DCX 0265), 616 (Ex. No. DCX 0266), 617 (Ex. No. DCX 0267), 618 (Ex. No. DCX 0268), 619 (Ex. No. DCX 0269), 620 (Ex. No. DCX 0270), 1324 (Ex. No. DCX 0287), 1329 (Ex. No. DCX 0288), 1334 (Ex. No. DCX 0289), 1337 (Ex. No. DCX 0290), 1338 (Ex. No. DCX 0291), 1356 (Ex. No. DCX 0292), 1357 (Ex. No. DCX 0293), 1361 (Ex. No. DCX 0294), 1368 (Ex. No. DCX 0295), 1372 (Ex. No. DCX 0296), 1374 (Ex. No. DCX 0297), 1375 (Ex. No. DCX 0298), 1377 (Ex. No. DCX 0299), 1387 (Ex. No. DCX 0300), 1396 (Ex. No. DCX 0301), 1397 (Ex. No. DCX 0302), 1399 (Ex. No. DCX 0303), and 1422 (Ex. No. DCX 0304) (collectively, the “Jackson Notes Guarantee Claims”), asserting unsecured claims against each of the Parent Guarantors on account of their allegedly continuing obligations to guarantee the Senior Notes. U.S. Bank has filed proofs of claim in the amount of approximately $2.02 billion with respect to the 2023 Jackson Senior Notes, approximately $3.10 billion with respect to the 2024 Jackson Senior Notes, and approximately $1.95 billion with respect to the 2025 Jackson Senior Notes. U.S. Bank’s proofs of claim account for “accrued interest, plus additional interest, charges, fees and other amounts owing under the Notes Documents . . . or applicable law . . . outstanding as of the Petition Date[.]” See, e.g., Proof of Claim No. 551 Filed by U.S. Bank, National Association, as Indenture Trustee. Similarly, on September 7 and September 8, 2020, Delaware Trust Company (“Delaware Trust”), in its capacity as indenture trustee for the Lux Notes filed proofs of claim numbered: 784 (Ex. No. DCX 0271), 785 (Ex. No. DCX 0272), 788 (Ex. No. DCX 0273), 791 (Ex. No. DCX 0274), 793 (Ex. No. DCX 0275), 794 (Ex. No. DCX 0276), 795 (Ex. No. DCX 0277), 796 (Ex. No. DCX 0278), 898 (Ex. No. DCX 0279), 902 (Ex. No. DCX 0280), 903 (Ex. No. DCX 0281), 904 (Ex. No. DCX 0282), 905 (Ex. No. DCX 0283), 906 (Ex. No. DCX 0284), 907 (Ex. No. DCX 0285), and 910 (Ex. No. DCX 0286) (collectively, the “Lux Notes Guarantee Claims” and together with the Jackson Notes Guarantee Claims, the “Guarantee Claims”), asserting unsecured claims against each of the Lux Parent Guarantors on account of their allegedly continuing obligations to guarantee the Lux Notes. Delaware Trust has filed proofs of claim in the amount of approximately $435 million with respect to the 7.75% Lux Senior Notes and approximately 1.04 billion with respect to the 8.125% Lux Senior Notes. The Lux Notes Guarantee Claims also include interest that was accrued but unpaid as of the Petition Date.

 

55


the Lux Notes Guarantee Claims, (c) five responses to the objections, (d) two motions for partial summary judgment, (e) two objections to the motions for partial summary judgment and cross-motions for partial summary judgment, (f) one motion for temporary allowance, and (g) three objections to the motion for temporary allowance. Generally, the Convert Ad Hoc Group and the HoldCo Creditor Ad Hoc Group have argued that the Guarantee Releases were valid and the Guarantee Claims should be disallowed. The Jackson Crossover Ad Hoc Group, U.S. Bank, and Delaware Trust have argued in response that the Guarantee Releases were invalid and the Guarantee Claims are thus valid claims.

107.    The Plan, including the Settlement and the Convert Settlement, provides that (a) all of the HoldCo Guarantee Claims are deemed withdrawn with prejudice on the Effective Date of the Plan if the conditions in paragraph 213 hereof are satisfied, and that (b) provided that each member of the Convert Ad Hoc Group supports the Plan on the Effective Date, on the Effective Date of the Plan, the TopCo Guarantee Claims shall be withdrawn with prejudice and not entitled to any distribution under the Plan.

 

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  b.

Summary of Findings Related to the Settlement

108.    The Settlement reflects a fair and balanced resolution of some of the most difficult issues in these Chapter 11 Cases. The Settlement Agreement resolves a host of extremely complex issues, including (a) matters related the Debtors’ tax attributes, (b) the recipient and allocation of any Accelerated Relocation Payments, (c) administrative expense payments, (d) post-emergence organizational structure, (e) historical intercompany transactions (including potential claims concerning the 2018 Reorganization), and (f) certain guarantee-release-related claims. The Settlement is the result of arm’s-length and vigorous advocacy and negotiation of independent fiduciaries and the active participation of key economic stakeholders.

109.    In consideration for the distributions and other benefits provided under the Plan, this Confirmation Order shall constitute the Bankruptcy Court’s approval of the Settlement as well as a finding by the Bankruptcy Court that the Settlement is in the best interests of the Debtors, their Estates, Holders of Claims and Interests, and other parties in interest, is fair, equitable, and reasonable, and any objections to the Settlement or the Settlement Agreement have been withdrawn or overruled upon the merits.

110.    Each of the Debtors, including the Special Committees with respect to actual or potential Conflict Matters, have undertaken a thorough, independent review of the settlements and compromises contained in the Settlement, including the settlements and compromises between the Debtors with respect to inter-Debtor Claims, and have determined, in the valid exercise of their business judgment, that entry into the Settlement is in the best interests of the Debtors’ estates and their creditors.159 The negotiations that led to the Settlement were blunt, contentious, and at arm’s length. Settlement was not a foregone conclusion.

 

159 

Kangas Decl. ¶ 65. For stakeholders of Intelsat S.A. in particular, the Settlement provided for the release of recharacterization claims asserted on account of the Envision Note, thereby permitting a recovery to Intelsat S.A. stakeholders on account of the Envision Note.

 

57


111.    Given the facts and circumstances of these Chapter 11 Cases, and the nature of the Claims and Causes of Action that have been alleged and asserted, the compromises contained in the Settlement are fair, equitable, reasonable, and adequate, in the best interests of the Debtors’ estates and their creditors, and represent a valid and proper exercise of the Debtors’ business judgment.

112.    The Settlement confers substantial benefits upon the Debtors’ estates, by, among other things, providing for: (a) the resolution of the alleged Claims and Causes of Action the Debtors may have against each other (including those inter-Debtor Claims alleged by certain stakeholders in the Standing Motions),160 on fair and reasonable terms negotiated at arm’s length; (b) the elimination of the substantial expense, delay, and risk of loss associated with litigation of the foregoing matters; and (c) a value-maximizing post-emergence structure that maintains the Luxembourg tax unity. The Settlement maximizes the value of the Estates by preserving and protecting the ability of the Reorganized Debtors to continue operating outside of bankruptcy protection and in the ordinary course of business. Furthermore, the Settlement is essential to successful implementation of the Plan.

113.    The compromise and settlement of Claims and Causes of Action set forth in the Settlement Agreement substantially exceed the lowest point in the range of reasonableness for each party thereto. The benefits and consideration that the Settling Debtors are providing to each other under the Settlement, including the covenants made thereunder and the release of certain Claims and Causes of Action, are fair, equitable, and for adequate consideration and constitute reasonably equivalent value, and are not subject to avoidance under applicable law or in equity.

 

160 

Standing Motions” has the meaning set forth in the Confirmation Brief.

 

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114.    The settlement and compromises described in the Settlement Agreement are fair and reasonable and supported by sound business justifications, and there is no bona fide basis for any Claims or Causes of Action against the Debtors or any other Released Parties (as provided in the Settlement Agreement) arising out of their participation in the negotiation and implementation of the compromises set forth in the Settlement Agreement. The Settlement Agreement satisfies the Frye standard and the business judgment standard, which is the applicable Fourth Circuit standard under these facts and circumstances.161

115.    The settlement and compromises set forth in the Settlement are the product of arm’s-length negotiations between sophisticated parties, represented by counsel and other advisors, as further informed by negotiations taking place between sophisticated parties in judicial mediation. In entering into the Settlement, the Settling Debtors, including the Special Committees, have exercised their respective rights and powers and used the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances. But, even if the Bankruptcy Court were to apply the “entire fairness” or “heightened scrutiny” standard, the Settlement would still satisfy such standards. The process by which the Settlement was negotiated was a protracted, arm’s-length, good-faith, and fair process. Likewise, the result reached, and any distributions made in connection therewith, are fair and equitable.

116.    Under the facts and circumstances of these Chapter 11 Cases, the Settlement does not constitute a sub rosa plan. The Settlement neither impermissibly restructures the rights of the Debtors’ creditors nor impermissibly dictates a chapter 11 plan for any of the Debtors. The Settlement only releases inter-estate claims. The Settlement does not release the claims of third-

 

161 

See In re Frye, 216 B.R. 166, 174 (Bankr. E.D. Va. 1997); In re W.A. Mallory Co., 214 B.R. 834, 836 (Bankr. E.D. Va. 1997).

 

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party creditors. The Settlement does not dispose of substantially all of the Debtors’ assets, impair creditors’ procedural and due process protections afforded under the Bankruptcy Code, nor does it release substantially all of the creditors’ claims against the Debtors’ estates. Parties in interest have had more than adequate notice of the terms of the Settlement by virtue of service of the Plan (including the Plan Supplement) and the Disclosure Statement. Creditors have had ample opportunity to provide input by, to the extent applicable, voting on the Plan and/or filing objections to the Plan.

117.    Accordingly, based upon the evidence introduced at the Confirmation Hearing and the full record of the Chapter 11 Cases, this Confirmation Order constitutes the Bankruptcy Court’s approval of the Settlement incorporated in the Plan and this Confirmation Order, because, among other things: (a) the Settlement reflects a reasonable balance between the possible success of litigation with respect to each of the claims and disputes settled thereunder, on the one hand, and the benefits of fully and finally resolving such claims and disputes and allowing the Debtors to expeditiously exit chapter 11, on the other hand; (b) absent the Settlement, there is a likelihood of complex and protracted litigation, with attendant expense, inconvenience, and delay that have a possibility to derail the Debtors’ reorganization efforts;162 (c) each of the parties supporting the Settlement, including the Debtors and the Consenting Creditors, are represented by counsel that is recognized as being knowledgeable, competent, and experienced; and (d) the Settlement is the product of arm’s-length bargaining and good-faith negotiations between sophisticated parties. Based on the foregoing, the Settlement satisfies the requirements of applicable Fourth Circuit law for approval of settlements and compromises pursuant to Bankruptcy Rule 9019.

 

162 

See Begeman Decl. ¶ 6; Kangas Decl. ¶ 95; Diercksen Decl. ¶ 95.

 

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118.    Upon entry of this Confirmation Order, each of the Debtors: (a) has full power and authority to enter into and perform all of their obligations under the Settlement and all other documents contemplated thereby; (b) has full power and authority to take any and all action necessary to authorize and approve the Settlement and the transactions contemplated thereby and has requested and obtained all necessary approvals required to do so; and (c) is legally authorized to enter into and perform the Settlement and to take any and all actions necessary to authorize, approve, and implement the Settlement and the transactions contemplated thereby. On the Effective Date and upon the occurrence of the conditions specified in paragraph 213 hereof, the Indenture Trustees are authorized and directed to settle and release each and every one of the HoldCo Guarantee Claims in accordance with the Settlement and the HoldCo Guarantee Claims shall be deemed released and withdrawn with prejudice.

 

  B.

Plan Allocation of Distributable Value by Debtor

119.    The Settlement, as reflected in the Plan, incorporates the Value Allocation attached as Exhibit A to the Plan, which further incorporates the terms of the SES Settlement (as defined herein). The SES Settlement follows vigorous, good-faith, arm’s-length negotiations among the Debtors, the Jackson Crossover Ad Hoc Group, and SES, after which the Debtors determined, in the valid exercise of their business judgment, that settlement of the SES Objection and the SES Standing Motion was in the best interests of the Debtors’ estates and their creditors.163 Pursuant to the SES Settlement (as defined herein), the plan allocation of distributable value has been modified to allocate more value to US LLC, resulting in the current Value Allocation incorporated into the Plan. The increased allocation of value to US LLC is not indicative of any belief or admission by the Debtors of any of the arguments raised by SES (including, but not

 

163 

See infra ¶¶ 292–94; see also Notice of Resolution of SES Americom, Inc.’s Objection to Second Amended Joint Chapter 11 Plan of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3719].

 

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limited to, the appropriate allocation of the Accelerated Relocation Payments), nor is it intended to limit or restrict any argument of SES with respect to its rights and claims against Jackson, License LLC or US LLC, all of which are preserved as and to the extent provided in the SES Settlement. Rather, the benefits obtained from avoiding costly litigation with SES, including on the numerous issues raised with respect to the initial value allocation filed as Exhibit A to the Second Amended Plan, the entities potential SES claims are being filed again, the scope of any claims reserve, the resolution of the form of consideration that will be utilized to satisfy any claims successfully asserted by SES (and the potential for regulatory or other delays that could have resulted from such reserves), are compelling. The adjustment to the Value Allocation resulting from the SES Settlement, together with the other concessions obtained by the Debtors in connection with the SES Settlement, is in the best interests of the Debtors.

120.    All parties in interest have been given the opportunity to challenge (but did not) the Value Allocation. In light of the foregoing, the Value Allocation, as adjusted to incorporate the terms of the SES Settlement, is approved.

 

  C.

Term Loan Facility Claims Settlement

121.    In addition to the general settlement described in Article IV.A of the Plan and paragraph 68 herein, pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the mutual compromises described in Article IV.A, the Plan incorporates a settlement of certain Term Loan Facility Claims (the “Term Loan Facility Claims Settlement”). In consideration for the distributions and other benefits provided under the Plan, this Confirmation Order shall constitute the Bankruptcy Court’s approval of the Term Loan Facility Claims Settlement, as well as a finding by the Bankruptcy Court that the Term Loan Facility Claims Settlement is in the best interests of the Debtors, their Estates, and the Holders of Claims and Interests and is fair, equitable, and reasonable.

 

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122.    Based upon the representations and arguments at the Confirmation Hearing and all other testimony either actually given or proffered and other evidence introduced at the Confirmation Hearing and the full record of the Chapter 11 Cases, this Confirmation Order constitutes the Bankruptcy Court’s approval of the Term Loan Facility Claims Settlement incorporated in the Plan and this Confirmation Order, because, among other things: (a) the Term Loan Facility Claims Settlement reflects a reasonable balance between the possible success of litigation with respect to each of the Settled Claims and disputes, on the one hand, and the benefits of fully and finally resolving such claims and disputes and allowing the Debtors to expeditiously exit chapter 11, on the other hand; (b) absent the Term Loan Facility Claims Settlement, there is a likelihood of complex and protracted litigation involving, among other things, the inclusion of amounts related to default interest in the Allowed Term Loan Facility Claims, with the attendant expense, inconvenience, and delay that have a possibility to derail the Debtors’ reorganization efforts; (c) each of the parties supporting the Term Loan Facility Claims Settlement, including the Debtors and the Consenting Creditors, are represented by counsel that is recognized as being knowledgeable, competent, and experienced; (d) the Term Loan Facility Claims Settlement is the product of arm’s-length bargaining and good-faith negotiations between sophisticated parties; and (e) the Term Loan Facility Claims Settlement is fair, equitable, and reasonable and in the best interests of the Debtors, the Reorganized Debtors, their respective Estates and property, creditors, and other parties in interest, will maximize the value of the Estates by preserving and protecting the ability of the Reorganized Debtors to continue operating outside of bankruptcy protection and in the ordinary course of business, and is essential to the successful implementation of the Plan. Based on the foregoing, the Term Loan Facility Claims Settlement satisfies the requirements of applicable Fourth Circuit law for approval of settlements and compromises pursuant to Bankruptcy Rule 9019.

 

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  iv.

Debtor Release

123.    In accordance with section 1123(b)(3)(A) of the Bankruptcy Code, the releases of Claims and Causes of Action by the Debtors described in Article VIII.D of the Plan (the “Debtor Release”) represent a valid exercise of the Debtors’ business judgment under and otherwise satisfy the requirements of Bankruptcy Rule 9019. The Debtors’ or the Reorganized Debtors’ pursuit of any such Claims and Causes of Action against the Released Parties is not in the best interests of the Estates’ various constituencies because the costs involved would likely outweigh any potential benefit from pursuing such claims. The Debtor Release is an integral part of the Plan and the Settlement incorporated therein, is fair and equitable, complies with the absolute priority rule, and is in the best interests of the Estates, and Holders of Claims and Interests. Specifically, the Debtor Release is: (a) in exchange for good and valuable consideration provided by each of the Released Parties, including, without limitation, the Released Parties’ substantial contributions to facilitating the Restructuring Transactions and implementing the Plan; (b) a good-faith settlement and compromise of the Claims released by the Debtor Release; (c) in the best interests of the Debtors and all Holders of Claims and Interests; (d) fair, equitable, and reasonable; and (e) given and made after due notice and opportunity for a hearing.

124.    The Debtor Release is a critical element of the Debtors’ financial restructuring. Without the Debtor Release, many of the Released Parties would have been unwilling to participate in the Plan process, which would have been value destructive. The vast majority of creditors entitled to vote in Classes A6, A7, A8, B1, C1, D1, E1, F1, and, as set forth herein, J1, have overwhelmingly voted in favor of the Plan, including the Debtor Release. The Plan, including the Debtor Release, was negotiated at arm’s length and in good faith by sophisticated parties represented by able counsel and financial advisors. Therefore, the Debtor Release is the result of an arm’s-length negotiation process.

 

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125.    The Debtor Release appropriately offers protection to parties that constructively participated in the Debtors’ restructuring process. Specifically, the “Released Parties” in accordance with the Plan are: (a) each of the Debtors; (b) each of the Reorganized Debtors; (c) the Committee, and each member thereof (including ex officio members); (d) each of the First Lien Lenders; (e) each of the First Lien Noteholders; (f) the First Lien Agent; (g) each Indenture Trustee; (h) the Prepetition Collateral Trustee; (i) each of the DIP Agents; (j) each of the DIP Lenders; (k) each of the Lead Arrangers (as defined in the New Debt Documents); (l) each of the book-running managers, lead placement agents, or similar parties with respect to the issuance of the New Notes; (m) the Jackson Ad Hoc Group, and each member thereof; (n) the HoldCo Creditor Ad Hoc Group, and each member thereof; (o) the Jackson First Lien Noteholder Group and each member thereof; (p) the Jackson Crossover Ad Hoc Group, and each member thereof; (q) the Convert Ad Hoc Group, and each member thereof; (r) each Consenting Creditor; (s) each Backstop Party; (t) the Relocation Payment Clearinghouse LLC; (u) each current and former Affiliate of each Entity in clause (a) through the following clause (v); and (v) each Related Party of each Entity in clause (a) through this clause (v); provided that if the Equity Group Stipulation is approved by a Final Order, then Supporting Holders of Allowed Interests (as defined in the Equity Group Stipulation) shall automatically be deemed to be a “Releasing Party” and “Released Party” under the Plan.

126.    None of the Debtors benefit from preserving inter-estate claims or claims against the Released Parties, the pursuit of which would ultimately be wasteful and benefit no one.164 All potential intercompany claims have been exhaustively analyzed by the Debtors and the Special Committees, each of whom performed their own analyses prior to the releases being proposed, and each of whom support the releases.165

 

164 

Bryan Decl. ¶ 101.

165 

Bryan Decl. ¶ 97.

 

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127.    The only potential or theoretical claims identified for preservation by the tens of parties in these cases are (a) potential claims arising from the 2018 Reorganization and (b) alleged securities fraud transactions arising out of a block trade by affiliates of BC Partners (in which affiliates of Silver Lake and Mr. David McGlade tagged along) on November 5, 2019.166

128.    As to the block trade allegations, the premise of the claim is that an Intelsat individual (a) learned on November 5, 2019 that the FCC had decided to reject the secondary market proposal made by the C-Band Alliance and instead pursue a public auction; and (b) communicated that to BC Partners, Silver Lake, and/or Mr. McGlade, who subsequently traded stock with the benefit of this information. But these factual premises are simply not supported by any evidence and, to the contrary, the evidence affirmatively defies the theories averred.167 Moreover, as Professor Prüm described, even if these claims were supported by the evidence, neither of these claims would be supported under applicable Luxembourg law, as under Luxembourg law, insider trading (even if it occurred) does not give rise to a claim by the company against those who traded where (as here) it did not damage the company.168

 

166 

See Convert Objection ¶ 119.

167 

See generally, e.g., Spengler Declaration; Bryan Decl. ¶¶ 67–83; Tolley Decl. ¶ 48; Confirmation Hr’g Tr. 37:11-41:15, Dec. 7, 2021 (Spengler). Ms. Bryan also conducted an internal assessment of the allegations on behalf of the Company and concluded that there was no merit to the allegations. Bryan Decl. ¶ 76. Further, despite the securities fraud allegations being set forth publicly in a shareholder complaint, the Company has received no inquiry, formal or informal, regarding the allegations from the SEC or any other government agency or any Congressional office. Id. ¶ 81. The Special Committees through their professionals also undertook a thorough and independent investigation of these claims and concluded that a release would be appropriate. Begeman Decl. ¶ 25–26.

168 

See generally Prum Declaration; see also Luxembourg Law on Commercial Companies of 10 August 1915, § 441-9 (providing that a company cannot pursue any securities fraud theory against directors who traded on inside information unless it actually damages the company).

 

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129.    Absent the Debtor Release, the potential legacy transaction claims being settled pursuant to the Settlement could be resurrected as claims for breach of fiduciary duty or aiding and abetting.169 Litigating these claims would be costly.170 Such claims would cover many of the same transactions underlying the otherwise released claims and would require management’s continued focus on restructuring matters.171 It would not be in the Debtors’ interest to pursue these claims.

130.    The directors and officers have worked tirelessly to advance the Debtors’ restructuring, above and beyond usual management and oversight responsibilities—working to support the Debtors’ restructuring and attending many special meetings and in certain instances serving on restructuring committees and sitting for depositions.172 These efforts have provided significant value to the estates and provide further support for the releases that directors and officers are receiving under the Plan, especially when considering the relative merits or benefit to pursuit of the claims.173

131.    The scope of the Debtor Release is appropriately tailored under the facts and circumstances of the Chapter 11 Cases. The Debtor Release is appropriate in light of, among other things, the value provided by the Released Parties to the Debtors’ Estates and the critical nature of the Debtor Release to the Plan.

132.    The Debtor Release is approved.

 

169 

Zelin Decl. ¶ 81.

170 

See Bryan Decl. ¶ 99 n.5.

171 

Zelin Decl. ¶ 81.

172 

Id. ¶ 85.

173 

Zelin Decl. ¶ 85; see also, e.g., Tolley Decl. ¶ 48; Confirmation Hr’g Tr., 130:10–22, Dec. 7, 2021 (Clegg); Kangas Decl. ¶¶ 82–89; Diercksen Decl. ¶¶ 82–89.

 

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  v.

Release by Holders of Claims and Interests

133.    The release by the Releasing Parties174 (the “Third-Party Release”), set forth in Article VIII.E of the Plan, is an essential provision of the Plan. The Third-Party Release is (a) consensual; (b) given in exchange for the good and valuable consideration provided by each of the Released Parties; (c) a good-faith settlement and compromise of the Claims and Causes of Action released by the Third-Party Release; (d) materially beneficial to and in the best interests of the Debtors, their Estates, and their stakeholders and is important to the overall objectives of the Plan to finally resolve certain Claims among or against certain parties in interest in the Chapter 11 Cases; (e) fair, equitable, and reasonable; (f) given and made after due notice and opportunity for hearing; (g) a bar to any of the Releasing Parties asserting any Claim or Cause of Action released by the Third-Party Release against any of the Released Parties; and (h) consistent with sections 105, 524, 1123, 1129, and 1141 and other applicable provisions of the Bankruptcy Code.

134.    The Third-Party Release is an integral part of the Plan that is supported by many of the Debtors’ creditors. Like the Debtor Release, the Third-Party Release facilitated participation

 

174 

Releasing Parties” means, collectively and in their individual capacity: (a) each of the Debtors; (b) each of the Reorganized Debtors; (c) the Committee, and each member thereof (including ex officio members); (d) each of the First Lien Lenders; (e) each of the First Lien Noteholders; (f) the First Lien Agent; (g) each Indenture Trustee; (h) the Prepetition Collateral Trustee; (i) each of the DIP Agents; (j) each of the DIP Lenders; (k) each of the Lead Arrangers (as defined in the New Debt Documents); (l) each of the book-running managers, lead placement agents, or similar parties with respect to the issuance of the New Notes; (m) the Jackson Ad Hoc Group, and each member thereof; (n) the HoldCo Creditor Ad Hoc Group, and each member thereof; (o) the Jackson First Lien Noteholder Group and each member thereof; (p) the Jackson Crossover Ad Hoc Group, and each member thereof; (q) the Convert Ad Hoc Group, and each member thereof; (r) each Consenting Creditor; (s) each Backstop Party; (t) the Relocation Payment Clearinghouse LLC; (u) all Holders of Impaired Claims who voted to accept the Plan; (v) all Holders of Impaired Claims who abstained from voting on the Plan or voted to reject the Plan; (w) all Holders of Unimpaired Claims; (x) all Holders of Interests; and (y) each Related Party of each Entity in clause (a) through this clause (y) for which such Entity is legally entitled to bind such Related Party to the releases contained in the Plan under applicable law; provided that an Entity shall not be a Releasing Party if, as to clauses (v) through (y), the applicable Entity has not elected to opt in to provide the releases contained in the Plan; provided further that if the Equity Group Stipulation is approved by a Final Order, then Supporting Holders of Allowed Interests (as defined in the Equity Group Stipulation) shall automatically be deemed to be a “Releasing Party” and “Released Party” under the Plan.

 

68


of the Released Parties in both the Plan and the Chapter 11 Cases generally. The Third-Party Release is instrumental to the Plan and was critical in incentivizing the Released Parties to support the Plan and preventing potentially significant and time-consuming litigation regarding the parties’ respective rights and interests. The Third-Party Release was instrumental in developing a plan that maximized value for all of the Debtors’ stakeholders. The Third-Party Release is necessary to bringing these Chapter 11 Cases to a resolution. The Third-Party Release is entirely consensual.

135.    The Third-Party Release appropriately offers certain protections to parties who constructively participated in the Debtors’ restructuring process, including the Debtors’ directors and officers, who actively participated in meetings, negotiations, and implementation during these Chapter 11 Cases, and who have provided other valuable consideration to the Debtors to facilitate the Debtors’ reorganization, the Unimpaired Creditors whose claims are being satisfied in full in cash or otherwise receiving a full recovery, Holders of Claims or Interests who voted in favor of the Plan, or Holders of Claims or Interests that opted in to the Third-Party Release. In addition, the Released Parties have made a substantial contribution to the Chapter 11 Cases.

136.    The Third-Party Release is entirely consensual given that, among other things: (a) the Releasing Parties were provided adequate notice of the chapter 11 proceedings, the Plan, and the deadline to object to Confirmation of the Plan, (b) creditors and interest holders who voted to reject the Plan, abstained from voting on the Plan, or were in Non-Voting Classes provided a Third-Party Release solely upon their affirmative election into the Third Party Release (which elections Stretto shall be authorized to solicit and tabulate); (c) the release provisions of the Plan were conspicuous, emphasized with boldface type in the Plan, the Disclosure Statement, the ballots, and the notice of non-voting status; and (d) the Confirmation Hearing Notice was sent to

 

69


all parties entitled to receive notice in these Chapter 11 Cases (including those not entitled to vote on the Plan) and published in The New York Times and USA Today on September 10, 2021, and September 13, 2021, respectively. Furthermore, Stretto shall be authorized to solicit and tabulate applicable parties’ election into the Third-Party Release.

137.    There is an identity of interests between the Debtors and the entities that will benefit from the Third-Party Release. Each of the Released Parties, as stakeholders and critical participants in the Chapter 11 Cases and the Plan process, shares a common goal with the Debtors in seeing the Plan succeed.

138.    The scope of the Third-Party Release is appropriately tailored to the facts and circumstances of the Chapter 11 Cases, and parties received due and adequate notice of the Third-Party Release. Among other things, the Disclosure Statement and the Plan provide appropriate and specific disclosure with respect to the Claims and Causes of Action that are subject to the Third-Party Release, and no other disclosure is necessary. The Debtors, as evidenced by the Solicitation Affidavit, provided sufficient notice of the Third-Party Release, and no further or other notice is necessary. The Third-Party Release is consistent with established practice in this jurisdiction and others. The Third-Party Release is specific in language, integral to the Plan, and given for substantial consideration.

139.    In light of the foregoing, the Third-Party Release is approved.

 

  vi.

Exculpation

140.    The exculpation provisions set forth in Article VIII.F of the Plan were proposed in good-faith and are essential to the Plan. The record in the Chapter 11 Cases fully supports the exculpation and the exculpation provisions set forth in Article VIII.F of the Plan, which are appropriately tailored to protect the Exculpated Parties (each of which made material and beneficial contributions to these Chapter 11 Cases) from unnecessary litigation, generally only relate to Causes of Action and Claims arising out of, or in connection with, these Chapter 11 Cases, and contain appropriate carve outs for gross negligence, actual fraud, and willful misconduct.

 

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141.    The exculpation provisions are limited in nature, merely setting a standard of care, and are consistent with established practice in this jurisdiction and others. Offering a limited measure of finality and protection against frivolous litigation to the parties in the best position to help facilitate a debtor’s chapter 11 process is ultimately a small price to pay in pursuit of successful emergence.

142.    All of the Exculpated Parties contributed to the development, negotiation, and ultimate agreement on a largely consensual Plan.175 These parties performed necessary and valuable duties in connection with the case, including by providing substantial support and funding to facilitate the administration of these Chapter 11 Cases, as well as making significant concessions in negotiations and settlements.176 The Exculpated Parties made meaningful efforts and contributions to maximize the value of the Debtors’ estates for the benefit of all stakeholders, and facilitate a successful resolution to these chapter 11 cases.177

 

  vii.

Injunction

143.    The injunction provisions set forth in Article VIII.G of the Plan are essential to the Plan and are necessary to implement the Plan and to preserve and enforce the discharge, the Debtor Release, the Third-Party Release, and the exculpation provisions in Article VIII of the Plan. Such injunction provisions are appropriately tailored to achieve those purposes.

 

  viii.

Preservation of Causes of Action

144.    Article IV.T of the Plan appropriately provides for the preservation by the Debtors of certain Causes of Action in accordance with section 1123(b)(3)(B) of the Bankruptcy Code.

 

175 

Zelin Decl. ¶ 87.

176 

Id.

177 

Id.

 

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145.    The Plan provides that each Reorganized Debtor shall retain and may enforce all rights to commence and pursue any and all Causes of Action of the applicable Debtor, except to the extent expressly provided otherwise in the Plan, whether arising before or after the Petition Date, including any actions specifically enumerated in the Plan Supplement, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the Effective Date. The provisions regarding the preservation of Causes of Action in the Plan, including the Plan Supplement, are appropriate and in the best interests of the Debtors, their respective Estates, and Holders of Claims and Interests. For the avoidance of doubt, Causes of Action released or exculpated under the Plan will not be retained by the Reorganized Debtors.

 

  ix.

Lien Releases

146.    Except with respect to the Liens securing the New Debt or Other Secured Claims that are reinstated pursuant to the Plan, or as otherwise specifically provided in the Plan, in any contract, instrument, release, or other agreement or document created pursuant to the Plan, or executed in connection therewith, on the Effective Date (or prior to the Effective Date, if payments are made prior to the Effective Date in connection with the New Debt) and concurrently with the applicable distributions made pursuant to the Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully released, settled, and compromised and all rights, titles, and interests of any Holder of such mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall revert to the Debtors, as set forth in Article VIII.C of the Plan (the “Lien Releases”). The provisions of the Lien Releases are appropriate, fair, equitable, and reasonable and in the best interests of the Debtors, their Estates, and Holders of Claims and Interests.

 

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  x.

Post-Effective Date Management Incentive Plan

147.    The terms of the post-Effective Date Management Incentive Plan have been negotiated at arm’s length and in good faith, consistent with the market for incentive compensation of similar companies, appropriate, and calculated to incentivize performance by management and certain key employees on the Effective Date.178 Both the structure and amounts of the Management Incentive Plan are reasonable and consistent with market practice for both comparable companies in the technology industry broadly and those that have emerged from chapter 11.179

148.    The Management Incentive Plan does not represent an obligation or transfer being incurred by the Debtors to any insider of the Debtors. Rather, any such Management Incentive Plan will be entered into by the Reorganized Debtors and related to the insiders’ service with such Reorganized Debtors. As such, section 503(c) of the Bankruptcy Code is not applicable to the Management Incentive Plan.

