8-K
SUMISHO AIR LEASE CORP (AL)
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
April 8, 2026
Date of Report
(Date of earliest event reported)
SUMISHO AIR LEASE CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 001-35121 | 27-1840403 |
|---|---|---|
| (State or other jurisdiction<br> <br>of incorporation) | (Commission<br> <br>File Number) | (I.R.S. Employer<br> <br>Identification No.) |
| 2000 Avenue of the Stars, Suite 1000N | ||
| --- | --- | |
| Los Angeles, California | 90067 | |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (310) 553-0555
Air Lease Corporation
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| --- | --- |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading<br> <br>Symbol(s) | Name of each exchange<br> <br>on which registered |
|---|---|---|
| Class A Common Stock | AL | New York Stock Exchange |
| 3.700% Medium-Term Notes, Series A, due April 15, 2030 | AL30 | New York Stock Exchange |
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. ☐
INTRODUCTORY NOTE
On April 8, 2026, Air Lease Corporation, a Delaware corporation (the “Company”), completed the previously announced merger (the “Merger”) of Takeoff Merger Sub Inc., a Delaware corporation (“Merger Sub”), with and into the Company, with the Company surviving the Merger as an indirect subsidiary of Sumisho Air Lease Corporation Designated Activity Company (formerly known as Gladiatora Designated Activity Company), an Irish private limited company (“Parent”). Parent is a new holding company established in connection with the Merger and is jointly owned, directly or indirectly, by Sumitomo Corporation, a Japanese corporation (“Sumitomo”), SMBC Aviation Capital Limited, a company incorporated with limited liability in Ireland (“SMBC AC”), investment vehicles affiliated with Apollo managed funds (“Apollo”) and Brookfield (“Brookfield”). The Merger was effected pursuant to an Agreement and Plan of Merger, dated as of September 1, 2025 (the “Merger Agreement”), by and among the Company, Parent and Merger Sub. The Merger became effective on April 8, 2026 (the “Effective Time”) pursuant to the Certificate of Merger that was filed with the Secretary of State of the State of Delaware on such date. At the Effective Time, the Company changed its name to Sumisho Air Lease Corporation.
Item 1.01. Entry into Material Definitive Agreements.
The information set forth in the Introductory Note and Item 2.03 under the headings “Term Loan Credit Agreement”, “Revolving Credit Agreement” and “Senior Notes Offering” of this Current Report on Form 8-K is incorporated herein by reference.
Item 1.02. Termination of Material Definitive Agreements.
The information set forth in the Introductory Note and Item 2.03 under the heading “Orderbook Acquisition” of this Current Report on Form 8-K is incorporated herein by reference.
At or prior to the Effective Time, the Company terminated and caused to be repaid in full all outstanding loans and other amounts due, in an aggregate amount of $3.0 billion, under the Tenth Amendment and Extension Agreement, dated as of April 30, 2025, by and among the Company and ALC Aircraft Financing Designated Activity Company, as borrowers, the several lender parties from time to time thereto, and JPMorgan Chase Bank, N.A., as administrative agent for the lenders to the Second Amended and Restated Credit Agreement, dated as of May 5, 2014.
After the Effective Time, the Company’s Medium Term Notes issued under the Indenture, dated as of November 20, 2018, by and between the Company, as issuer, and Deutsche Bank Trust Company Americas, as trustee, will remain outstanding.
Additionally, after the Effective Time, the Company’s Indenture, dated as of October 11, 2012, by and between the Company, as issuer, and Deutsche Bank Trust Company Americas, as trustee, as supplemented by the Twelfth Supplemental Indenture, dated as of March 8, 2017, relating to 3.625% Senior Notes due 2027, the Fifteenth Supplemental Indenture, dated as of November 20, 2017, relating to 3.625% Senior Notes due 2027, and the Twentieth Supplemental Indenture, dated as of September 17, 2018, relating to 4.625% Senior Notes due 2028, will remain outstanding.
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| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
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The information set forth in the Introductory Note and under Items 3.03, 5.01 and 5.02 of this Current Report on Form 8-K is incorporated herein by reference.
Merger Consideration
At the Effective Time, each share of the Class A Common Stock of the Company, par value $0.01 per share (the “Class A Common Stock”), issued and outstanding immediately prior to the Effective Time, other than shares that were canceled or converted into shares of the surviving corporation pursuant to the Merger Agreement, was converted into the right to receive $65.00 per share of the Class A Common Stock, in cash, without interest and less any required withholding taxes (the “Merger Consideration”). At the Effective Time, each share of 4.65% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series B, 4.125% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series C, and 6.000% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series D, of the Company issued and outstanding immediately prior to the Effective Time remained outstanding and was deemed to be a share of preferred stock of the surviving corporation with the same rights, powers, privileges and voting powers, and restrictions and limitations thereof applicable to such series of preferred stock.
At the Effective Time, (i) each outstanding Company restricted stock unit award that was subject to only time-based vesting conditions (each, a “Company RSU”) that was vested (but not yet settled) immediately prior to the Effective Time or became vested as of the Effective Time in accordance with its terms was converted into the right to receive an amount in cash, without interest and subject to applicable withholding taxes and other authorized deductions, equal to the product of the Merger Consideration multiplied by the number of shares of the Class A Common Stock subject to such Company RSU, (ii) each outstanding Company RSU that was not covered by clause (i) was converted into the contingent right to receive from Parent or the surviving corporation an amount in cash, without interest and subject to applicable withholding taxes and other authorized deductions, equal to the product of the Merger Consideration multiplied by the number of shares of the Class A Common Stock subject to such Company RSU (each, a “Converted RSU Cash Award”), and (iii) each outstanding restricted stock unit award that was subject to performance-based vesting conditions (each, a “Company PSU”) was converted into a contingent right to receive from Parent or the surviving corporation an amount in cash, without interest and subject to applicable withholding taxes and other authorized deductions, equal to the product of the Merger Consideration multiplied by the number of shares of the Class A Common Stock issuable pursuant to each such Company PSU determined based upon the greater of the target level of performance and the actual level of performance calculated as of the latest practicable date prior to the Effective Time (each, a “Converted PSU Cash Award”). Each Converted RSU Cash Award and Converted PSU Cash Award is subject to the same vesting terms and conditions as applied to the corresponding Company RSU and Company PSU, respectively, immediately prior to the Effective Time, except that Converted PSU Cash Awards are no longer subject to any performance-based conditions.
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The aggregate purchase price for the Class A Common Stock was approximately $7.4 billion, and the total transaction value, including the Company’s debt obligations assumed (indirectly through Parent’s acquisition of the Company) or refinanced net of cash in connection with the Merger, was approximately $28.2 billion.
The foregoing description of the Merger Agreement and the transactions contemplated thereby is not complete and is subject to and qualified in its entirety by reference to the Merger Agreement, a copy of which was filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 1, 2025, and the terms of which are incorporated herein by reference.
Orderbook Acquisition
On April 8, 2026, in connection with the closing of the Merger, SMBC AC acquired the Company’s outstanding orderbook for undelivered aircraft (the “Orderbook Acquisition”). Upon consummation of the Orderbook Acquisition, SMBC AC became the sole holder of the rights to acquire the undelivered aircraft comprising the orderbook. The consideration paid by SMBC AC for the Orderbook Acquisition equals the amount of pre-delivery payments that the Company paid to original equipment manufacturers in the aggregate for the undelivered aircraft as of the Effective Time plus a premium.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
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Term Loan Credit Agreement
In connection with the Merger, Merger Sub entered into a term loan credit agreement, dated as of November 14, 2025, by and among Merger Sub, the several banks and other financial institutions or entities from time to time as parties thereto (the “Lenders”) and Sumitomo Mitsui Banking Corporation, as administrative agent, as amended by that certain First Amendment to the Term Loan Credit Agreement, dated as of March 25, 2026 (as amended, the “Term Loan Credit Agreement”), pursuant to which the Lenders have provided, and the surviving corporation borrowed at the Effective Time, a $1,000,000,000 term loan, which was used to fund a portion of Parent’s Merger Consideration of the Company. As a result of the Merger, at the Effective Time, the obligations of Merger Sub under the Term Loan Credit Agreement became obligations of the Company as the surviving corporation in the Merger. The First Amendment to the Term Loan Credit Agreement is attached hereto as Exhibit 10.3 and is incorporated herein by reference.
Revolving Credit Agreement
In connection with the Merger, Merger Sub entered into a revolving credit agreement, dated as of November 14, 2025, by and among Merger Sub, the several banks and other financial institutions or entities from time to time as parties thereto and Sumitomo Mitsui Banking Corporation, as administrative agent, as amended by that certain First Amendment to the Revolving Credit Agreement, dated as of March 25, 2026 (as amended, the “Revolving Credit Agreement”), pursuant to which Merger Sub will have access to up to $3,500,000,000 in revolving loans for working capital purposes and other general corporate purposes. As a result of the Merger, at the Effective Time, the obligations of Merger Sub under the Revolving Credit Agreement became obligations of the Company as the surviving corporation in the Merger. There were no amounts outstanding under the Revolving Credit Facility as of April 8, 2026. The First Amendment to the Revolving Credit Agreement is attached hereto as Exhibit 10.4 and is incorporated herein by reference.
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Senior Notes Offering
On March 24, 2026, in connection with the Merger, Merger Sub issued $800,000,000 aggregate principal amount of 4.400% Senior Notes due 2028 (the “2028 Notes”), $1,200,000,000 aggregate principal amount of 4.500% Senior Notes due 2029 (the “2029 Notes”), $1,500,000,000 aggregate principal amount of 4.850% Senior Notes due 2031 (the “2031 Notes”) and $500,000,000 aggregate principal amount of 5.500% Senior Notes due 2036 (the “2036 Notes” and together with the 2028 Notes, the 2029 Notes and the 2031 Notes, the “Notes”) pursuant to an indenture, dated as of March 24, 2026 (the “Indenture”), among Merger Sub and Computershare Trust Company, N.A., as trustee (the “Trustee”). The Indenture contains customary covenants, redemption provisions and events of default. Indebtedness under the Notes may be accelerated in certain circumstances upon an event of default as set forth in the Indenture.
Until consummation of the Merger, pursuant to an escrow agreement, dated March 24, 2026 (the “Escrow Agreement”), by and among Merger Sub, the Trustee and Computershare Trust Company, N.A., as escrow agent (in such capacity, the “Escrow Agent”), Merger Sub caused to be deposited into an escrow account (the “Escrow Account”) the net proceeds of the offering of the Notes (such funds in the Escrow Account, the “Escrowed Property”) and granted the Trustee, for its benefit and the benefit of the holders of the Notes, a first-priority security interest in the Escrow Account and the Escrowed Property to secure the obligations under the Notes pending release from escrow.
Upon consummation of the Merger and in accordance with the Indenture and the Escrow Agreement, the Notes became the obligation of the Company, and the Escrowed Property was released from escrow. Upon release from escrow, the Company used the funds to repay certain existing indebtedness and for general corporate purposes.
In connection with the issuance of the Notes, Merger Sub entered into a registration rights agreement (the “Registration Rights Agreement”), which remained an obligation of the Company upon consummation of the Merger. The Company agreed under the Registration Rights Agreement to use its commercially reasonable efforts to file and cause to become effective a registration statement for a registered offer to exchange the Notes for new Notes, with terms substantially identical in all material respects to the Notes. Under certain circumstances, the Company may be required to file a shelf registration statement to allow for resales of the notes. The Company may be obligated to pay additional interest on the Notes if it fails to comply with obligations under the Registration Rights Agreement.
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The foregoing descriptions of the Indenture and the Registration Rights Agreement do not purport to be complete and are qualified in its entirety by reference to the Indenture and the Registration Rights Agreement, which are filed as Exhibit 4.1 and Exhibit 4.2 to this Current Report on Form 8-K, respectively, and the terms of which are incorporated herein by reference.
Servicing Agreement
On April 8, 2026, in connection with the closing of the Merger, SMBC AC entered into a Servicing Agreement with Parent, guaranteed by the Company, to act as exclusive servicer to the Parent group, including the Company (the “Group”), in respect of its aircraft leased to non-U.S. airlines (the “Servicing Agreement”). The remaining aircraft leased to U.S. airlines as of the closing of the Merger will continue to be serviced by the Group. Under the Servicing Agreement, SMBC AC is responsible for the provision of technical and lease administration services, including aircraft marketing, aircraft trading, technical asset management and risk management for the aircraft within the Group’s fleet leased to non-U.S. airlines. The Servicing Agreement contains provisions to address potential conflicts of interest and also requires SMBC AC, as servicer, to act in accordance with a prescribed standard of care. Pursuant to the Servicing Agreement, Parent will pay or procure the payment to SMBC AC of customary fees for services rendered thereunder, which relate to the leasing, acquisition and sale of the Group’s aircraft subject to the Servicing Agreement.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
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The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
On April 8, 2026, in connection with the completion of the Merger, the Company notified the New York Stock Exchange (“NYSE”) of the completion of the Merger and (a) requested that trading in the Class A Common Stock be suspended and the Class A Common Stock be withdrawn from listing on NYSE, and that NYSE file a notification of removal from listing on Form 25 with the SEC with respect to the Class A Common Stock to report the delisting of the Class A Common Stock from NYSE and suspend trading of the Class A Common Stock on NYSE prior to the opening of trading on April 8, 2026; and (b) requested that trading in the 3.700% Medium-Term Notes, Series A, due April 15, 2030 (the “Medium-Term Notes”) be suspended and the Medium-Term Notes be withdrawn from listing on NYSE, and that NYSE file a notification of removal from listing on Form 25 with the SEC with respect to the Medium-Term Notes to report the delisting of the Medium-Term Notes from NYSE and suspend trading of the Medium-Term Notes on NYSE prior to the opening of trading on April 8, 2026.
Upon effectiveness of the Form 25, the Company intends to file with the SEC a certificate and notice of termination on Form 15 with respect to the Class A Common Stock, requesting that the Class A Common Stock be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the reporting obligations of the Company with respect to the Class A Common Stock under Sections 13 and 15(d) of the Exchange Act be suspended.
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| Item 3.03 | Material Modification to Rights of Security Holders. |
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The information set forth in the Introductory Note and Items 2.01, 3.01, 5.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
In connection with the completion of the Merger and at the Effective Time, holders of the Class A Common Stock immediately prior to such time ceased to have any rights as stockholders in the Company (other than their right to receive the Merger Consideration) and accordingly, no longer have any interest in the Company’s future earnings or growth.
| Item 5.01. | Changes in Control of Registrant. |
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The information set forth in the Introductory Note and under Items 1.01, 2.01, 3.03 and 5.02 of this Current Report on Form 8-K is incorporated herein by reference.
On April 8, 2026, upon consummation of the Merger, a change in control of the Company occurred and the Company became an indirect subsidiary of Parent. After the consummation of the Merger, Sumitomo indirectly holds approximately 47.505%, SMBC AC indirectly holds approximately 4.99%, Apollo indirectly holds approximately 23.7525% and Brookfield indirectly holds approximately 23.7525% of the outstanding voting power of the surviving corporation.
Sumitomo and SMBC AC are each entitled to appoint two directors to the board of directors of Parent, and Apollo and Brookfield are each entitled to appoint one director to the board of directors of Parent. Members of the board of directors of Parent may serve on the board of directors of any material subsidiary of Parent (including the Company) or any committee thereof, subject to local residency and similar requirements of law and except as may be otherwise agreed by the Sumitomo, SMBC AC, Apollo and Brookfield (subject to certain limitations). The board of directors of Parent unanimously appointed, or caused the appointment of, the board of post-closing board of directors of the Company.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
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The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
Departure of Existing Directors and Named Executive Officers
In connection with the Merger and effective as of the Effective Time, each of the members of the Company’s Board of Directors (the “Board”) was removed from the Board and from any and all committees of the Board on which they served and ceased to be directors of the Company, which removals were not the result of any disagreements with the Company relating to the Company’s operations, policies or practices.
In connection with the Merger and effective as of the Effective Time, John L. Plueger’s employment as the Company’s President and Chief Executive Officer (and principal executive officer), Grant A. Levy’s employment as the Company’s Executive Vice President, Marketing, Carol H. Forsyte’s employment as the Company’s Executive Vice President, General Counsel, Corporate Secretary and Chief Compliance Officer, and Gregory B. Willis’s employment as the Company’s Executive Vice President and Chief Financial Officer (and principal accounting officer and principal financial officer) were terminated.
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In connection with the termination of their employment, each of Mr. Plueger, Mr. Levy, Ms. Forsyte and Mr. Willis is entitled to severance payments and benefits under their respective severance agreements with the Company. Pursuant to the Severance Agreement, dated as of July 1, 2016, by and between the Company and Mr. Plueger (the “Severance Agreement”), Mr. Plueger is entitled to severance payments and benefits including, among other things, (i) accrued salary and benefits up to the termination date, (ii) prorated annual bonus for the year of termination, (iii) a lump sum payment equal to three times the sum of annual salary and target annual bonus, (iv) cash payment for COBRA costs, (v) a lump sum payment of group term life insurance premiums and (vi) vesting of outstanding equity awards.
Pursuant to the Air Lease Corporation Executive Severance Plan, adopted on February 22, 2017, as amended on May 3, 2017 (the “Executive Severance Plan”), Mr. Levy, Ms. Forsyte and Mr. Willis are entitled to severance payments and benefits including, among other things, (i) accrued salary and benefits up to the termination date, (ii) prorated annual bonus for the year of termination, (iii) vesting of outstanding equity awards and (iv) a lump sum payment equal to two times the sum of annual salary and target annual bonus.
Appointment of New Directors and Named Executive Officers
In connection with the Merger and effective immediately after the Effective Time, Noriyuki Hiruta, David Swan and Sabrina Lemmens were elected as directors of the surviving corporation. Since January 1, 2025, there has been no, and there is currently no proposed, transaction in excess of $120,000 in which the Company or the surviving corporation was or is to be a party, and in which any of the above named directors had or will have a direct or indirect material interest. In addition, in connection with the Merger and effective immediately after the Effective Time, Noriyuki Hiruta was appointed to serve as the Chief Executive Officer, President and Secretary of the Company and Sabrina Lemmens was appointed to serve as the Chief Financial Officer of the Company.