 

  xi.

Additional Plan Provisions

149.    The other discretionary provisions in the Plan, including the Plan Supplement, are appropriate and consistent with applicable provisions of the Bankruptcy Code, including, without limitation, provisions for the allowance of certain Claims and Interests, treatment of D&O Liability Insurance Policies, and the retention of jurisdiction by the Bankruptcy Court. Thus, the Plan satisfies section 1123(b)(6) of the Bankruptcy Code.

 

  c.

Section 1123(d)—Cure of Defaults

150.    Article V.C of the Plan provides for the satisfaction of all Cure Claims under each Executory Contract and Unexpired Lease to be assumed in accordance with sections 365(b)(1) and

 

178 

See generally Georgeson Decl.

179 

Georgeson Decl. ¶ 8.

 

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1123 of the Bankruptcy Code. Any monetary defaults under each Assumed Executory Contract or Unexpired Lease shall be satisfied, pursuant to sections 365(b)(1) and 1123 of the Bankruptcy Code, by payment of the default amount (if any) in Cash, subject to the limitations described in Article V.C of the Plan, or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree (consistent with the Plan). Any dispute regarding any cure amounts or the ability of the Reorganized Debtors, or any assignee, as applicable, to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or any other matter pertaining to assumption, will be determined in accordance with the terms set forth in Article V.C of the Plan and applicable bankruptcy and nonbankruptcy law. As such, the Plan provides that the Debtors will cure or provide adequate assurance that the Debtors will promptly cure defaults with respect to assumed Executory Contracts and Unexpired Leases in accordance with section 365(b)(1) of the Bankruptcy Code. Assumption of any Executory Contract or Unexpired Lease shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption. Upon the effective date of such assumption, any Proof of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court. Thus, the Plan complies with section 1123(d) of the Bankruptcy Code.

 

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  d.

Section 1129(a)(2)—Compliance of the Debtors and Others with the Applicable Provisions of the Bankruptcy Code

151.    The Debtors, as proponents of the Plan, have complied with all applicable provisions of the Bankruptcy Code as required by section 1129(a)(2) of the Bankruptcy Code, including sections 1122, 1123, 1124, 1125, 1126, 1128, and 1129, and with Bankruptcy Rules 2002, 3017, 3018, and 3019.

152.    The Debtors and their agents solicited votes to accept or reject the Plan after the Bankruptcy Court approved the adequacy of the Disclosure Statement, pursuant to section 1125(a) of the Bankruptcy Code and the Disclosure Statement Order.

153.    The Debtors and their agents have solicited and tabulated votes on the Plan and have participated in the activities described in section 1125 of the Bankruptcy Code fairly, in good-faith within the meaning of section 1125(e), and in a manner consistent with the applicable provisions of the Scheduling Order, the Disclosure Statement Order, the Disclosure Statement, the Bankruptcy Code, the Bankruptcy Rules, the Local Bankruptcy Rules, and all other applicable rules, laws, and regulations and are entitled to the protections afforded by section 1125(e) of the Bankruptcy Code and the exculpation provisions set forth in Article VIII.F of the Plan.

154.    The Debtors and their agents have participated in good-faith and in compliance with the applicable provisions of the Bankruptcy Code with regard to the offering, issuance, and distribution of recoveries under the Plan and, therefore, are not and, on account of such distributions, will not be liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or distributions made pursuant to the Plan so long as such distributions are made consistent with and pursuant to the Plan.

 

  e.

Section 1129(a)(3)—Proposal of Plan in Good-Faith

155.    The Debtors have proposed the Plan (and all documents necessary to effectuate the Plan) in good-faith, with the legitimate and honest purpose of maximizing the value of the Debtors’ Estates for the benefit of their stakeholders—by substantially deleveraging the Debtors’ balance sheet, putting the Debtors in the best possible position to complete the C-Band process on time

 

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and without incident, and setting up the Debtors for future success—and not by any means forbidden by law.180 The Plan is the product of extensive collaboration among the Debtors and key stakeholders and accomplishes this goal. In determining that the Plan has been proposed in good-faith, the Bankruptcy Court has examined the totality of the circumstances surrounding the filing of the Chapter 11 Cases, the Plan itself, and the process leading to its formulation. The Debtors’ good-faith is evident from the facts and the record of the Chapter 11 Cases, the Disclosure Statement, the hearing on the Disclosure Statement, and the record of the Confirmation Hearing and other proceedings held in the Chapter 11 Cases.

156.    The Plan and the contracts, instruments, releases, agreements, and other documents necessary and related to implementing, effectuating, and consummating the Plan, including the Settlement, are the product of good-faith, arm’s-length negotiations by and among the Debtors, the Debtors’ directors, officers, managers, and Special Committees, and the other constituencies involved in the Chapter 11 Cases. Intelsat S.A., in particular, carefully considered alternative plan structures, including a standalone plan for Intelsat S.A. or Holdings, but concluded, in a good-faith, reasonable exercise of its business judgment, that the Plan and the Settlement embodied therein was the best option for Intelsat S.A. The Plan itself and the process leading to its formulation provide independent evidence of the Debtors’ and such other parties’ good-faith, serve the public interest, and assure fair treatment of Holders of Claims and Interests. Consistent with the overriding purpose of chapter 11, the Debtors filed the Chapter 11 Cases with the belief that the Debtors were in need of restructuring. The Plan was negotiated and proposed with the intention of maximizing stakeholder value and for no ulterior purpose.

157.    Accordingly, the requirements of section 1129(a)(3) of the Bankruptcy Code are satisfied.

 

180 

Bryan Decl. ¶ 92.

 

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158.    The Debtors or the Reorganized Debtors, as appropriate and the Consenting Creditors, have been, are, and will continue acting in good-faith if they proceed to: (a) consummate the Plan (including the Settlement and the Term Loan Facility Claims Settlement), the Restructuring Transactions, and the other agreements, settlements, transactions, and transfers contemplated thereby; and (b) take the actions authorized and directed or contemplated by this Confirmation Order. Therefore, the Plan has been proposed in good-faith to achieve a result consistent with the objectives and purposes of the Bankruptcy Code.

 

  f.

Section 1129(a)(4)—Court Approval of Certain Payments as Reasonable

159.    Any payment made or to be made by the Debtors or by a person issuing securities or acquiring property under the Plan for services or costs and expenses in connection with the Chapter 11 Cases or the Plan and incident to the Chapter 11 Cases, as applicable, including all Professional Fee Claims and Restructuring Expenses, has been approved by or is subject to the approval of the Bankruptcy Court, as reasonable. Accordingly, the Plan satisfies the requirements of section 1129(a)(4) of the Bankruptcy Code.

 

  g.

Section 1129(a)(5)—Disclosure of Directors, Officers, and Managers and Consistency with the Interests of Creditors and Public Policy

160.    The identities of the Reorganized Debtors’ directors, officers, and managers, to the extent known, were disclosed at or prior to the Confirmation Hearing. In the Plan Supplement, the Debtors identified Lisa Hammit, Marc R. Montagner, Roy H. Chestnutt, Easwaran Sudaram, Jinhy Yoon, and James E. Bolin as members of the Equity Issuer Board.181 In instances where the identities of specific board members are not yet known, the Debtors have disclosed the process by

 

181 

See Plan Supplement, Exhibit M.

 

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which the applicable directors will be selected. To the extent that such directors, officers, and managers are insiders, the nature of their compensation has been disclosed. The manner of naming and selecting directors and officers provided in the Plan and New Corporate Governance Documents is consistent with public policy.

161.    Accordingly, the Debtors have satisfied the requirements of section 1129(a)(5) of the Bankruptcy Code.

 

  h.

Section 1129(a)(6)—Rate Changes

162.    The Plan does not contain any rate changes subject to the jurisdiction of any governmental regulatory commission and, accordingly, will not require governmental regulatory approval. Therefore, section 1129(a)(6) of the Bankruptcy Code does not apply to the Plan.

 

  i.

Section 1129(a)(7)—Best Interests of Holders of Claims and Interests

163.    The methodology used and assumptions made in the liquidation analysis attached as Exhibit C to the Disclosure Statement (the “Liquidation Analysis”), as supplemented by any evidence proffered or adduced at or prior to the Confirmation Hearing, are reasonable.

164.    A&M prepared the Liquidation Analysis to calculate creditor recoveries under a hypothetical liquidation and to address the ability of the Plan to satisfy the best interests test as defined in section 1129(a)(7) of the Bankruptcy Code.182

165.    The Liquidation Analysis was based on a hypothetical liquidation of the Debtors where a chapter 7 trustee would be appointed by the Bankruptcy Court, conduct the liquidation pursuant to chapter 7 of the Bankruptcy Code, and manage the estate to maximize recoveries in an expedited process beginning on or about December 31, 2021 (the “Liquidation Date”), absent confirmation of the Plan.183

 

182 

Schmaltz Decl. ¶ 6.

183 

Schmaltz Decl. ¶ 7.

 

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166.    As part of the Liquidation Analysis, A&M completed the following analyses:184

 

   

Step 1 – Gross Liquidation Proceeds: A&M estimated the cash proceeds that the Trustee would generate if each Debtor’s chapter 11 case were converted to a chapter 7 case and the assets of the Debtor’s bankruptcy estate and non-debtor affiliates (collectively, the “Estate”) were liquidated (the “Gross Liquidation Proceeds”). Gross Liquidation Proceeds consist primarily of value related to the following:

 

   

Value of Accelerated Relocation Payments pursuant to the FCC Order;

 

   

Asset sales of satellite clusters comprised of certain satellites, each satellite’s orbital slot license(s), and the underlying customer contracts (collectively, the “Space Assets”); and

 

   

Other asset recovery value related to accounts receivable, real estate, minority investments, ground assets, and the Gogo commercial aviation business the Debtors acquired on December 1, 2020 (“Commercial Air”), among other value.

 

   

Step 2 – Liquidation Adjustments: A&M estimated: (i) the costs the chapter 7 trustee would incur in the liquidation process; and (ii) the operating cash the business would generate during the wind-down period (together, the “Liquidation Adjustments”). Liquidation Adjustments consist primarily of:

 

   

Post conversion cash flow generated by the Estate between the Liquidation Date and nine months thereafter (the “Asset Sale Period”) based on the Debtors’ latest forecast subject to certain “haircuts” expected of a liquidating estate; and

 

   

Payments related to wind-down costs including severance and retention payments, professional fees, chapter 7 trustee fees, and contract cures.

 

   

Step 3 – Net Liquidation Proceeds: A&M calculated the net liquidation proceeds available for distribution by summing Gross Liquidation Proceeds plus Liquidation Adjustments (“Net Liquidation Proceeds”).

 

   

Step 4 – Waterfall Recovery: A&M calculated the recovery to unsecured creditors at each legal entity by running Net Liquidation Proceeds and estimated claims through a recovery waterfall model, which estimates recoveries to creditors according to the Bankruptcy Code’s section 1129 “absolute priority rule”.

 

184 

Id. ¶ 8.

 

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167.    The Liquidation Analysis and the other evidence in support of the Plan that was proffered or adduced at or prior to the Confirmation Hearing, and the facts and circumstances of the Chapter 11 Cases, establish that each Holder of Allowed Claims or Interests in each Class will recover as much or more value under the Plan on account of such Claim or Interest, as of the Effective Date, than the amount such holder would receive if the Debtors were liquidated on the Effective Date under chapter 7 of the Bankruptcy Code.

168.    As a result, the Debtors have demonstrated that the Plan is in the best interests of their creditors and equity holders and the requirements of section 1129(a)(7) of the Bankruptcy Code are satisfied.

 

  j.

Section 1129(a)(8)—Conclusive Presumption of Acceptance by Unimpaired Classes; Acceptance of the Plan by Certain Impaired Classes; Fairness of Plan with Respect to Deemed Rejecting Class

169.    The Deemed Accepting Classes are Unimpaired under the Plan and are deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code. Nevertheless, because the Plan has not been accepted by the Deemed Rejecting Class, the Debtors seek Confirmation under section 1129(b), solely with respect to the Deemed Rejecting Class, rather than section 1129(a)(8), of the Bankruptcy Code. Although section 1129(a)(8) has not been satisfied with respect to every holder in the Deemed Rejecting Class, the Plan is confirmable because the Plan does not discriminate unfairly and is fair and equitable with respect to the Deemed Rejecting Class and, thus, satisfies section 1129(b) of the Bankruptcy Code as described further below.

 

80


  k.

Section 1129(a)(9)—Treatment of Claims Entitled to Priority Pursuant to Section 507(a) of the Bankruptcy Code

170.    The treatment of Administrative Claims, Professional Fee Claims, DIP Claims, and Priority Tax Claims under Article II of the Plan satisfies the requirements of, and complies in all respects with, section 1129(a)(9) of the Bankruptcy Code.

 

  l.

Section 1129(a)(10)—Acceptance by at Least One Impaired Class

171.    Section 1129(a)(10) of the Bankruptcy Code provides that, to the extent there is an impaired class of claims, at least one impaired class of claims must accept the plan excluding acceptance by any Insider.185 As set forth in the Voting Report, Holders of Claims in Classes A6, A7, A8, B1, C1, D1, E1, and F1, and, as set forth herein, J1 voted to accept the Plan. As such, with respect to the Debtors’ jointly administered Plan, there is at least one Class of Claims that is Impaired under the Plan and has accepted the Plan, which was determined without including any insiders’ (as defined in the Bankruptcy Code) acceptance of the Plan. Accordingly, the requirements of section 1129(a)(10) of the Bankruptcy Code are satisfied.

 

  m.

Section 1129(a)(11)—Feasibility of the Plan

172.    The evidence supporting the Plan proffered or adduced by the Debtors at or before the Confirmation Hearing: (a) is reasonable, persuasive, credible, and accurate as of the dates such evidence was prepared, presented, or proffered; (b) utilizes reasonable and appropriate methodologies and assumptions; (c) has not been controverted by other persuasive evidence; (d) establishes that the Plan is feasible and Confirmation of the Plan is not likely to be followed by liquidation (other than as contemplated by the Plan) or the need for further financial reorganization; (e) establishes that the Reorganized Debtors will have sufficient funds available to meet their obligations under the Plan; and (f) establishes that the Reorganized Debtors will have the financial wherewithal to pay any Claims that accrue, become payable, or are Allowed by Final Order following the Effective Date.

 

185 

11 U.S.C. § 1129(a)(10).

 

81


173.    Among other things, the Amended Plan eliminates over $7 billion of the Debtors’ prepetition funded debt from the Debtors’ balance sheet.186 The Debtors have sufficient sources to make distributions under the Plan, have obtained a commitment to fund their near-optimal capital structure, and project significant cash-on-hand, available liquidity, and other debt capacity as of the Effective Date that can be used to satisfy Allowed Claims.187 The Plan will substantially delever the Debtors’ capital structure and enable the Debtors to compete more effectively in a very competitive business.188 Confirmation of the Plan is not likely to be followed by liquidation (other than as contemplated by the Plan) or the need for further financial reorganization.

174.    Furthermore, the Plan is superior to any alternatives, to the extent that such alternatives even exist. The Debtors and Special Committees explored all credible, actionable alternatives. Ultimately, the Debtors and the Special Committees concluded that no credible alternative to the Plan existed. This was a reasonable conclusion supported by exhaustive negotiation and investigations by multiple estate fiduciaries.

175.    Accordingly, the Plan satisfies the requirements of section 1129(a)(11) of the Bankruptcy Code.

 

  n.

Section 1129(a)(12)—Payment of Statutory Fees

176.    Article XII.D of the Plan provides that all fees payable pursuant to section 1930(a) of the Judicial Code, determined by the Bankruptcy Court at the Confirmation Hearing in accordance with section 1128 of the Bankruptcy Code, will be paid by the applicable Reorganized Debtor (on the Effective Date) or each of the applicable

 

186 

Zelin Decl. ¶ 76; Tolley Decl. ¶ 42.

187 

Zelin Decl. ¶ 76.

188 

Tolley Decl. ¶ 38.

 

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Reorganized Debtors for each quarter (including any fraction of a quarter) until the Chapter 11 Cases are converted, dismissed, or closed, whichever occurs first. Accordingly, the Plan satisfies the requirements of section 1129(a)(12) of the Bankruptcy Code.

 

  o.

Section 1129(a)(13)—Retiree Benefits

177.    Pursuant to section 1129(a)(13) of the Bankruptcy Code, and as provided in Article V.G of the Plan, from and after the Effective Date, all retiree benefits (as such term is defined in section 1114 of the Bankruptcy Code), if any, shall continue to be paid in accordance with applicable law. As a result, the requirements of section 1129(a)(13) of the Bankruptcy Code are satisfied.

 

  p.

Sections 1129(a)(14), (15), and (16)—Domestic Support Obligations, Individuals, and Nonprofit Corporations

178.    The Debtors do not owe any domestic support obligations, are not individuals, and are not nonprofit corporations. Therefore, sections 1129(a)(14), 1129(a)(15), and 1129(a)(16) of the Bankruptcy Code do not apply to

the Chapter 11 Cases.

 

  q.

Section 1129(b)—Confirmation of Plan Despite Nonacceptance of Impaired Classes

179.    Notwithstanding the fact that the Deemed Rejecting Class have not accepted the Plan, the Plan may be confirmed pursuant to section 1129(b)(1) of the Bankruptcy Code because: (a) Classes A6, A7, A8, B1, C1, D1, E1, F1, and, as set forth herein, J1 voted to accept the Plan, and (b) the Plan does not discriminate unfairly and is fair and equitable with respect to the Interests in the Deemed Rejecting Class. As a result, the Plan satisfies the requirements of section 1129(b) of the Bankruptcy Code. Thus, the Plan may be confirmed even though section 1129(a)(8) of the Bankruptcy Code is not satisfied. After entry of this Confirmation Order and upon the occurrence of the Effective Date, the Plan shall be binding upon the members of the Deemed Rejecting Class.

 

83


  r.

Section 1129(c)—Only One Plan

180.    The Plan (including previous versions thereof) is the only plan filed in the Chapter 11 Cases and, accordingly, section 1129(c) of the Bankruptcy Code is satisfied.

 

  s.

Section 1129(d)—Principal Purpose of the Plan is Not Avoidance of Taxes or Section 5 of the Securities Act

181.    No Governmental Unit (as defined in section 101(27) of the Bankruptcy Code) has requested that the Bankruptcy Court refuse to confirm the Plan on the grounds that the principal purpose of the Plan is the avoidance of taxes or the avoidance of the application of section 5 of the Securities Act. As evidenced by its terms, the principal purpose of the Plan is not such avoidance. Accordingly, the requirements of section 1129(d) of the Bankruptcy Code have been satisfied.

 

  t.

Section 1129(e)—Not Small Business Cases

182.    The Chapter 11 Cases are not small business cases, and accordingly, section 1129(e) of the Bankruptcy Code does not apply to the Chapter 11 Cases.

 

  u.

Satisfaction of Confirmation Requirements

183.    Based upon the foregoing and all other pleadings and evidence proffered or adduced at or prior to the Confirmation Hearing, the Plan and the Debtors, as applicable, satisfy all the requirements for plan confirmation set forth in section 1129 of the Bankruptcy Code.

 

  v.

Disclosure: Agreements and Other Documents

184.    The Debtors have disclosed all material facts, to the extent applicable, regarding the following: (a) the adoption of the New Corporate Governance Documents or similar constituent documents; (b) the identity of the initial members of the Equity Issuer Board and the Reorganized S.A. Board to the extent known and selection process therefore; (c) the manner and method of distributions under the Plan; (d) the issuance of New Common Stock and the Reorganized S.A. Common Stock; (e) the adoption, execution, and implementation of the

 

84


Restructuring Transactions contemplated by the Restructuring Steps Memorandum and other matters provided for under the Plan, included those involving corporate action to be taken by or required of the Debtors or Reorganized Debtors, as applicable; (f) all compensation plans, including the Management Incentive Plan; (g) the New Debt; (h) securities registration exemptions; (i) the exemption under section 1146 of the Bankruptcy Code; (j) the retained Causes of Action; and (k) the adoption, execution, and delivery of all contracts, leases, instruments, securities, releases, indentures, and other agreements related to any of the foregoing.

 

  w.

Conditions to Effective Date

185.    The Plan shall not become effective unless and until the conditions set forth in Article IX.B of the Plan have been satisfied or waived pursuant to Article IX.B of the Plan.

 

  x.

Implementation

186.    All documents and agreements necessary or desirable to implement the transactions contemplated by the Plan, including those contained or summarized in the Plan Supplement, and all other relevant and necessary or desirable documents (including the New Corporate Governance Documents and New Debt Documents) have been negotiated in good-faith and at arm’s length, are in the best interests of the Debtors, and will, upon completion of documentation and execution, be valid, binding, and enforceable documents and agreements not in conflict with any foreign, federal, state, or local law. These documents and agreements are essential elements of the Plan and entry into and consummation of the transactions contemplated by each such document or agreement is in the best interests of the Debtors, their Estates, and the Holders of Claims and Interests. The Debtors have exercised reasonable business judgment in determining which documents and agreements to enter into and have provided sufficient and adequate notice of such documents and agreements. The Debtors are authorized to take any action reasonably necessary or appropriate to consummate such agreements and the transactions contemplated thereby.

 

85


  y.

Vesting of Assets

187.    Except as otherwise provided in this Confirmation Order, the Plan, or any other agreement, instrument, or other document incorporated therein or in the Plan Supplement, including the New Debt Documents, as applicable, on the Effective Date, all property in each Estate, all Causes of Action of any Debtor (unless otherwise released or discharged pursuant to the Plan), and any property acquired by any of the Debtors pursuant to the Plan shall vest in such Reorganized Debtor, free and clear of all Liens, Claims, charges, or other encumbrances (except for Liens and other encumbrances securing obligations under the New Debt and New Debt Documents). Notwithstanding the foregoing, any and all property in the estate of, or acquired by, Intelsat S.A. shall not vest in Reorganized Intelsat S.A., other than the Luxembourg net operating losses of Intelsat S.A., the equity interests of Holdings SARL, the Luxembourg net operating losses of Holdings SARL, certain claims that will be transferred to Holdings SARL in accordance with the Restructuring Steps Memorandum, and such other property as set forth in the Restructuring Steps Memorandum, if any. On and after the Effective Date, except as otherwise provided in the Plan, each Reorganized Debtor may operate its business and may use, acquire, or dispose of property, and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules; provided that, for the avoidance of doubt, the equity interests of Holdings shall not vest in Reorganized Intelsat S.A. or Reorganized Holdings SARL.

 

  z.

Treatment of Executory Contracts and Unexpired Leases

188.    Pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code, the Plan provides for the assumption of certain Executory Contracts and Unexpired Leases, effective as of the Effective Date. The Debtors’ determinations regarding the assumption of Executory Contracts and Unexpired Leases are based on and within the sound business judgment of the Debtors, are necessary to the implementation of the Plan and are in the best interests of the Debtors, their Estates, Holders of Claims and Interests, and other parties in interest in the Chapter 11 Cases.

 

86


189.    For the avoidance of doubt, as of the Effective Date, to the extent an Executory Contract or Unexpired Lease is proposed to be assumed in the Plan and the Assumed Executory Contract and Unexpired Lease List is not listed as having a related cure cost, any counterparty to such Executory Contract or Unexpired Lease that fails to object timely to the proposed assumption is deemed to have consented to such assumption and deemed to release any Claim or Cause of Action for any defaults under such Executory Contract or Unexpired Lease.

aa. New Debt

190.    The issuance of New Debt is an essential element of the Plan, is necessary for confirmation and consummation of the Plan, and is critical to the overall success and feasibility of the Plan. Issuance of the New Debt pursuant to the New Debt Documents is in the best interests of the Debtors, their Estates, and all Holders of Claims or Interests, and is necessary for confirmation and consummation of the Plan. The Debtors have exercised reasonable business judgment in determining to enter into the New Debt Documents and have provided sufficient and adequate notice of the material terms of each New Debt. Each of the Lead Arrangers, the Purchasers and the Commitment Parties (as defined in the New Debt Documents), the current or future agents, lenders, letter of credit issuers, and other secured parties under the New Debt, and the Backstop Parties have relied on the terms and conditions of this Confirmation Order in providing commitments to extend Exit Financing and/or extending such financing, as applicable.189 The terms and conditions of each New Debt and the New Debt Documents are fair and reasonable,

 

189 

Exit Financing” has the meaning set forth in the Order (I) Authorizing the Debtors to (A) Reimburse Fees and Expenses of Potential Arrangers in Connection with Exit Financing and (B) Furnish Related Indemnities, and (II) Granting Related Relief [Docket No. 3642].

 

87


and were negotiated in good faith and at arm’s length, and any credit extended to the Reorganized Debtors by the lenders pursuant to the New Debt and New Debt Documents shall be deemed to have been extended, made, assumed and assigned, issued, or made in good-faith and at arm’s length. The Debtors are authorized without further approval of the Bankruptcy Court or any other party, to execute and deliver all agreements, guaranties, instruments, mortgages, control agreements, certificates, and other documents or take any necessary action to confirm, extend, reinstate, or assign and assume such existing documents relating to the New Debt and to perform their obligations thereunder, including, without limitation, the payment or reimbursement of any fees, premiums (including the Backstop Premium), expenses, losses, damages, or indemnities.

bb. Issuance and Approval of New Common Stock, New Warrants, Reorganized S.A. Common Stock, and CVRs

191.    The issuance of the New Common Stock, the New Warrants, the Reorganized S.A. Common Stock, and the CVRs is an essential element of the Plan and is in the best interests of the Debtors, their Estates, and Holders of Claims and Interests.

192.    The CVR Agreements and the New Warrants Agreements are essential elements of the Plan. The terms of the CVR Agreements and the New Warrants Agreements are reasonable, and the Debtors have provided adequate notice of the material terms thereof. The Debtors and the Reorganized Debtors, as applicable, are authorized, without further approval of this Bankruptcy Court, to execute and deliver all agreements, instruments, and certificates relating to the CVRs, the New Common Stock, the Reorganized S.A. Common Stock and the New Warrants and to perform their obligations thereunder in accordance with, and subject to, the terms of those agreements.

 

88


  cc.

Objections

193.    All objections, responses, reservations, statements, and comments in opposition to the Plan, other than those resolved, adjourned, or withdrawn with prejudice prior to, or on the record at, the Confirmation Hearing are overruled on the merits in all respects. All withdrawn objections, if any, are deemed withdrawn with prejudice. All objections to Confirmation not filed and served prior to the deadline for filing objections to the Plan set forth in the Confirmation Hearing Notice, if any, are deemed waived and shall not be considered by the Bankruptcy Court.

194.    All parties in interest have had a full and fair opportunity to litigate all issues raised or that might have been raised in the objections to Confirmation of the Plan, and the objections have been fully and fairly litigated or resolved, including by agreed-upon reservations of rights as set forth in this Confirmation Order.

195.    Notwithstanding entry of this Confirmation Order, all parties’ rights with respect to rejection, assumption, and/or cure regarding Executory Contracts or Unexpired Leases for which disputes remain outstanding are hereby reserved and will be heard at the next omnibus hearing, or as otherwise scheduled by the Debtors subject to the Bankruptcy Court’s availability.

II. ORDER

BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT:

196.    This Confirmation Order confirms the Plan in its entirety, except to the extent expressly modified herein.

197.    This Confirmation Order approves the Plan Supplement, including the documents contained therein, as they may be amended (in accordance with the Plan) through and including the Effective Date. The terms of the Plan, the Plan Supplement, and the exhibits thereto are incorporated herein by reference and are an integral part of this Confirmation Order; provided that, if there is any direct conflict between the terms of the Plan and the terms of this Confirmation Order, the terms of this Confirmation Order shall control solely to the extent of such conflict.

 

89


198.    All Holders of Claims that voted to accept the Plan are conclusively presumed to have accepted the Plan, as modified.

199.    The terms of this Confirmation Order (including all exhibits) and the Plan, shall be effective and binding as of the date of entry of this Confirmation Order on all parties in interest wherever located, including, but not limited to, the following: (a) the Debtors; (b) the Committee; (c) the Consenting Creditors; (d) all Holders of Claims and Interests; and (e) the Indenture Trustees. Further, the terms of the Plan, the Plan Supplement, the New Debt Documents, all exhibits thereto, and this Confirmation Order shall be effective and binding as of the Effective Date on all parties in interest wherever located, including, but not limited to, the following: (a) the Debtors; (b) the Committee; (c) the Consenting Creditors; (d) all Holders of Claims and Interests; and (e) the Indenture Trustees; provided that the New Debt Documents may be binding prior to the Effective Date if set forth in an order of the Bankruptcy Court.

200.    The failure to include or refer herein to any particular article, section, or provision of the Plan, the Plan Supplement, the New Debt Documents, or any related document, agreement, or exhibit does not impair the effectiveness of that article, section, or provision; it being the intent of the Bankruptcy Court that the Plan, the Plan Supplement, and any related document, agreement, or exhibit is approved in its entirety.

 

  A.

Objections

201.    To the extent that any objections (including any reservations of rights), responses, statements, or comments in opposition to Confirmation have not been withdrawn, waived, or settled before entry of this Confirmation Order or have not been otherwise resolved as stated on the record of the Confirmation Hearing, all such objections (including any reservation of rights), responses, statements, and comments in opposition are hereby overruled in their entirety and on their merits in all respects. All withdrawn objections, if any, are deemed withdrawn with prejudice.

 

90


202.    All objections to Confirmation not filed and served prior to the deadline for filing objections to the Plan set forth in the Confirmation Hearing Notice, if any, are deemed waived and shall not be considered by the Bankruptcy Court.

203.    Notwithstanding entry of this Confirmation Order, all parties’ rights with respect to rejection, assumption, and/or cure regarding Executory Contracts or Unexpired Leases for which disputes remain outstanding are hereby reserved and will be heard at the next omnibus hearing, or as otherwise scheduled by the Debtors subject to the Bankruptcy Court’s availability.

 

B.

Plan Modifications

204.    In accordance with section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019, all Holders of Claims who voted to accept the Plan or who are conclusively presumed to have accepted the Plan are presumed to accept the Plan, as modified in accordance with the Plan. No Holder of a Claim who has voted to accept the Plan shall be permitted to change its vote as a consequence of the Plan or Plan Supplement modifications, subject to the consent rights set forth in the Plan. All modifications to the Plan or Plan Supplement made after the Voting Deadline and in compliance with the consent rights under the Plan are hereby approved pursuant to section 1127 of the Bankruptcy Code and Bankruptcy Rule 3019.

 

C.

Findings of Fact and Conclusions of Law

205.    The findings of fact and the conclusions of law set forth in this Confirmation Order constitute findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052, made applicable to this proceeding by Bankruptcy Rule 9014. All findings of fact and conclusions of law announced by the Bankruptcy Court at the Confirmation Hearing in relation to Confirmation, including the Confirmation Ruling, are hereby incorporated into this Confirmation Order. To the extent that any of the following constitutes findings of fact or conclusions of law, they are adopted as such. To the extent any finding of fact or conclusion of law set forth in this Confirmation Order (including any findings of fact or conclusions of law announced by the Bankruptcy Court at the Confirmation Hearing and incorporated herein) constitutes an order of this Bankruptcy Court, it is adopted as such.

 

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D.

Post-Confirmation Modification of the Plan

206.    In accordance with Article X of the Plan, the Debtors are hereby authorized to amend or modify the Plan or the Plan Supplement at any time prior to the substantial consummation of the Plan without further order of this Bankruptcy Court, subject to the applicable consent rights set forth in the Plan.

 

E.

Plan Classification Controlling

207.    The terms of the Plan shall solely govern the classification of Claims and Interests for purposes of the distributions to be made thereunder, and the classifications set forth on the ballots tendered to or returned by the Holders of Claims in connection with voting on the Plan: (a) were set forth thereon solely for purposes of voting to accept or reject the Plan; (b) do not necessarily represent and in no event shall be deemed to modify or otherwise affect the actual classification of Claims and Interests under the Plan for distribution purposes; (c) may not be relied upon by any Holder of a Claim or Interest as representing the actual classification of such Claim or Interest under the Plan for distribution purposes; and (d) shall not be binding on the Debtors except for voting purposes. Classes G1, H1, and I1 did not have a Holder of an Allowed Claim or Interest or a Claim or Interest temporarily Allowed by the Bankruptcy Court as of the Confirmation Hearing that was entitled to vote on the Plan and are therefore deemed eliminated from the Plan for purposes of voting to accept or to reject the Plan and for purposes of determining acceptance or rejection of the Plan by such Class pursuant to Article III.D. of the Plan and section 1129(a)(8) of the Bankruptcy Code.

 

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F.

[Reserved]

208.    [Reserved]

 

G.

General Settlement of Claims and Interests

209.    Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019 and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, upon the Effective Date, the provisions of the Plan, including the Settlement described in section IV.B of the Plan and the Term Loan Facility Claims Settlement described in section IV.C. of the Plan, shall constitute a good-faith compromise and settlement of all Claims, Interests, Causes of Action, and controversies resolved pursuant to the Plan. All distributions made to holders of Allowed Claims and Interests in any Class are intended to be and shall be final.

 

H.

Distribution Agent

210.    The Distribution Agent shall be, jointly, Stretto, Inc. f/k/a Bankruptcy Management Solutions, Inc. (“Stretto”) and A&M, who shall jointly serve as the Distribution Agent on the terms set forth in the Order Authorizing Appointment of Stretto As Administrative Advisor Effective As Of May 13, 2020 [Docket No. 470] and the Order Authorizing the Retention and Employment of Alvarez & Marsal North America, LLC as Restructuring Advisors to the Debtors and Debtors in Possession Pursuant to Sections 327(a) and 328(a) of the Bankruptcy Code, Effective as of May 13, 2020 [Docket No. 454]; provided that in accordance with Article II.C.4 of the Plan, from and after the Confirmation Date, any requirement that Stretto or A&M comply with sections 327 through 331 and 1103 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the Debtors may employ and pay Stretto or A&M in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court; provided further that, notwithstanding the foregoing, nothing in this paragraph 210 shall be interpreted to modify or otherwise alter the reporting requirements set forth in Article XII.D of the Plan.

 

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I.

Distribution Record Date

211.    The date for determining which Holders of Allowed Claims or Allowed Interests are eligible to receive distributions hereunder (the “Distribution Record Date”), other than with respect to Securities of the Debtors deposited with DTC, shall be the date of entry of this Confirmation Order or such other date as is announced by the Debtors or designated in a Final Order, provided that the Distribution Record Date shall not apply to any Securities of the Debtors deposited with DTC, the Holders of which shall receive a distribution in accordance with Article VI of the Plan and, as applicable, the customary procedures of DTC.

 

J.

Settlement

212.    Pursuant to Bankruptcy Rule 9019(a), the Settlement is hereby approved in its entirety, and all of its terms are incorporated herein by reference (and the failure to specifically describe or include herein any particular provision of the Settlement Agreement shall not diminish or impair the effectiveness of any such provision) and upon entry of this Confirmation Order is fully binding, effective, and enforceable as to each and all of the Settling Debtors, and shall remain binding on the Settling Debtors. The settlement and compromises set forth in the Settlement by the Settling Debtors are hereby approved. The Standing Motions are hereby denied and overruled, with prejudice, as moot.

213.    Provided that, at the time of entry of this Confirmation Order or prior thereto, neither of the following events has occurred: (x) Consenting Creditors that hold at least two-thirds (2/3) of the Connect Senior Notes (excluding any Connect Senior Notes held by the Debtors) cease to be party to the Plan Support Agreement or (y) the Required Consenting HoldCo Creditors have terminated the Plan Support Agreement, then, upon the occurrence of the Effective Date, each and

 

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every HoldCo Guarantee Claim190 shall be deemed released and withdrawn with prejudice and not entitled to any distribution under the Plan, regardless of whether the claimant withdraws, or the Debtors seek to disallow, the applicable Proof of Claim. No party shall have any liability for taking any action in furtherance of the withdrawal and release of Claims set forth in this paragraph.

214.    Provided that each member of the Convert Ad Hoc Group supports the Plan on the Effective Date, then, upon the occurrence of the Effective Date, each and every TopCo Guarantee Claim191 shall be deemed released and withdrawn with prejudice and not entitled to any distribution under the Plan, regardless of whether the claimant withdraws, or the Debtors seek to disallow, the applicable Proof of Claim. No party shall have any liability for taking any action in furtherance of the withdrawal and release of Claims set forth in this paragraph. For the avoidance of doubt, provided that each member of the Convert Ad Hoc Group supports the Plan on the Effective Date, there shall be no recovery to Class I2 — TopCo Guarantee Claims against Holdings SARL or Class J2 — TopCo Guarantee Claims against Intelsat.

215.    The Debtors and any other necessary parties are hereby authorized and directed to execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and papers and to take any and all actions necessary or appropriate to consummate, complete, execute, and implement the Settlement in accordance with the terms and conditions thereof.

 

190 

For the avoidance of doubt, the HoldCo Guarantee Claims shall include all guarantee claims filed against the HoldCo Guarantors, including (a) the claims asserted against the HoldCo Guarantors in the Proofs of Claim filed in these Chapter 11 Cases by the Jackson Senior Notes Trustees and the Lux Senior Notes Trustees, including each of Proofs of Claim Nos. 553, 554, 555, 556, 585, 586, 587, 588, 617, 618, 619, 620, 784, 791, 795, 796, 898, 904, 905, 906, 1324, 1329, 1338, 1356, 1357, 1361, 1368, 1374, 1375, 1387, 1397, 1422, and any pleading filed with the Bankruptcy Court in connection therewith, and (b) any other claims asserted on account of the Jackson Senior Notes against the HoldCo Guarantors and on account of the LuxCo Notes against the HoldCo Guarantors (other than LuxCo), including each of the Proofs of Claim Nos. 1424, 1425, 1426, 1427, 1428, 1429, 1430, 1431, 1432, 1433, 1434, 1435, 1436, 1437, 1438, 1439, 1441, 1442, 1443, 1444, 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455, 1456, 1457, 1458, 1459, and 1460 against the HoldCo Guarantors, and any pleading filed with the Bankruptcy Court in connection therewith.

191 

For the avoidance of doubt, the TopCo Guarantee Claims shall include all guarantee claims filed against the TopCo Guarantors, including (a) the proofs of claim filed in the Chapter 11 Cases by the Trustees for the Jackson Senior Notes and the Trustees for the Lux Senior Notes (including proofs of claim numbered 551, 552, 583, 584, 615, 616, 785, 788, 793, 794, 902, 903, 907, 910, 1334, 1337, 1372, 1377, 1396, 1399, as they may be amended, and any pleading filed with the Bankruptcy Court in connection therewith) and (b) any other claims asserted on account of the Jackson Senior Notes against the TopCo Guarantors and on account of the LuxCo Notes against the TopCp Guarantors, and any pleading filed with the Bankruptcy Court in connection therewith.

 

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K.

Term Loan Facility Claims Settlement

216.    Pursuant to Bankruptcy Rule 9019(a), the Term Loan Facility Claims Settlement is hereby approved in its entirety, and all of its terms are incorporated herein by reference (and the failure to specifically describe or include herein any particular provision of the Term Loan Facility Claims Settlement shall not diminish or impair the effectiveness of any such provision) and upon entry of this Confirmation Order is fully binding, effective, and enforceable as to each and all of the parties in interest, and shall remain binding on all such parties in interest.

217.    The settlement and compromises set forth in the Term Loan Facility Claims Settlement and the execution and delivery of the Term Loan Facility Claims Settlement by the Settling Debtors are hereby approved. The Debtors are hereby authorized and directed to execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and papers and to take any and all actions necessary or appropriate to consummate, complete, execute, and implement the Term Loan Facility Claims Settlement in accordance with the terms and conditions thereof.

 

L.

Restructuring Transactions

218.    As of the Confirmation Date, the Debtors or the Reorganized Debtors, as applicable, are authorized to take any actions as may be necessary, appropriate, or desirable to effect the transactions described herein, including, without limitation: (a) the execution and delivery of any agreements, resolutions, or other documents of merger, consolidation, restructuring, conversion, disposition, transfer, contribution, voting exercise, consent, exchange, setting off, dissolution, or liquidation containing terms that are consistent with the terms of the Plan, and that are required to satisfy the requirements of applicable law and any other terms that

 

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may be agreed to by applicable Entities (subject to the terms of the Plan); (b) the execution and delivery of instruments of transfer, assignment, assumption, conversion, contribution, exchange, setting off, or delegation of any asset, property, right, liability, debt, or obligation on terms consistent with the terms of the Plan and having other terms which the applicable parties may agree to (subject to the terms of the Plan); (c) the filing of certificates or articles of incorporation, reincorporation, merger, consolidation, conversion, contribution, exchange, setting off, or dissolution pursuant to applicable law; (d) such other transactions that are required or desirable to effectuate the Restructuring Transactions; (e) all transactions necessary or desirable to provide for the purchase, transfer, assignment, assumption, conversion, contribution, exchange, setting off, or delegation of some or all of the assets of, or Interests in, any of the Debtors by one or more Entities to be wholly owned by the Reorganized Debtors or to be a Reorganized Debtor; (f) the payment of the Backstop Premium and the subscription for and issuance of the New Securities, and the Reorganized S.A. Common Stock; and (g) all other actions that the applicable Entities determine to be necessary, appropriate, or desirable to effectuate the Restructuring Transactions, including making filings or recordings that may be required by or advisable under applicable law.

 

M.

Corporate Action

219.    On and after the Confirmation Date, all actions contemplated by the Plan shall be deemed authorized and approved by the Bankruptcy Court in all respects, including, as applicable: (a) the implementation of the Restructuring Transactions; (b) the selection of the directors and officers for the Reorganized Debtors on terms consistent with the Plan (including the Plan Supplement); (c) the entry into the New Debt Documents and the incurrence of credit and granting of liens thereunder; (d) the adoption of the Management Incentive Plan by the Equity Issuer Board; (e) the issuance and distribution of the New Common Stock, the New Warrants, the CVRs, and the Reorganized S.A. Common Stock; (f) the establishment of the SES Reserve in accordance with

 

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the terms of the Plan; and (g) all other actions contemplated by the Plan (whether to occur before, on, or after the Effective Date). Upon the Effective Date, all matters provided for in the Plan involving the corporate structure of the Reorganized Debtors, and any corporate action required by the Debtors or the Reorganized Debtors (including Reorganized TopCos) in connection with the Plan, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the security holders, directors, or officers of the Debtors or the Reorganized Debtors. On or (as applicable) before the Effective Date, the appropriate officers of the Debtors or the Reorganized Debtors (including Reorganized TopCos) shall be authorized and (as applicable) directed to issue, execute, and deliver the agreements, documents, resolutions, reports, confirmations, securities, and instruments contemplated by the Plan (or otherwise necessary or desirable to effect the transactions contemplated by the Plan) in the name of and on behalf of the Reorganized Debtors, including the New Debt Documents, the New Securities, the Reorganized S.A. Common Stock, and any and all other agreements, documents, securities, and instruments relating to the foregoing, to the extent not previously authorized by the Bankruptcy Court. The authorizations and approvals contemplated by Article IV.G of the Plan shall be effective notwithstanding any requirements under non-bankruptcy law.

 

N.

Continued Corporate Existence and Vesting of Assets in the Reorganized Debtors

220.    Except as otherwise provided in the Plan, the Restructuring Steps Memorandum, the Plan Supplement, or this Confirmation Order, each of the Debtors will, as a Reorganized Debtor, continue to exist after the Effective Date as a separate legal entity, with all of the powers of such a legal entity under applicable law and without prejudice to any right to alter or terminate such existence (whether by merger, conversion, dissolution or otherwise) under applicable law, and on the Effective Date, all property of the Estate of a Debtor, and any property acquired by a Debtor or Reorganized Debtor under the Plan, will vest in the applicable Reorganized Debtor, free and clear of all Claims, liens, charges, other encumbrances, Interests, and other interests.

 

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221.    To the extent that the vesting of property in the Reorganized Debtors in accordance with the Plan is deemed, in any instance, to constitute a “transfer” of property, such transfer of property to the Reorganized Debtors (a) is or shall be a legal, valid, and effective transfer of property; (b) vests or shall vest the Reorganized Debtors with good title to such property, free and clear of all Claims, liens, charges, other encumbrances, Interests, and other interests, except as expressly provided in the Plan, the Restructuring Steps Memorandum, the Plan Supplement, or this Confirmation Order; (c) does not and shall not constitute an avoidable transfer under the Bankruptcy Code or under applicable nonbankruptcy law; and (d) does not and shall not constitute a “change of control” under any contract or subject the Reorganized Debtors to any liability by reason of such transfer under the Bankruptcy Code or under applicable nonbankruptcy law, including by laws affecting successor or transferee liability.

222.    On and after the Effective Date, each Reorganized Debtor may operate its business and may use, acquire, and dispose of property and compromise or settle any Claims without supervision or approval by this Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules, other than those restrictions expressly imposed by the Plan or this Confirmation Order.

 

O.

Plan Implementation Authorization

223.    The Debtors or the Reorganized Debtors, (and any other necessary or appropriate third parties, as reasonably determined by the Debtors or Reorganized Debtors, as applicable), as the case may be, and their respective directors, officers, members, agents, and attorneys, financial advisors, and investment bankers are authorized and empowered from and after the date hereof to negotiate, execute, issue, deliver, implement, file, or record any contract, instrument, resolution, report, release, or other agreement or document related to the Plan, as the same may be modified,

 

99


amended, and supplemented, and to take any action necessary, appropriate, or desirable to implement, effectuate, consummate, or further evidence the Plan in accordance with its terms and the terms hereof, or take any or all corporate actions authorized to be taken pursuant to the Plan or this Confirmation Order, whether or not specifically referred to in the Plan or any exhibit thereto, including the Restructuring Transactions, without further order of the Bankruptcy Court. To the extent applicable, any or all such documents shall be accepted upon presentment by each of the respective applicable local filing or recording offices and filed or recorded in accordance with applicable law and shall become effective in accordance with their terms and the provisions of such applicable law. Pursuant to the applicable provisions of the business corporation laws of Luxembourg, section 303 of the General Corporation Law of the State of Delaware, any comparable provision of the business corporation laws of any other state or other jurisdiction, and any other applicable law, as applicable, no action of the Debtors’ or the Reorganized Debtors’ boards of directors or their officers will be required to authorize the Debtors or the Reorganized Debtors or their officers, as applicable, to enter into, execute and deliver, adopt or amend, as the case may be, any such contract, instrument, release, or other agreement or document related to the Plan, and following the Effective Date, each of the Plan Documents will be a legal, valid, and binding obligation of the Debtors or Reorganized Debtors, as applicable, enforceable against the Debtors and the Reorganized Debtors in accordance with the respective terms thereof. The Reorganized Debtors may also, consistent with the Plan and the provisions of the New Debt Documents and New Organizational Documents (as defined herein), take any additional steps on and after the Effective Date to consolidate and streamline their organization, including, among other things, the merger, sale, disposition, liquidation, or consolidation of one or more of the Debtors or Reorganized Debtors.

 

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P.

New Debt

224.    On the Effective Date (or prior thereto, if set forth in a separate order approving the New Debt), the Reorganized Debtors are authorized to incur and shall execute and deliver, file, record, and/or issue, as applicable, the New Debt, the terms of which are set forth in the New Debt Documents, on terms consistent with the New Debt Documents, if applicable. This Confirmation Order constitutes approval of the New Debt Documents (including all agreements, documents, instruments, and certificates relating to the New Debt), all transactions contemplated thereby, and all actions to be taken, undertakings to be made, and obligations to be incurred by the Reorganized Debtors in connection therewith, including the payment of all fees, indemnities, and expenses provided for therein and the conversion of any New Debt that constitutes “debtor in possession” financing into post-Effective Date New Debt (subject to the conditions to such conversion as set forth in the New Debt Documents). The Reorganized Debtors are authorized to enter into and execute the New Debt Documents, and such other agreements, securities, instruments, and documents as may be required to effectuate the treatment afforded by the New Debt, without further notice to or order of the Bankruptcy Court, act, or action under applicable law, regulation, order, or rule or vote, consent, authorization, or approval of any Person, subject to such modifications (consistent with the Plan) as the Debtors or Reorganized Debtors may deem to be necessary to consummate the New Debt.

225.    The financial accommodations to be extended pursuant to the New Debt Documents (including documents to be entered into in connection with Exit Financing that may be executed prior to, on, or after the Effective Date) are being extended and shall be deemed to have been extended in good faith and for legitimate business purposes and are reasonable and shall not be subject to recharacterization or subordination for any purposes whatsoever and shall not constitute preferential transfers or fraudulent conveyances under the Bankruptcy Code or any

 

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applicable non-bankruptcy law. The agreements, documents, securities, and instruments entered into in connection with the New Debt shall constitute legal, valid, and binding obligations of the Debtors and Reorganized Debtors as applicable. On the Effective Date (or earlier, if provided in an order of the Bankruptcy Court), except as otherwise expressly provided in the Plan, all of the Liens and security interests to be granted in accordance with the New Debt Documents: (a) shall be deemed to be granted; (b) shall, without the necessity of the execution, recordation, or filing of mortgages, security agreements, control agreements, pledge agreements, financing statements, or other similar documents, be legal, valid, binding, fully perfected, fully enforceable Liens on, and security interests in, the collateral in accordance with the respective terms of the New Debt Documents securing the New Revolver, New Term Loan, and/or New Notes, as applicable, with the priorities established in respect thereof under the New Debt Documents, applicable non-bankruptcy law, the Plan and this Confirmation Order; (c) shall be subject only to such Liens and security interests as may be permitted to be senior to them under the respective New Debt Documents (and only to the extent that such Liens and security interests are senior to them under applicable law); and (d) shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination (including equitable subordination) for any purposes whatsoever and shall not constitute preferential transfers, fraudulent transfers, or other voidable transfers under the Bankruptcy Code, any applicable non-bankruptcy law, the Plan, or this Confirmation Order. The Debtors or the Reorganized Debtors, as applicable, and the Persons granted Liens and security interests under the New Debt Documents are hereby authorized to make all filings and recordings, and to obtain all governmental approvals and consents, necessary to establish and perfect such Liens and security interests under the provisions of the applicable state, provincial, federal, or other law (whether domestic or foreign) that would be applicable in the

 

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absence of the Plan and this Confirmation Order (it being understood that, as set forth above, perfection shall occur automatically by virtue of the entry of this Confirmation Order without the need for any filings, recordings, approvals or consents), and will thereafter cooperate to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security interests to third parties.

226.    On the Effective Date (or earlier, if provided in an order of the Bankruptcy Court), the net Cash proceeds of the New Term Loan and New Notes, as applicable, may be used to pay in full in Cash Allowed DIP Claims, Allowed Administrative Claims, Allowed Priority Tax Claims, Allowed Other Secured Claims, Allowed Other Priority Claims, executory contract and unexpired lease Cure Claims, and other Claims (including First Lien Claims), as and to the extent that any such Claims are required to be paid in Cash under this Plan, and distributed to Holders of Allowed Claims entitled to a Cash distribution in accordance with Article III of this Plan, provided, for the avoidance of doubt, such distributions may occur prior to the Effective Date if set forth in an order of the Bankruptcy Court.

227.    If the New Revolver, New Term Loan and/or New Notes are structured as debtor-in-possession financing facilities to be funded (in whole or in part) prior to the Effective Date, on the Effective Date, subject to the terms and conditions to conversion set forth in the New Debt Documents, such New Revolver, New Term Loan and/or New Notes (as applicable) outstanding on the Effective Date shall convert, on a dollar-for-dollar basis, into post-Effective Date New Revolver, New Term Loan and/or New Notes (as applicable) of the applicable Reorganized Debtors.

 

Q.

Cancellation of Instruments, Certificates, and Other Documents

228.    On the Effective Date, except for the New Debt, all notes, bonds, indentures (including any guarantees under such indentures), Certificates, loans, Securities, purchase rights,

 

103


options, warrants, collateral agreements, subordination agreements, intercreditor agreements, or other instruments or documents directly or indirectly evidencing, creating, or relating to any indebtedness or obligations of the Debtors giving rise to any rights or obligations relating to Claims against the Debtors (except with respect to any Claim that is Reinstated pursuant to the Plan), including the Notes and the Indentures (including any guarantees under such Indentures), shall be contributed, exchanged and/or set-off consistent with the Restructuring Steps Memorandum, and upon such contribution, exchange, and/or setoff, shall be deemed canceled and surrendered without further action or approval of the Bankruptcy Court or any Holder, and the obligations of the Debtors or the Reorganized Debtors, as applicable, and any non-Debtor Affiliates thereunder or in any way related thereto shall be deemed satisfied in full, released, and discharged; provided, that, if the record holder of the Notes is DTC or its nominee or another securities depository or custodian thereof, and such Notes are represented by a global security held by or on behalf of DTC or such other securities depository or custodian, then each such Holder of the Notes shall be deemed to have surrendered such Holder’s note, debenture or other evidence of indebtedness upon surrender of such global security by DTC or such other securities depository or custodian thereof. After the Effective Date, each of the Indenture Trustees, and their respective agents, successors and assigns, shall each be automatically and fully released and discharged of and from all duties and obligations thereunder. Holders of or parties to such notes, bonds, indentures, Certificates, Securities, purchase rights, options, warrants, collateral agreements, subordination agreements, intercreditor agreements, or other instruments or documents will have no rights arising from or relating to such notes, bonds, indentures, Certificates, Securities, purchase rights, options, warrants, collateral agreements, subordination agreements, intercreditor agreements, or other instruments or documents, or the contribution, exchange, set-off, cancellation, and/or surrender thereof, except

 

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the rights provided for pursuant to the Plan or this Confirmation Order. Prior to the Effective Date, the holders of equity interests in Intelsat shall, and are hereby required to, vote at any duly called shareholders’ meeting on any matters necessary or advisable to effectuate the Restructuring Transactions, including, to dilute and/or cancel their respective equity interests in Intelsat, and as of the Effective Date, all equity interests in Intelsat shall be extinguished, including, without limitation, any share certifications representing any equity interests in Intelsat. Regardless of whether any duly called shareholders’ meeting for Intelsat is called, all equity interests in Intelsat shall be extinguished as of the Effective Date. Each Holder of an Allowed Notes Claim shall be deemed to have surrendered its Notes and other documentation underlying its Notes Claims, and all such surrendered Notes and other documentation shall be deemed to be canceled, except to the extent otherwise provided herein. Notwithstanding the foregoing, each of the First Lien Agent, Prepetition Collateral Trustee, and each Indenture Trustee is authorized and directed to execute (and take any reasonable additional steps necessary to give effect to) any applicable documents required to consummate the Plan, and to effectuate the contribution, exchange, and/or set-off pursuant to the Plan in accordance and consistent with the Restructuring Steps Memorandum.

229.    Notwithstanding the foregoing, any provision in any document, instrument, lease, or other agreement that causes or effectuates, or purports to cause or effectuate, a default, termination, waiver, or other forfeiture of or by the Debtors of their interests as a result of the cancellations, terminations, satisfaction, release, or discharge provided for in section VIII of the Plan shall be deemed null and void and shall be of no force and effect.

 

R.

Approval of Consents and Authorization to Take Acts Necessary to Implement Plan

230.    This Confirmation Order shall constitute all authority, approvals, and consents required, if any, by the laws, rules, and regulations of all states and any other governmental authority with respect to the implementation or consummation of the Plan and any documents,

 

105


instruments, or agreements, and any amendments or modifications thereto, and any other acts and transactions referred to in or contemplated by the Plan, the Plan Supplement, the Disclosure Statement, the New Debt Documents, the Restructuring Steps Memorandum, and any documents, instruments, securities, or agreements, and any amendments or modifications thereto.

 

S.

Return of Deposits

231.    All utilities, including any Person who received a deposit or other form of “adequate assurance” of performance pursuant to section 366 of the Bankruptcy Code during the Chapter 11 Cases (collectively, the “Deposits”), whether pursuant to the Final Order (A) (I) Approving the Debtors’ Proposed Adequate Assurance of Payment for Future Utility Services, (II) Approving the Debtors’ Proposed Procedures for Resolving Additional Assurance Requests, (III) Prohibiting Utility Providers from Altering, Refusing, or Discontinuing Services and (IV) Authorizing Fee Payments to the Debtors’ Third-Party Utility Service Vendor and (B) Granting Related Relief [Docket No. 280] or otherwise, including, electricity, natural gas, water and sewage, telecommunications, internet, cable, and other similar services, are directed to return such Deposits to the Reorganized Debtors, either by setoff against postpetition indebtedness or by Cash refund, within thirty days following the Effective Date.

 

T.

Releases, Injunctions, and Exculpations under the Settlement Agreement

232.    The following releases set forth in the Settlement Agreement (the “Settlement Releases”) are incorporated herein in their entirety, are hereby approved and authorized in all respects, are so ordered, and shall be immediately effective on the Effective Date without further order or action on the part of this Bankruptcy Court or any other party:

233.    Effective upon the occurrence of the Settlement Effective Date (as defined in the Settlement Agreement), each of the Settling Debtors, their predecessors, successors, and assigns, subsidiaries, and their current and former officers, directors (including any such Settling Debtor’s

 

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appointed directors and each such Settling Debtor’s disinterested directors, including disinterested directors serving on a special committee in such capacity), affiliates, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals, each in their capacity as such (collectively, the “Releasor Parties”) voluntarily and knowingly, unconditionally, absolutely, and forever waives, remises, releases, settles, acquits, satisfies, and discharges each of the Settling Debtors and each of the Settling Debtors’ current and former officers, directors (including any such Settling Debtor’s appointed directors and each such Settling Debtor’s disinterested directors, including disinterested directors serving on a special committee in such capacity), affiliates, managers, principals, members, employees, agents, advisory board members, financial advisors, partners, attorneys, accountants, investment bankers, consultants, representatives, and other professionals (including attorneys and other advisors retained by the directors in their capacity as such), each in their capacity as such (collectively, the “Released Parties”), from any and all Claims and Causes of Action, including all Claims and Causes of Action identified in the Settlement Agreement, as well as all other Claims and Causes of Action, including any derivative claims, asserted or assertable on behalf of any of the Releasor Parties, whether known or unknown, foreseen or unforeseen, matured or unmatured, existing or hereafter arising, in law, equity, contract, tort, or otherwise, that such Releasor Parties would have been legally entitled to assert in their own right (whether individually or collectively), relating to or in any matter arising from, in whole or in part, disputes with respect to the Parties,192 the Parties’ in- or out-of-court restructuring efforts, any intercompany transactions, including, the Historical Intercompany Transaction Claims, claims related to the Debtors’ tax attributes (including the 2018

 

192 

For purposes of this paragraph 233, “Parties” has the meaning set forth in the Settlement Agreement.

 

107


Reorganization Claims), the Accelerated Relocation Payment Claims (including the payment of the Accelerated Relocation Payments or the expense reimbursements by the Relocation Payment Clearinghouse), any preference, fraudulent transfer, or other avoidance, recovery, or preservation claim pursuant to sections 544, 547, 548, 550, or 551 of the Bankruptcy Code and applicable state or territory laws of the United States and foreign laws, the Plan Support Agreement, the formulation, preparation, dissemination, negotiation of the Plan Support Agreement or any restructuring transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the Plan Support Agreement, the DIP Facility, the Chapter 11 Cases, the filing of the Chapter 11 Cases, or upon any other act, omission, transaction, agreement, event, or other occurrence taking place on or before the Settlement Effective Date related or relating to the foregoing. The Releasor Parties shall also be deemed to knowingly and voluntarily waive and relinquish any and all provisions, rights and benefits conferred by any law of the United States or any state or territory of the United States, Luxembourg, or principle of common law, which governs or limits a person’s release of unknown claims as applied to the releases contained in this section. Notwithstanding anything to the contrary in the foregoing, the releases set forth herein do not release any obligations of any party or Entity arising on or after the Effective Date under the Plan, any Restructuring Transaction, or any document, instrument, or agreement (including those set forth in the SES Settlement or the Plan Supplement) executed to implement the Plan, including the assumption of the Indemnification Provisions as set forth in the Plan.

234.    All Entities that have held, hold, or may hold Claims or Interests or Causes of Action that have been released, discharged, or are subject to exculpation by the Settlement Releases or otherwise under the Settlement are permanently enjoined, from and after the Settlement Effective Date, from taking any of the following actions against, as applicable, the

 

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Debtors, the Reorganized Debtors, the Exculpated Parties, or the Released Parties: (a) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests or Causes of Action; (b) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect to any such Claims or Interests or Causes of Action; (c) creating, perfecting, or enforcing any lien or encumbrance of any kind against such Entities or the property or the estates of such Entities on account of or in connection with or with respect to any such Claims or Interests or Causes of Action; (d) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such entities on account of or in connection with or with respect to any such Claims or Interests or Causes of Action unless such Entity has timely asserted such setoff right in a document filed with the Bankruptcy Court explicitly preserving such setoff, and notwithstanding an indication of a Claim or Interest or otherwise that such Entity asserts, has, or intends to preserve any right of setoff pursuant to applicable law or otherwise; and (e) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests or Causes of Action released or settled or subject to exculpation pursuant to the Settlement Releases or otherwise under the Settlement.

235.    None of the Settling Debtors shall have or incur liability for, and each such Settling Debtor is hereby exculpated from, any Claim or Cause of Action released or settled pursuant to the Settlement Releases or otherwise under the Settlement. Such Settling Debtors have participated in good-faith and in compliance with the applicable laws with regard to the negotiation of and entry into the Settlement and the Settlement Agreement.

 

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U.

The Releases, Injunction, Exculpation, and Related Provisions under the Plan

236.    The following releases, injunctions, exculpations, and related provisions set forth in Article VIII of the Plan are incorporated herein in their entirety, are hereby approved and authorized in all respects, are so ordered, and shall be immediately effective on the Effective Date without further order or action on the part of this Bankruptcy Court or any other party; provided that if the Equity Group Stipulation is approved by a Final Order, then Supporting Holders of Allowed Interests (as defined in the Equity Group Stipulation) shall automatically be deemed to be a “Releasing Party” and “Released Party” under the Plan.

 

  a.

Debtor Release

237.    In addition to any release provided in this Confirmation Order, effective as of the Effective Date, for good and valuable consideration, the adequacy of which is hereby confirmed, on and after the Effective Date, each Released Party is conclusively, absolutely, unconditionally, irrevocably, and forever released and discharged by each and all of the Debtors, the Reorganized Debtors, and their Estates, in each case on behalf of themselves and their respective successors, assigns, and representatives, and any and all other entities who may purport to assert any Cause of Action, directly or derivatively, by, through, for, or because of the foregoing entities, from any and all Causes of Action, including any derivative claims, asserted or assertable on behalf of any of the Debtors, whether known or unknown, foreseen or unforeseen, matured or unmatured, existing or hereafter arising, in law, equity, contract, tort, or otherwise, that the Debtors, the Reorganized Debtors, or their Estates would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the Holder of any Claim against, or Interest in, a Debtor or other Entity, based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the purchase, sale, or rescission of any security of the Debtors or the Reorganized Debtors, the subject matter of, or the

 

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transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the Debtors’ in- or out-of-court restructuring efforts, any intercompany transactions, the DIP Facilities, the DIP Orders, the Term Loan Facility, the First Lien Notes, the Senior Notes, the Indentures, the Historical Intercompany Transaction Claims, the Chapter 11 Cases, the payment or receipt of the Accelerated Relocation Payments, the payment of the expense reimbursements by the Relocation Payment Clearinghouse, the matters settled pursuant to the Settlement (including the Historical Intercompany Transaction Claims), Claims related to the Debtors’ tax attributes (including the 2018 Reorganization Claims), the Accelerated Relocation Payment Claims, any preference, fraudulent transfer, or other avoidance, recovery, or preservation claim pursuant to section 544, 547, 548, 550, or 551 of the Bankruptcy Code and applicable state and foreign laws, the Plan Support Agreement, the Secured Creditor Settlement, the formulation, preparation, dissemination, negotiation, entry into, or filing of, as applicable, the SES Settlement, the Disclosure Statement, the New Debt Documents, the Backstop Commitment Agreement, the New Corporate Governance Documents, the New Warrants Agreements, the CVR Agreements, the Settlement, the Settlement Agreement, the Plan Support Agreement, the Secured Creditor Settlement, the Plan, or any Restructuring Transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the SES Settlement, the Disclosure Statement, the New Debt Documents, the Backstop Commitment Agreement, the New Corporate Governance Documents, the New Warrants Agreements, the CVR Agreements, the Settlement, the Settlement Agreement, the Plan Support Agreement, the Secured Creditor Settlement, or the Plan, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance or distribution of Securities pursuant to the

 

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Plan, or the distribution of property under the Plan or any other related agreement, or upon any other act, omission, transaction, agreement, event, or other occurrence taking place on or before the Effective Date. Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release (1) any obligations arising on or after the Effective Date of any party or Entity under the Plan, any Restructuring Transaction, or any document, instrument, or agreement (including those set forth in the SES Settlement or the Plan Supplement) executed to implement the Plan, including the assumption of the Indemnification Provisions as set forth in the Plan, or (2) any retained Causes of Action.

 

  b.