Mr. Hiruta will remain employed by Sumitomo and provide services to the Group through a secondment arrangement with ALC Aircraft Limited. Sumitomo will continue to provide compensation and benefits to Mr. Hiruta and the Company will not pay Mr. Hiruta any compensation (other than business expenses incurred in connection with his discharge of duties on behalf of the Group). For his services, Mr. Hiruta will receive from Sumitomo an annual base salary of 174,850 euros and will be eligible for: (i) a discretionary annual incentive bonus opportunity as determined by Sumitomo in its sole discretion, (ii) an annual housing allowance in the amount of 92,885 euros, (iii) an annual overseas living cost allowance in the amount of 62,729 euros and (iv) an annual furniture and vehicle cost allowance in the amount of 13,200 euros. Each of these amounts includes tax gross-up payments made to compensate Mr. Hiruta for his tax obligations arising out of his residency in Ireland. ALC Aircraft Limited will pay Sumitomo an annual fee of $500,000 for Mr. Hiruta’s services to the Group. For the sake of clarity, no portion of such annual fee will be paid to Mr. Hiruta by any member of the Group or Sumitomo.
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In connection with Ms. Lemmens’ appointment as Chief Financial Officer, Ms. Lemmens has entered into an offer letter (the “Lemmens Offer Letter”), which provides that Ms. Lemmens will receive an annual base salary of $700,000 and will be eligible for: (i) an annual performance-based incentive bonus with a target of 100% of her base salary and (ii) an annual long-term cash award with a target equal to 45% of the sum of her base salary and target annual bonus. In addition, Ms. Lemmens will continue to participate in the Company’s Executive Severance Plan during the 24-month period following the Effective Time.
Mr. Hiruta and Ms. Lemmens will also each enter into an indemnification agreement with Parent on April 8, 2026 in the form approved by the Board of Directors of Parent. The form of the indemnification agreement is filed as Exhibit 10.5 to this Current Report on Form 8-K, and the terms of which are incorporated herein by reference.
There are no arrangements or understandings between Mr. Hiruta or Ms. Lemmens and any other person pursuant to which Mr. Hiruta was appointed as Chief Executive Officer, President and Secretary and Ms. Lemmens was appointed as Chief Financial Officer. There are also no family relationships between Mr. Hiruta or Ms. Lemmens and any director or executive officer of the surviving corporation.
The foregoing descriptions of the Severance Agreement, the Executive Severance Plan and the Lemmons Offer Letter are subject to and qualified in their entirety by reference to the Severance Agreement, the Executive Severance Plan and the Lemmons Offer Letter. Copies of the Severance Agreement and the Executive Severance Plan were filed as Exhibits 10.234 and 10.235 to the Company’s Annual Report on Form 10-K filed with the SEC on February 12, 2026, and the terms of which are incorporated herein by reference. The Lemmens Offer Letter which will be filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ending March 31, 2026, and is incorporated herein by reference.
Mr. Hiruta, 59, previously served as Chairman of SMBC AC from May 2023 to January 2026 when he stepped down in anticipation of his role at the surviving corporation. Previously, Mr. Hiruta held the position of General Manager of Lease & Business Development Department at Sumitomo. During Mr. Hiruta’s career between 1989 and 2023, he had held several roles in Sumitomo, including General Manager of Aircraft & Engine Leasing Department, General Manager of Aerospace Business Department at Sumitomo Corporation Europe and Joint General Manager of Aviation Capital Department at Sumitomo Mitsui Finance & Leasing Co., Ltd. Mr. Hiruta was also a key member of the acquisition team who managed the takeover of SMBC AC from RBS in 2012, where he worked as Manager in Leasing Business Department at Sumitomo. Mr. Hiruta holds a Bachelor of Economics from the University of Osaka and a Master of Business Administration from the University of Chicago.
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Ms. Lemmens, 48, served as Senior Vice President and Financial Controller of the Company prior to her appointment. Ms. Lemmens has over 15 years of aircraft leasing experience since joining the Company in 2011. Prior to joining the Company, Ms. Lemmens spent six years at Amgen Inc. in managerial positions within the Accounting and International Tax and Transfer Pricing Departments. Before her time in Amgen, Ms. Lemmens spent three years at PricewaterhouseCoopers LLP in their financial services practice. Ms. Lemmens is a Certified Public Accountant, licensed in the state of California and received her Bachelor of Arts from California State University, Fullerton and her Master in accounting from the University of Southern California.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
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The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
In connection with the Merger, at the Effective Time, the Restated Certificate of Incorporation of the Company was further amended and restated (the “Restated Certificate”) and shall be the certificate of incorporation of the surviving corporation until thereafter changed or amended as provided therein or by applicable law. The Restated Certificate is attached as Exhibit 3.1 hereto and incorporated herein by reference.
In connection with the Merger, at the Effective Time, the Fourth Amended and Restated Bylaws of the Company were also further amended and restated (the “Restated Bylaws”) and shall be the bylaws of the surviving corporation until thereafter changed or amended as provided therein or by applicable law. The Restated Bylaws are attached as Exhibit 3.2 hereto and incorporated herein by reference.
| Item 8.01 | Other Events. |
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On November 12, 2025, plaintiff Brooke E. Bingham (the “Plaintiff”), a purported stockholder of the Company, filed a putative class action lawsuit captioned Bingham v. Air Lease Corporation, C.A. No. 2025-1308-BWD (the “Action”) in the Court of Chancery of the State of Delaware (the “Court”), naming as defendants the Company and members of the Board (together, the “Defendants”). The Action alleged, among other things, that the Board violated its fiduciary duties under Delaware law by failing to disclose purportedly material information regarding the Merger in the Definitive Proxy Statement on Schedule 14A (the “Proxy”) filed on November 4, 2025 with the SEC. The Plaintiff also filed a motion for expedited proceedings and a motion for a preliminary injunction. On November 28, 2025, without admitting any liability or wrongdoing, or that any supplemental disclosures were required under applicable laws, the Company filed a Form 8-K with the SEC voluntarily making certain additional disclosures to supplement those contained in the Proxy. On December 4, 2025, the Court granted a stipulation and proposed order voluntarily dismissing the Action, and retaining jurisdiction solely for the purpose of adjudicating the anticipated application of the Plaintiff’s counsel for an award of attorneys’ fees and reimbursement of expenses in connection with the Action (the “Fee and Expense Application”). Following negotiations, the Company, while denying any and all liability on behalf of the Defendants and maintaining that the Proxy complies fully with all applicable laws, decided it was in its and its stockholders’ best interests to pay the Plaintiff’s counsel $450,000 in attorneys’ fees and expenses to resolve the Fee and Expense Application. The Court has not been asked to review, and will pass no judgment on, the payment of these attorneys’ fees and expenses.
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| Item 9.01 | Financial Statements and Exhibits. |
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(d) Exhibits.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| SUMISHO AIR LEASE CORPORATION | |
|---|---|
| Date: April 8, 2026 | /s/ Noriyuki Hiruta |
| Noriyuki Hiruta | |
| Chief Executive Officer, President and Secretary |
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EX-3.1
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SUMISHO AIR LEASECORPORATION
(a Delaware corporation)
ARTICLE I
NAME
The name of the corporation is Sumisho Air Lease Corporation (the “Corporation”) .
ARTICLE II
AGENT
The address of the Corporation’s registered office in the State of Delaware is 2140 S DuPont Highway, Camden, County of Kent, Delaware 19934. The name of its registered agent at such address is Paracorp Incorporated.
ARTICLE III
PURPOSE
The purposes for which the Corporation is formed are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE IV
STOCK
Section 4.1. Authorized Stock .
(a) The Corporation shall be authorized to issue 1,001,000 shares of capital stock of which (i) 1,000 shall be shares of common stock, $0.01 par value, which shall be designated as Class C common stock (the “Common Stock”) and (ii) 1,000,000 shall be shares of preferred stock, $0.01 par value (the “Preferred Stock”).
(b) Effective upon the effectiveness of this Amended and Restated Certificate of Incorporation (the “Certificate ofIncorporation”) under the DGCL, each share of common stock outstanding immediately prior hereto shall be reclassified automatically and without further action on the part of any holder thereof or otherwise, as one share of Common Stock.
Section 4.2. No Class Vote on Changes in Authorized Number of Shares of Stock . Subject to the rights, if any, of the holders of any outstanding series of Preferred Stock, the number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote generally in the election of directors irrespective of the provisions of Section 242(b)(2) of the DGCL.
Section 4.3. Common Stock .
(a) Voting. Except as otherwise provided by law or by the resolution or resolutions adopted by the board of directors of the Corporation (the “Board”) designating the rights, powers and preferences of any series of Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote, and the Common Stock shall vote together as a single class.
(b) Dividends. The holders of the Common Stock shall be entitled to receive such dividends if, as and when declared from time to time by the Board.
(c) Liquidation. In the event of the voluntary or involuntary liquidation, dissolution, or winding-up of the Corporation, the holders of the Common Stock shall be entitled to receive, ratably in proportion to the number of shares of Common Stock held by them, all the assets of the Corporation of whatever kind available for distribution to stockholders of the Corporation, after the rights of the holders of the Preferred Stock have been satisfied.
Section 4.4. Preferred Stock . Subject to limitations prescribed by law and the provisions of this Article IV, the Board is hereby authorized to provide by resolution for the issuance of the shares of Preferred Stock in one or more series, and to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, privileges, preferences, and relative participating, optional or other rights, if any, of the shares of each such series and the qualifications, limitations or restrictions thereof. The Amended and Restated Certificates of Designations of the Corporation’s Series B, Series C and Series D Preferred Stock are attached hereto as Exhibit I, Exhibit II and Exhibit III, respectively, which Exhibits form part of this Certificate of Incorporation.
The authority of the Board with respect to each series shall include, but not be limited to, determination of the following:
(a) the number of shares constituting such series, including any increase or decrease in the number of shares of any such series (but not below the number of shares in any such series then outstanding), and the distinctive designation of such series;
(b) the dividend rate on the shares of such series, if any, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of such series;
(c) whether the shares of such series shall have voting rights (including multiple or fractional votes per share) in addition to the voting rights provided by law, and, if so, the terms of such voting rights;
(d) whether the shares of such series shall have conversion privileges, and, if so, the terms and conditions of such privileges, including provision for adjustment of the conversion rate in such events as the Board shall determine;
(e) whether or not the shares of such series shall be redeemable or subject to repurchase, and if so, the terms and conditions of such redemption or repurchase, including the date or dates upon or after which they shall be redeemable or subject to repurchase, and the amount per share payable in case of redemption or repurchase, which amount may vary under different conditions and at different redemption or repurchase rates;
(f) whether a sinking fund shall be provided for the redemption or purchase of shares of such series, and, if so, the terms and the amount of such sinking fund;
(g) the rights of the shares of such series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of such series; and
(h) any other relative rights, preferences and limitations of such series.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1. Number . Except as otherwise provided for, or fixed pursuant to Section 5.2(c) or the provisions of Article IV of this Certificate of Incorporation relating to the rights of holders of any series of Preferred Stock to elect additional directors in certain circumstances, the Board shall consist of such number of directors as fixed from time to time pursuant to the Bylaws of the Corporation.
Section 5.2. Vacancies; Removal.
(a) Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board resulting from death, resignation, retirement, disqualification, removal from office or other cause shall, unless otherwise provided by law, be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board. Any director so chosen shall hold office until the next election of directors and until his successor shall be elected and qualified, subject to his earlier death, disqualification, resignation or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
(b) Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, unless otherwise restricted by law, any director or the entire Board may be removed, with or without cause, by the holders of a majority of the voting power of all issued and outstanding stock entitled to vote at an election of directors.
(c) During any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant to the provisions of Article IV hereof, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions and (ii) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and the total authorized number of directors of the Corporation shall be reduced accordingly.
Section 5.3. Powers . Except as otherwise expressly provided by the DGCL or this Certificate of Incorporation, the management of the business and the conduct of the affairs of the Corporation shall be vested in its Board.
Section 5.4. Election .
(a) Ballot Not Required. The directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation so provide.
(b) Notice. Advance notice of stockholder nominations for the election of directors shall be given in the manner and to the extent provided in the Bylaws of the Corporation.
ARTICLE VI
STOCKHOLDER ACTION
Except as otherwise provided for or fixed pursuant to the provisions of Article IV of this Certificate of Incorporation relating to the rights of holders of any series of Preferred Stock, any action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders holding a majority in voting interest in lieu of a meeting of stockholders.
ARTICLE VII
SPECIAL MEETINGS OF STOCKHOLDERS
Except as otherwise provided for or fixed pursuant to the provisions of Article IV of this Certificate of Incorporation relating to the rights of holders of any series of Preferred Stock, a special meeting of the stockholders of the Corporation may be called at any time by the majority of the Board. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.
ARTICLE VIII
EXISTENCE
The Corporation shall have perpetual existence.
ARTICLE IX
AMENDMENT
Section 9.1. Amendment of Certificate of Incorporation . The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred herein are granted subject to this reservation; provided, however, that in addition to any requirements of law and any other provision of this Certificate of Incorporation, and subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, the affirmative vote of the holders of a majority in voting power of the issued and outstanding stock entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, any provision of this Certificate of Incorporation.
Section 9.2. Amendment of Bylaws . In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Bylaws of the Corporation may be adopted, amended or repealed by action of a majority of the Board. In addition to any requirements of law and any other provision of this Certificate of Incorporation or the Bylaws of the Corporation, and subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, the affirmative vote of the holders of a majority in voting power of the issued and outstanding stock entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to amend or repeal, or adopt any provision inconsistent with, any Bylaw of the Corporation.
ARTICLE X
LIABILITY OF DIRECTORS AND INDEMNIFICATION
Section 10.1. No Personal Liability . To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Section 10.2. Amendment or Repeal . Any amendment, alteration or repeal of this Article X that adversely affects any right of a director shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.
Section 10.3. Right to Indemnification . Each person who was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any action, suit, arbitration, alternative dispute mechanism, inquiry, judicial, administrative or legislative hearing, investigation or any other threatened, pending or completed proceeding, whether brought by or in the right of the Corporation or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature, by reason of the fact that he or she is or was a director of the Corporation, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss actually and reasonably incurred by such indemnitee in connection therewith.
Section 10.4. Non-Exclusivity of Rights . The rights to indemnification conferred in this Article X shall not be exclusive of any other right which any person may have or hereafter acquire under any law, agreement, vote of stockholders or directors, provisions of the Bylaws of the Corporation, this Certificate of Incorporation or otherwise.
***
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS
OF
4.650% FIXED-RATERESET
NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES B
OF
SUMISHO AIR LEASECORPORATION
Section 1. Designation. The distinctive serial designation of such series is “4.650% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series B” (“Series B Preferred Stock”). Each share of the Series B Preferred Stock shall be identical in all respects to every other share of the Series B Preferred Stock, except that shares of the Series B Preferred Stock issued after March 2, 2021 (the “Original Issue Date”) shall accrue dividends from the later of the Original Issue Date and the Dividend Payment Date (as defined herein), if any, immediately prior to the original issue date of such additional shares.
Section 2. Number of AuthorizedShares. The number of authorized shares of the Series B Preferred Stock shall initially be 300,000; provided, however, that any additional shares of the Series B Preferred Stock must be deemed to form a single series with the Series B Preferred Stock issued pursuant to this Certificate of Designations. The number of authorized shares of the Series B Preferred Stock may from time to time be increased (but not in excess of the then authorized total number of shares of preferred stock, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of the Series B Preferred Stock then outstanding) by resolution of the Board of Directors of Sumisho Air Lease Corporation (formerly Air Lease Corporation), a Delaware corporation (the “Corporation” and such board, the “Board of Directors”) (or a duly authorized committee of the Board of Directors), without the vote or consent of the holders of the Series B Preferred Stock. Shares of the Series B Preferred Stock that are redeemed, repurchased or otherwise acquired by the Corporation shall be cancelled and shall revert to authorized but unissued shares of preferred stock undesignated as to series. The Corporation shall have the authority to issue fractional shares of the Series B Preferred Stock.
Section 3. Definitions. As used herein with respect to the Series B Preferred Stock:
(a) “accrual” (or similar terms) used with respect to a dividend or Dividend Period refers only to the determination of the amount of such dividend and does not imply that any right to a dividend in any Dividend Period that arises prior to the date on which such dividend is declared.
(b) “Adjustments” has the meaning set forth in in the definition of “Five-year U.S. Treasury Rate.”
(c) “Amended andRestated Bylaws” means the fifth amended and restated bylaws of the Corporation, as it may be amended from time to time.
(d) “Board ofDirectors” has the meaning set forth in Section 2.
(e) “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York.
(f) “Calculation Agent” means, at any time, the Corporation, an entity affiliated with the Corporation, or the person or entity appointed by the Corporation pursuant to a calculation agent agreement between the Corporation and a calculation agent and serving as such agent with respect to the Series B Preferred Stock at such time (including any successor to such person or entity). Deutsche Bank Trust Company Americas will be the calculation agent for the Series B Preferred Stock as of the Original Issue Date.
(g) “Certificate of Designations” means this Certificate of Designations relating to the Series B Preferred Stock, as it may be amended or supplemented from time to time.
(h) “Certificate of Incorporation” means the certificate of incorporation of the Corporation, as amended and restated on the date hereof and as it may be further amended from time to time and shall include this Certificate of Designations.
(i) “Common Stock” means the Class C common stock, par value $0.01 per share, of the Corporation.
(j) “Corporation” has the meaning set forth in the Preamble.
(k) “Current Methodology” has the meaning set forth in the definition of “Rating Agency Event.”
(l) “Dividend Parity Stock” means any class or series of capital stock of the Corporation that ranks on a parity with the Series B Preferred Stock as to the payment of dividends (whether such dividends are cumulative or non-cumulative), including the Series C Preferred Stock and the Series D Preferred Stock.