Third-Party Release

238.    Effective as of the Effective Date, in each case except for Claims arising under, or preserved by, the Plan, each Releasing Party (other than the Debtors or the Reorganized Debtors), in each case on behalf of itself and its respective successors, assigns, and representatives, and any and all other entities who may purport to assert any Claim, Cause of Action, directly or derivatively, by, through, for, or because of the foregoing entities, is deemed to have released and discharged each Debtor, Reorganized Debtor, and each other Released Party from any and all Causes of Action, whether known or unknown, including any derivative claims, asserted or assertable on behalf of any of the Debtors, that such Entity would have been legally entitled to assert (whether individually or collectively), based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the purchase, sale, or rescission of any security of the Debtors or the Reorganized Debtors, the subject matter of, or the transactions or events giving rise to, any Claim or Interest that is treated in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the Debtors’ in- or out-of-court restructuring efforts, any intercompany transactions, the DIP Facilities, the DIP Orders, the Term Loan Facility, the First Lien Notes, the Senior Notes, the

 

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Indentures, the Chapter 11 Cases, the payment or receipt of the Accelerated Relocation Payments, the payment of the expense reimbursements by the Relocation Payment Clearinghouse, the matters settled pursuant to the Settlement (including the Historical Intercompany Transaction Claims), Claims related to the Debtors’ tax attributes (including the 2018 Reorganization Claims), the Accelerated Relocation Payment Claims, any preference, fraudulent transfer, or other avoidance, recovery, or preservation claim pursuant to section 544, 547, 548, 550, or 551 of the Bankruptcy Code and applicable state and foreign laws, the Plan Support Agreement, the Secured Creditor Settlement, the formulation, preparation, dissemination, negotiation, entry into, or filing of, as applicable, the SES Settlement, the Disclosure Statement, the New Debt Documents, the New Corporate Governance Documents, the New Warrants Agreements, the CVR Agreements, the Settlement, the Settlement Agreement, the Plan Support Agreement, the Secured Creditor Settlement, the Plan, or any Restructuring Transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the SES Settlement, the Disclosure Statement, the New Debt Documents, the New Corporate Governance Documents, the New Warrants Agreements, the CVR Agreements, the Settlement, the Settlement Agreement, the Plan Support Agreement, the Secured Creditor Settlement, the Plan (including, for the avoidance of doubt, providing any legal opinion requested by any Entity (including DTC) regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the reliance by any Released Party on the Plan or this Confirmation Order in lieu of such legal opinion), the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance or distribution of Securities pursuant to the Plan, or the distribution of property under the Plan or any other related agreement, or upon any other related act, omission, transaction, agreement, event, or

 

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other occurrence taking place on or before the Effective Date. Notwithstanding anything to the contrary in the foregoing, the releases set forth above do not release any obligations arising on or after the Effective Date of any party or Entity under the Plan, any Restructuring Transaction, or any document, instrument, or agreement (including those set forth in the SES Settlement or the Plan Supplement) executed to implement the Plan, including the assumption of the Indemnification Provisions as set forth in the Plan.

 

  c.

Exculpation

239.    Effective as of the Effective Date, to the fullest extent permissible under applicable law and without affecting or limiting either the Debtor Release or the Third Party Release, and except as otherwise specifically provided in the Plan, no Exculpated Party shall have or incur, and each Exculpated Party is released and exculpated from any Cause of Action or any claim related to any act or omission in connection with, relating to, or arising out of, the Chapter 11 Cases, the formulation, preparation, dissemination, negotiation, entry into, or filing of, as applicable, the Chapter 11 Cases, the SES Settlement, the Disclosure Statement, the New Debt Documents, the Backstop Commitment Agreement, the New Corporate Governance Documents, the New Warrants Agreements, the CVR Agreements, the Settlement, the Settlement Agreement, the Plan Support Agreement, the payment or receipt of the Accelerated Relocation Payments, the payment of the expense reimbursements by the Relocation Payment Clearinghouse, the Secured Creditor Settlement, the Plan, or any Restructuring Transaction, contract, instrument, release, or other agreement or document created or entered into in connection with the SES Settlement, the Disclosure Statement or the Plan, the filing of the Chapter 11 Cases, the pursuit of Confirmation, the pursuit of Consummation, the administration and implementation of the Plan, including the issuance of Securities pursuant to the Plan, or the distribution of property under the Plan or any other related agreement (including, for the avoidance of doubt, providing any legal opinion

 

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requested by any Entity (including DTC) regarding any transaction, contract, instrument, document, or other agreement contemplated by the Plan or the reliance by any Exculpated Party on the Plan or this Confirmation Order in lieu of such legal opinion), except for claims related to any act or omission that is determined in a Final Order to have constituted actual fraud, willful misconduct, or gross negligence, but in all respects such Entities shall be entitled to reasonably rely upon the advice of counsel with respect to their duties and responsibilities pursuant to the Plan. The Exculpated Parties have, and upon Consummation of the Plan shall be deemed to have, participated in good-faith and in compliance with the applicable laws with regard to the solicitation of votes and distribution of consideration pursuant to the Plan and, therefore, are not, and on account of such distributions shall not be, liable at any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the Plan or such distributions made pursuant to the Plan.

 

  d.

Injunction

240.    In addition to any injunction provided in this Confirmation Order, effective as of the Effective Date, to the fullest extent permissible under applicable law, and except as otherwise expressly provided in the Plan or for obligations issued or required to be paid pursuant to the Plan or this Confirmation Order, all Entities that have held, hold, or may hold Claims or Interests or Causes of Action that have been released, discharged, or are subject to exculpation are permanently enjoined, from and after the Effective Date, from taking any of the following actions against, as applicable, the Debtors, the Reorganized Debtors, the Exculpated Parties, or the Released Parties: (1) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests or Causes of Action; (2) enforcing, attaching, collecting, or recovering by any manner or means any judgment, award, decree, or order against such Entities on account of or in connection with or with respect

 

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to any such Claims or Interests or Causes of Action; (3) creating, perfecting, or enforcing any encumbrance of any kind against such Entities or the property or the estates of such Entities on account of or in connection with or with respect to any such Claims or Interests or Causes of Action; (4) asserting any right of setoff, subrogation, or recoupment of any kind against any obligation due from such Entities or against the property of such Entities on account of or in connection with or with respect to any such Claims or Interests or Causes of Action unless such Entity has filed a motion requesting the right to perform such setoff on or before the Effective Date, and notwithstanding an indication of a Claim or Interest or otherwise that such Entity asserts, has, or intends to preserve any right of setoff pursuant to applicable law or otherwise; and (5) commencing or continuing in any manner any action or other proceeding of any kind on account of or in connection with or with respect to any such Claims or Interests or Causes of Action released or settled or subject to exculpation pursuant to the Plan.

241.    Notwithstanding the foregoing, all Entities subject to the Settlement Agreement are permanently enjoined and prohibited from taking any action (including in the United States or any foreign jurisdiction) that is intended or is reasonably likely to directly or indirectly (i) adversely impact, reduce or diminish the Debtors’ or Reorganized Debtors’ tax attributes or their ability to utilize their tax attributes or (ii) prevent, impede, hinder, adversely affect, and/or delay any of the Restructuring Transactions or any actions or efforts of the Debtors and Reorganized Debtors and/or their ability to consummate the Plan.

 

  e.

Approval and Authorization of the Release Opt-In

242.    The Debtors are authorized to solicit, receive, and tabulate the election of applicable creditors and interest holders who voted to reject the Plan, abstained from voting on the Plan, or were in Non-Voting Classes to opt into the Third Party Release (the “Release Opt-In”) which shall be substantially in the form attached hereto as Exhibit D. For the avoidance of doubt all Holders

 

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of Impaired Claims who voted to accept the Plan shall be deemed to have opted into the Third-Party Release, consistent with the Solicitation Procedures approved by the Bankruptcy Court in the Disclosure Statement Order. Stretto is authorized to assist the Debtors in: (a) distributing the Release Opt-In; (b) receiving, tabulating, and reporting on Release Opt-Ins; (c) responding to inquiries from holders of Claims and Interests and other parties in interest relating to the Release Opt-In; and (d) if necessary, contacting creditors or interest holders regarding the Release Opt-In. Stretto is also authorized to accept the Release Opt-In via electronic online transmission through an online balloting portal on the Debtors’ case website. The encrypted data and audit trail created by such electronic submission shall become part of the record of any Release Opt-In submitted in this manner and the creditor’s electronic signature will be deemed to be immediately legally valid and effective.

 

V.

Assumption and Cure of Executory Contracts and Unexpired Leases

243.    The provisions governing the treatment of Executory Contracts and Unexpired Leases set forth in Article V of the Plan (including the procedures regarding the resolution of any and all disputes concerning the assumption, assumption and assignment, or rejection, as applicable, of such Executory Contracts and Unexpired Leases) shall be and hereby are approved in their entirety.

244.    For the avoidance of doubt, on the Effective Date, except as otherwise provided in the Plan or in any contract, instrument, release, indenture, or other agreement or document entered into in connection with the Plan, all Executory Contracts and Unexpired Leases of the Debtors shall be deemed assumed by the applicable Reorganized Debtors without the need for any further notice to or action, order, or approval of the Bankruptcy Court, as of the Effective Date under sections 365 and 1123 of the Bankruptcy Code, unless such Executory Contract and Unexpired Lease: (a) was assumed, assumed and assigned, or rejected previously by the Debtors; (b) previously expired or terminated pursuant to its own terms; (c) is the subject of a motion to reject filed on or before the Effective Date; or (d) is identified on the Rejected Executory Contract and Unexpired Lease Schedule.

 

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245.    Entry of this Confirmation Order shall constitute a Bankruptcy Court order approving the assumptions or assumption and assignment, as applicable, of such Executory Contracts or Unexpired Leases as provided for in the Plan, pursuant to sections 365(a) and 1123 of the Bankruptcy Code effective as of the Effective Date. Each Executory Contract or Unexpired Lease assumed pursuant to the Plan or by Bankruptcy Court order but not assigned to a third party before the Effective Date shall re-vest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as such terms may have been modified by the provisions of the Plan or any order of the Bankruptcy Court authorizing and providing for its assumption. The Debtors shall consult with the Convert Ad Hoc Group prior to the assignment of any executory contracts from Intelsat or Holdings SARL to any Debtor other than Intelsat or Holdings SARL; provided that contracts that remain at Intelsat and/or Holdings SARL (if any) shall only be contracts that are directly related to the Non-Unity NOLs or are necessary to the operation of the Reorganized TopCos related to the Non-Unity NOLs as contemplated by the Plan and shall not, in any circumstance, include any contracts that relate to, are necessary for, or impact the ongoing operations or businesses of the Reorganized Debtors (other than the Reorganized TopCos). Any motions to assume Executory Contracts or Unexpired Leases pending on the Effective Date shall be subject to approval by the Bankruptcy Court on or after the Effective Date by a Final Order.

246.    To the maximum extent permitted by law, to the extent that any provision in any Executory Contract or Unexpired Lease assumed or assumed and assigned pursuant to the Plan

 

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restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), then such provision shall be deemed modified such that the transactions contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate or modify such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto.

247.    Cure payments, if any, shall be paid in accordance with Article V.C of the Plan. The assumption of Executory Contracts and Unexpired Leases may include the assignment of certain of such contracts and leases as set forth in the Restructuring Steps Memorandum attached as Exhibit G to the Plan Supplement. Each assumed Executory Contract or Unexpired Lease shall include any and all modifications, amendments, supplements, restatements, and other agreements made directly or indirectly by an agreement, instrument, or other document that in any manner affects such Executory Contract or Unexpired Lease, without regard to whether such agreement, instrument or other document is listed thereon.

248.    Unless otherwise expressly provided in this Confirmation Order or the Plan, assumption or assumption and assignment of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise and the payment of the related cure amounts, if applicable, shall result in the full release and satisfaction of any Claims or defaults, whether monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date of assumption. Any Proof of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed shall be deemed disallowed and expunged, without further notice to or action, order, or approval of the Bankruptcy Court.

 

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249.    Any defaults under each Executory Contract and Unexpired Lease to be assumed pursuant to the Plan shall be cured, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the cure amount (if any) in Cash on the Effective Date or in the ordinary course of business or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.

250.    The cure payments required by section 365(b)(1) of the Bankruptcy Code shall be made following the entry of a Final Order or orders resolving the dispute and approving the assumption in the event of a dispute regarding: (1) the amount of any payments to cure such a default, (2) the ability of the Reorganized Debtors or any assignee to provide adequate assurance of future performance under the Executory Contract or Unexpired Lease to be assumed; or, or (3) any other matter pertaining to assumption.

251.    To the extent any dispute with respect to the assumption or cure of any assumed Executory Contract or Unexpired Lease set forth in the Assumed Executory Contract/Unexpired Lease Schedule remains outstanding, such dispute shall be heard at a subsequent hearing. Subject to the terms of the Plan, the parties may agree to consensual resolutions of such disputes in writing without further order of the Bankruptcy Court, which resolution may be set forth in an amended Assumed Executory Contract/Unexpired Lease Schedule. Notwithstanding entry of this Confirmation Order, all parties’ rights with respect to assumption and/or cure regarding Executory Contracts or Unexpired Leases for which disputes remain outstanding are hereby reserved until such dispute is resolved by agreement of the parties or entry of Final Order by the Bankruptcy Court.

252.    The Debtors or Reorganized Debtors, as applicable, subject to the terms of the Plan, reserve the right to reject any Executory Contract or Unexpired Lease upon the resolution of any

 

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cure disputes. If the Bankruptcy Court determines that the Allowed Cure Claim with respect to any Executory Contract or Unexpired Lease is greater than the amount set forth in the applicable Assumption Schedule or Cure Notice, the Debtors or Reorganized Debtors, as applicable, will have the right, subject to the terms of the Plan, to add such Executory Contract or Unexpired Lease to the Rejected Executory Contracts and Unexpired Leases List, in which case such Executory Contract or Unexpired Lease will be deemed rejected as of the Effective Date.

 

W.

Rejection of Executory Contracts and Unexpired Leases

253.    The Filing of the Schedule of Rejected Executory Contracts and Unexpired Leases as part of the Plan Supplement constituted sufficient notice of the rejection of the Executory Contracts and Unexpired Leases listed thereon. Notwithstanding anything to the contrary in the Plan, the effective date of rejection (the “Rejection Date”) for each lease of non-residential real property shall be the later of (i) the Effective Date, (ii) the date the Debtors relinquish control of the premises by notifying the affected landlord in writing of the Debtors’ surrender of the premises and (A) turning over keys, key codes, and security codes, if any, to the affected landlord or (B) notifying the affected landlord in writing that the keys, key codes, and security codes, if any, are not available, but the landlord may rekey the leased premises, and (iii) the date mutually agreed to by the Debtors and the landlord in writing. This Bankruptcy Court shall retain jurisdiction over matters arising out of or related to the rejection, abandonment, surrender, and/or return of the premises covered by those Unexpired Leases that are not to be deemed assumed under the Plan, but which have not yet been rejected as of the Effective Date, including, but not limited to, matters related to (i) the abandonment of personalty, (ii) claims arising out of the Reorganized Debtors’ continued use and possession of the leased premises after the Effective Date, (iii) claims arising out of turnover, return, and/or surrender of leased premises covered by Unexpired Leases, and (iv) matters of eviction.

 

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254.    Entry of this Confirmation Order shall constitute a Bankruptcy Court order approving the rejection, if any, of any Executory Contracts or Unexpired Leases as provided for in the Plan and the Rejected Executory Contract and Unexpired Leases List, as applicable. Unless otherwise provided by a Final Order, all Proofs of Claim with respect to Claims arising from the rejection of Executory Contracts or Unexpired Leases pursuant to the Plan or this Confirmation Order, if any, must be filed with the Solicitation Agent and served on the Reorganized Debtors no later than thirty days after the effective date of such rejection. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed with the Solicitation Agent within such time will be automatically disallowed, forever barred from assertion, and shall not be enforceable against the Debtors, the Reorganized Debtors, the Estates, or their property, without the need for any objection by the Debtors or Reorganized Debtors, or further notice to, action, order, or approval of this Bankruptcy Court or any other Entity, and any Claim arising out of the rejection of the Executory Contract or Unexpired Lease shall be deemed fully satisfied, released, and discharged, and be subject to the permanent injunction set forth in Article VIII.G of the Plan, notwithstanding anything in a Proof of Claim to the contrary.

255.    All timely filed Claims arising from the rejection by any Debtor of any Executory Contract or Unexpired Lease pursuant to section 365 of the Bankruptcy Code shall be treated as an Unsecured Claim pursuant to Article III.B of the Plan and may be objected to in accordance with the provisions of Article VII of the Plan and the applicable provisions of the Bankruptcy Code and Bankruptcy Rules.

256.    Notwithstanding anything to the contrary in the Plan, the Debtors (with the consent of the Required Consenting Jackson Crossover Group Members and, solely as to any Executory Contract or Unexpired Lease to which a HoldCo is a party, the Required Consenting HoldCo

 

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Creditors), or the Reorganized Debtors, as applicable, reserve the right to alter, amend, modify, or supplement the Rejected Executory Contract and Unexpired Lease List at any time through and including thirty days after the Effective Date.

 

X.

Convenience Claims Opt-In

257.    The Convenience Claim Opt-In Form, substantially in the form attached hereto as Exhibit C is hereby approved. The Debtors shall cause the Convenience Claim Opt-In Form to be served as soon as reasonably practicable after the Confirmation Date upon Holders of General Unsecured Claims who hold unliquidated General Unsecured Claims or General Unsecured Claims in excess of the Convenience Claim Threshold. Such Holders may irrevocably elect to have their General Unsecured Claims irrevocably reduced to the amount of the Convenience Claim Threshold and treated as Convenience Claims for the purposes of the Plan, in full and final satisfaction of such Claims, by returning an executed Convenience Claim Opt-In Form to the Debtors’ Solicitation Agent on or before 11:59 p.m. (prevailing Eastern Time) on the date that is 21 days after the Confirmation Date (the “Opt-In Cutoff”). With respect to Holders of General Unsecured Claims in excess of the Convenience Claim Threshold, if such Holder does not submit an executed copy of the Convenience Claim Opt-In Form by the Opt-In Cutoff as provided above, such Holder shall not be treated as a Holder of a Class A9 Convenience Claim and instead shall be treated under the Plan as a Holder of an Unsecured Claim in the relevant Class; provided, however, that if the Debtors or the Reorganized Debtors, as applicable, reject any Executory Contract or Unexpired Lease after the Opt-In Cutoff and such rejection results in the counterparty to the rejected Executory Contract or Unexpired Lease holding an Allowed General Unsecured Claim (a “Rejection Claim”) in excess of the Convenience Claim Threshold, such counterparty shall be eligible to irrevocably elect to have its General Unsecured Claim irrevocably reduced to the Convenience Claim Threshold and treated as a Convenience Claim for the purposes of the

 

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Plan, in full and final satisfaction of such Claim, by notifying the Distribution Agent of such election within 21 days of the date such rejection becomes effective; provided further that notwithstanding anything in the Plan to the contrary, distributions on account of a Rejection Claim so designated shall be made within a reasonable time following such notification.

 

Y.

Provisions Governing Distributions

258.    The distribution provisions of Article VI of the Plan shall be and hereby are approved in their entirety. Except as otherwise set forth in the Plan or this Confirmation Order, the Reorganized Debtors shall make all distributions required under the Plan. The timing of distributions required under the Plan shall be made in accordance with and as set forth in the Plan or this Confirmation Order, as applicable.

 

Z.

Actual Knowledge

259.    Each holder of New Common Stock, CVRs, New Warrants, or Reorganized S.A. Common Stock, whether such holder acquired such New Common Stock, CVRs, New Warrants, or Reorganized S.A. Common Stock on the Effective Date or at any time or from time to time thereafter, shall be deemed to have actual knowledge of the terms, provisions, restrictions, and conditions set forth in (i) the forms of the Shareholders Agreement, Articles of Association, CVR Agreements, New Warrant Agreements, the Registration Rights Agreement, and other agreements filed with the Plan Supplement (the “New Organizational Documents”) (including, without limitation, any restrictions on the transfer of New Common Stock set forth therein), (ii) the forms of the New Warrant Agreements and the CVR Agreements filed with the Plan Supplement, each for all purposes of the New Corporate Governance Documents (including any corporate organizational documents for Jackson), the New Organizational Documents, and applicable law, and (iii) any corporate organizational documents relating to Reorganized TopCos and the issuance of the Reorganized S.A. Common Stock, whether or not any such holder received a separate notice

 

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of such terms, provisions, restrictions, and conditions. Without limiting the foregoing, this Confirmation Order and the Plan (including the Plan Supplement) shall be deemed sufficient and adequate notice of such terms, provisions, restrictions, and conditions to all holders of New Common Stock, New Warrants, CVRs, or Reorganized S.A. Common Stock, such that all such holders shall be deemed to have actual knowledge thereof and shall be deemed to have acquired (whether on the Effective Date or from time to time thereafter) such New Common Stock, New Warrants, CVRs, or Reorganized S.A. Common Stock subject to all such terms, provisions, restrictions, and conditions. The New Organizational Documents shall be binding on the Reorganized Debtors and all parties receiving, and all holders of, New Common Stock, New Warrants, and CVRs, as applicable; provided, that, regardless of whether such parties execute the Shareholders Agreement, Articles of Association, CVR Agreements, New Warrant Agreements, and Registration Rights Agreement, such parties will be deemed to have signed each such agreement, as applicable, which shall be as binding on such parties as if they had actually signed each such agreement, as applicable.

AA. Releases of Liens

260.    Except with respect to the Liens securing the New Debt or Other Secured Claims that are Reinstated pursuant to the Plan, or as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date (or prior to the Effective Date, if payments are made prior to the Effective Date in connection with the New Debt), all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates, subject to the consummation of the applicable distributions contemplated in the Plan, shall be fully released and discharged, and the Holders of such mortgages, deeds of trust, Liens, pledges, or other security interests shall execute such documents as may be reasonably requested by the Debtors or the Reorganized Debtors, as applicable, to reflect

 

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or effectuate such releases, and all of the right, title, and interest of any Holders of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and its successors and assigns in each case, without any further approval or order of the Bankruptcy Court and without any action or filing required to be taken or made. To the extent that any Holder of a Secured Claim has filed or recorded publicly any Liens and/or security interests to secure such Holder’s Secured Claim, as soon as reasonably practicable on or after the Effective Date (or the date such Secured Claim is paid, if paid prior to the Effective Date in connection with the New Debt), such Holder (or the agent for such Holder) shall take any and all steps reasonably requested by the Debtors or the Reorganized Debtors that are reasonably necessary or desirable to record or effectuate the cancellation, and/or extinguishment of such Liens and/or security interests, including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make any such filings or recordings on such Holder’s behalf. To the extent any such Holders of such security interests, the First Lien Agent or the Prepetition Collateral Trustee require authority or direction to do so, the Plan and Confirmation Order shall be deemed to be such authorization or direction, as applicable.

261.    Except as otherwise specifically provided in the Plan, this Confirmation Order, and except with respect to the Liens securing the New Debt or Other Secured Claims that are Reinstated pursuant to the Plan, or as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan, on the Effective Date (or prior to the Effective Date, if payments are made prior to the Effective Date in connection with the New Debt), all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates and, subject to the consummation of the applicable distributions contemplated in the Plan, shall be fully released and discharged, at the sole cost of and expense of the Reorganized Debtors, and

 

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the Holders of such mortgages, deeds of trust, Liens, pledges, or other security interests shall execute such documents as may be reasonably requested by the Debtors or the Reorganized Debtors, as applicable, to reflect or effectuate such releases, and all of the right, title, and interest of any Holders of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the applicable Reorganized Debtor and its successors and assigns.

BB. Post-Confirmation Notices and Bar Dates

262.    In accordance with Bankruptcy Rules 2002 and 3020(c), as soon as reasonably practicable after the Effective Date, the Reorganized Debtors are directed to cause notice of Confirmation and the occurrence of the Effective Date (collectively, the “Notice of Confirmation”) to be served by United States mail, first-class postage prepaid, by hand, by overnight courier service, or by electronic service to all parties served with the Confirmation Hearing Notice; provided that no notice or service of any kind shall be required to be mailed or made upon any Entity to whom the Debtors mailed a Confirmation Hearing Notice but received such notice returned marked as “undeliverable as addressed,” “moved, left no forwarding address,” “forwarding order expired,” or similar language, unless such Entity has informed the Debtors in writing of or the Debtors are otherwise aware of such Entity’s new address. For those parties receiving electronic service, filing on the docket is deemed sufficient to satisfy such service and notice requirements.

263.    To supplement the notice procedures described in the preceding sentence, the Reorganized Debtors are authorized, but not directed, to cause the Notice of Confirmation, modified for publication, to be published in a publication of national circulation. Mailing and publication of the Notice of Confirmation in this time and manner set forth in this and the preceding paragraph will be good, adequate, and sufficient notice under the particular circumstances and in accordance with the requirements of Bankruptcy Rules 2002 and 3020(c). No further notice is necessary.

 

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264.    The Notice of Confirmation shall constitute sufficient notice of the entry of this Confirmation Order to filing and recording officers, and will be a recordable instrument notwithstanding any contrary provision of applicable non-bankruptcy law.

 

CC.

Professional Fee Claims and Administrative Claims

265.    All final requests for payment of Professional Fee Claims for services rendered and reimbursement of expenses incurred prior to the Confirmation Date must be filed no later than 45 days after the Effective Date. Allowed Professional Fee Claims will be paid in cash to such professionals from funds held in the Professional Fee Escrow Account when such Claims are Allowed by an order of the Bankruptcy Court; provided that the Debtors’ obligations with respect to Professional Fee Claims will not be limited nor deemed to be limited in any way to the balance of funds held in Professional Fee Escrow. If the amount of funds in the Professional Fee Escrow Account is insufficient to fund payment in full of all Allowed Professional Fee Claims and any other Allowed amounts owed to Professionals, the deficiency will be promptly funded to the Professional Fee Escrow Account from the Debtors’ estates and the Reorganized Debtors in accordance with Article II.C.2 of the Plan, without any further action or order of the Bankruptcy Court.

266.    Except as otherwise provided in the Plan, requests for payment of Administrative Claims must be Filed no later than the Administrative Claims Bar Date. Holders of Administrative Claims that are required to File and serve a request for such payment of such Administrative Claims that do not file and serve such a request by the Administrative Claims Bar Date shall be forever barred, estopped, and enjoined from asserting such Administrative Claims against the Debtors, the Reorganized Debtors or their property, and such Administrative Claims shall be deemed discharged as of the Effective Date without the need for any objection from the Reorganized Debtors or any action by the Bankruptcy Court.

 

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267.    Notwithstanding any provision of the Plan or this Confirmation Order to the contrary, counterparties to Assumed Executory Contracts or Unexpired Leases who (a) have filed an objection to the Debtors’ proposed cure amounts (if any) pursuant to the Disclosure Statement Order or (b) agree with the cure amount listed by the Debtors in the Schedule of Assumed Executory Contracts and Unexpired Leases (as amended, supplemented, or modified from time to time), shall not be required to assert an Administrative Expense Claim for such asserted cure amount.

DD. Notice of Subsequent Pleadings

268.    Except as otherwise provided in the Plan or in this Confirmation Order, notice of all subsequent pleadings in the Chapter 11 Cases after the Effective Date will be limited to the following parties: (a) the Reorganized Debtors and their counsel; (b) the U.S. Trustee; (c) the Consenting Creditors; (d) any party known to be directly affected by the relief sought by such pleadings; and (e) any party that specifically requests additional notice in writing to the Debtors or Reorganized Debtors, as applicable, or files a request for notice under Bankruptcy Rule 2002 after the Effective Date. The Solicitation Agent shall not be required to file updated service lists.

EE. No Action Required

269.    Pursuant to the applicable provisions of the business corporation laws of Luxembourg, and under the provisions of the Delaware General Corporation Law, including section 303 thereof, and the comparable provisions of the Delaware Limited Liability Company Act, section 1142(b) of the Bankruptcy Code, and any other comparable provisions under applicable law, including Luxembourg law, no action of the respective directors, equity holders, managers, or members of any of the Debtors is required to authorize the Debtors to enter into,

 

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execute, deliver, file, adopt, amend, restate, consummate, or effectuate as the case may be, the Plan (including the Settlement and the Term Loan Facility Claims Settlement), the Restructuring Transactions (and the steps set forth in the Restructuring Steps Memorandum), and any contract, assignment, or amendment in connection with the implementation of the Plan, including the Plan Supplement.

FF. Approval and Authorization

270.    The transactions described in the Plan (as may be subsequently amended, modified, or supplemented from time to time consistent with the Plan), the Definitive Documents, and this Confirmation Order, including the Restructuring Transactions or other transactions as set forth in, or contemplated by, the Restructuring Steps Memorandum, are hereby approved. Whether prior to, on or after the Effective Date, as applicable, and without any further order of the Court, the Debtors, the Reorganized Debtors, all Holders of Claims and Interests, as applicable, and their respective directors, managers, officers, employees, members, agents (including each Indenture Trustee, stock transfer agent, warrants agent, rights agent, DTC, and Distribution Agent), attorneys, financial advisors, and investment bankers, are authorized, directed, and empowered pursuant to section 1142(b) of the Bankruptcy Code and any other applicable law to, and shall: (a) grant, issue, execute, deliver, file, or record any agreement, document, resolution, report, deed, proxy, notice, or security, including (i) any contribution, subscription, netting, exchange, or similar agreement or related document including any valuation report and any escrow agreement, (ii) the New Debt Documents, (iii) the New Corporate Governance Documents, (iv) the Management Incentive Plan, (v) any documentation related to the New Common Stock, New Warrants, CVRs, Reorganized S.A. Common Stock, and (vi) any other documents, agreements, certificates or other materials contained in or contemplated by the Plan, or that the Debtors determine are reasonably necessary, advisable or appropriate to effectuate the Restructuring Transactions, or any other

 

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transaction set forth in, contemplated by or consistent with the Restructuring Steps Memorandum (as may be modified, amended, or supplemented consistent with the Plan) and (b) subject to the rights set forth in the New Corporate Governance Documents, take any action that the Debtors or Reorganized Debtors determine are reasonably necessary, advisable, or appropriate to implement, effectuate, and consummate the Plan, the Definitive Documents, the Restructuring Transactions, or any other transaction set forth in, contemplated by, or consistent with the Restructuring Steps Memorandum (as may be modified, amended, or supplemented consistent with the Plan), or this Confirmation Order, including any and all actions necessary, advisable, or appropriate, including by voting and/or exercising any powers or rights available at any board, creditors’, members’, or shareholders’ meeting (including any Special Meeting or extraordinary general meeting), to: (i) effectuate the issuance and/or distribution of any shares of the New Common Stock or Reorganized S.A. Common Stock, the New Warrants, and the CVRs to be issued pursuant to the Plan (including the creation and/or updating of any registers, if applicable); (ii) effectuate any distribution and/or contribution of securities, claims, and/or receivables as set forth in the Plan, the Definitive Documents, and the Restructuring Transactions, or any other transaction set forth in the Restructuring Steps Memorandum; (iii) ensure that the Equity Issuer is registered with the Registre de Commerce et des Sociétés in Luxembourg (the “RCS”) under the name “Intelsat S.A.” (including by causing Intelsat S.A. to change its name with the RCS and the Equity Issuer to subsequently obtain a certificate of free denomination for the name “Intelsat S.A.”); (iv) dilute and/or cancel any equity interests in Intelsat S.A.; and (v) effectuate all provisions and the intent of the Plan. Any actions taken or caused to be taken to consummate the Plan shall be deemed to have been authorized, approved, and directed by the Court without the need for further approval of the Court. The approvals, authorizations, and directions specifically set forth in this

 

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Confirmation Order are nonexclusive and are not intended to limit the authority of the Debtors or the Reorganized Debtors, as applicable, or any officer, director, agent, or manager thereof, to take any and all actions necessary, advisable, or appropriate to implement, effectuate, and consummate any and all documents or transactions contemplated by the Plan, the Definitive Documents, or this Confirmation Order pursuant to section 1142(b) of the Bankruptcy Code. Prior to, on, or as reasonably practicable after the Effective Date, the Debtors or the Reorganized Debtors shall, if necessary, appropriate, or advisable, file any documents required to be filed in such jurisdictions so as to effectuate the provisions of the Plan, the Definitive Documents, and the Restructuring Transactions, or any other transaction set forth in the Restructuring Steps Memorandum. Any and all documents, agreements, certificates or other materials contemplated herein shall be accepted by each of the respective filing offices and recorded in accordance with applicable law. All counterparties (and agents thereof, including each Indenture Trustee) to any documents, agreements, certificates or other materials described in this paragraph are hereby directed to execute and deliver such documents, agreements, certificates, and other materials, including any contribution, subscription, netting, or exchange agreements or related documents, as may be required or provided by such documents, agreements, certificates, or other materials, without any further order of the Court, and all such claims being contributed, exchanged, or netted are deemed certain, due, and payable at such time. Each of the Definitive Documents, once executed, constitutes a legal, valid, binding, and authorized obligation of the respective parties thereto (including, without limitation, any Holders, the Debtors and the Reorganized Debtors, as applicable), which obligation is enforceable in accordance with its terms, and the terms contained in each such executed Definitive Document shall supersede any description of such terms contained in the Plan or the Plan Supplement or otherwise set forth in a term sheet or unexecuted version of such document. The Definitive Documents are hereby approved, adopted, and effective upon the Effective Date.

 

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271.    The Debtors have also demonstrated that all actions to be taken under the Plan as it relates to the Restructuring Transactions, including but not limited to entry into and performance under the contribution and netting agreements contemplated by the Restructuring Steps Memorandum, and any such claims being contributed, netted, exchanged, or subject to similar agreement or document are deemed certain, due, and payable at such time, and the dilution and/or extinguishment of existing Interests in Intelsat, and related transactions, transfer, and settlements, are in the best interests of the Debtors’ estates.

GG. Certain Securities Laws Matters

272.    Notwithstanding anything to the contrary in this Confirmation Order or the Plan, to the maximum extent provided by section 1145 of the Bankruptcy Code, applicable provisions of the Securities Act and other applicable non-bankruptcy law, the offering, issuance, and distribution of the New Common Stock, the New Warrants, the CVRs, the Reorganized S.A. Common Stock, and the ISA Warrants (if any) under the Plan are exempt from, among other things, the registration and prospectus delivery requirements of Section 5 of the Securities Act and any other applicable United States, state (including “Blue Sky”), local, or foreign law requiring registration and/or prospectus delivery or qualification prior to the offering, issuance, distribution, or sale of Securities. In addition, under section 1145 of the Bankruptcy Code, to the extent applicable, the New Common Stock, the New Warrants, the CVRs, the Reorganized S.A. Common Stock, and the ISA Warrants will be freely tradable in the U.S. by the recipients thereof, subject to the provisions of section 1145(b)(1) of the Bankruptcy Code relating to the definition of an underwriter in Section 2(a)(11) of the Securities Act and otherwise to the extent permitted under section 1145 of the Bankruptcy Code, and compliance with applicable United States or state

 

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securities laws and any rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”), if any, applicable at the time of any future transfer of such Securities or instruments and subject to any restrictions in the Reorganized Debtors’ New Corporate Governance Documents, the New Warrants Agreements, the ISA Warrants (if any), the CVR Agreements, or any new corporate organizational documents relating to Reorganized TopCos and the Reorganized S.A. Common Stock; provided that the transfer of the 1145 Securities may be restricted by the Communications Act, and the rules, regulations, and orders promulgated thereunder by the FCC, the New Corporate Governance Documents, the New Warrants Agreements, or the CVR Agreements.

273.    The New Debt (to the extent issued in the form of bonds) (together with any New Common Stock, New Warrants, ISA Warrants (if any), and CVRs to the extent issuance under section 1145(a) of the Bankruptcy Code is unavailable, including shares issuable thereunder, collectively, the “4(a)(2) Securities”) will be issued without registration in reliance upon the exemption set forth in Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder, or any similar registration exemption applicable outside of the United States. Any 4(a)(2) Securities will be “restricted securities” subject to resale restrictions, and may be resold, exchanged, assigned, or otherwise transferred only pursuant to registration, or an applicable exemption from registration under the Securities Act and other applicable law and subject to any restrictions in the New Corporate Governance Documents, the Communications Act, and the rules, regulations, and orders promulgated thereunder by the FCC.

274.    DTC, and any participants and intermediaries, shall fully cooperate with and facilitate the Restructuring Transactions, including any distributions, as applicable, pursuant to the Plan.

 

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275.    DTC shall be required to accept and conclusively rely upon the Plan and Confirmation Order in lieu of a legal opinion regarding the exemption(s) from registration pursuant to which the New Common Stock, the Reorganized S.A. Common Stock, the CVRs, the ISA Warrants (if any), and the New Warrants will be issued under the Plan and/or eligible for DTC book-entry delivery, settlement, and depository services. Additionally, on or about the Effective Date, FINRA shall take down the symbol for the existing common stock of Intelsat and remove such equity from trading, including through the OTC Markets or a similar exchange. Furthermore, the New Common Stock, the Reorganized S.A. Common Stock, the CVRs, the New Warrants, and the ISA Warrants (if any) may be distributed through DTC pursuant to the Plan in accordance with DTC’s customary procedures, or such other means through (i) DTC that the Reorganized Debtors shall request of DTC or (ii) the stock transfer agent, warrants agent, or rights agent, as applicable.

HH. Filing and Recording

276.    This Confirmation Order is and shall be binding upon and shall govern the acts of all persons or entities in any jurisdiction (including the United States and any foreign jurisdiction (including Luxembourg)) including, without limitation, all filing agents, filing officers, title agents, title companies, recorders of mortgages, recorders of deeds, registrars of deeds, administrative agencies, governmental departments, secretaries of state, federal, state, and local officials, and all other persons and entities who may be required, by operation of law, the duties of their office, or contract, to accept, file, register, or otherwise record or release any document or instrument. Each and every federal, state, and local government agency in any jurisdiction (including the United States and any foreign jurisdiction (including Luxembourg)) is hereby directed to accept any and all documents and instruments necessary, useful, or appropriate (including financing statements under the applicable uniform commercial code) to effectuate, implement, and consummate the transactions contemplated by the Plan and this Confirmation Order without payment of any stamp tax or similar tax imposed by state or local law.

 

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II.

Section 1146 Exemption

277.    To the fullest extent permitted by section 1146(a) of the Bankruptcy Code, any transfers (whether from a Debtor to a Reorganized Debtor or to any other Person) of property under the Plan or pursuant to: (a) the issuance, distribution, transfer, assignment, assumption, conversion, contribution, exchange, or setting-off of any debt, equity security, or other interest in the Debtors or the Reorganized Debtors, including the New Common Stock, the Reorganized S.A. Common Stock, and New Warrants; (b) the Restructuring Transactions; (c) the creation, modification, consolidation, termination, refinancing, and/or recording of any mortgage, deed of trust, or other security interest, or the securing of additional indebtedness by such or other means; (d) the making, assignment, or recording of any lease or sublease; or (e) the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including any deeds, bills of sale, assignments, or other instrument of transfer executed in connection with any transaction arising out of, contemplated by, or in any way related to the Plan, shall not be subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, real estate transfer tax, mortgage recording tax, Uniform Commercial Code filing or recording fee, sales or use tax, regulatory filing or recording fee, or other similar tax or governmental assessment, and upon entry of this Confirmation Order, the appropriate state or local governmental officials or agents shall forego the collection of any such tax or governmental assessment and accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee, or governmental assessment. All filing or recording officers (or any other Person with authority over any of the foregoing), wherever located and by whomever appointed, shall comply with the requirements of section 1146(c) of the Bankruptcy Code, shall forego the collection of any such tax or governmental assessment, and shall accept for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax or governmental assessment.

 

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JJ. Preservation of Causes of Action

278.    Except as otherwise provided in the Plan or this Confirmation Order or in any contract, instrument, release, or other agreement entered into or delivered in connection with the Plan, in accordance with section 1123(b)(3) of the Bankruptcy Code, the Reorganized Debtors shall have vested in them as of the Effective Date, and the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all Causes of Action, whether arising before or after the Petition Date, including any actions described in the Schedule of Retained Causes of Action, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date, other than the Causes of Action released by the Debtors pursuant to the releases and exculpations contained in the Plan, including as set forth in Article VIII thereof.

KK. Reports

279.    After entry of this Confirmation Order, the Debtors or Reorganized Debtors, as applicable, shall have no obligation to file with the Bankruptcy Court, serve on any parties, or otherwise provide any party with any other report that the Debtors or Reorganized Debtors, as applicable, were obligated to provide under the Bankruptcy Code or an order of the Bankruptcy Court, including obligations to provide (a) any reports to any parties otherwise required under the “first” and “second” day orders entered in these Chapter 11 Cases and (b) monthly operating reports (even for those periods for which a monthly operating report was not filed before the Confirmation Date); provided that the Debtors or Reorganized Debtors, as applicable, will comply with the U.S. Trustee’s quarterly reporting requirements.

 

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LL. Effectiveness of All Actions

280.    Except as set forth in the Plan, all actions authorized to be taken pursuant to the Plan shall be effective on, before, or after the Effective Date pursuant to this Confirmation Order, without further application to, or order of the Bankruptcy Court, or further action by the Debtors, the Reorganized Debtors and their respective directors, officers, members, or stockholders, and with the effect that such actions had been taken by unanimous action of such officers, directors, managers, members, or stockholders.

 

MM.

Binding Effect

281.    On the date of and after entry of this Confirmation Order, but subject to the occurrence of the Effective Date, the terms of the Plan, the final versions of the documents contained in the Plan Supplement, and the New Debt Documents (subject to entry of the order approving the DIP-to-Exit Financing) shall be immediately effective and enforceable and deemed binding upon the Debtors and any and all Holders of Claims or Interests (irrespective of whether the Holders of such Claims or Interests accepted or rejected the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, and injunction described in the Plan, each Entity acquiring property under the Plan, and any and all non-debtor parties to Executory Contracts and Unexpired Leases with the Debtors. All Claims and Interests shall be as fixed, adjusted, or compromised, as applicable, pursuant to the Plan regardless of whether any Holder of a Claim or Interest has voted on the Plan.

282.    Pursuant to section 1141 of the Bankruptcy Code, subject to the occurrence of the Effective Date and subject to the terms of the Plan and this Confirmation Order, except as set forth herein, all prior orders entered in the Chapter 11 Cases, all documents and agreements executed by the Debtors as authorized and directed thereunder and all motions or requests for relief by the Debtors pending before this Bankruptcy Court as of the Effective Date shall be binding upon and shall inure to the benefit of the Debtors, the Reorganized Debtors, and each of their respective successors and assigns.

 

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283.    The Plan, all documents and agreements executed by the Debtors in connection therewith, this Confirmation Order, and all prior orders of the Bankruptcy Court in the Chapter 11 Cases shall be binding against and binding upon and shall not be subject to rejection or avoidance by any Chapter 7 or Chapter 11 trustee appointed in any of the Chapter 11 Cases.

NN. Directors, Officers, and Managers

284.    As of the Effective Date, the terms of the current members of the board of directors and board of managers of the Debtors shall expire, and the Equity Issuer Board and officers of each of the Reorganized Debtors shall be appointed or continue serving, as applicable, in accordance with the Plan, the New Corporate Governance Documents and other constituent documents of each Reorganized Debtor.

OO. Management Incentive Plan

285.    On the Effective Date, the Equity Issuer is authorized to and shall institute the Management Incentive Plan, enact and enter into related policies and agreements, and distribute the New Common Stock to participants consistent with the terms and allocations set forth in the Management Incentive Plan Term Sheet and the Management Incentive Plan Documents set forth in Docket No. 3718, Ex. N; provided that the form and substance of the Management Incentive Plan and the Management Incentive Plan Documents shall be consistent with the PSA Definitive Document Requirements. Subject to the terms of the Management Incentive Plan Documents, New Common Stock representing 3.26% of the New Common Stock outstanding as of the Effective Date on a fully-diluted and fully-distributed basis shall be reserved for issuance in connection with the Management Incentive Plan. The Required Consenting Jackson Crossover Group Members and the Debtors shall negotiate the terms of the definitive

 

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Management Incentive Plan documentation in good-faith prior to the Effective Date; provided that the requirement that the Management Incentive Plan documentation be completed prior to the Effective Date may be waived by written agreement between the Required Consenting Jackson Crossover Group Members and the Debtors.

PP. Certain Employee Matters

286.    Except as otherwise provided in the Plan, on the Effective Date, the Debtors or Reorganized Debtors (other than the Reorganized TopCos), as applicable, shall amend, adopt, assume, and/or honor in the ordinary course of business all Compensation and Benefits Programs (including, for the avoidance of doubt, the HRA & RX Plan, which terms are incorporated by reference herein).193 Pursuant to section 1129(a)(13) of the Bankruptcy Code, from and after the Effective Date, all retiree benefits (as such term is defined in section 1114 of the Bankruptcy Code) if any, shall continue to be paid in accordance with applicable law. Notwithstanding the foregoing, for the avoidance of doubt, prior to, from, and after the Effective Date, no restricted stock units (“RSUs”) granted under the Equity Incentive Plan194 shall be settled and instead shall be forfeited for no consideration, regardless of the vested or unvested status of such RSUs.

QQ. Director, Officer, Manager, and Employee Liability Insurance

287.    On the Effective Date, pursuant to sections 105 and 365(a) of the Bankruptcy Code, the Debtors shall be deemed to have assumed all of the D&O Liability Insurance Policies (including, if applicable, any “tail policy”). Entry of this Confirmation Order constitutes the Bankruptcy Court’s approval of the Reorganized Debtors’ assumption of all such policies (including, if applicable, any “tail policy”).

 

193 

HRA & RX Plan” means the Intelsat US LLC Qualifying Retiree Group Health Plan Health Reimbursement Arrangement and Supplemental RX Reimbursement Plan (2021 Update), as amended pursuant to the Stipulation Between Intelsat Retirees Association, the Postol Plaintiffs, and the Debtors [Docket No. 3589].

194 

Equity Incentive Plan” has the meaning given to it in the Final Order (A) Authorizing the Debtors to (I) Pay Prepetition Wages, Compensation, and Benefit Obligations and (II) Continue Employee Compensation and Benefits Programs and (B) Granting Related Relief [Docket No. 262].

 

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288.    After the Effective Date, none of the Debtors or the Reorganized Debtors (other than the Reorganized TopCos) shall terminate or otherwise reduce the coverage under any such policies (including, if applicable, any “tail policy”) with respect to conduct occurring as of the Effective Date, and all officers, directors, managers, and employees of the Debtors who served in such capacity at any time before the Effective Date shall be entitled to the full benefits of any such policies regardless of whether such officers, directors, managers, or employees remain in such positions after the Effective Date, subject to the terms and conditions of such D&O Liability Insurance Policies.

289.    On and after the Effective Date, each of the Reorganized Debtors shall be authorized to purchase a directors’ and officers’ liability insurance policy for the benefit of their respective directors, members, trustees, officers, and managers in the ordinary course of business.

RR. Claims Reconciliation Process

290.    The procedures and responsibilities for, and costs of, reconciling the Disputed Claims shall be as set forth in the Plan or as otherwise ordered by the Bankruptcy Court.

SS. Professional Compensation, Reimbursement Claims, Restructuring Expenses, and Professional Fee Escrow Account

291.    Except as otherwise specifically provided in the Plan, from and after the Confirmation Date, the Debtors or Reorganized Debtors, as applicable, shall, in the ordinary course of business and without any further notice to or action, order, or approval of the Bankruptcy Court, pay in Cash the reasonable and documented legal, professional, or other fees and expenses related to implementation of the Plan and Consummation incurred by the Debtors or the Reorganized Debtors, as applicable, including the fees and expenses of the Disinterested Directors and Managers, consistent with the allocation set forth in Article II.C.2. of the Plan. The Debtors and

 

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Reorganized Debtors (as applicable) shall pay, within ten business days after submission of a detailed invoice to the Debtors or Reorganized Debtors (as applicable), such reasonable claims for compensation or reimbursement of expenses incurred by the retained Professionals of the Debtors and Reorganized Debtors (as applicable). If the Debtors or Reorganized Debtors (as applicable) dispute the reasonableness of any such invoice, the Debtors or Reorganized Debtors (as applicable) or the affected professional may submit such dispute to the Bankruptcy Court for a determination of the reasonableness of any such invoice, and the disputed portion of such invoice shall not be paid until the dispute is resolved. Upon the Confirmation Date, any requirement that Professionals comply with sections 327 through 331 and 1103 of the Bankruptcy Code or the Interim Compensation Order in seeking retention or compensation for services rendered after such date shall terminate, and the Debtors may employ and pay any Professional in the ordinary course of business without any further notice to or action, order, or approval of the Bankruptcy Court. In addition, the Debtors and Reorganized Debtors (as applicable) are authorized to pay and/or reimburse such reasonable claims for compensation or reimbursement of expenses incurred by the retained Professionals of the Debtors or the Reorganized Debtors, as applicable, as well as all reasonable and documented fees and expenses of the Consenting Creditors, to the extent contemplated by and in accordance with the Plan, the Plan Support Agreement, the New Debt Documents, and any other orders entered by the Bankruptcy Court in connection therewith, except to the extent that such fees are subject to dispute.

292.    Notwithstanding anything to the contrary in the foregoing paragraph 291, at any time that a professional retained by a party that is not the Debtors, the Committee, or the Reorganized Debtors seeks payment of Restructuring Expenses from the Debtors, each such professional shall provide summary copies of its fee and expense statements or invoices (which

 

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shall not be required to contain time entries and which may be redacted or modified to the extent necessary to delete any information subject to the attorney-client privilege, any information constituting attorney work product, or any other confidential information, and the provision of such invoices shall not constitute any waiver of the attorney client privilege or of any benefits of the attorney work product doctrine) to the Fee Notice Parties.195 If no objection to payment of the requested Restructuring Expenses is made, in writing, by any of the Fee Notice Parties within the Fee Objection Period,196 then such invoice shall be paid, without further order of, or application to, the Bankruptcy Court or notice to any other party, and shall not be subject to any further review, challenge, or disgorgement. For the avoidance of doubt, the provision of such invoices shall not constitute a waiver of attorney-client privilege or any benefits of the attorney work product doctrine. If within the Fee Objection Period, a Fee Notice Party sends to the affected professional and files with the Bankruptcy Court a written objection to such invoice, then only the disputed portion of such Restructuring Expenses shall not be paid until the objection is resolved by the applicable parties in good faith or by order of the Bankruptcy Court.

TT. Waiver of Stay; Nonseverability of Plan Provisions upon Confirmation

293.    Notwithstanding the possible applicability of Bankruptcy Rules 3020(e), 6004(g), 6004(h), 7062, 9014, or otherwise, the terms and conditions of this Confirmation Order will be effective and enforceable immediately upon its entry. Each term and provision of the Plan, and the transactions related thereto as they heretofore may have been altered (consistent with the consent rights set forth in the Plan) or interpreted by the Bankruptcy Court is (a) valid and enforceable pursuant to its terms, (b) integral to the Plan and may not be deleted or modified without the consent of the Debtors or the Reorganized Debtors, as applicable, in accordance with the terms set forth in the Plan; and (c) nonseverable and mutually dependent.

 

195 

Fee Notice Parties” has the meaning set forth in the Original DIP Order.

196 

Fee Objection Period” has the meaning set forth in the Original DIP Order.

 

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UU. Reversal/Stay/Modification/Vacatur of Confirmation Order

294.    Except as otherwise provided in this Confirmation Order, if any or all of the provisions of this Confirmation Order are hereafter reversed, modified, vacated, or stayed by subsequent order of the Bankruptcy Court, or any other court, such reversal, stay, modification, or vacatur shall not affect the validity or enforceability of any act, obligation, indebtedness, liability, priority, or lien incurred or undertaken under or in connection with the Plan or the various documents included in the Plan Supplement and/or the various documents included in the Plan Supplement before the effective date of any such reversal, stay, modification, or vacatur, including, without limitation, the validity of any obligation, indebtedness, or liability incurred by the Debtors or Reorganized Debtors (as applicable) pursuant to the New Debt Documents.

295.    Notwithstanding any such reversal, stay, modification, or vacatur of this Confirmation Order, any such act or obligation incurred or undertaken pursuant to, or in reliance on, this Confirmation Order prior to the effective date of such reversal, stay, modification, or vacatur shall be governed in all respects by the provisions of this Confirmation Order and the Plan or any amendments or modifications thereto (consistent with the Plan).

VV. Waiver or Estoppel

296.    Except as otherwise set forth in the Plan or this Confirmation Order, each Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its Claim or Interest should be Allowed in a certain amount, in a certain priority, Secured or not subordinated by virtue of an agreement made with the Debtors or their counsel, or any other Entity, if such agreement was not disclosed in the Plan, the Disclosure Statement, or papers Filed with the Bankruptcy Court before the Confirmation Date.

 

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WW. Authorization to Consummate

297.    The Debtors and any necessary or appropriate third parties, as reasonably determined by the Debtors, are authorized to consummate the Plan, including the Restructuring Transactions contemplated thereby, at any time after the entry of this Confirmation Order subject to satisfaction or waiver (by the required parties) of the conditions precedent to Consummation set forth in Article XI of the Plan. The substantial consummation of the Plan, within the meaning of sections 1101(2) and 1127 of the Bankruptcy Code, is deemed to occur on the first date, on or after the Effective Date, on which distributions are made in accordance with the terms of the Plan to Holders of any Allowed Claims or Interests (as applicable).

 

XX.

Injunctions and Automatic Stay

298.    Unless otherwise provided in the Plan or in this Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases pursuant to section 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court, and extant on the Confirmation Date (excluding any injunctions or stays contained in the Plan or this Confirmation Order) shall remain in full force and effect until the Effective Date. All injunctions or stays contained in the Plan or this Confirmation Order shall remain in full force and effect in accordance with their terms.

YY. Specific Provisions Relating to the SES Settlement

299.    In addition to the general settlement described in Article IV.A. of the Plan and paragraph 68 herein, the Debtors, SES, and the Jackson Crossover Ad Hoc Group have come to a consensual resolution regarding the SES Americom, Inc.s Objection to Second Amended Joint Chapter 11 Plan of Intelsat S.A. and Its Debtor Affiliates [Docket No. 3468] (the “SES Objection”) and (ii) SES Americom, Inc.s Motion (I) To Intervene in the Accelerated Relocation Payments Litigation and/or (II) For Derivative Standing to Prosecute Intercompany Claims on Behalf of Debtor Intelsat US LLC [Docket No. 1552] (the “SES Standing Motion”) on the terms set forth in

 

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Exhibit E attached hereto (the “SES Settlement”), which SES Settlement and its terms and provisions, including without limitation sections 1.1.1 and 1.2.3, are incorporated by reference as if set forth fully herein. This Confirmation Order constitutes the Bankruptcy Court’s approval of the SES Settlement in its entirety, as well as a finding that the SES Settlement is in the best interests of the Debtors, their Estates, and the Holders of Claims and Interests, and is fair, equitable and reasonable.

300.    Based upon the representations and arguments at the Confirmation Hearing and all other testimony either actually given or proffered and other evidence introduced at the Confirmation Hearing and the full record of these Chapter 11 Cases, this Confirmation Order constitutes the Bankruptcy Court’s approval of the SES Settlement because, among other things: (a) the SES Settlement reflects a reasonable balance between the possible success of litigation with respect to each of the settled claims and disputes, on the one hand, and the benefits of fully and finally resolving the SES Objection and the SES Standing Motion, on the other hand; (b) absent the SES Settlement, there is a likelihood of complex and protracted litigation, including at the Confirmation Hearing, with the attendant expense, inconvenience, and delay that have a possibility to derail the Debtors’ reorganization efforts; (c) each of the parties supporting the SES Settlement, including without limitation the Debtors, SES, and the Jackson Crossover Ad Hoc Group, are represented by counsel that is recognized as being knowledgeable, competent, and experienced; (d) the SES Settlement is the product of arm’s-length bargaining and good-faith negotiations between sophisticated parties; and (e) the SES Settlement is fair, equitable, and reasonable and in the best interests of the Debtors, Reorganized Debtors, their respective Estates and property, creditors, and other parties in interest, and will maximize the value of the Estates by preserving and protecting the ability of the Reorganized Debtors to timely consummate the Restructuring

 

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Transactions. Based on the foregoing, the SES Settlement satisfies the requirements of applicable Fourth Circuit law for approval of settlements and compromises pursuant to Bankruptcy Rule 9019.

301.    In accordance with the SES Settlement, the SES Objection and the SES Standing Motion are hereby withdrawn by SES with prejudice, and no party shall have any liability for taking any action in furtherance of the withdrawal of the SES Objection and the SES Standing Motion set forth in this paragraph. The Debtors, the Reorganized Debtors, and SES are hereby authorized and directed to execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and papers and to take any and all actions necessary or appropriate to consummate, complete, execute, and implement the SES Settlement (including, for the avoidance of doubt, sections 1.1.1 and 1.2.3 thereto, which terms are incorporated by reference herein) in accordance with the terms and conditions thereof. For the avoidance of doubt, the Reorganized Debtors shall be bound by the terms of the SES Settlement as if they had been parties thereto, and nothing in this Confirmation Order shall be interpreted to release, waive, limit, or prejudice in any manner SES’s ARP-Related Claims or Expense Reimbursement Claims (each as defined in the SES Settlement Agreement) against US LLC, License LLC, or Jackson, or to constitute an admission by SES as to any aspect of those claims, all of which are preserved as and to the extent provided in the SES Settlement.

ZZ. Specific Provisions Relating to Space-Communication Ltd.

302.    Those certain agreements between one or more of the Debtors and Space-Communication Ltd. (“Spacecom”) concurrently entered on June 6, 2013 (the “Spacecom Agreements”) are subject to a notice of rejection [Docket No. 2160] (the “Notice of Rejection”) filed by the Debtors, to which Spacecom has filed an objection and reservation of rights [Docket No. 2247] (the “Spacecom Objection”). The Debtors and Spacecom

 

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are negotiating in good-faith to resolve the disputes related to the Spacecom Agreements, and any contested hearing related to these disputes shall be scheduled as a separate hearing to occur after entry of this Confirmation Order. For the avoidance of doubt, the respective rights, interests, obligations, arguments, and liabilities of the Debtors, the Reorganized Debtors, and Spacecom with respect to the Spacecom Agreements, the Notice of Rejection, the Spacecom Objection, Spacecom’s motion for allowance and payment of administrative expense [Docket No. 2809] (the “Spacecom Application”), and the Debtors’ objection to the Spacecom Application [Docket No. 3109] (the “Debtors’ Objection”) are reserved, and, notwithstanding anything in the Plan or this Confirmation Order to the contrary, neither the Plan nor this Confirmation Order shall effectuate a rejection or assumption of the Spacecom Agreements. Notwithstanding anything to the contrary in this Confirmation Order, the Debtors’, the Reorganized Debtors’, and Spacecom’s rights, interests, obligations, and arguments with respect to the Notice of Rejection, the Spacecom Objection, the Spacecom Application, and the Debtors’ Objection are not released or enjoined by operation of this Confirmation Order.

AAA. Specific Provisions Relating to Domestic Governmental Units

303.    As to any domestic Governmental Unit of the United States or any state thereof, any U.S. Territory, or any local government within the United States (for purposes of this section AAA, each, a “Domestic Governmental Unit”), nothing in the Plan discharges, releases, precludes, or enjoins: (a) any liability to any Domestic Governmental Unit that is not a Claim; (b) any Claim of a Domestic Governmental Unit arising on or after the Effective Date; (c) any police or regulatory liability to a Domestic Governmental Unit on the part of any Entity as the owner or operator of property after the Effective Date; or (d) any liability to a Domestic Governmental Unit on the part of any Person other than the Debtors. Nor shall anything in the Plan enjoin or otherwise bar a Domestic Governmental Unit from asserting or enforcing,

 

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outside the Bankruptcy Court, any liability described in the preceding sentence. Nothing in the Plan shall divest any tribunal of any jurisdiction it may have to adjudicate any defense based on this paragraph.

BBB. Specific Provisions Relating to the FCC (and the United States Department of Justice acting on its behalf) and the SEC

304.    Notwithstanding any provision in the Plan, this Confirmation Order or other related Plan documents (collectively, “Plan Documents”): (1) Nothing discharges or releases the Debtors, the Reorganized Debtors, or any non-debtor from any right, claim, liability or cause of action of the United States or any State, or impairs the ability of the United States or any State to pursue any claim, liability, right, defense, or cause of action against any Debtor, Reorganized Debtor or non-debtor. Contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests of or with the United States or any State shall be, subject to any applicable legal or equitable rights or defenses of the Debtors or Reorganized Debtors under applicable non-bankruptcy law, paid, treated, determined and administered in the ordinary course of business as if the Debtors’ bankruptcy cases were never filed and the Debtors and Reorganized Debtors shall comply with all applicable non-bankruptcy law. All claims, liabilities, rights, causes of action, or defenses of or to the United States or any State shall survive the Chapter 11 Cases as if they had not been commenced and be determined in the ordinary course of business, including in the manner and by the administrative or judicial tribunals in which such rights, defenses, claims, liabilities, or causes of action would have been resolved or adjudicated if the Chapter 11 Cases had not been commenced; provided that nothing in the Plan Documents shall alter any legal or equitable rights or defenses of the Debtors, the Reorganized Debtors under non-bankruptcy law with respect to any such claim, liability, or cause of action. Without limiting the foregoing, for the avoidance of doubt, nothing shall: (i) require the United States or any State to

 

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file any proofs of claim or administrative expense claims in the Chapter 11 Cases for any right, claim, liability, defense, or cause of action; (ii) affect or impair the exercise of the United States’ or any State’s police and regulatory powers against the Debtors, the Reorganized Debtors or any non-debtor; (iii) be interpreted to set cure amounts or to require the United States or any State to novate or otherwise consent to the transfer of any federal or state contracts, purchase orders, agreements, leases, covenants, guaranties, indemnifications, operating rights agreements or other interests; (iv) affect or impair the United States’ or any State’s rights and defenses of setoff and recoupment, or ability to assert setoff or recoupment against the Debtors or the Reorganized Debtors and such rights and defenses are expressly preserved; (v) constitute an approval or consent by the United States or any State without compliance with all applicable legal requirements and approvals under non-bankruptcy law; or (vi) relieve any party from compliance with all licenses and permits issued by governmental units in accordance with non-bankruptcy law. Additionally, also for the avoidance of doubt, notwithstanding any other provision in the Plan Documents: nothing relieves the Debtors or the Reorganized Debtors from their obligations to comply with the Communications Act of 1934, as amended, and the rules, regulations and orders promulgated thereunder by the FCC. No transfer of any FCC license or authorization held by the Debtors or transfer of control of the Debtors or transfer of control of an FCC licensee controlled by the Debtors shall take place prior to the issuance of FCC regulatory approval for such transfer pursuant to applicable FCC regulations. The FCC’s rights and powers to take any action pursuant to its regulatory authority including, but not limited to, imposing any regulatory conditions on any of the above described transfers, are fully preserved, and nothing herein shall proscribe or constrain the FCC’s exercise of such power or authority; and without limiting the foregoing; and (2) Nothing releases any non-debtor person or entity from any claim or cause of action of the SEC, or enjoins,

 

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limits, impairs, or delays the SEC from commencing or continuing any claims, causes of action, proceedings, or investigations against any non-debtor person or entity in any forum. Notwithstanding anything in this section BBB that may be read to the contrary, nothing in this section BBB shall be interpreted to apply to Claims, proceedings, procedures, or any other action with respect to taxes that may be asserted by the United States or any State.

 

CCC.

Specific Provisions Relating to the United States Internal Revenue Service

305.    Notwithstanding any provision of the Plan, there shall be no requirement that the Internal Revenue Service (the “IRS”) file any request for payment of administrative expenses, nor any deadline for the filing of such requests. Nor shall the failure to pay such liabilities result in a discharge, injunction, exculpation, release or in any other manner defeat the United States’ right or ability to collect such liability pursuant to the requirements of Title 26. Nothing in the Plan shall enjoin the IRS from assessing a liability against a responsible person (including any person working for the Debtors) under I.R.C. § 6672. Nothing in the Plan shall enjoin the IRS from collecting a liability against a responsible person under I.R.C. § 6672. Any taxes deferred pursuant to the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) shall be paid in the ordinary course of business, when due in accordance with applicable non-bankruptcy law. For the avoidance of doubt, nothing in this paragraph shall be interpreted as modifying the substantive requirements associated with bringing a claim pursuant to I.R.C. § 6672 under applicable law.

DDD. Specific Provisions Relating to the Jackson Senior Notes Trustee

306.    The Jackson Senior Notes Trustees shall seek payment of Indenture Trustee Fees (including, without limitation, any claims for indemnity), if any, solely from the Debtors or the Reorganized Debtors, as applicable, in accordance with the terms set forth in Article IV.S of the Plan; provided, that, notwithstanding anything in the Plan (including Article IV.S of the Plan) to

 

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the contrary, the Jackson Senior Notes Trustees shall not exercise their Indenture Trustee Charging Liens under the Jackson Senior Notes Indentures against any distributions to be made to Holders of Jackson Senior Notes Claims under the Plan for payment of any amount (including any Indenture Trustee Fees), and such distributions shall not otherwise be withheld or held back by the Jackson Senior Notes Trustees for any reason. The Reorganized Debtors shall establish a reserve, segregated account or an escrow, or enter into another arrangement reasonably acceptable to the Jackson Senior Notes Trustees that accomplishes the same economic effect (the “Jackson Senior Notes Trustees’ Reserve”), in accordance with Article VII of the Plan, pursuant to which $1.75 million in Cash shall be made available to the Jackson Senior Notes Trustees solely for payment of the Reorganized Debtors’ obligations, if any, to the Jackson Senior Notes Trustees for any post-Effective Date Indenture Trustee Fees, in accordance with the terms set forth in Article IV.S of the Plan. The Jackson Senior Notes Trustees’ Reserve shall not be a cap on the Jackson Senior Notes Trustees’ post-Effective Date Indenture Trustee Fees, and nothing in this Paragraph shall affect the Debtors’ or Reorganized Debtors’, as applicable, obligation to pay the Jackson Senior Notes Trustees’ pre-Effective Date Indenture Trustee Fees in full in Cash on the Effective Date (provided, that, for the avoidance of doubt, no Indenture Trustee Charging Lien shall be exercised by the Jackson Senior Notes Trustees with respect to any such Indenture Trustee Fees). Any unused portion of the Jackson Senior Notes Trustees’ Reserve shall be distributed to the Reorganized Debtors (as applicable) upon the earlier of (a) the date that is three years after the date of entry of the Confirmation Order, and (b) the date on which the Convert Ad Hoc Group settles or otherwise withdraws its objections to (or any appeal, if any, in respect of) confirmation of the Plan with prejudice (collectively, (a) and (b), the “Reserve Termination Events”), without the requirement of any further notice or order of the Bankruptcy Court. If any

 

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Reserve Termination Event occurs before the Effective Date, the Reorganized Debtors shall not be required to, and shall not, fund any Jackson Senior Notes Trustees’ Reserve, and no Jackson Senior Notes Trustees’ Reserve shall otherwise be required.