(m) “Dividend Payment Date” has the meaning set forth in Section 4(a).
(n) “Dividend Period” means each period from and including a Dividend Payment Date (except that the initial Dividend Period shall commence on and include the Original Issue Date of the Series B Preferred Stock) and continuing to, but excluding, the next succeeding Dividend Payment Date.
(o) “DTC” means The Depository Trust Company.
(p) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(q) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable: (i) the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, for the five Business Days appearing (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the most recently published H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination; or (ii) if there are no such published yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, then the rate will be determined by interpolation between the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity for two series of actively traded U.S. treasury securities, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case for the five Business Days appearing (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination.
If the Corporation, in its sole discretion, determines that the Five-year U.S. Treasury Rate cannot be determined in the manner applicable for such rate (which, as of the Original Issue Date, is pursuant to the methods described in clauses (i) or (ii) above) (a “Rate Substitution Event”), the Corporation may, in its sole discretion, designate an unaffiliated agent or advisor, which may include an unaffiliated underwriter for the offering of the Series B Preferred Stock or any affiliate of any such underwriter (the “Designee”), to determine whether there is an industry-accepted successor rate to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate). If the Designee determines that there is such an industry-accepted successor rate, then the “Five-year U.S. Treasury Rate” shall be such successor rate and, in that case, the Designee may adjust the spread and may determine and adjust the business day convention, the definition of Business Day and the Reset Dividend Determination Date to be used and any other relevant methodology for determining or otherwise calculating such successor rate, including any adjustment factor needed to make such successor rate comparable to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate) in each case, in a manner that is consistent with industry-accepted practices for the use of such successor rate (the “Adjustments”). If the Corporation, in its sole discretion, does not designate a Designee or if the Designee determines that there is no industry-accepted successor rate to then-applicable base rate, then the “Five-year U.S. Treasury Rate” will be the same interest rate (i.e., the same Five-year U.S. Treasury Rate) determined for the prior Reset Dividend Determination Date or, if this sentence is applicable with respect to the first Reset Dividend Determination Date, 0.574%.
(r) “First Reset Date” means June 15, 2026.
(s) “H.15 Daily Update” means the daily statistical release designated as such, or any successor publication, published by the Federal Reserve Bank of New York.
(t) “Junior Stock” means the Common Stock and any other class or series of capital stock of the Corporation that ranks junior to the Series B Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(u) “Liquidation Preference” has the meaning set forth in Section 5.
(v) “Liquidation Preference Junior Stock” means any class or series of stock of the Corporation that ranks junior to the Series B Preferred Stock in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation.
(w) “LiquidationPreference Parity Stock” means any class or series of capital stock of the Corporation that ranks on a parity with the Series B Preferred Stock in the distribution of assets on the liquidation, dissolution or winding up of the Corporation, including the Series C Preferred Stock and the Series D Preferred Stock.
(x) “Nonpayment” has the meaning set forth in Section 7(b).
(y) “Original Issue Date” has the meaning set forth in Section 1.
(z) “Preferred Stock Directors” has the meaning set forth in Section 7(b).
(aa) “Rate Substitution Event” has the meaning set forth in in the definition of “Five-year U.S. Treasury Rate.”
(bb) “Rating Agency Event” means that any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act that then publishes a rating for the Corporation amends, clarifies or changes the methodology or criteria that it employed for purposes of assigning equity credit to securities such as the Series B Preferred Stock on the Original Issue Date of the Series B Preferred Stock (the “Current Methodology”), which amendment, clarification or change either (i) shortens the period of time during which equity credit pertaining to the Series B Preferred Stock would have been in effect had the Current Methodology not been changed or (ii) reduces the amount of equity credit assigned to the Series B Preferred Stock as compared with the amount of equity credit that such rating agency had assigned to the Series B Preferred Stock as of the Original Issue Date.
(cc) “Reset Date” means the First Reset Date and each date falling on the fifth anniversary of the preceding Reset Date, including the First Reset Date, which will not be adjusted for Business Days.
(dd) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling three Business Days prior to the beginning of such Reset Period.
(ee) “Reset Period” means the period from and including the First Reset Date to, but excluding, the next following Reset Date and thereafter each period from and including each Reset Date to, but excluding, the next following Reset Date.
(ff) “Senior Stock” means any other class or series of the Corporation’s capital stock ranking senior to the Series B Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(gg) “Series B Preferred Stock” has the meaning set forth in Section 1.
(hh) “Series C Preferred Stock” means the Corporation’s 4.125% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series C.
(ii) “Series D Preferred Stock” means the Corporation’s 6.000% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series D.
(jj) “Stated Amount” means, in respect of the Series B Preferred Stock, $1,000.00 per share, and, in respect of any other series of capital stock, the stated amount per share specified in the Certificate of Incorporation or applicable certificate of designations (including, in the case of any series that does not use the words “stated amount,” the specified amount of any preference upon the voluntary or involuntary liquidation, dissolution or winding up, without regard to any unpaid dividends that may also be included in the liquidation preference with respect to such shares).
(kk) “Transfer Agent” means the transfer agent with respect to the Series B Preferred Stock, which shall be American Stock Transfer & Trust Company, LLC as of the Original Issue Date, and its successor, including any successor transfer agent appointed by the Corporation.
(ll) “Voting Preferred Stock” means any other class or series of preferred stock of the Corporation ranking equally with the Series B Preferred Stock, including the Series C Preferred Stock and the Series C Preferred Stock, as to dividends (whether cumulative or non-cumulative) and the distribution of assets upon the liquidation, dissolution or winding up of the Corporation and upon which like voting rights to the Series B Preferred Stock have been conferred and are exercisable. Whether a plurality, majority or other portion of the shares of the Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock and any other Voting Preferred Stock have been voted in favor of any matter shall be determined by reference to the Liquidation Preference of the shares voted.
Section 4. Dividends.
(a) Rate. Holders of the Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors (or a duly authorized committee of the Board of Directors), only out of funds legally available therefor, non-cumulative cash dividends for each Dividend Period payable on the Stated Amount per share of the Series B Preferred Stock at a rate per annum equal to (i) 4.650% from the Original Issue Date to, but excluding, the First Reset Date and (ii) the Five-year U.S. Treasury Rate applicable to such Reset Period plus 4.076%, from and including the First Reset Date, in each of cases (i) and (ii), payable quarterly, in arrears, on March 15, June 15, September 15 and December 15 of each year, beginning on June 15, 2021.
Each date on which dividends are payable pursuant to this Section 4, subject to adjustment as provided below, is a “Dividend Payment Date”, and dividends for each Dividend Payment Date are payable with respect to the Dividend Period (or portion thereof) ending on the day preceding such respective Dividend Payment Date, in each case to holders of record on the 15th calendar day before such Dividend Payment Date or such other record date not more than 30 nor less than 10 days preceding such Dividend Payment Date fixed for that purpose by the Board of Directors (or a duly authorized committee of the Board of Directors) in advance of payment of each particular dividend.
(b) Business Day Convention. If any Dividend Payment Date is not a Business Day, then such date will nevertheless be a Dividend Payment Date, but dividends on the Series B Preferred Stock, when, as and if declared, will be paid on the next succeeding Business Day (without adjustment in the amount of the dividend per share of the Series B Preferred Stock).
(c) Dividend Computation. The amount of the dividend per share of the Series B Preferred Stock for each Dividend Period (or portion thereof) will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
The applicable dividend rate for each Dividend Period during a Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date for such Reset Period. On each Reset Dividend Determination Date, the Calculation Agent will notify the Corporation of the dividend rate for each Dividend Period during the applicable Reset Period. The Calculation Agent’s determination of any dividend rate and its calculation of the amount of dividends for any Dividend Period, and a record maintained by the Corporation of any Rate Substitution Event and any Adjustments, will be on file at the Corporation’s principal offices, will be made available to any holder of the Series B Preferred Stock upon request and will be final and binding in the absence of manifest error.