EEE. Specific Provisions Relating to Chubb Seguros Chile, S.A., Westchester Fire Insurance Company, and ACE Property and Casualty Insurance Company

307.    Notwithstanding anything to the contrary in the Plan, the Plan Supplement, the Disclosure Statement, this Confirmation Order, the DIP Documents, or any bar date notice or Claim objection or any agreements or documents and any amended versions relating to the foregoing, including, without limitation, transition agreements and trust agreements or any other order of the Bankruptcy Court (including without limitation any other provision that purports to be preemptory or supervening, grants an injunction discharge or release, or requires a party to opt out of any releases) (for purposes of this paragraph only, the “Plan Documents”), Chubb Seguros Chile, S.A., Westchester Fire Insurance Company, and ACE Property and Casualty Insurance Company and its past, present or future affiliated sureties (individually and collectively hereafter referred to as the “Surety”) are unimpaired under the Plan, including with respect to the Surety’s rights against any of the Debtors and/or the Reorganized Debtors in connection with: (i) surety bonds or similar or related instruments issued and/or executed at any time by the Surety on behalf of certain of the Debtors and/or their non-debtor affiliates (each a “Bond” and collectively, the “Bonds”); (ii) any and all indemnity-related agreements (collectively, the “Indemnity Agreements”); (iii) any cash collateral or other collateral of the Surety, including any letters of credit and/or proceeds thereof; and (iv) any related documents. Notwithstanding any provision in the Plan Documents to the contrary: (a) all set-off, recoupment, trust, and lien rights, and all security interests, of the Surety and any obligee and/or beneficiary under any and all of the Bonds are preserved against the Debtors and/or the Reorganized Debtors (and shall not be primed

 

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by the rights of any other party) and, further, the Debtors’, the Reorganized Debtors’, and all parties’ right and defenses with respect to any such rights and/or interests are also preserved; (b) the Indemnity Agreements and the Bonds are deemed and treated as executory contracts (and specifically not to be deemed an “insurance policy” under the Plan) and will be assumed by the Debtors pursuant to the Plan, and/or have already been assumed by the Debtors and Reorganized Debtors, without the need or requirement of any Surety to file or serve any objection to a proposed cure amount or fee application; (c) the Surety reserves all of its rights to modify, extend and/or cancel any Bond in accordance with the terms thereof but without regard to these Chapter 11 Cases; (d) the Surety has no obligation under the Plan Documents to issue or execute any new bond on behalf of any entity, and the Surety has no obligation to extend, modify, or increase the amount of any Bond; (e) to the extent the Surety issues or has issued any bonds post-petition in which one or more of the Debtors and/or Reorganized Debtors is a principal and/or to the extent the Surety enters or has entered into any additional indemnity agreement(s) with one or more of the Debtors or Reorganized Debtors post-petition, any and all rights of Surety under these documents shall also survive the Effective Date of the Plan; (f) to the extent the Surety pays a claim or claims of any claimant(s) under any of the Bonds, the Plan shall not impair or affect the Surety’s related subrogation claim or any claims to which the Surety is subrogated; and (g) the Debtors’ and the Surety’s respective rights pursuant to Section 502(j) of the Bankruptcy Code are preserved.

FFF. Specific Provisions Related to the Commonwealth of Australia (and the Department of Defence acting on its behalf)

308.    For the avoidance of doubt, the contracts between the Commonwealth of Australia (represented by the Department of Defence) and one or more of the Debtors, including, without limitation, Customer Service Contract #2250 / Contract Number C439262 and related purchase orders (collectively, the “Australian Department of Defence Contracts”), shall be assumed and the parties’ respective rights, interests, obligations, and liabilities with respect to the Australian Department of Defence Contracts and the related IS-22 Satellite are unimpaired.

 

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GGG. Specific Provisions Related to the Accelerated Relocation Payment Clearinghouse

309.    On and after the date of this Confirmation Order, the disbursement (including the disbursement to License LLC) and use of (a) those certain Accelerated Relocation Payments and (b) those certain payments received by the Debtors or Reorganized Debtors (or their affiliates) on account of reimbursable relocation costs (the “Expense Reimbursements”) by the Relocation Payment Clearinghouse, LLC, in its individual capacity and in its capacity as the Relocation Payment Clearinghouse, in each case as described in that certain Report and Order and Order of Proposed Modification, FCC Docket Number 20-22, released by the FCC on March 3, 2020 in In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122 (as may be amended or modified, the “FCC Order”) in the manner contemplated by and in accordance with the FCC Order, the Plan and this Confirmation Order shall be deemed, and hereby is, expressly authorized and approved in all respects and shall not be subject to challenge, offset, avoidance, or recharacterization. To the fullest extent permissible under applicable law, neither the Relocation Payment Clearinghouse, LLC, in its individual capacity or in its capacity as Relocation Payment Clearinghouse (as defined in the FCC Order) nor its members, officers, directors, subcontractors, professionals, and advisors (collectively, the “Clearinghouse LLC”), shall be liable on account of or arising from any such distribution or use of the Accelerated Relocation Payments or Expense Reimbursements made in accordance with the FCC Order, the Plan and this Confirmation Order, no Entity shall hold a claim or cause of action against any such party on account of or arising from any such distribution or use and, notwithstanding anything contrary in the Plan or this Confirmation Order, the Clearinghouse LLC, including its subcontractors, advisors, and professionals, shall be deemed “Exculpated Parties” and “Released Parties” as defined under the Plan and this Confirmation Order and are entitled to the protections set forth in Article VIII of the Plan and paragraphs 236–241 hereof.

 

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HHH. Specific Provisions Related to the Convert Settlement

310.    In addition to the general settlement described in Article IV.A. of the Plan and paragraph 68 herein, the Debtors, the HoldCo Creditor Ad Hoc Group, the Jackson Crossover Ad Hoc Group, the Convert Ad Hoc Group, and the Convertible Senior Notes Trustee (“BOKF”) have come to a consensual resolution (the “Convert Settlement”) regarding the (i) Ad Hoc Group of Convertible Noteholders Objection to Debtors Second Amended Plan [Docket No. 3479] (the “Convert Ad Hoc Group Objection”); (ii) Objection of BOKF, N.A., in its Capacity as Successor Trustee in Respect of the 4.5% Senior Convertible Notes, to Debtors Second Amended Joint Chapter 11 Plan of Reorganization [Docket No. 3431] (the “BOKF Objection”); (iii) Cyrus Capital Partners, L.P.s Joinder to Objection of Ad Hoc Group of Convertible Noteholders and BOKF, N.A., as Convertible Notes Trustee, to Debtors Second Amended Plan [Docket No. 3446] (the “Cyrus Joinder” and together with the Convert Ad Hoc Group Objection and the BOKF Objection, the “Confirmation Objections”); and (iv) Motion of Ad Hoc Group of Convertible Noteholders for Entry of an Order (I) Granting Standing to Prosecute Intercompany Claims on Behalf of Debtor Intelsat S.A.; (II) Modifying the Automatic Stay; and (III) Granting Related Relief [Docket No. 1439] (the “Convert Standing Motion”); and (v) Objection of Ad Hoc Group of Convertible Noteholders to Proofs of Claim Filed by U.S. Bank National Association, as Indenture Trustee [Docket No. 1455] (the “Convert U.S. Bank Claim Objection”); and (vi) Objection of Ad Hoc Group of Convertible Noteholders to Proofs of Claim Filed by the Delaware Trust Company, as Successor Trustee [Docket No. 1463] (together with the Convert U.S. Bank Claim Objection, the “Claim Objections,” and together with the Confirmation Objections, the Convert Standing Motion, and any discovery motions or motions in limine related

 

156


to the Convert Standing Motion, the Confirmation Objections, or the Claim Objections, the “Convert Objections”). This Confirmation Order constitutes the Bankruptcy Court’s approval of the Convert Settlement in its entirety, as well as a finding that the Convert Settlement is in the best interests of the Debtors, their Estates, and the Holders of Claims and Interests, and is fair, equitable and reasonable.

311.    Based upon the representations and arguments of counsel to the Debtors and all other testimony either actually given or proffered and other evidence introduced at the Confirmation Hearing and the full record of these Chapter 11 Cases, this Confirmation Order constitutes the Bankruptcy Court’s approval of the Convert Settlement because, among other things: (a) the Convert Settlement reflects a reasonable balance between the possible success of litigation with respect to each of the settled claims and disputes, on the one hand, and the benefits of fully and finally resolving the Convert Objections, on the other hand; (b) absent the Convert Settlement, there is a likelihood of complex and protracted litigation, including following the Confirmation Hearing, with the attendant expense, inconvenience, and delay that have a possibility to derail the Debtors’ reorganization efforts; (c) each of the parties supporting the Convert Settlement, including without limitation the Debtors, the HoldCo Creditor Ad Hoc Group, the Jackson Crossover Ad Hoc Group, the Convert Ad Hoc Group and each member thereof, and BOKF, are represented by counsel that is recognized as being knowledgeable, competent, and experienced; (d) the Convert Settlement is the product of arm’s-length bargaining and good-faith negotiations between sophisticated parties; and (e) the Convert Settlement is fair, equitable, and reasonable and in the best interests of the Debtors, Reorganized Debtors, their respective Estates and property, creditors, and other parties in interest, and will maximize the value of the Estates by preserving and protecting the ability of the Reorganized Debtors to timely consummate the

 

157


Restructuring Transactions. Based on the foregoing, the Convert Settlement satisfies the requirements of applicable Fourth Circuit law for approval of settlements and compromises pursuant to Bankruptcy Rule 9019.

312.    In accordance with the Convert Settlement, the Convert Objections are deemed withdrawn. Each member of the Convert Ad Hoc Group is deemed to have changed its vote from a vote to reject the Plan to a vote to accept the Plan and is hereby directed to take all necessary or appropriate actions to effectuate such vote change. The Debtors, the Reorganized Debtors, the Convert Ad Hoc Group, each and every member of the Convert Ad Hoc Group, and BOKF are hereby further authorized and directed to execute, deliver, implement, and fully perform any and all obligations, instruments, documents, and papers and to take any and all actions necessary or appropriate to consummate, complete, execute, and implement the Convert Settlement in accordance with the terms and conditions thereof.

313.    Notwithstanding anything to the contrary contained herein, and for the avoidance of doubt, in the event the Convert Settlement is not consummated, or the Effective Date of the Plan does not occur, nothing in this Confirmation Order shall estop or preclude the Convert Ad Hoc Group from making any argument or taking any position, or any court from making any finding or ruling, that is inconsistent with the findings or rulings in this Confirmation Order as to any of the Convert Objections.

 

III.

Dissolution of the Creditors’ Committee

314.    On the Effective Date, the Committee shall dissolve and all members, employees, or agents thereof shall be released and discharged from all rights, duties, responsibilities, and liabilities arising from, or related to, the Chapter 11 Cases and under the Bankruptcy Code, except for the limited purpose of preparing, prosecuting and filing requests for payment of Professional Fee Claims for services and reimbursements of expenses incurred prior to the Effective Date by

 

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the Committee and its Professionals and, if necessary, litigating the final requests for payment of any Professional Fee Claims filed by other Professionals. Except as set forth herein, from and after the Effective Date, none of the Debtors or the Reorganized Debtors shall be responsible for paying any fees or expenses incurred after the Effective Date by the members of or advisors to the Committee.

JJJ. Effect of Non-Occurrence of Conditions to the Effective Date

315.    If the Effective Date of the Plan does not occur, (a) the Plan and findings in this Confirmation Order shall be null and void in all respects other than as set forth herein and (b) nothing contained in the Plan or the Disclosure Statement shall: (i) constitute a waiver or release of any Claims or Interests by the Debtors, any Holders, or any other Entity; (ii) prejudice in any manner the rights of the Debtors, any holders of a Claim or Interest, or any other Entity; or (iii) constitute an admission, acknowledgment, offer, or undertaking by the Debtors, any Holders, or any other Entity in any respect.

316.    In the event that this Confirmation Order is amended or modified in a manner inconsistent with or not permitted by the PSA Definitive Document Requirements, nothing in such modified or amended Confirmation Order shall estop or preclude any party to the Plan Support Agreement from making any argument or taking any position, or any court from making any finding or ruling, that is inconsistent with the findings or rulings in this Confirmation Order. In the event that this Confirmation Order is vacated, then, subject to the terms set forth in paragraph 295, nothing in this Confirmation Order shall be binding on any party.

KKK. Effect of Conflict Between Plan, the Disclosure Statement, the Plan Supplement, and this Confirmation Order

317.    In the event of an inconsistency between the Plan and the Disclosure Statement, the terms of the Plan shall control in all respects. In the event of an inconsistency between the Plan

 

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and the Plan Supplement, the Plan Supplement shall control. In the event of an inconsistency between the Plan or Plan Supplement, on the one hand, and this Confirmation Order on the other hand, this Confirmation Order shall control. In the event of any inconsistency between this Confirmation Order and any separate order approving the New Debt, such separate order shall govern.

LLL. Retention of Jurisdiction

318.    This Bankruptcy Court retains jurisdiction over the Chapter 11 Cases, all matters arising out of or related to the Chapter 11 Cases and the Plan, the matters set forth in Article XI and other applicable provisions of the Plan; provided that upon the Effective Date and closing of the New Debt, the jurisdiction governing issues related solely to the New Debt or the documents executed in connection therewith or any liens, rights, or remedies related thereto shall be as set forth in the New Debt Documents.

 

MMM.

Waiver of 14-Day Stay

319.    Notwithstanding Bankruptcy Rule 3020(e), and to the extent applicable, Bankruptcy Rules 6004(h), 7062, and 9014, this Confirmation Order is effective immediately and not subject to any stay.

NNN. Final Order

320.    This Confirmation Order is a final order and the period in which an appeal must be filed will commence upon entry of this Confirmation Order.

321.    This Confirmation Order is effective as of December 17, 2021.

 

Dated:  

 

     

 

Richmond, Virginia       United States Bankruptcy Judge

 

160


WE ASK FOR THIS:

/s/ Jeremy S. Williams

Michael A. Condyles (VA 27807)
Peter J. Barrett (VA 46179)
Jeremy S. Williams (VA 77469)
KUTAK ROCK LLP
901 East Byrd Street, Suite 1000
Richmond, Virginia 23219-4071
Telephone:   (804) 644-1700
Facsimile:   (804) 783-6192
- and -
Edward O. Sassower, P.C. (admitted pro hac vice)
Steven N. Serajeddini, P.C. (admitted pro hac vice)
Aparna Yenamandra (admitted pro hac vice)
KIRKLAND & ELLIS LLP
KIRKLAND & ELLIS INTERNATIONAL LLP
601 Lexington Avenue
New York, New York 10022
Telephone:   (212) 446-4800
Facsimile:   (212) 446-4900

Co-Counsel to the Debtors and Debtors in Possession

CERTIFICATION OF ENDORSEMENT

UNDER LOCAL BANKRUPTCY RULE 9022-1(C)

Pursuant to Local Bankruptcy Rule 9022-1(C), I hereby certify that the foregoing proposed order has been endorsed by or served upon all necessary parties.

 

/s/ Jeremy S. Williams


Exhibit A

Plan


IN THE UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

 

     )   
In re:    )    Chapter 11
   )   
INTELSAT S.A., et al.,1    )    Case No. 20-32299 (KLP)
   )   
Debtors.    )    (Jointly Administered)
     )   

 

FOURTH AMENDED JOINT CHAPTER 11 PLAN OF

REORGANIZATION OF INTELSAT S.A. AND ITS DEBTOR AFFILIATES

 

NOTHING CONTAINED HEREIN SHALL CONSTITUTE AN OFFER, ACCEPTANCE, COMMITMENT, OR LEGALLY BINDING OBLIGATION OF THE DEBTORS OR ANY OTHER PARTY IN INTEREST.

 

YOU SHOULD NOT RELY ON THE INFORMATION CONTAINED IN, OR THE TERMS OF, THIS PLAN FOR ANY PURPOSE PRIOR TO THE CONFIRMATION OF THIS PLAN BY THE BANKRUPTCY COURT.

 

THIS PLAN IS SUBJECT TO APPROVAL BY THE BANKRUPTCY COURT AND OTHER CUSTOMARY CONDITIONS. THIS PLAN IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES.

 

Edward O. Sassower, P.C. (admitted pro hac vice)    Michael A. Condyles (VA 27807)
Steven N. Serajeddini, P.C. (admitted pro hac vice)    Peter J. Barrett (VA 46179)
Aparna Yenamandra (admitted pro hac vice)    Jeremy S. Williams (VA 77469)
KIRKLAND & ELLIS LLP   
KIRKLAND & ELLIS INTERNATIONAL LLP    KUTAK ROCK LLP
601 Lexington Avenue    901 East Byrd Street, Suite 1000
New York, New York 10022    Richmond, Virginia 23219-4071
Telephone:    (212) 446-4800    Telephone:    (804) 644-1700
Facsimile:    (212) 446-4900    Facsimile:    (804) 783-6192

Co-Counsel to the Debtors and Debtors in Possession

Dated: December 17, 2021

 

1 

Due to the large number of Debtors in these chapter 11 cases, for which joint administration has been granted, a complete list of the Debtor entities and the last four digits of their federal tax identification numbers is not provided herein. A complete list may be obtained on the website of the Debtors’ claims and noticing agent at https://cases.stretto.com/intelsat. The location of the Debtors’ service address is: 7900 Tysons One Place, McLean, VA 22102.


TABLE OF CONTENTS

 

         Page  

INTRODUCTION

     1  

ARTICLE I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, GOVERNING LAW, AND OTHER REFERENCES

     1  

A.

 

Defined Terms

     1  

B.

 

Rules of Interpretation

     26  

C.

 

Computation of Time

     27  

D.

 

Governing Law

     27  

E.

 

Reference to Monetary Figures

     27  

F.

 

Reference to the Debtors or the Reorganized Debtors

     27  

G.

 

Controlling Documents

     27  

H.

 

Consent Rights

     28  

ARTICLE II. ADMINISTRATIVE AND PRIORITY CLAIMS

     28  

A.

 

DIP Claims

     28  

B.

 

Administrative Claims

     28  

C.

 

Professional Fee Claims

     29  

D.

 

Priority Tax Claims

     31  

ARTICLE III. CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS

     32  

A.

 

Classification of Claims and Interests

     32  

B.

 

Treatment of Classes of Claims and Interests

     34  

C.

 

Special Provision Governing Unimpaired Claims

     42  

D.

 

Elimination of Vacant Classes

     42  

E.

 

Voting Classes; Presumed Acceptance by Non-Voting Classes

     42  

F.

 

Subordinated Claims

     42  

G.

 

Intercompany Interests

     42  

H.

 

Controversy Concerning Impairment

     43  

I.

 

Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code

     43  

ARTICLE IV. MEANS FOR IMPLEMENTATION OF THE PLAN

     43  

A.

 

General Settlement of Claims and Interests

     43  

B.

 

Settlement Agreement

     43  

C.

 

Term Loan Facility Claims Settlement

     43  

D.

 

SES Settlement

     44  

E.

 

Equity Group Settlement

     44  

F.

 

Restructuring Transactions

     44  

G.

 

Sources of Consideration for Plan Distributions

     45  

H.

 

Exemption from Registration Requirements

     48  

I.

 

Corporate Existence

     49  

J.

 

Corporate Action

     49  

K.

 

FCC Licenses and Regulatory Applications

     49  

L.

 

Vesting of Assets in the Reorganized Debtors

     49  

M.

 

Cancellation of Notes, Instruments, Certificates, and Other Documents

     50  

N.

 

Effectuating Documents; Further Transactions

     51  

O.

 

Exemptions from Certain Taxes and Fees

     51  

P.

 

New Corporate Governance Documents

     51  

Q.

 

Directors and Officers

     52  

R.

 

Reorganized TopCo Formation, Capitalization, and Board Selection

     52  

S.

 

Management Incentive Plan

     52  

T.

 

Payment of Indenture Trustee Fees

     52  

U.

 

Preservation of Causes of Action

     53  


ARTICLE V. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES

     53  

A.

 

Assumption of Executory Contracts and Unexpired Leases

     53  

B.

 

Claims Based on Rejection of Executory Contracts or Unexpired Leases

     54  

C.

 

Cure of Defaults and Objections to Cure and Assumption

     54  

D.

 

Insurance Contracts

     55  

E.

 

Indemnification Provisions

     56  

F.

 

Director, Officer, Manager, and Employee Liability Insurance

     56  

G.

 

Employee and Retiree Benefits

     57  

H.

 

Modifications, Amendments, Supplements, Restatements, or Other Agreements

     57  

I.

 

Reservation of Rights

     58  

J.

 

Nonoccurrence of Effective Date

     58  

K.

 

Contracts and Leases Entered Into After the Petition Date

     58  

ARTICLE VI. PROVISIONS GOVERNING DISTRIBUTIONS

     58  

A.

 

Timing and Calculation of Amounts to Be Distributed

     58  

B.

 

Distributions on Account of Obligations of Multiple Debtors

     58  

C.

 

Distribution Agent

     59  

D.

 

Rights and Powers of Distribution Agent

     59  

E.

 

Delivery of Distributions

     59  

F.

 

Manner of Payment

     61  

G.

 

Compliance Matters

     61  

H.

 

No Postpetition or Default Interest on Claims

     61  

I.

 

Allocation Between Principal and Accrued Interest

     61  

J.

 

Setoffs and Recoupment

     61  

K.

 

Claims Paid or Payable by Third Parties

     62  

ARTICLE VII. PROCEDURES FOR RESOLVING CONTINGENT, UNLIQUIDATED, AND DISPUTED CLAIMS

     62  

A.

 

Allowance of Claims

     62  

B.

 

Claims Administration Responsibilities

     62  

C.

 

Adjustment to Claims Without Objection

     63  

D.

 

Time to File Objections to Claims or Interests

     63  

E.

 

Estimation of Claims

     63  

F.

 

Disputed and Contingent Claims Reserve

     63  

G.

 

Disallowance of Claims

     64  

H.

 

Amendments to Proofs of Claim

     64  

I.

 

Reimbursement or Contribution

     64  

J.

 

No Distributions Pending Allowance

     64  

K.

 

Distributions After Allowance

     64  

ARTICLE VIII. SETTLEMENT, RELEASE, INJUNCTION, AND RELATED PROVISIONS

     65  

A.

 

Compromise and Settlement of Claims, Interests, and Controversies

     65  

B.

 

Discharge of Claims

     65  

C.

 

Release of Liens

     65  

D.

 

Debtor Release

     66  

E.

 

Third-Party Release

     67  

F.

 

Exculpation

     67  

G.

 

Injunction

     68  

H.

 

Protection Against Discriminatory Treatment

     68  

I.

 

Recoupment

     68  

J.

 

Reimbursement or Contribution

     69  

K.

 

Term of Injunctions or Stays

     69  

L.

 

Document Retention

     69  

ARTICLE IX. CONDITIONS TO CONFIRMATION AND THE EFFECTIVE DATE

     69  

A.

 

Conditions Precedent to the Confirmation Date

     69  

 

ii


B.

 

Conditions Precedent to the Effective Date

     69  

C.

 

Waiver of Conditions to the Confirmation Date and the Effective Date

     71  

D.

 

Substantial Consummation

     71  

E.

 

Effect of Non-Occurrence of Conditions to Consummation

     71  

ARTICLE X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN

     72  

A.

 

Modification of Plan

     72  

B.

 

Effect of Confirmation on Modifications

     72  

C.

 

Revocation or Withdrawal of Plan

     72  

ARTICLE XI. RETENTION OF JURISDICTION

     72  

ARTICLE XII. MISCELLANEOUS PROVISIONS

     74  

A.

 

Immediate Binding Effect

     74  

B.

 

Additional Documents

     75  

C.

 

Dissolution of the Committee

     75  

D.

 

Statutory Fees and Reporting Requirements

     75  

E.

 

Payment of Certain Fees and Expenses

     75  

F.

 

Reservation of Rights

     75  

G.

 

Successors and Assigns

     76  

H.

 

Service of Documents

     76  

I.

 

Entire Agreement

     77  

J.

 

Plan Supplement Exhibits

     77  

K.

 

Non-Severability

     77  

L.

 

Votes Solicited in Good Faith

     77  

M.

 

Waiver or Estoppel

     77  

N.

 

Closing of Chapter 11 Cases

     78  

 

iii


INTRODUCTION

Intelsat S.A. and its affiliated debtors and debtors in possession in the above-captioned chapter 11 cases (each a “Debtor” and, collectively, the “Debtors”) propose this joint plan of reorganization (together with the documents comprising the Plan Supplement, the “Plan”) for the resolution of the outstanding Claims against and Interests in the Debtors. Capitalized terms used in the Plan and not otherwise defined shall have the meanings set forth in Article I.A of the Plan. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code. The classifications of Claims and Interests set forth in Article III of the Plan shall be deemed to apply separately with respect to each Debtor, as applicable, for the purpose of receiving distributions pursuant to this Plan. While the Plan constitutes a single plan of reorganization for all Debtors, the Plan does not contemplate substantive consolidation of any of the Debtors. Reference is made to the Disclosure Statement for a discussion of the Debtors’ history, business, properties, operations, projections, risk factors, a summary and description of this Plan, and certain related matters.

ALL HOLDERS OF CLAIMS AND INTERESTS, TO THE EXTENT APPLICABLE, ARE ENCOURAGED TO READ THE PLAN AND THE DISCLOSURE STATEMENT IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THE PLAN.

ARTICLE I.

DEFINED TERMS, RULES OF INTERPRETATION,

COMPUTATION OF TIME, GOVERNING LAW, AND OTHER REFERENCES

A.    Defined Terms

As used in this Plan, capitalized terms have the meanings set forth below.

1.    “1145 Securities” means, collectively, the New Common Stock, the CVRs, the New Warrants (including New Common Stock issued upon exercise of the New Warrants), the Reorganized S.A. Common Stock, and the ISA Warrants issued in reliance upon section 1145 of the Bankruptcy Code to the fullest extent the issuance of such securities pursuant to section 1145 of the Bankruptcy Code is permitted under applicable law.

2.    “2018 Reorganization Claims” means any and all Claims, Causes of Action and other challenges related to the series of transactions and related steps that the Debtors (or their affiliates) implemented in and around June–July 2018 (or related transactions that took place thereafter) that reorganized (or assisted or were intended to assist in the reorganization of) the ownership of certain of the assets of the Debtors and their affiliates (including transactions effecting changes in tax and accounting attributes).

3.    “2021 and 2023 Lux Senior Notes Trustee” means Delaware Trust Company, solely in its capacity as trustee under the Lux Multi Senior Notes Indenture, and any predecessor or successor thereto.

4.     “2021 Lux Senior Notes” means those certain 7.75% senior notes due 2021, issued by LuxCo, in an original aggregate principal amount of $2,000,000,000, pursuant to the Lux Multi Senior Notes Indenture.

5.    “2021 Lux Senior Notes Claims” means any Claim arising under the Lux Multi Senior Notes Indenture relating to the 2021 Lux Senior Notes.

6.    “2023 Jackson Senior Notes” means those certain 5.50% senior notes due 2023, issued by Jackson, in an aggregate principal amount of $2,000,000,000, pursuant to the 2023 Jackson Senior Notes Indenture.

7.    “2023 Jackson Senior Notes Indenture” means that certain indenture, dated as of June 5, 2013, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the 2023 Jackson Senior Notes, by and among Jackson, as issuer, certain of the Debtors, as guarantors, and 2023 Jackson Senior Notes Trustee, as trustee.

8.    “2023 Jackson Senior Notes Trustee” means U.S. Bank, National Association, solely in its capacity as trustee under the 2023 Jackson Senior Notes Indenture, and any predecessor or successor thereto.


9.     “2023 Lux Senior Notes” means those certain 8.125% senior notes due 2023, issued by LuxCo, in an original aggregate principal amount of $1,000,000,000, pursuant to the Lux Multi Senior Notes Indenture.

10.    “2023 Lux Senior Notes Claims” means any Claim arising under the Lux Multi Senior Notes Indenture relating to the 2023 Lux Senior Notes.

11.    “2024 Jackson Senior Notes” means those certain 8.50% senior notes due 2024, issued by Jackson, in an original aggregate principal amount of $2,250,000,000, with a subsequent issuance in an aggregate principal amount of $700,000,000, for a total aggregate principal amount of $2,950,000,000, pursuant to the 2024 Jackson Senior Notes Indenture.

12.    “2024 Jackson Senior Notes Indenture” means that certain indenture, dated as of September 19, 2018, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the 2024 Jackson Senior Notes, by and among Jackson, as issuer, certain of the Debtors, as guarantors, and 2024 Jackson Senior Notes Trustee, as trustee.

13.    “2024 Jackson Senior Notes Trustee” means U.S. Bank, National Association, solely in its capacity as trustee under the 2024 Jackson Senior Notes Indenture, and any predecessor or successor thereto.

14.     “2024 Lux Senior Notes” means those certain 12.50% senior notes due 2024, issued by LuxCo, in an original aggregate principal amount of $403,325,000, pursuant to the 2024 Lux Senior Notes Indenture.

15.    “2024 Lux Senior Notes Claims” means any Claim arising under the 2024 Lux Senior Notes Indenture relating to the 2024 Lux Senior Notes.

16.    “2024 Lux Senior Notes Indenture” means that certain indenture, dated as of January 6, 2017, by and among LuxCo, as issuer, and the 2024 Lux Senior Notes Trustee, as trustee, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the Petition Date.

17.     “2024 Lux Senior Notes Trustee” means Delaware Trust Company, solely in its capacity as trustee under the 2024 Lux Senior Notes Indenture, and any predecessor or successor thereto.

18.    “2025 Jackson Senior Notes” means those certain 9.75% senior notes due 2025, issued by Jackson, in an original aggregate principal amount of $1,500,000,000, with a subsequent issuance in an aggregate principal amount of $400,000,000, for a total aggregate principal amount of $1,900,000,000, pursuant to the 2025 Jackson Senior Notes Indenture.

19.    “2025 Jackson Senior Notes Indenture” means that certain indenture, dated as of July 5, 2017, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the 2025 Jackson Senior Notes, by and among Jackson, as issuer, certain of the Debtors, as guarantors, and 2025 Jackson Senior Notes Trustee, as trustee.

20.    “2025 Jackson Senior Notes Trustee” means U.S. Bank, National Association, solely in its capacity as trustee under the 2025 Jackson Senior Notes Indenture, and any predecessor or successor thereto.

21.    “2026 Envision Intercompany Note” means that certain intercompany promissory note due 2026, issued by Envision to Intelsat on June 18, 2018 in an aggregate principal amount of $150,000,000.

22.    “2026 Envision Intercompany Note Claims” means any Claim arising on account of the 2026 Envision Intercompany Note.

23.    “2026 Lux Senior Notes” means those certain 13.5% senior notes due 2026, issued by LuxCo to ICF and Envision on August 16, 2018, in the aggregate principal amount of $1,578,781,000.

24.    “2026 Lux Senior Notes Claims” means any Claim arising on account of the 2026 Lux Senior Notes.

 

2


25.    “8.00% First Lien Notes” means those certain 8.00% senior secured first lien notes due 2024, issued by Jackson, in an original aggregate principal amount of $1,250,000,000, with a subsequent issuance in an aggregate principal amount of $99,700,000, for a total aggregate principal amount of $1,349,700,000, pursuant to the 8.00% First Lien Notes Indenture.

26.    “8.00% First Lien Notes Claim” means any Claim arising under the 8.00% First Lien Notes and 8.00% First Lien Notes Indenture.

27.    “8.00% First Lien Notes Indenture” means that certain indenture, dated as of March 29, 2016, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the 8.00% First Lien Notes, by and among Jackson, as issuer, ICF and the other guarantors from time to time party thereto, as guarantors, 8.00% First Lien Notes Trustee, as trustee, and the Prepetition Collateral Trustee as Collateral Trustee.

28.    “8.00% First Lien Notes Trustee” means Wilmington Trust, National Association, solely in its capacity as trustee under the 8.00% First Lien Notes Indenture, and any predecessor or successor thereto.

29.     “9.50% First Lien Notes” means those certain 9.50% senior secured first lien notes due 2022, issued by Jackson, in an original aggregate principal amount of $490,000,000, pursuant to the 9.50% First Lien Notes Indenture.

30.    “9.50% First Lien Notes Claim” means any Claim arising under the 9.50% First Lien Notes and 9.50% First Lien Notes Indenture.

31.    “9.50% First Lien Notes Indenture” means that certain indenture, dated as of June 30, 2016, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the 9.50% First Lien Notes, by and among Jackson, as issuer, ICF and the other guarantors from time to time party thereto, as guarantors, 9.50% First Lien Notes Trustee, as trustee, and the Prepetition Collateral Trustee as Collateral Trustee.

32.    “9.50% First Lien Notes Trustee” means Wilmington Trust, National Association, solely in its capacity as trustee under the 9.50% First Lien Notes Indenture, and any predecessor or successor thereto.

33.    “Accelerated Relocation Payment Claims” means any and all Claims or Causes of Action, held by any Entity, related to the payments that the Debtors or the Reorganized Debtors may receive pursuant to that certain Report and Order and Order of Proposed Modification, FCC Docket Number 20-22, released by the FCC on March 3, 2020 in In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122, including any Claims or Causes of Action with respect to which Debtor(s) or Reorganized Debtor(s) is entitled to receive any payments and reimbursements pursuant to such order.

34.    “Administrative Claim” means a Claim against a Debtor for the costs and expenses of administration of the Chapter 11 Cases arising on or prior to the Effective Date pursuant to sections 328, 330, or 503(b) of the Bankruptcy Code and entitled to priority pursuant to sections 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including: (a) the actual and necessary costs and expenses incurred on or after the Petition Date until and including the Effective Date of preserving the Estates and operating the Debtors’ businesses; and (b) Allowed Professional Fee Claims.

35.    “Administrative Claims Bar Date” means the deadline for Filing requests for payment of Administrative Claims, which: (a) with respect to Administrative Claims other than Professional Fee Claims, shall be 30 days after the Effective Date; and (b) with respect to Professional Fee Claims, shall be 45 days after the Effective Date.

36.    “Administrative Claims Objection Bar Date” means the deadline for filing objections to requests for payment of Administrative Claims, which shall be the later of (a) 60 days after the Effective Date and (b) 60 days after the Filing of the applicable request for payment of an Administrative Claim; provided that the Administrative Claims Objection Bar Date may be extended by order of the Bankruptcy Court.

 

3


37.    “Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code.

38.    “Allowed” means, with respect to any Claim, except as otherwise provided herein: (a) a Claim that is evidenced by a Proof of Claim Filed by the Claims Bar Date (or such other date as agreed by the Debtors pursuant to the Bar Date Order) or a request for payment of an Administrative Claim Filed by the Administrative Claims Bar Date, as applicable (or for which Claim under the Plan, the Bankruptcy Code, or pursuant to a Final Order, a Proof of Claim or request for payment of Administrative Claim is not or shall not be required to be Filed); (b) a Claim that is listed in the Schedules as not contingent, not unliquidated, and not Disputed, and for which no Proof of Claim, as applicable, has been timely Filed; or (c) a Claim allowed pursuant to the Plan or a Final Order of the Bankruptcy Court; provided that, with respect to a Claim described in clauses (a) and (b) above, such Claim shall be considered Allowed only if, and to the extent that, with respect to such Claim, no objection to the allowance thereof is filed within the applicable period of time fixed by the Plan, the Bankruptcy Code, the Bankruptcy Rules, or the Bankruptcy Court, or such an objection is so filed and the Claim has been allowed by a Final Order.

39.    “Articles of Association” has the meaning set forth in the Corporate Governance Term Sheet.

40.    “Backstop Commitment” means the commitment, on the terms as may be set forth in the Backstop Commitment Agreement, of the Backstop Parties to backstop the New Term Loans and New Notes.

41.    “Backstop Commitment Agreement” means that certain agreement that may be entered into by and among the Backstop Parties and the Debtors, as may be amended, supplemented, or modified from time to time, setting forth, among other things, the payment of the Backstop Premium and the terms and conditions of the Backstop Commitment.

42.    “Backstop Parties” means those certain parties that commit to backstop the New Term Loans and the New Notes and are signatories to the Backstop Commitment Agreement, solely in their capacities as such, to the extent provided in the Backstop Commitment Agreement. An Entity may become a Backstop Party only if: (a) such Entity is (i) a Jackson Crossover Ad Hoc Group Member or (ii) a Consenting HoldCo Creditor, solely to the extent of such Consenting HoldCo Creditor’s pro-rata holdings of Jackson Senior Notes (based upon the aggregate amount of Jackson Senior Notes held by all Holders of Jackson Senior Notes),1 or (b) the Required Consenting Jackson Crossover Group Members otherwise permit, in writing, such Entity to become a Backstop Party with the Debtors’ consent, not to be unreasonably withheld, conditioned, or delayed; provided that, to the extent any Backstop Party defaults on any portion of its Backstop Commitment, the Convert Ad Hoc Group shall have the first priority to participate in the Backstop Commitment to fill such vacant portion up to $50 million in New Debt.

43.    “Backstop Premium” means that certain backstop premium payable in Cash to the Backstop Parties as consideration for the Backstop Commitment in the amount of 2.50% of the principal amount of New Term Loans and New Notes backstopped pursuant to the Backstop Commitment Agreement on the terms that may be set forth in the Backstop Commitment Agreement.

44.    “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.

 

1 

For the avoidance of doubt, a Consenting HoldCo Creditor shall be entitled to (i) an initial allocation of the Backstop Commitment based on such Consenting HoldCo Creditor’s pro-rata holdings of Jackson Senior Notes (calculated as a percentage of the aggregate amount of Jackson Senior Notes held by all Holders of Jackson Senior Notes), and (ii) any unsubscribed portion of the Backstop Commitment not committed by other Entities entitled to participate in the Backstop Commitment based on such Consenting HoldCo Creditor’s pro-rata holdings of Jackson Senior Notes (calculated as a percentage of the aggregate amount of Jackson Senior Notes held by all Holders of Jackson Senior Notes).

 

4


45.    “Bankruptcy Court” means the United States Bankruptcy Court for the Eastern District of Virginia or such other court having jurisdiction over the Chapter 11 Cases, including, to the extent of the withdrawal of the reference under 28 U.S.C. § 157, the United States District Court for the Eastern District of Virginia.

46.    “Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure as promulgated by the United States Supreme Court under section 2075 of title 28 of the United States Code, 28 U.S.C. § 2075, as applicable to the Chapter 11 Cases and the general, local, and chambers rules of the Bankruptcy Court, as now in effect or hereafter amended.

47.    “Business Day” means any day, other than a Saturday, Sunday, or a legal holiday, as defined in Bankruptcy Rule 9006(a).

48.    “C-Band Order” means that certain Report and Order and Order of Proposed Modification issued by the FCC on March 3, 2020 in In the Matter of Expanding Flexible Use of the 3.7 to 4.2 GHz Band, GN Docket No. 18-122 (as may be amended or modified).

49.    “Cash” or “$” means the legal tender of the United States of America or the equivalent thereof, including bank deposits, checks, and cash equivalents, as applicable.

50.    “Cause of Action” means any claims, interests, damages, remedies, causes of action, demands, rights, actions, suits, obligations, liabilities, accounts, defenses, offsets, powers, privileges, licenses, Liens, indemnities, guaranties, and franchises of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, contingent or non-contingent, liquidated or unliquidated, secured or unsecured, assertable, directly or derivatively, matured or unmatured, suspected or unsuspected, in contract, tort, law, equity, or otherwise (including under foreign law). Causes of Action include: (a) all rights of setoff, counterclaim, or recoupment and claims under contracts or for breaches of duties imposed by law or in equity; (b) the right to object to or otherwise contest Claims or Interests; (c) any claim pursuant to sections 362, 510, 542, 543, 544 through 550, or 553 of the Bankruptcy Code; (d) such claims and defenses as fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy Code; and (e) any state or foreign law fraudulent transfer or similar claim.

51.    “Certificate” means any document, instrument, or other writing evidencing a Claim against or an Interest in the Debtors.

52.    “CEO” means Chief Executive Officer of the Equity Issuer.

53.    “Chapter 11 Cases” means the cases commenced by the Debtors under chapter 11 of the Bankruptcy Code, which are being jointly administered under Case No. 20-32299 (KLP) in the Bankruptcy Court.

54.    “Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors, whether or not assessed or Allowed.

55.    “Claims Register” means the official register of Claims against and Interests in the Debtors maintained by the Solicitation Agent.

56.    “Class” means a category of Holders of Claims or Interests as set forth in Article III pursuant to section 1122(a) of the Bankruptcy Code.

57.    “Committee” means the Official Committee of Unsecured Creditors appointed by the U.S. Trustee in the Chapter 11 Cases pursuant to section 1102(a) of the Bankruptcy Code, as it may be reconstituted from time to time.

58.    “Company Parties” means Intelsat, and each of its direct and indirect subsidiaries listed on Exhibit A to the Plan Support Agreement that have executed and delivered counterpart signature pages to the Plan Support Agreement to counsel to the Consenting Creditors.

 

5


59.    “Confirmation” means entry of the Confirmation Order by the Bankruptcy Court on the docket of the Chapter 11 Cases.

60.    “Confirmation Date” means the date on which the Bankruptcy Court enters the Confirmation Order on the docket of the Chapter 11 Cases within the meaning of Bankruptcy Rules 5003 and 9021.

61.    “Confirmation Hearing” means the hearing held by the Bankruptcy Court pursuant to Bankruptcy Rule 3020(b)(2) and sections 1128 and 1129 of the Bankruptcy Code, including any adjournments thereof, at which the Bankruptcy Court will consider confirmation of the Plan.

62.    “Confirmation Objection Deadline” means the deadline by which objections to confirmation of the Plan must be received by the Debtors.

63.    “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan under section 1129 of the Bankruptcy Code, which order shall be consistent with the PSA Definitive Document Requirements and shall also be in form and substance reasonably acceptable to the Committee with respect to those provisions that may be reasonably expected to modify or amend the terms of the Plan in any way that affects the rights or obligations of Holders of General Unsecured Claims, except to the extent that such provisions are consistent with the Plan. For the avoidance of doubt, the Confirmation Order shall not contain any provision approving the First Lien Notes Claims Settlement.

64.    “Connect Senior Notes” means those certain 9.50% senior notes due 2023, issued by ICF, in an original aggregate principal amount of $1,250,000,000, pursuant to the Connect Senior Notes Indenture.

65.    “Connect Senior Notes Claims” means any Claim arising under the Connect Senior Notes and the Connect Senior Notes Indenture.

66.    “Connect Senior Notes Indenture” means that certain indenture, dated as of August 16, 2018, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the Connect Senior Notes, by and among ICF, as issuer, Envision and LuxCo, as guarantors, and the Connect Senior Notes Trustee.

67.    “Connect Senior Notes Trustee” means Wilmington Savings Fund Society, FSB, solely in its capacity as trustee under the Connect Senior Notes Indenture, and any predecessor or successor thereto.

68.     “Consenting Creditors” means the Holders of, or investment advisors, sub-advisors, or managers of discretionary accounts that hold Claims that have executed and delivered counterpart signature pages to the Plan Support Agreement, a joinder thereto, or a Transfer Agreement to counsel to the Company Parties.

69.    “Consenting HoldCo Creditor” has the meaning set forth in the Plan Support Agreement.

70.    “Consortium Agreement” has the meaning set forth in the SES Settlement.

71.    “Consummation” means the occurrence of the Effective Date.

72.    “Contingent DIP Obligations” means all of the Debtors’ obligations under the DIP Credit Agreements and the DIP Orders that are contingent and/or unliquidated as of the Effective Date, other than DIP Claims that are paid in full in Cash as of the Effective Date and contingent indemnification obligations as to which a Claim has been asserted as of the Effective Date.

73.    “Convenience Claim” means any Allowed General Unsecured Claim in an Allowed amount that is greater than $0 but less than or equal to the Convenience Claim Threshold; provided that a Holder of an Allowed General Unsecured Claim in excess of the Convenience Claim Threshold may irrevocably elect on its Convenience Claim Opt-In Form to have such Claim irrevocably reduced to the Convenience Claim Threshold and treated as a Convenience Claim for the purposes of the Plan, in full and final satisfaction of such Claim; provided, further, that Convenience Claims shall not be classified or treated as Unsecured Claims for purposes of Article III of the Plan.

 

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74.    “Convenience Claim Opt-In Form” means a form, to be sent by the Debtors, the Solicitation Agent, or the Distribution Agent on or after the Confirmation Date to Holders of General Unsecured Claims who hold unliquidated General Unsecured Claims or General Unsecured Claims in excess of the Convenience Claim Threshold by which such Holders may elect to have their General Unsecured Claims irrevocably reduced to the amount of the Convenience Claim Threshold and treated as Convenience Claims for the purposes of the Plan, in full and final satisfaction of such Claim.

75.    “Convenience Claim Threshold” means $1 million.

76.    “Convert Ad Hoc Group” means the ad hoc group of certain creditors represented by Stroock & Stroock & Lavan, Boies Schiller Flexner LLP and Nelson Mullins Riley & Scarborough LLP and advised by Lazard Frères & Co. LLC.

77.    “Convert Ad Hoc Group Advisors” means Boies Schiller Flexner LLP, John Tober, Arendt & Medernach S.A., Stroock & Stroock & Lavan LLP, Nelson Mullins Riley & Scarborough LLP and Lazard Frères & Co. LLC.

78.    “Convert Ad Hoc Group Fees” means the reasonable and documented fees and expenses of the Convert Ad Hoc Group and its members (including all fees and expenses of the Convert Ad Hoc Group Advisors), which shall exclude the Reorganized TopCo Formation Costs. For the avoidance of doubt, the Convert Ad Hoc Group Fees shall be paid in Cash solely from any distributions of the Incremental J1 Recovery to Holders of Unsecured Claims in Class J1 that are members of the Convert Ad Hoc Group; provided, for the avoidance of doubt, no Debtor or Reorganized Debtor, other than Intelsat, shall pay the Convert Ad Hoc Group Fees.

79.    “Convertible Senior Notes” means those certain 4.50% convertible senior notes due 2025, issued by Intelsat, in an original aggregate principal amount of $402,500,000, pursuant to the Convertible Senior Notes Indenture.

80.    “Convertible Senior Notes Claims” means any Claim arising under the Convertible Senior Notes and the Convertible Senior Notes Indenture.

81.    “Convertible Senior Notes Indenture” means that certain indenture, dated as of June 18, 2018, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, for the Convertible Senior Notes, by and among Intelsat, as issuer, Envision, as guarantor, and the Convertible Senior Notes Trustee, as trustee.

82.    “Convertible Senior Notes Trustee” means BOKF, National Association, solely in its capacity as trustee under the Convertible Senior Notes Indenture, and any predecessor or successor thereto.

83.    “Corporate Governance Term Sheet” means that certain term sheet setting forth certain terms to be included in the New Corporate Governance Documents and attached to the Plan Support Agreement as Exhibit E.

84.    “Cure Claim” means a Claim (unless waived or modified by the applicable counterparty) based upon a Debtor’s defaults under an Executory Contract or an Unexpired Lease assumed by such Debtor under section 365 of the Bankruptcy Code, other than a default that is not required to be cured pursuant to section 365(b)(2) of the Bankruptcy Code.

85.    “CVR Agreements” means, collectively, the Series A CVR Agreement and the Series B CVR Agreement.

86.    “CVR Term Sheet” means that certain term sheet setting forth certain terms and conditions of the CVRs and attached to the Plan Support Agreement as Exhibit F.

87.    “CVRs” means, collectively, the Series A CVRs and the Series B CVRs.

 

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88.    “D&O Liability Insurance Policies” means all Insurance Contracts (including any “tail policy”) that have been issued (or provide coverage) at any time to any of the Debtors (or their predecessors) for liabilities against any of the Debtors’ current or former directors, managers, and officers, and all agreements, documents, or instruments relating thereto.

89.    “Debt Documents” means the (i) DIP Credit Agreements and any amendments, modifications, or supplements thereto, as well as any and all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection the DIP Credit Agreements; (ii) First Lien Credit Agreement and any amendments, modifications, or supplements thereto, as well as any and all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection therewith; (iii) First Lien Notes Indentures and any amendments, modifications, or supplements thereto, as well as any all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection therewith; and (iv) Senior Notes Indentures and any amendments, modifications, or supplements thereto, as well as any and all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection therewith.

90.    “Debtor Intercompany Claim” means any Claim held by a Debtor against another Debtor, including all Intercompany Senior Notes Claims.

91.    “Debtor Release” means the release given on behalf of the Debtors and their Estates to the Released Parties as set forth in Article VIII.D of the Plan.

92.    “Definitive Documents” means (i) the Plan and the Plan Supplement (and all exhibits, annexes, schedules, ballots, solicitation procedures, and other documents and instruments related thereto), including any “Definitive Documents” as defined in the Plan Support Agreement; (ii) the Confirmation Order; (iii) the Disclosure Statement; (iv) the order of the Bankruptcy Court approving the Disclosure Statement and the other Solicitation Materials; (v) the New Debt Documents; (vi) the Backstop Commitment Agreement; (vii) the New Warrants Agreements; (viii) the CVR Agreements; (ix) any and all documentation required to implement, issue, and distribute the New Common Stock, New Debt, CVRs, or New Warrants, including any material disclosure documents related thereto; (x) the Management Incentive Plan; (xi) the New Corporate Governance Documents, (xii) the Settlement Agreement and all pleadings or documents in connection with the Settlement Agreement, including the Settlement Order; (xiii) the Secured Creditor Settlement Term Sheet; (xiv) the Restructuring Steps Memorandum; and (xv) any and all other material documents, deeds, agreements, filings, notifications, letters or instruments necessary or required to consummate the Restructuring Transactions (including any exhibits, amendments, modifications, or supplements made from time to time thereto), in each case consistent with this Plan, the Plan Support Agreement, and the PSA Definitive Document Requirements.

93.    “Dilution Principles” means the following principles setting forth the dilutive effect of consideration issued pursuant to the Plan: (a) New Common Stock issued on the Effective Date pursuant to the Plan shall be subject to dilution of (i) up to nine percent (9.0%) by shares of New Common Stock issued pursuant to the exercise of the New Series A Warrants, (ii) up to two and a half percent (2.5%) by shares of New Common Stock issued pursuant to the exercise of the New Series B Warrants, and (iii) 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; (b) New Common Stock issued pursuant to the exercise of the New Series A Warrants shall be subject to dilution of (i) up to two and a half percent (2.5%) by shares of New Common Stock issued pursuant to the exercise of the New Series B Warrants and (ii) 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; (c) New Common Stock issued pursuant to the exercise of the New Series B Warrants shall be subject to dilution of 3.26 percent (3.26%) by shares of New Common Stock issued pursuant to the Management Incentive Plan; and (d) New Common Stock issued pursuant to the Management Incentive Plan shall not be subject to any dilution.

94.     “DIP Agents” means, collectively, the Original DIP Agent and the Refinanced DIP Agent.

95.     “DIP Borrower” means Jackson.

 

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96.    “DIP Claim” means any Claim arising under, derived from or based upon the DIP Documents, including Claims for all principal amounts outstanding, interest, fees, expenses, costs, and other charges arising under the DIP Credit Agreements.

97.    “DIP Credit Agreements” means collectively, the Original DIP Credit Agreement and the Refinanced DIP Credit Agreement.

98.    “DIP Debtors” means, collectively, the DIP Borrower and the DIP Guarantors.

99.    “DIP Documents” means the DIP Credit Agreements and any amendments, modifications, or supplements thereto, as well as any all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection the DIP Credit Agreements, and the Original DIP Backstop Agreement.

100.    “DIP Facilities” means, collectively, the Original DIP Facility and the Refinanced DIP Facility.

101.    “DIP Guarantors” means the Debtors and their affiliates that unconditionally guaranteed, on a joint and several basis, the DIP Borrower’s obligations in connection with the DIP Facilities.

102.     “DIP Lenders” means, collectively, the Original DIP Lenders and the Refinanced DIP Lenders.

103.    “DIP Obligations” has the meaning given to the defined term “Credit Agreement Obligations” in the DIP Credit Agreements.

104.    “DIP Orders” means the Original DIP Order and the Refinanced DIP Order.

105.    “Disclosure Statement” means the disclosure statement for the Plan, including all exhibits and schedules thereto, that is prepared and distributed in accordance with the Bankruptcy Code, the Bankruptcy Rules, and any other applicable law and approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code.

106.    “Disinterested Directors and Managers” means the disinterested directors and managers of Jackson, ICF, Envision, LuxCo, and Intelsat.

107.    “Disputed” means, with respect to any Claim or Interest, or any portion thereof, (a) to the extent neither Allowed nor disallowed under the Plan or a Final Order nor deemed Allowed under sections 502, 503, or 1111 of the Bankruptcy Code, or (b) for which a Proof of Claim or Proof of Interest or a motion for payment has been timely filed with the Bankruptcy Court, to the extent the Debtors or any other party in interest has interposed a timely objection or request for estimation in accordance with the Plan, the Bankruptcy Code, or the Bankruptcy Rules, which objection or request for estimation has not been withdrawn or determined by a Final Order.

108.    “Distribution Agent” means, as applicable, the Reorganized Debtors or any Entity or Entities designated by the Reorganized Debtors to make or to facilitate distributions that are to be made pursuant to the Plan, including, if applicable, each of the Indenture Trustees.

109.    “Distribution Date” means, except as otherwise set forth herein, the date or dates determined by the Debtors or the Reorganized Debtors on or after the Effective Date, with the first such date occurring on or as soon as is reasonably practicable after the Effective Date, upon which the Distribution Agent shall make distributions to Holders of Allowed Claims and Interests entitled to receive distributions under the Plan.

110.    “Distribution Record Date” means, other than with respect to Securities of the Debtors deposited with DTC, the record date for determining which Holders of Allowed Claims and Allowed Interests are eligible to receive distributions pursuant to the Plan, which date shall be the date determined by the Debtors with the consent of the Required Consenting Jackson Crossover Group Members and, with respect to distributions to the HoldCos, the consent of the Required Consenting HoldCo Creditors. The Distribution Record Date shall not apply to the Notes or any Securities of the Debtors deposited with DTC, the holders of which shall receive a distribution in accordance with Article VI of the Plan and, as applicable, the customary procedures of DTC.

 

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111.    “DTC” means the Depository Trust Company.

112.    “Effective Date” means the date on which all conditions to Consummation of the Plan have been satisfied in full or waived, in accordance with the terms of the Plan, and the Plan becomes effective.

113.    “Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code.

114.    “Envision” means Intelsat Envision Holdings LLC, a limited liability company formed under the laws of the state of Delaware.

115.    “Envision Unsecured Recovery” means: (i) after payment of Restructuring Expenses and funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with this Plan, all remaining Cash at Envision, provided, however, that (a) seventy percent (70%) of such Cash shall be distributed Pro Rata to Holders of the Connect Senior Notes Claims and (b) thirty percent (30%) of such Cash shall be distributed Pro Rata to Holders of the Convertible Senior Notes Claims; and (ii) 47.301 percent (47.301%) of the New Series B Warrants; provided, further that the New Series B Warrants issued in respect of (ii) shall be subject to dilution pursuant to the Dilution Principles. For the avoidance of doubt, (a) the Envision Unsecured Recovery incorporates the value that would have been received by Envision attributable to any and all Intercompany Claims, including any Intercompany Senior Notes Claims, as if such Intercompany Claim was settled, and (b) Holders of Intercompany Claims shall not receive any distribution from the Envision Unsecured Recovery.

116.    “Equity Group Stipulation means the Stipulation Resolving Ad Hoc Equity Group’s Objection to Confirmation of the Debtors’ Second Amended Joint Chapter 11 Plan of Reorganization that may be filed with the Bankruptcy Court.

117.    “Equity Group Stipulation Settlement Motion means the motion to be filed by the Debtors with the Bankruptcy Court seeking approval of the relief set forth in the Equity Group Stipulation.

118.    “Equity Group Stipulation Settlement Order means an order of the Bankruptcy Court that has not been stayed approving the relief requested, or any portion thereof, in the Equity Group Stipulation Settlement Motion.

119.    “Equity Issuer means Holdings or (with the consent of the Required Consenting Unsecured Creditors) any successor or assign, by merger, consolidation, reorganization, or otherwise, unless the Required Consenting Unsecured Creditors and the Debtors (excluding Intelsat and Holdings SARL) agree to designate a different Entity.

120.    “Equity Issuer Board” means the board of directors (or other applicable governing body) of the Equity Issuer as set forth in the Plan Supplement and selected in accordance with the Corporate Governance Term Sheet.

121.    “ERISA” means the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1462 as amended, and the regulations promulgated thereunder.

122.    “Estate” means the estate created on the Petition Date for any Debtor in its Chapter 11 Case pursuant to sections 301 and 541 of the Bankruptcy Code and all property (as defined in section 541 of the Bankruptcy Code) acquired by the Debtor after the Petition Date through and including the Effective Date.

123.    “Exculpated Parties” means, collectively, and in each case in its capacity as such: (a) each of the Debtors; (b) each of the Reorganized Debtors; (c) the Committee, and each member thereof (including ex officio members); (d) each of the First Lien Lenders; (e) each of the First Lien Noteholders; (f) the First Lien Agent; (g) each of the Indenture Trustees; (h) the Prepetition Collateral Trustee; (i) each of the DIP Agents; (j) each of the DIP Lenders; (k) each of the Lead Arrangers; (l) the Jackson Ad Hoc Group, and each member thereof; (m) the HoldCo

 

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Creditor Ad Hoc Group, and each member thereof; (n) the Jackson First Lien Noteholder Group, and each member thereof; (o) the Jackson Crossover Ad Hoc Group, and each member thereof; (p) the Convert Ad Hoc Group, and each member thereof, (q) each Consenting Creditor; (r) each Backstop Party; (s) each current and former Affiliate of each Entity in clause (a) through the following clause (t); and (t) the directors, officers, special committees, special or other committee members, and restructuring professionals (including any other attorneys or professionals retained by any special committee, current or former director, or special committee member or manager in his or her capacity as director or manager) of each Entity in clause (a) through clause (s).

124.    “Executory Contract” means a contract or lease to which one or more of the Debtors is a party that is subject to assumption or rejection under section 365 of the Bankruptcy Code.

125.    “FCC” means the Federal Communications Commission, including any official bureau or division thereof acting on delegated authority, and any successor Governmental Unit performing functions similar to those performed by the Federal Communications Commission on the Effective Date.

126.    “FCC Applications” means, collectively, each requisite application, petition, or other request filed or to be filed with the FCC in connection with the Restructuring Transactions or this Plan.

127.    “FCC Approval” means the FCC’s grant of the FCC Applications.

128.    “File,” “Filed,” or “Filing” means file, filed, or filing in the Chapter 11 Cases with the Bankruptcy Court or, with respect to the filing of a Proof of Claim, the Solicitation Agent.

129.    “Final Decree” means the decree contemplated under Bankruptcy Rule 3022.

130.    “Final Order” means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with respect to the relevant subject matter that has not been reversed, modified, or amended, vacated or stayed and as to which (i) the time to appeal, petition for certiorari, or move for a new trial, stay, reargument or rehearing has expired and as to which no appeal, petition for certiorari or motion for new trial, stay, reargument, or rehearing shall then be pending or (ii) if an appeal, writ of certiorari, new trial, stay, reargument or rehearing thereof has been sought, such order or judgment of the Bankruptcy Court (or other court of competent jurisdiction) shall have been affirmed by the highest court to which such order was appealed, or certiorari shall have been denied, or a new trial, stay, reargument, or rehearing shall have been denied, or resulted in no modification of such order, and such time to take any further appeal, petition for certiorari or move for a new trial, stay, reargument or rehearing shall have expired, as a result of which such order shall have become final in accordance with Bankruptcy Rule 8002; provided, that the possibility that a motion under rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules may be filed relating to such order, shall not cause an order not to be a Final Order.

131.    “First Lien Agent” means Bank of America, N.A., acting through such of its affiliates or branches as it may designate, in its capacity as administrative agent under the First Lien Credit Agreement, or any successor administrative agent or collateral agent as permitted by the terms set forth in the First Lien Credit Agreement.

132.    “First Lien Claims” means, collectively, the First Lien Notes Claims and the Term Loan Facility Claims.

133.    “First Lien Credit Agreement” means that certain credit agreement, dated as of January 12, 2011, as amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, by and among the Jackson as borrower, ICF (as successor to LuxCo), as guarantor, the First Lien Lenders, the First Lien Agent, and the Prepetition Collateral Trustee.

134.    “First Lien Lenders” means, collectively, the banks, financial institutions, and other lenders party to the First Lien Credit Agreement from time to time, each solely in their capacity as such.

135.    “First Lien Noteholders” means, collectively, the banks, financial institutions, and other holders of the First Lien Notes, each solely in their capacity as such.

 

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136.    “First Lien Notes” means, collectively, the 8.00% First Lien Notes and the 9.50% First Lien Notes.

137.    “First Lien Notes Claim” means any Claim arising under the First Lien Notes and First Lien Notes Indentures.

138.    “First Lien Notes Claims Settlement” means that certain compromise and settlement regarding the allowance and treatment of the First Lien Notes Claims set forth in the Secured Creditor Settlement Term Sheet attached to the Secured Creditor Settlement Order.

139.    “First Lien Notes Indentures” means, collectively, the 8.00% First Lien Notes Indenture and the 9.50% First Lien Notes Indenture.

140.    “First Lien Notes Recovery” means Cash in an aggregate amount consistent with the First Lien Notes Claims Settlement; provided, however, for the avoidance of doubt, no payments in connection with the Secured Creditor Settlement shall be made out of the deposit accounts of the HoldCos.

141.    “First Lien Notes Trustees” means, collectively, the 8.00% First Lien Notes Trustee and the 9.50% First Lien Notes Trustee.

142.    “General Unsecured Claim” means any Unsecured Claim that is not a Senior Notes Claim.

143.    “Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.

144.    “Guarantee Claims” means, collectively, the HoldCo Guarantee Claims and the TopCo Guarantee Claims.

145.    “Historical Intercompany Transaction Claims” means any and all Claims and Causes of Action related to all outstanding disputes between the Debtors regarding the historic intercompany transactions including transactions that fall into the following categories: (a) dividends made by Jackson or any HoldCo, on one hand, to any other HoldCo, on the other hand; (b) the creation of ICF; (c) the creation of Envision; (d) any contributions, whether consisting of Cash or other consideration, made by any HoldCo to Jackson; and (e) other smaller transactions including loans, one-off Cash dividends, non-cash dividends, guarantee releases, and others that occurred before, and intercompany balances that existed as of, the Petition Date or accumulated during these Chapter 11 Cases.

146.    “HoldCo Creditor Ad Hoc Group” means the ad hoc group of certain creditors represented by Paul, Weiss, Rifkind, Wharton & Garrison LLP and advised by Ducera Partners LLC.

147.    “HoldCo Creditor Ad Hoc Group Advisors” means Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Whiteford, Taylor & Preston L.L.P., Ducera Partners LLC, Loyens & Loeff Luxembourg S.à.r.l., Ernst & Young LLP, and Covington & Burling LLP.

148.    “HoldCo Creditor Ad Hoc Group Waiver” means (a) to the extent the aggregate value to be distributed under the Plan to Holders of Convertible Senior Notes Claims on account of such Claims increases in excess of $49 million up to $145 million (excluding the value attributable to Reorganized S.A. Common Stock, if any), the HoldCo Creditor Ad Hoc Group Members2 shall not receive any distribution on account of such incremental recovery except for distributions of Reorganized S.A. Common Stock (if any) and (b) to the extent the aggregate value to be distributed under the Plan to Holders of Convertible Senior Notes Claims on account of such Claims exceeds

 

 

2 

The HoldCo Creditor Ad Hoc Group Members collectively hold at least $129,282,000.00 in aggregate principal amount of the outstanding Convertible Senior Notes Claims (exclusive of accrued and unpaid interest as of the Petition Date), as set forth in the Second Amended Verified Statement Pursuant to Bankruptcy Rules 2019 of HoldCo Creditor Ad Hoc Group [Docket No. 3737]. The HoldCo Creditor Ad Hoc Group Waiver shall apply to any transferees of Convertible Senior Notes Claims from the HoldCo Creditor Ad Hoc Group Members, regardless of whether such transferee is a HoldCo Creditor Ad Hoc Group Member.

 

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$145 million (excluding the value attributable to Reorganized S.A. Common Stock, if any), the HoldCo Creditor Ad Hoc Group Members shall be entitled to a recovery, Pro Rata, in such excess distributable value; provided that the HoldCo Creditor Ad Hoc Group Members shall not receive any value in respect of their receipt (if any) of the Reorganized S.A. Common Stock other than value attributable to the net operating losses or other tax attributes (that are held outside of the Debtors’ Luxembourg tax unity) of Intelsat or Holdings SARL. Notwithstanding anything herein to the contrary, the HoldCo Creditor Ad Hoc Group Waiver shall apply to the full amount of the Incremental J1 Recovery, such that the HoldCo Creditor Ad Hoc Group Members shall not receive any distribution on account of the Incremental J1 Recovery.