(d) Dividends Non-cumulative. Dividends on shares of the Series B Preferred Stock are not cumulative and are not mandatory. If the Board of Directors (or a duly authorized committee of the Board of Directors) does not declare a dividend on the Series B Preferred Stock in respect of a Dividend Period, then holders of the Series B Preferred Stock shall not be entitled to receive any dividends, and the Corporation will have no obligation to pay any dividend for that Dividend Period, whether or not dividends on the Series B Preferred Stock or any other series of the Corporation’s preferred stock or Common Stock are declared for any future dividend period. No interest or sum of money in lieu of interest or dividends will be payable in respect of any dividend not declared by the Board of Directors (or a duly authorized committee of the Board of Directors). Holders of the Series B Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series B Preferred Stock as specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(e) Priority of Dividends and Redemption and Repurchase ofJunior Stock and Dividend Parity Stock. So long as any share of the Series B Preferred Stock remains outstanding, unless dividends on all outstanding shares of the Series B Preferred Stock for the most recently completed Dividend Period have been paid in full or declared and a sum sufficient for the payment thereof has been set aside for payment, (i) no dividend may be declared or paid or set aside for payment, and no distribution may be made, on any Junior Stock, (ii) no shares of Junior Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, and (iii) no shares of Dividend Parity Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than, in each case:
(i) repurchases, redemptions or other acquisitions of shares of Junior Stock as a result of (x) a reclassification of Junior Stock for or into other Junior Stock, (y) the exchange or conversion of one or more shares of Junior Stock for or into one or more shares of Junior Stock or (z) the purchase of fractional interests in shares of Junior Stock under the conversion or exchange provisions of Junior Stock or the security being converted or exchanged;
(ii) repurchases, redemptions or other acquisitions of shares of Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) repurchases, redemptions or other acquisitions of shares of Junior Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants or (y) a dividend reinvestment or stockholder stock purchase plan;
(iv) any declaration of a dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or other property under any stockholders’ rights plan, or the redemption or repurchase of rights pursuant to the plan;
(v) any dividend paid on Junior Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock;
(vi) any pro rata purchase or pro rata exchange of all or a pro rata portion of the Series B Preferred Stock and any Dividend Parity Stock pursuant to an offer made on the same terms to holders of all shares of the Series B Preferred Stock and to holders of all shares of any Dividend Parity Stock;
(vii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock as a result of (x) a reclassification of Dividend Parity Stock for or into other Dividend Parity Stock or Junior Stock, (y) the exchange or conversion of one or more shares of Dividend Parity Stock for or into one or more shares of other Dividend Parity Stock or Junior Stock or (z) the purchase of fractional interests in shares of Dividend Parity Stock under the conversion or exchange provisions of Dividend Parity Stock or the security being converted or exchanged;
(viii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Dividend Parity Stock or Junior Stock; or
(ix) purchases of shares of the Corporation’s Common Stock pursuant to a contractually binding stock repurchase plan existing prior to the preceding Dividend Period.
If the Board of Directors (or a duly authorized committee of the Board of Directors) elects to declare only partial instead of full dividends for a Dividend Payment Date and related Dividend Period on the shares of the Series B Preferred Stock or any Dividend Parity Stock (which terms include, in the case of the Series B Preferred Stock, the Dividend Payment Dates and Dividend Periods provided for herein), then, to the extent permitted by the terms of the Series B Preferred Stock and each outstanding series of Dividend Parity Stock, such partial dividends shall be declared on shares of the Series B Preferred Stock and Dividend Parity Stock, and dividends so declared shall be paid, as to any such dividend payment date and related dividend period, in amounts such that the ratio of the partial dividends declared and paid on each such series to full dividends on each such series is the same. As used in this paragraph, “full dividends” means, as to any Dividend Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Dividend Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a dividend period with respect to the Series B Preferred Stock or any series of Dividend Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series as applicable (in either case, a “second series”), then, for purposes of this paragraph the Board of Directors (or a duly authorized committee of the Board of Directors) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Dividend Parity Stock and Dividend Period(s) with respect to the Series B Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Dividend Parity Stock and the Series B Preferred Stock.
Subject to the foregoing, dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors (or a duly authorized committee of the Board of Directors) may be declared and paid on any Common Stock or other Junior Stock from time to time out of any funds legally available therefor, and the shares of the Series B Preferred Stock shall not be entitled to participate in any such dividend.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Liquidation Preference Junior Stock, holders of the Series B Preferred Stock will be entitled to receive out of the assets of the Corporation legally available for distribution to its stockholders (i.e., after satisfaction of all of the Corporation’s liabilities to creditors, if any) an amount equal to the Stated Amount, plus any dividends that have been declared but not paid prior to the date of payment of distributions to stockholders, without regard to any undeclared dividends (the “Liquidation Preference”).
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay the Liquidation Preference in full to all holders of the Series B Preferred Stock and all holders of any Liquidation Preference Parity Stock, the amounts paid to the holders of the Series B Preferred Stock and to the holders of all Liquidation Preference Parity Stock shall be pro rata in accordance with the respective aggregate Liquidation Preferences of the Series B Preferred Stock and all such Liquidation Preference Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the Corporation other than the Series B Preferred Stock means the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends in the case of any holder or stock on which dividends accrue on a non-cumulative basis and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued, cumulative dividends, whether or not earned or declared, as applicable.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of the Series B Preferred Stock and all holders of any Liquidation Preference Parity Stock, the holders of Liquidation Preference Junior Stock will be entitled to receive all remaining assets of the Corporation according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the merger, consolidation or other business combination of the Corporation with or into any other corporation, including a transaction in which the holders of the Series B Preferred Stock receive cash or property for their shares, or the sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series B Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of the Series B Preferred Stock (i) in whole or in part, from time to time, on any Dividend Payment Date on or after the First Reset Date for cash at a redemption price of the Stated Amount per share or (ii) in whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by us following the occurrence of a Rating Agency Event, or, if no review or appeal process is available or sought with respect to such Rating Agency Event, at any time within 120 days after the occurrence of such Rating Agency Event, at a redemption price in cash equal to $1,020.00 per share, in each of cases (i) and (ii), plus any declared and unpaid dividends to, but excluding, the date fixed for redemption (the “redemption date”), without accumulation of any undeclared dividends. The redemption price for any shares of the Series B Preferred Stock shall be payable on the redemption date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent, if the shares of the Series B Preferred Stock are issued in certificated form. Any declared but unpaid dividends payable on a redemption date that occurs subsequent to the applicable record date for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on the redemption date, but rather shall be paid to the holder of record of the redeemed shares on such record date relating to the applicable Dividend Payment Date as provided in Section 4 above. On and after the redemption date, dividends will cease to accrue on shares of the Series B Preferred Stock, and such shares of the Series B Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price plus any declared and unpaid dividends, without regard to any undeclared dividends, on such shares to, but excluding, the redemption date.
(b) No Sinking Fund. The Series B Preferred Stock is not subject to any mandatory redemption, sinking fund or other similar provisions. Holders of the Series B Preferred Stock have no right to require redemption of any shares of the Series B Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of the Series B Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be at least 10 days and not more than 60 days before the date fixed for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure to duly give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of the Series B Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of the Series B Preferred Stock. Notwithstanding the foregoing, if the shares of the Series B Preferred Stock are issued in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of the Series B Preferred Stock at such time and in any manner permitted by such facility. Each such notice given to a holder shall state: (1) the redemption date; (2) the number of shares of the Series B Preferred Stock to be redeemed and, if less than all shares of the Series B Preferred Stock held by the holder are to be redeemed, the number of shares of the Series B Preferred Stock to be redeemed from such holder or the method for determining such number; (3) the redemption price; (4) if the Series B Preferred Stock is evidenced by definitive certificates, the place or places where certificates for such shares of the Series B Preferred Stock are to be surrendered for payment of the redemption price; and (5) that dividends on such shares will cease to accrue on and after the redemption date.
(d) Partial Redemption. In case of any redemption of only part of the shares of the Series B Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either on a pro rata basis (as nearly as practicable without creating fractional shares) or by lot or in such other manner as the Board of Directors (or a duly authorized committee of the Board of Directors) may determine to be fair and equitable. Subject to the provisions hereof, the Board of Directors (or a duly authorized committee of the Board of Directors) shall have full power and authority to prescribe the terms and conditions on which shares of the Series B Preferred Stock shall be redeemed from time to time. If the Corporation shall have issued certificates for the Series B Preferred Stock and fewer than all shares represented by any certificates are redeemed, new certificates shall be issued representing the unredeemed shares without charge to the holders thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given, and if on or before the redemption date specified in the notice, all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available for that purpose, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation in the case that the shares of the Series B Preferred Stock are issued in certificated form, dividends shall cease to accrue on and after the redemption date for all shares so called for redemption, all shares so called for redemption shall no longer be deemed outstanding and all rights of the holders with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption date, without interest. Any funds unclaimed at the end of two years from the redemption date, to the extent permitted by law, shall be released from the trust so established and may be commingled with the Corporation’s other funds, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
Section 7.Voting Rights.
(a) General. The holders of the Series B Preferred Stock have no voting rights as holders of the Series B Preferred Stock except as set forth below or as otherwise required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of the Series B Preferred Stock, or any other Voting Preferred Stock, shall have not been declared and paid for six full quarterly Dividend Payments, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares, voting together as a class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board of Directors (the “PreferredStock Directors”), provided that the election of any such directors shall not cause the Corporation to violate the then-applicable corporate governance requirements of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors and provided further that the Board of Directors shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board of Directors shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), and at each subsequent annual meeting. Such request to call a special meeting for the initial election of the Preferred Stock Directors after a Nonpayment shall be made by written notice, signed by the requisite holders of the Series B Preferred Stock or other Voting Preferred Stock, and delivered to the Secretary of the Corporation in such manner as provided for in Section 9 below, or as may otherwise be required by law.