149.    “HoldCo Creditor Ad Hoc Group Members” has the meaning set forth in the Plan Support Agreement.

150.    “HoldCo Guarantee Claims” means the claims asserted against the HoldCo Guarantors in the proofs of claim filed in the Chapter 11 Cases by the Jackson Senior Notes Trustees and the Lux Senior Notes Trustees (including Proofs of Claim numbered 553, 554, 555, 556, 585, 586, 587, 588, 617, 618, 619, 620, 784, 791, 795, 796, 898, 904, 905, 906, 1324, 1329, 1338, 1356, 1357, 1361, 1368, 1374, 1375, 1387, 1397, 1422, 1424, 1425, 1426, 1427, 1428, 1429, 1430, 1431, 1432, 1433, 1434, 1435, 1436, 1437, 1438, 1439, 1441, 1442, 1443, 1444, 1445, 1446, 1447, 1448, 1449, 1450, 1451, 1452, 1453, 1454, 1455, 1456, 1457, 1458, 1459, 1460, and any pleading filed with the Bankruptcy Court in connection therewith).

151.    “HoldCo Guarantors” means, collectively, ICF, LuxCo, Holdings, and Investments, each in its capacity as guarantor under the applicable Senior Notes Indentures.

152.    “HoldCo Senior Notes” means, collectively, the: (i) Lux Senior Notes; (ii) Connect Senior Notes; and (iii) Convertible Senior Notes.

153.    “HoldCos” means, each of ICF, Envision, LuxCo, Investments, Holdings, Holdings SARL, and Intelsat.

154.    “Holder” means an Entity holding a Claim against or an Interest in any Debtor.

155.    “Holdings” means Intelsat Holdings S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

156.    “Holdings SARL” means Intelsat Investment Holdings S.à.r.l., a société à responsabilité limitée organized under the laws of the Grand Duchy of Luxembourg.

157.    “Holdings SARL Unsecured Recovery” means any remaining Cash at Holdings SARL.

158.    “Holdings Unsecured Recovery” means any remaining Cash at Holdings.

159.    “Houlihan Engagement Letter” means that certain letter agreement dated as of April 8, 2020 and executed on August 24, 2021 between Houlihan Lokey Capital, Inc., Intelsat Jackson Holdings S.A., and the other parties thereto.

160.    “ICF” means Intelsat Connect Finance S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

161.    “ICF Unsecured Recovery” means (i) after payment of Restructuring Expenses, funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with this Plan, and payment of the Incremental Connect Contribution, all remaining Cash at ICF, (ii) thirty two and one-half percent (32.5%) of the Series B CVRs, (iii) four percent (4.0%) of New Common Stock, (iv) one hundred percent (100%) of the New Series A Warrants, (v) 46.447 percent (46.447%) of the New Series B Warrants, and (vi) thirty percent (30%) of any distributions made by Intelsat on account of TopCo Guarantee Claims (i.e. Claims in Class J2) to the Jackson Senior Notes Trustees, which shall be gifted by the Indenture Trustees in consideration for the covenants,

 

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compromises, releases, and other benefits provided by the members of the HoldCo Creditor Ad Hoc Group pursuant to the Plan Support Agreement; provided that the aggregate value of any gift made to Holders of Connect Senior Notes Claims on account of TopCo Guarantee Claims against Intelsat (i.e. Claims in Class J2) shall not exceed $6 million; provided, further that the New Common Stock issued in respect of each of (iii)–(vi) shall be subject to dilution pursuant to the Dilution Principles. For the avoidance of doubt, (a) the ICF Unsecured Recovery incorporates the value that would have been received by ICF attributable to any and all Intercompany Claims, including any Intercompany Senior Notes Claims, as if such Intercompany Claim was settled and (b) Holders of Intercompany Claims shall not receive any distribution from the ICF Unsecured Recovery.

162.     “Impaired” means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is impaired within the meaning of section 1124 of the Bankruptcy Code.

163.    “Indemnification Provisions” means each of the Debtors’ indemnification provisions in place immediately prior to the Effective Date whether in the Debtors’ bylaws, certificates of incorporation, other formation documents, board resolutions, or contracts for the current and former directors, officers, managers, employees, equityholders, attorneys, other professionals, and agents.

164.    “Incremental Connect Contribution” means $3.5 million in Cash from Cash on hand at ICF on the Effective Date.

165.    “Incremental J1 Recovery” means, collectively, the Incremental Jackson Contribution and the Incremental Connect Contribution. For the avoidance of doubt, (i) the Incremental J1 Recovery shall be subject to the HoldCo Creditor Ad Hoc Group Waiver and (ii) the amount of the Incremental J1 Recovery shall not be included as Cash on hand of Intelsat for purposes of determining the allocation of Allowed Professional Fee Claims or funding the Professional Fee Escrow as set forth in Article II.C.2 of the Plan.

166.    “Incremental Jackson Contribution” means $21.5 million in Cash distributed to Holders of Claims in Class J1 from the proceeds of the New Debt on the Effective Date.

167.    “Indentures” means, collectively, the Senior Notes Indentures and the First Lien Notes Indentures.

168.    “Indenture Trustees” means, collectively, the Senior Notes Indenture Trustees and the First Lien Notes Trustees.

169.    “Indenture Trustee Charging Lien” means any Lien or other priority of payment to which an Indenture Trustee is entitled under its respective Indenture(s), or any other ancillary documents, instruments, or agreements executed in connection therewith or pursuant thereto, against distributions to be made to Holders of Claims under the applicable Indenture, for payment of any Indenture Trustee Fees.

170.    “Indenture Trustee Fees” means all reasonable compensation, costs, advances, fees, expenses disbursements and claims for indemnity, subrogation, and contribution, including, without limitation, attorneys’ and agents’ fees, expenses, and disbursements, incurred by or owed to an Indenture Trustee under its respective Indenture(s), or any other ancillary documents, instruments, or agreements executed in connection therewith or pursuant thereto, including, if applicable, in their capacities as collateral agent, paying agent, transfer agent, or security registrar under its respective Indenture(s), whether before or after the Petition Date or before or after the Effective Date.

171.    “Insurance Contracts” means all insurance policies that have been issued (or provide coverage) at any time to any of the Debtors (or their predecessors) and all agreements, documents, or instruments relating thereto, including but not limited to, any agreement with a third party administrator for claims handling. Insurance Contracts shall not include surety bonds, surety indemnity agreements or surety-related products.

172.    “Insurers” means any companies or other Entities that issued or entered into any Insurance Contracts (including any third party administrator for any Insurance Contracts) and any respective predecessors and/or affiliates of any of the foregoing.

 

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173.    “Intelsat” means Intelsat S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

174.    “Intercompany Claims” means, collectively, the Debtor Intercompany Claims and the Non-Debtor Intercompany Claims.

175.    “Intercompany Interest” means any Interest held by a Debtor or an Affiliate of a Debtor.

176.    “Intercompany Senior Notes Claim” means the 2026 Lux Senior Notes Claims, the 2026 Envision Intercompany Note Claims, and any Senior Notes Claim that is held by a Debtor, including, for the avoidance of doubt, any 2024 Lux Senior Notes Claim.

177.    “Interest” means any common stock, limited liability company interest, equity security (as defined in section 101(16) of the Bankruptcy Code), equity, ownership, profit interests, unit, or share in a Debtor, including all issued, unissued, authorized, or outstanding shares of capital stock of the Debtors and any other rights, options, warrants, stock appreciation rights, phantom stock rights, restricted stock units, redemption rights, repurchase rights, convertible, exercisable or exchangeable securities or other agreements, arrangements or commitments of any character relating to, or whose value is related to, any such interest or other ownership interest in any Debtor, and any claim against or interest in the Debtors subject to subordination pursuant to section 510(b) of the Bankruptcy Code arising from or related to any of the foregoing.

178.    “Investments” means Intelsat Investments S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

179.    “Investments Unsecured Recovery” means any remaining Cash at Investments.

180.    “ISA Unsecured Claim Value” means the amount of all Allowed Claims against Intelsat, plus accrued and unpaid interest at the contract rate on the principal amount of such Allowed Claims through the Effective Date, less the S.A. Unsecured Recovery as may be customarily adjusted.

181.    “ISA Warrants” means those certain warrants for ten percent (10.0%) of the Reorganized S.A. Common Stock, which shall be issued subject to compliance with applicable law, including the laws of Luxembourg, with a seven-year tenor and a strike price at the ISA Unsecured Claim Value, and which shall be transferable to the extent permitted by applicable law, and which shall be reasonably acceptable in form and substance to the Convert Ad Hoc Group and the HoldCo Creditor Ad Hoc Group.

182.    “Jackson” means Intelsat Jackson Holdings S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

183.    “Jackson Ad Hoc Group” means the ad hoc group of certain creditors represented by Akin Gump Strauss Hauer & Feld LLP and advised by Centerview Partners LLC.

184.    “Jackson Crossover Ad Hoc Group” means the ad hoc group of certain creditors represented by Jones Day and advised by Houlihan Lokey Capital, Inc.

185.    “Jackson Crossover Ad Hoc Group Advisors” means Jones Day, Houlihan Lokey Capital, Inc., Compensation Advisory Partners LLC, and AKD Luxembourg SARL.

186.    “Jackson Debtors” means, collectively, Jackson and Jackson Subsidiaries.

187.    “Jackson First Lien Noteholder Group” means the ad hoc group of certain creditors represented by Wilmer Cutler Pickering Hale and Dorr LLP.

188.    “Jackson Senior Notes” means, collectively, the 2023 Jackson Senior Notes, the 2024 Jackson Senior Notes, and the 2025 Jackson Senior Notes.

 

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189.    “Jackson Senior Notes Claim” means any Claim arising under the Jackson Senior Notes Indentures.

190.    “Jackson Senior Notes Indentures” means, collectively, the 2023 Jackson Senior Notes Indenture, the 2024 Jackson Senior Notes Indenture, and the 2025 Jackson Senior Notes Indenture.

191.    “Jackson Senior Notes Trustees” means, collectively, the 2023 Jackson Senior Notes Trustee, the 2024 Jackson Senior Notes Trustee, and the 2025 Jackson Senior Notes Trustee.

192.    “Jackson Subsidiaries” means any Debtor that is a subsidiary of Jackson.

193.    “Jackson Unsecured Recovery” means, in accordance with the Value Allocation as may be modified by order of the Bankruptcy Court, (i) ninety-six percent (96%) of New Common Stock, (ii) one hundred percent (100%) of the Series A CVRs, (iii) sixty-seven and one-half percent (67.5%) of the Series B CVRs, (iv) $625 million of the Cash proceeds of the New Term Loans and/or New Notes; provided that the New Common Stock issued in respect of (i) shall be subject to dilution pursuant to the Dilution Principles. For the avoidance of doubt, (a) the Jackson Unsecured Recovery incorporates the value that would have been received by Jackson attributable to any and all Intercompany Claims, including any Intercompany Senior Notes Claims, as if such Intercompany Claim was settled and (b) Holders of Intercompany Claims shall not receive any distribution from the Jackson Unsecured Recovery.

194.    “Judicial Code means title 28 of the United States Code, 28 U.S.C. §§ 1–4001, as now in effect or hereafter amended, and the rules and regulations promulgated thereunder.

195.    “Lead Arrangers” has the meaning set forth in the New Debt Documents.

196.    “Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code.

197.    “Lux Multi Senior Notes Indenture” means that certain indenture, dated as of April 5, 2013, by and among LuxCo, as issuer, Intelsat, as guarantor, and the 2021 and 2023 Lux Senior Notes Trustee, as trustee, as amended, restated, amended and restated, supplemented, or otherwise modified from time to time prior to the Petition Date.

198.     “Lux Senior Notes” means, collectively, the 2021 Lux Senior Notes, the 2023 Lux Senior Notes, and the 2024 Lux Senior Notes.

199.    “Lux Senior Notes Claims” means any Claim arising under the Lux Senior Notes Indentures.

200.    “Lux Senior Notes Indentures” means, collectively, the Lux Multi Senior Notes Indenture and the 2024 Lux Senior Notes Indenture.

201.    “Lux Senior Notes Trustees” means, collectively, the 2021 and 2023 Lux Senior Notes Trustee and the 2024 Lux Senior Notes Trustee.

202.    “LuxCo” means Intelsat (Luxembourg) S.A., a société anonyme organized under the laws of the Grand Duchy of Luxembourg.

203.    “LuxCo Unsecured Recovery” means, subject to payment of Restructuring Expenses and funding of the Professional Fee Escrow Account for the payment of Professional Fee Claims allocated in accordance with this Plan, (i) all remaining Cash at LuxCo and (ii) $10 million of the Cash proceeds of the New Debt. For the avoidance of doubt, (a) the LuxCo Unsecured Recovery incorporates the value that would have been received by LuxCo attributable to any and all Intercompany Claims, including any Intercompany Senior Notes Claims, as if such Intercompany Claim was settled and (b) Holders of Intercompany Claims and Connect Senior Notes Claims shall not receive any distribution from the LuxCo Unsecured Recovery.

204.    “Management Incentive Plan” means the management incentive plan implemented by the Equity Issuer on the Effective Date, which shall have terms consistent with the terms of the Management Incentive Plan Term

 

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Sheet. The Required Consenting Jackson Crossover Group Members and the Debtors shall negotiate the terms of the definitive Management Incentive Plan documentation in good faith prior to the Effective Date; provided that the requirement that the Management Incentive Plan documentation be completed prior to the Effective Date may be waived by written agreement between the Required Consenting Jackson Crossover Group Members and the Debtors.

205.    “Management Incentive Plan Term Sheet” means that certain management incentive plan term sheet setting forth the terms of the Management Incentive Plan and attached to the Plan Support Agreement as Exhibit G.

206.    “New Capital Structure” means the capital structure for the Reorganized Debtors and their subsidiaries, which shall be obtained through the Debtors’ commercially reasonable efforts prior to the Effective Date (including, for the avoidance of doubt, conducting a solicitation process for financing proposals that will provide the highest or otherwise best terms available under the circumstances) and which shall provide for (i) $7.375 billion of New Term Loans and New Notes; (ii) a New Revolver and/or; (iii) uncommitted incremental facilities pursuant to the terms and conditions of the New Debt Documents.

207.    “New Common Stock” means the common stock of the Equity Issuer to be issued upon the Effective Date in accordance with the Plan, including any common stock to be issued on account of the New Warrants or in connection with the Management Incentive Plan.

208.    “New Corporate Governance Documents” means the amended and restated or new applicable corporate governance documents (including, without limitation, the Articles of Association, Shareholders Agreement, Registration Rights Agreement, and such other bylaws, limited liability company agreements, partnership agreements, and any other applicable formation documents or governance documents (if any) of the Equity Issuer and the Reorganized Debtors, forms of which shall be included in the Plan Supplement, and all of which (except for the Reorganized TopCo New Corporate Governance Documents) shall be in form and substance consistent with the PSA Definitive Document Requirements and the Corporate Governance Term Sheet.

209.    “New Debt” means collectively, the New Revolver, the New Term Loan, and the New Notes, as applicable, issued as part of the New Capital Structure, of which the New Term Loan and New Notes may be backstopped (in whole or in part) by the Backstop Parties.

210.    “New Debt Agreements” means the indentures or loan agreements governing the New Debt, the form of which shall be included in the Plan Supplement or filed pursuant to a separate motion, and which shall be in form and substance consistent with the PSA Definitive Document Requirements.

211.    “New Debt Documents” means, collectively, the New Debt Agreements, and all other agreements, documents, and instruments evidencing or securing the New Debt, to be delivered or entered into in connection therewith (including any guarantee agreements, pledge and collateral agreements, intercreditor agreements, subordination agreements, commitment letters, term sheets, fee letters, and other security documents), each of which shall be consistent in all respects with the Plan Support Agreement and the PSA Definitive Document Requirements.

212.    “New Notes” means, collectively, those certain first lien notes, those certain second lien notes, and/or those certain unsecured notes, as applicable, constituting part of the New Capital Structure, which may be funded prior to or on the Effective Date pursuant to the Plan and/or the New Debt Documents; provided that any makewhole provisions in the New Notes are to be negotiated at market terms and in good faith among the Required Consenting Jackson Crossover Group Members and the Debtors, and subject to the consultation rights provided in the Plan Support Agreement.

213.    “New Revolver” means that certain revolving credit facility for up to $500 million of availability, which may be increased to $750 million with the consent of the Required Consenting Jackson Crossover Group Members, to be issued pursuant to the Plan and the New Debt Documents, and which will be secured by a first lien on substantially all of the Reorganized Debtors’ assets (pari passu with the other first lien New Debt), subject to customary exclusions, which may be issued on a first out basis relative to all other secured New Debt at the election of the Company.

 

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214.    “New Securities” means, collectively, the New Common Stock, the Reorganized S.A. Common Stock, the ISA Warrants, the New Notes, the CVRs, and the New Warrants.

215.    “New Series A Warrant Agreement” means that certain agreement setting forth the full terms and conditions of the New Series A Warrants, the form of which shall be included in the Plan Supplement and be in form and substance consistent with the PSA Definitive Document Requirements.

216.    “New Series A Warrants” means warrants issued pursuant to the Plan and the New Series A Warrant Agreement and consistent with the terms set forth in the New Warrants Term Sheet.

217.    “New Series B Warrant Agreement” means that certain agreement setting forth the full terms and conditions of the New Series B Warrants, the form of which shall be included in the Plan Supplement and be in form and substance consistent with the PSA Definitive Document Requirements.

218.    “New Series B Warrants” means those certain warrants issued pursuant to the Plan and the New Series B Warrant Agreement and consistent with the terms set forth in the New Warrants Term Sheet.

219.    “New Term Loans” means, those certain secured term loan facilities, if applicable, constituting part of the Reorganized Debtors’ New Capital Structure, which may be funded prior to or on the Effective Date pursuant to the Plan and/or the New Debt Documents.

220.    “New Warrants” means, collectively, the New Series A Warrants and the New Series B Warrants.

221.    “New Warrants Agreements” means, collectively the New Series A Warrant Agreement and the New Series B Warrant Agreement.

222.    “New Warrants Term Sheet” means that certain term sheet setting forth certain terms of the New Warrants.

223.    “Non-Debtor Intercompany Claim” means any Claim held by a non-Debtor Affiliate of the Debtors against a Debtor.

224.    “Notes” means, collectively, the First Lien Notes and the Senior Notes.

225.    “Notes Claims” means, collectively, the Connect Senior Notes Claims, the Convertible Senior Notes Claims, the First Lien Notes Claims, the Jackson Senior Notes Claims, and the Lux Senior Notes Claims.

226.    “Original DIP Agent” means Credit Suisse AG, Cayman Islands Branch in its capacity as administrative agent and collateral agent under the Original DIP Credit Agreement.

227.    “Original DIP Backstop Agreement” means that certain amended and restated backstop commitment agreement, dated June 1, 2020 among the DIP Borrower and certain of the Prepetition Secured Parties.

228.    “Original DIP Credit Agreement” means that certain Superpriority Secured Debtor In Possession Credit Agreement, dated as of June 17, 2020, among the DIP Debtors, the Original DIP Agent, and Credit Suisse Loan Funding LLC, as lead arranger, as amended, amended and restated, supplemented, or modified from time to time.

229.    “Original DIP Facility” means that certain $1 billion new money multi-draw debtor-in-possession term loan credit facility provided by the DIP Lenders on the terms of, and subject to the conditions set forth in, the Original DIP Credit Agreement and approved by the Bankruptcy Court pursuant to the Original DIP Order.

230.    “Original DIP Lenders” means, collectively, the banks, financial institutions, and other lenders party to the Original DIP Credit Agreements from time to time, each solely in their capacity as such.

 

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231.    “Original DIP Order” means the Final Order (A) Authorizing the Debtors to Obtain Postpetition Financing, (B) Authorizing the Debtors to Use Cash Collateral, (C) Granting Liens and Superpriority Administrative Expense Claims, (D) Granting Adequate Protection to the Prepetition Secured Parties, (E) Modifying the Automatic Stay, and (F) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on June 9, 2020 at docket number 285.

232.    “Other Priority Claim” means any Claim other than an Administrative Claim or a Priority Tax Claim entitled to priority in right of payment under section 507(a) of the Bankruptcy Code.

233.    “Other Secured Claim” means any Secured Claim, other than a DIP Claim and a First Lien Claim.

234.    “PBGC” means the Pension Benefit Guaranty Corporation.

235.    “Pension Plan” means the Staff Retirement Plan as defined in the Debtors’ Motion for Entry of Interim and Final Orders (A) Authorizing the Debtors to (I) Pay Prepetition Wages, Compensation, and Benefit Obligations and (II) Continue Employee Compensation and Benefits Programs, and (B) Granting Related Relief [Docket No. 9].

236.    “Person” has the meaning set forth in section 101(41) of the Bankruptcy Code.

237.    “Petition Date” means May 13, 2020.

238.    “Plan Supplement” means the compilation of documents and forms and/or term sheets of documents, agreements, schedules, and exhibits to the Plan that will be Filed by the Debtors with the Bankruptcy Court, each of which shall be consistent in all respects with the PSA Definitive Document Requirements.

239.    “Plan Support Agreement” means that certain plan support agreement, dated as of August 24, 2021 (as may be further amended, supplemented or modified pursuant to the terms thereof), by and among the Company Parties and the Consenting Creditors.

240.    “Prepetition Collateral Agency and Intercreditor Agreement” means that certain collateral agency and intercreditor agreement, dated January 12, 2011 (as amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time) by and among Wilmington Trust, National Association, as collateral trustee, Bank of America, N.A., as first lien agent, each Indenture Trustee, as first lien representatives, and the other parties from time to time party thereto.

241.    “Prepetition Collateral Trustee” means, Wilmington Trust, National Association, in its capacity as collateral trustee under the applicable Prepetition First Lien Debt Documents.

242.    “Prepetition First Lien Debt Documents” means (i) the First Lien Credit Agreement and any amendments, modifications, or supplements thereto, including all Credit Documents (as defined therein, including the Prepetition Collateral Agency and Intercreditor Agreement) as well as any all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection therewith; and (ii) the First Lien Notes Indentures and any amendments, modifications, or supplements thereto including all Credit Documents (as defined therein, including the Prepetition Collateral Agency and Intercreditor Agreement), as well as any all agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) delivered or executed in connection therewith.

243.     “Prepetition Secured Parties” means, collectively, the First Lien Lenders and the First Lien Noteholders.

244.    “Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the Bankruptcy Code.

 

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245.    “Pro Rata” means the proportion that an Allowed Claim in a particular Class bears to the aggregate amount of Allowed Claims in that Class or the proportion of the Allowed Claims in a particular Class and other Classes entitled to share in the same recovery as such Allowed Claim under the Plan, unless otherwise indicated.

246.    “Professional” means an Entity: (a) retained in the Chapter 11 Cases pursuant to a Final Order in accordance with sections 327, 363, and 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Effective Date pursuant to sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code; or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy Code.

247.    “Professional Fee Claims” means all Claims for accrued, contingent, and/or unpaid fees and expenses (including transaction and success fees) incurred by a Professional in the Chapter 11 Cases on or after the Petition Date and through and including the Confirmation Date that the Bankruptcy Court has not denied by Final Order. To the extent that the Bankruptcy Court or any higher court of competent jurisdiction denies or reduces by a Final Order any amount of a Professional’s fees or expenses, then those reduced or denied amounts shall no longer constitute Professional Fee Claims.

248.    “Professional Fee Escrow Account” means an interest-bearing account funded by the Debtors with Cash on or before the Effective Date in an amount equal to the Professional Fee Escrow Amount.

249.    “Professional Fee Escrow Amount” means the aggregate amount of Professional Fee Claims and other unpaid fees and expenses Professionals estimate they have incurred or will incur in rendering services in connection with the Chapter 11 Cases prior to and as of the Confirmation Date, which estimates Professionals shall deliver to the Debtors as set forth in Article II.C of the Plan.

250.    “Proof of Claim” means a proof of Claim filed against any of the Debtors in the Chapter 11 Cases by the applicable Claims Bar Date.

251.    “Proof of Interest” means a proof of Interest filed in any of the Debtors in the Chapter 11 Cases.

252.    “PSA Definitive Document Requirements” means that the Definitive Documents shall be subject to the respective consent rights of the Debtors and the applicable Consenting Creditors as set forth in the Plan Support Agreement.

253.    “Refinanced DIP Agent” means Credit Suisse AG, Cayman Islands Branch in its capacity as administrative agent and collateral agent under the Refinanced DIP Credit Agreement.

254.    “Refinanced DIP Credit Agreement” means that certain Superpriority Secured Debtor In Possession Credit Agreement, dated as of September 14, 2021, among the DIP Debtors, the Refinanced DIP Agent, and the Refinanced DIP Lenders, as amended, amended and restated, supplemented, or modified from time to time.

255.    “Refinanced DIP Facility” means that certain $1.5 billion new money multi-draw debtor-in-possession term loan credit facility provided by the Refinanced DIP Lenders on the terms of, and subject to the conditions set forth in, the Refinanced DIP Credit Agreement and approved by the Bankruptcy Court pursuant to the Refinanced DIP Order.

256.    “Refinanced DIP Lenders” means, collectively, the banks, financial institutions, and other lenders party to the Refinanced DIP Credit Agreement from time to time, each solely in their capacity as such.

257.    “Refinanced DIP Order” means the Order (A) Authorizing the DIP Debtors to Obtain Replacement Postpetition Financing, (B) Granting Liens and Superpriority Administrative Expense Claims, (C) Extending the Use of Cash Collateral, (D) Granting Adequate Protection to the Prepetition Secured Parties, (E) Modifying the Automatic Stay, and (F) Granting Related Relief entered by the Bankruptcy Court in the Chapter 11 Cases on September 14, 2021 at docket number 2873.

 

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258.    “Reinstate,” “Reinstated,” or “Reinstatement” means with respect to Claims and Interests, that the Claim or Interest shall be rendered unimpaired in accordance with section 1124 of the Bankruptcy Code.

259.    “Rejected Executory Contract and Unexpired Lease List” means the list as determined by the Debtors or the Reorganized Debtors, as applicable, of certain Executory Contracts and Unexpired Leases to be rejected by the Reorganized Debtors pursuant to the Plan, which list, as may be amended from time to time, shall be included in the Plan Supplement.

260.    “Related Party” means, each of, and in each case in its capacity as such, current and former directors, managers, officers, investment committee members, special or other committee members, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds, predecessors, participants, successors, assigns, subsidiaries, Affiliates, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory board members, financial advisors, attorneys (including any other attorneys or professionals retained by any current or former director or special committee member or manager in his or her capacity as director or manager of an Entity), accountants, investment bankers, consultants, representatives, and other professionals and advisors and any such Person’s or Entity’s respective heirs, executors, estates, and nominees.

261.    “Released Parties” means collectively, and in each case in its capacity as such: (a) each of the Debtors; (b) each of the Reorganized Debtors; (c) the Committee, and each member thereof (including ex officio members); (d) each of the First Lien Lenders; (e) each of the First Lien Noteholders; (f) the First Lien Agent; (g) each Indenture Trustee; (h) the Prepetition Collateral Trustee; (i) each of the DIP Agents; (j) each of the DIP Lenders; (k) each of the Lead Arrangers; (l) each of the book-running managers, lead placement agents, or similar parties with respect to the issuance of the New Notes; (m) the Jackson Ad Hoc Group, and each member thereof; (n) the HoldCo Creditor Ad Hoc Group, and each member thereof; (o) the Jackson First Lien Noteholder Group, and each member thereof; (p) the Jackson Crossover Ad Hoc Group, and each member thereof; (q) the Convert Ad Hoc Group, and each member thereof; (r) each Consenting Creditor; (s) each Backstop Party; (t) each current and former Affiliate of each Entity in clause (a) through the following clause (u); and (u) each Related Party of each Entity in clause (a) through this clause (u).

262.    “Releasing Parties” means, collectively, and in each case in its capacity as such: (a) each of the Debtors; (b) each of the Reorganized Debtors; (c) the Committee, and each member thereof (including ex officio members); (d) each of the First Lien Lenders; (e) each of the First Lien Noteholders; (f) the First Lien Agent; (g) each Indenture Trustee; (h) the Prepetition Collateral Trustee; (i) each of the DIP Agents; (j) each of the DIP Lenders; (k) each of the Lead Arrangers; (l) each of the book-running managers, lead placement agents, or similar parties with respect to the issuance of the New Notes; (m) the Jackson Ad Hoc Group, and each member thereof; (n) the HoldCo Creditor Ad Hoc Group, and each member thereof; (o) the Jackson First Lien Noteholder Group, and each member thereof; (p) the Jackson Crossover Ad Hoc Group, and each member thereof; (q) the Convert Ad Hoc Group, and each member thereof; (r) each Consenting Creditor; (s) each Backstop Party; (t) all Holders of Impaired Claims who voted to accept the Plan; (u) all Holders of Impaired Claims who abstained from voting on the Plan or voted to reject the Plan; (v) all Holders of Unimpaired Claims; (w) all Holders of Interests; and (x) each Related Party of each Entity in clause (a) through this clause (x) for which such Entity is legally entitled to bind such Related Party to the releases contained in the Plan under applicable law; provided that an Entity shall not be a Releasing Party if, in the cases of clauses (u) through (x), the applicable Entity has not elected to opt in to provide the releases contained in the Plan.

263.    “Reorganized Debtor” means a Debtor, or any successor or assign thereto, by merger, consolidation, reorganization, or otherwise, in the form of a corporation, limited liability company, partnership, or other form, as the case may be, on and after the Effective Date, including the Equity Issuer.

264.    “Reorganized S.A.” means Intelsat or any successor or assign, by merger, consolidation, reorganization, or otherwise on or after the Effective Date.

265.    “Reorganized S.A. Board” means the board of directors of Reorganized S.A., which shall be selected in accordance with this Plan.

 

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266.    “Reorganized S.A. Common Stock” means, in a scenario where the Plan is confirmed for Intelsat, the common stock of Reorganized S.A. to be issued upon the Effective Date for Debtor Intelsat in accordance with the Restructuring Steps Memorandum.

267.    “Reorganized TopCo Formation Costs” means the costs and expenses of the Convert Ad Hoc Group, in an aggregate amount not to exceed $1 million, incurred after the entry of the Confirmation Order in connection with the formation and emergence of Reorganized S.A., which may include, without limitation and as applicable, filing fees, advisory fees, insurance premiums, director fees, and reasonable and documented counsel fees of the Convert Ad Hoc Group solely to the extent incurred in connection with the formation and emergence of the Reorganized TopCos; provided, however, that Reorganized TopCo Formation Costs shall not include any fees incurred by the Convert Ad Hoc Group in connection with the negotiation or documentation of matters for which the interests of Holders of Convertible Senior Notes in the Convert Ad Hoc Group are adverse to the interests of Holders of Convertible Senior Notes in the HoldCo Creditor Ad Hoc Group. For the avoidance of doubt, the Reorganized TopCo Formation Costs shall (i) be paid by Intelsat in the ordinary course and prior to any distribution to the Unsecured Claims against Intelsat from the items set forth in clauses (i) and (ii) in the definition of S.A. Unsecured Recovery, (ii) not reduce the Incremental J1 Recovery, and (iii) not under any circumstance be payable or paid by any Debtor or Reorganized Debtor other than Intelsat.

268.    “Reorganized TopCo New Corporate Governance Documents” means the New Corporate Governance Documents for the Reorganized TopCos which shall be (a) in form and substance acceptable to the Convert Ad Hoc Group, the HoldCo Creditor Ad Hoc Group, and the Debtors and (b) in the form and substance similar to and based upon the New Corporate Governance Documents filed in the Plan Supplement.

269.    “Reorganized TopCos” means, collectively, Intelsat and Holdings SARL or any successor or assign, by merger, consolidation, reorganization, or otherwise on or after the Effective Date.

270.    “Required Consenting Creditors” has the meaning set forth in the Plan Support Agreement.

271.    “Required Consenting First Lien Creditors” has the meaning set forth in the Plan Support Agreement.

272.    “Required Consenting First Lien Noteholders” has the meaning set forth in the Plan Support Agreement.

273.    “Required Consenting HoldCo Creditors” has the meaning set forth in the Plan Support Agreement.

274.    “Required Consenting Jackson Ad Hoc Group Noteholders” has the meaning set forth in the Plan Support Agreement.

275.    “Required Consenting Jackson Crossover Group Members” has the meaning set forth in the Plan Support Agreement.

276.    “Required Consenting Unsecured Creditors” has the meaning set forth in the Plan Support Agreement.

277.    “Restoration Plan” means the Restoration Plan as defined in the Debtors’ Motion for Entry of Interim and Final Orders (A) Authorizing the Debtors to (I) Pay Prepetition Wages, Compensation, and Benefit Obligations and (II) Continue Employee Compensation and Benefits Programs, and (B) Granting Related Relief [Docket No. 9].

278.    “Restructuring Expenses” means, collectively, the reasonable and documented fees and expenses, whether incurred before, on, or after the Effective Date, of (a)