If and when dividends for at least four consecutive quarterly Dividend Periods following a Nonpayment have been paid in full on the Series B Preferred Stock and any other class or series of Voting Preferred Stock, the holders of the Series B Preferred Stock and all other holders of Voting Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment), the term of office of each Preferred Stock Director so elected shall automatically terminate and the number of directors on the Board of Directors shall automatically decrease by two. In determining whether dividends have been paid for the equivalent of at least four consecutive quarterly Dividend Periods following a Nonpayment, the Corporation may take account of any dividend it elects to pay for any Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Series B Preferred Stock together with all series of Voting Preferred Stock then outstanding (voting together as a single class) to the extent such holders have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding shares of the Series B Preferred Stock and all Voting Preferred Stock when they have the voting rights described above (voting together as a single class); provided that the filling of any such vacancy shall not cause the Corporation to violate the then-applicable corporate governance requirement of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of the Series B Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Certificate of Incorporation, the vote or consent of the holders of at least two-thirds of the shares of the Series B Preferred Stock at the time outstanding, voting together as a single class with any other series of preferred stock entitled to vote thereon, to the exclusion of all other series of preferred stock, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating:
(i) Amendment of Certificate of Incorporation or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Certificate of Incorporation or this Certificate of Designations that would materially and adversely alter or change the voting powers, preferences or special rights of the Series B Preferred Stock, taken as a whole; provided, however, that the amendment of the Certificate of Incorporation so as to authorize or create, or to increase the authorized amount of, any class or series of capital stock that does not rank senior to the Series B Preferred Stock in either the payment of dividends (whether such dividends are cumulative or non-cumulative) or in the distribution of assets on liquidation, dissolution or winding up of the Corporation shall not be deemed to materially or adversely affect the voting powers, preferences or special rights of the Series B Preferred Stock;
(ii) Authorization of SeniorStock. Any amendment or alteration of the Certificate of Incorporation to authorize or create, or increase the authorized amount of, any shares of any class or series or any securities convertible into shares of any class or series of capital stock of the Corporation ranking senior to the Series B Preferred Stock in the payment of dividends or in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (x) a binding share exchange or reclassification involving the Series B Preferred Stock or (y) a merger or consolidation of the Corporation with another entity (whether or not a corporation), unless in each case (A) the shares of the Series B Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, the shares of the Series B Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (B) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series B Preferred Stock, taken as a whole, immediately prior to such consummation.
“capital stock” does not include convertible or exchangeable debt securities, which, prior to conversion or exchange, rank senior in right of payment to the Series B Preferred Stock.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above would materially and adversely affect the rights, preferences, privileges and voting powers, and restrictions and limitations, taken as a whole, of one or more but not all series of Voting Preferred Stock (including the Series B Preferred Stock for this purpose), then only the series so affected and entitled to vote shall vote, together as a class, to the exclusion of all other series of preferred stock. If all series of preferred stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above, then only a two-thirds approval of each such series that is materially and adversely affected shall be required.
(d) Changes Permitted without Consent. Without the consent of the holders of the Series B Preferred Stock, the Corporation may amend, alter, supplement or repeal any terms of the Series B Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations for the Series B Preferred Stock that may be defective or inconsistent, so long as such action does not materially and adversely affect the rights, preferences, privileges and voting powers of the Series B Preferred Stock, taken as a whole;
(ii) to conform this Certificate of Designations to the description of the Series B Preferred Stock set forth in the Corporation’s final prospectus supplement related to the Series B Preferred Stock, dated February 23, 2021; or
(iii) to make any provision with respect to matters or questions arising with respect to the Series B Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of the Series B Preferred Stock will be required pursuant to Section 7(b) or (c) above if, at or prior to the time when the act with respect to which any such vote or consent would otherwise be required pursuant to such Sections, all outstanding shares of the Series B Preferred Stock shall have been redeemed, or shall have been called for redemption on proper notice and sufficient funds shall have been set aside by or on behalf of the Corporation for the benefit of the holders of the Series B Preferred Stock to effect such redemption, in each case pursuant to Section 6 above, unless in the case of a vote or consent required pursuant to clause (ii) of Section 7(c) above if all outstanding shares of the Series B Preferred Stock are being redeemed with the proceeds from the sale of the stock to be authorized.
(f) Procedures forVoting and Consents. The rules and procedures for calling and conducting any meeting of the holders of the Series B Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Directors (or a duly authorized committee of the Board of Directors), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Certificate of Incorporation, the Amended and Restated Bylaws, applicable law and any national securities exchange or other trading facility on which the Series B Preferred Stock may be listed or traded at the time.
In any matter in which the Series B Preferred Stock may vote (as expressly provided in this Certificate of Designations), each share of the Series B Preferred Stock shall be entitled to one vote per $1,000.00 of Liquidation Preference. If the Series B Preferred Stock and any other Liquidation Preference Parity Stock is entitled to vote together as a single class on any matter, the holders of each will vote in proportion to their respective Liquidation Preferences.
Section 8. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent may deem and treat the record holder of any share of the Series B Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
Section 9. Notices. All notices or communications in respect of the Series B Preferred Stock will be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Certificate of Incorporation or Amended and Restated Bylaws or by applicable law.
Section 10. Other Rights. The shares of the Series B Preferred Stock do not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation of the Corporation. The holders of the Series B Preferred Stock shall not have any preemptive rights or conversion rights.
Section 11. Certificates. The Corporation may at its option issue shares of the Series B Preferred Stock without certificates. If DTC or its nominee is the registered owner of the Series B Preferred Stock, the following provisions of this Section 11 shall apply. If and as long as DTC or its nominee is the registered owner of the Series B Preferred Stock, DTC or its nominee, as the case may be, shall be considered the sole owner and holder of all such shares of the Series B Preferred Stock of which DTC or its nominee is the registered owner for all purposes under the instruments governing the rights and obligations of holders of shares of the Series B Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of the Series B Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation shall either print and deliver certificates for the shares of the Series B Preferred Stock or provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry-only transfers through DTC (or a successor securities depositary), the Corporation shall print certificates for the shares of the Series B Preferred Stock and deliver such certificates to DTC or shall provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series B Preferred Stock of which DTC or its nominee is the registered owner:
| a) | shall not be entitled to have such Series B Preferred Stock registered in their names; |
|---|---|
| b) | shall not receive or be entitled to receive physical delivery of securities certificates in exchange for<br>beneficial interests in the Series B Preferred Stock; and |
| --- | --- |
| c) | shall not be considered to be owners or holders of the shares of the Series B Preferred Stock for any purpose<br>under the instruments governing the rights and obligations of holders of shares of the Series B Preferred Stock. |
| --- | --- |
Section 12.Restatement of Certificate. On any restatement of the Certificate of Incorporation of the Corporation, Section 1 through Section 11 of this Certificate of Designations shall be included in the Certificate of Incorporation under the heading “4.650% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series B” and this Section 12 may be omitted. If the Board of Directors so determines, the numbering of Section 1 through Section 11 may be changed for convenience of reference or for any other proper purpose.”
***
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS
OF
4.125% FIXED-RATERESET
NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES C
OF
SUMISHO AIR LEASECORPORATION
Section 1. Designation. The distinctive serial designation of such series is “4.125% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series C” (“Series C Preferred Stock”). Each share of the Series C Preferred Stock shall be identical in all respects to every other share of the Series C Preferred Stock, except that shares of the Series C Preferred Stock issued after October 13, 2021 (the “Original Issue Date”) shall accrue dividends from the later of the Original Issue Date and the Dividend Payment Date (as defined herein), if any, immediately prior to the original issue date of such additional shares.
Section 2. Number of AuthorizedShares. The number of authorized shares of the Series C Preferred Stock shall initially be 300,000; provided, however, that any additional shares of the Series C Preferred Stock shall be deemed to form a single series with the Series C Preferred Stock issued pursuant to this Certificate of Designations. The number of authorized shares of the Series C Preferred Stock may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of the Series C Preferred Stock then outstanding) by resolution of the Board of Directors of Sumisho Air Lease Corporation (formerly Air Lease Corporation), a Delaware corporation (the “Corporation” and such board, the “Board of Directors”) (or a duly authorized committee of the Board of Directors), without the vote or consent of the holders of the Series C Preferred Stock. Shares of the Series C Preferred Stock that are redeemed, repurchased or otherwise acquired by the Corporation shall be cancelled and shall revert to authorized but unissued shares of preferred stock undesignated as to series. The Corporation shall have the authority to issue fractional shares of the Series C Preferred Stock.
Section 3.Definitions. As used herein with respect to the Series C Preferred Stock: ****
(a) “accrual” (or similar terms) used with respect to a dividend or Dividend Period refers only to the determination of the amount of such dividend and does not imply that any right to a dividend in any Dividend Period that arises prior to the date on which such dividend is declared.
(b) “Adjustments” has the meaning set forth in in the definition of “Five-year U.S. Treasury Rate.”
(c) “Amended and Restated Bylaws” means the fifth amended and restated bylaws of the Corporation, as it may be amended from time to time.
(d) “Board of Directors” has the meaning set forth in Section 2.
(e) “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York.
(f) “Calculation Agent” means, at any time, the Corporation, an entity affiliated with the Corporation, or the person or entity appointed by the Corporation pursuant to a calculation agent agreement between the Corporation and a calculation agent and serving as such agent with respect to the Series C Preferred Stock at such time (including any successor to such person or entity). Deutsche Bank Trust Company Americas will be the calculation agent for the Series C Preferred Stock as of the Original Issue Date.
(g) “Certificate of Designations” means this Certificate of Designations relating to the Series C Preferred Stock, as it may be amended or supplemented from time to time.
(h) “Certificate of Incorporation” means the certificate of incorporation of the Corporation, as amended and restated on the date hereof and as it may be further amended from time to time, and shall include this Certificate of Designations.
(i) “Common Stock” means the Class C common stock, par value $0.01 per share, of the Corporation.
(j) “Corporation” has the meaning set forth in the Preamble.
(k) “Current Methodology” has the meaning set forth in the definition of “Rating Agency Event.”
(l) “Dividend Parity Stock” means any class or series of capital stock of the Corporation that ranks on a parity with the Series C Preferred Stock as to the payment of dividends (whether such dividends are cumulative or non-cumulative). As of the date of this Certificate of Designations, Dividend Parity Stock includes the Series B Preferred Stock and the Series D Preferred Stock.
(m) “Dividend Payment Date” has the meaning set forth in Section 4(a).
(n) “Dividend Period” means each period from and including a Dividend Payment Date (except that the initial Dividend Period shall commence on and include the Original Issue Date of the Series C Preferred Stock) and continuing to, but excluding, the next succeeding Dividend Payment Date.
(o) “DTC” means The Depository Trust Company.
(p) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(q) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable: (i) the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, for the five Business Days appearing (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the most recently published H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination; or (ii) if there are no such published yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, then the rate will be determined by interpolation between the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity for two series of actively traded U.S. treasury securities, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case for the five Business Days appearing (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination.
If the Corporation, in its sole discretion, determines that the Five-year U.S. Treasury Rate cannot be determined in the manner applicable for such rate (which, as of the Original Issue Date, is pursuant to the methods described in clauses (i) or (ii) above) (a “Rate Substitution Event”), the Corporation may, in its sole discretion, designate an unaffiliated agent or advisor, which may include an unaffiliated underwriter for the offering of the Series C Preferred Stock or any affiliate of any such underwriter (the “Designee”), to determine whether there is an industry-accepted successor rate to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate). If the Designee determines that there is such an industry-accepted successor rate, then the “Five-year U.S. Treasury Rate” shall be such successor rate and, in that case, the Designee may adjust the spread and may determine and adjust the business day convention, the definition of Business Day and the Reset Dividend Determination Date to be used and any other relevant methodology for determining or otherwise calculating such successor rate, including any adjustment factor needed to make such successor rate comparable to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate) in each case, in a manner that is consistent with industry-accepted practices for the use of such successor rate (the “Adjustments”). If the Corporation, in its sole discretion, does not designate a Designee or if the Designee determines that there is no industry-accepted successor rate to then-applicable base rate, then the “Five-year U.S. Treasury Rate” will be the same interest rate (i.e., the same Five-year U.S. Treasury Rate) determined for the prior Reset Dividend Determination Date or, if this sentence is applicable with respect to the first Reset Dividend Determination Date, 0.976%.
(r) “First Reset Date” means December 15, 2026.
(s) “H.15 Daily Update” means the daily statistical release designated as such, or any successor publication, published by the Federal Reserve Bank of New York.
(t) “Junior Stock” means the Common Stock and any other class or series of capital stock of the Corporation that ranks junior to the Series C Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(u) “Liquidation Preference” has the meaning set forth in Section 5.
(v) “Liquidation Preference Junior Stock” means any class or series of stock of the Corporation that ranks junior to the Series C Preferred Stock in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation.
(w) “LiquidationPreference Parity Stock” means any class or series of capital stock of the Corporation that ranks on a parity with the Series C Preferred Stock in the distribution of assets on the liquidation, dissolution or winding up of the Corporation. As of the date of this Certificate of Designations, Liquidation Preference Parity Stock includes and the Series B Preferred Stock and the Series D Preferred Stock.
(x) “Nonpayment” has the meaning set forth in Section 7(b).
(y) “Original Issue Date” has the meaning set forth in Section 1.
(z) “Preferred Stock Directors” has the meaning set forth in Section 7(b).
(aa) “Rate Substitution Event” has the meaning set forth in in the definition of “Five-year U.S. Treasury Rate.”
(bb) “Rating Agency Event” means that any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act that then publishes a rating for the Corporation amends, clarifies or changes the methodology or criteria that it employed for purposes of assigning equity credit to securities such as the Series C Preferred Stock on the Original Issue Date of the Series C Preferred Stock (the “Current Methodology”), which amendment, clarification or change either (i) shortens the period of time during which equity credit pertaining to the Series C Preferred Stock would have been in effect had the Current Methodology not been changed or (ii) reduces the amount of equity credit assigned to the Series C Preferred Stock as compared with the amount of equity credit that such rating agency had assigned to the Series C Preferred Stock as of the Original Issue Date.
(cc) “Reset Date” means the First Reset Date and each date falling on the fifth anniversary of the preceding Reset Date, including the First Reset Date, which will not be adjusted for Business Days.
(dd) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling three Business Days prior to the beginning of such Reset Period.
(ee) “Reset Period” means the period from and including the First Reset Date to, but excluding, the next following Reset Date and thereafter each period from and including each Reset Date to, but excluding, the next following Reset Date.
(ff) “Senior Stock” means any other class or series of the Corporation’s capital stock ranking senior to the Series C Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(gg) “Series B Preferred Stock” means the Corporation’s 4.650% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series B.
(hh) “Series C Preferred Stock” has the meaning set forth in Section 1.
(ii) “Series D Preferred Stock” means the Corporation’s 6.000% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series D.
(jj) “Stated Amount” means, in respect of the Series C Preferred Stock, $1,000.00 per share, and, in respect of any other series of capital stock, the stated amount per share specified in the Certificate of Incorporation or applicable certificate of designations (including, in the case of any series that does not use the words “stated amount,” the specified amount of any preference upon the voluntary or involuntary liquidation, dissolution or winding up, without regard to any unpaid dividends that may also be included in the liquidation preference with respect to such shares).
(kk) “Transfer Agent” means the transfer agent with respect to the Series C Preferred Stock, which shall be American Stock Transfer & Trust Company, LLC as of the Original Issue Date, and its successor, including any successor transfer agent appointed by the Corporation.
(ll) “Voting Preferred Stock” means any other class or series of preferred stock of the Corporation ranking equally with the Series C Preferred Stock as to dividends (whether cumulative or non-cumulative) and the distribution of assets upon the liquidation, dissolution or winding up of the Corporation and upon which like voting rights to the Series C Preferred Stock have been conferred and are exercisable. As of the date of this Certificate of Designations, Voting Preferred Stock includes the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock. Whether a plurality, majority or other portion of the shares of the Voting Preferred Stock have been voted in favor of any matter shall be determined by reference to the Liquidation Preference of the shares voted.
Section 4. Dividends.
(a) Rate. Holders of the Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors (or a duly authorized committee of the Board of Directors), only out of funds legally available therefor, non-cumulative cash dividends for each Dividend Period payable on the Stated Amount per share of the Series C Preferred Stock at a rate per annum equal to (i) 4.125% from the Original Issue Date to, but excluding, the First Reset Date and (ii) the Five-year U.S. Treasury Rate applicable to such Reset Period plus 3.149%, from and including the First Reset Date, in each of cases (i) and (ii), payable quarterly, in arrears, on March 15, June 15, September 15 and December 15 of each year, beginning on December 15, 2021.
Each date on which dividends are payable pursuant to this Section 4, subject to adjustment as provided below, is a “Dividend Payment Date”, and dividends for each Dividend Payment Date are payable with respect to the Dividend Period (or portion thereof) ending on the day preceding such respective Dividend Payment Date, in each case to holders of record on the 15th calendar day before such Dividend Payment Date or such other record date not more than 30 nor less than 10 days preceding such Dividend Payment Date fixed for that purpose by the Board of Directors (or a duly authorized committee of the Board of Directors) in advance of payment of each particular dividend.
(b) Business Day Convention. If any Dividend Payment Date is not a Business Day, then such date will nevertheless be a Dividend Payment Date, but dividends on the Series C Preferred Stock, when, as and if declared, will be paid on the next succeeding Business Day (without adjustment in the amount of the dividend per share of the Series C Preferred Stock).
(c) Dividend Computation. The amount of the dividend per share of the Series C Preferred Stock for each Dividend Period (or portion thereof) will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
The applicable dividend rate for each Dividend Period during a Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date for such Reset Period. On each Reset Dividend Determination Date, the Calculation Agent will notify the Corporation of the dividend rate for each Dividend Period during the applicable Reset Period. The Calculation Agent’s determination of any dividend rate and its calculation of the amount of dividends for any Dividend Period, and a record maintained by the Corporation of any Rate Substitution Event and any Adjustments, will be on file at the Corporation’s principal offices, will be made available to any holder of the Series C Preferred Stock upon request and will be final and binding in the absence of manifest error. For the avoidance of doubt, any determination by the Corporation or a Designee pursuant to the second paragraph of the definition of Five-year U.S. Treasury Rate (including, without limitation, with respect to any Rate Substitution Event or Adjustments) will not be subject to the vote or consent of the holders of the Series C Preferred Stock.
(d) Dividends Non-cumulative. Dividends on shares of the Series C Preferred Stock are not cumulative and are not mandatory. If the Board of Directors (or a duly authorized committee of the Board of Directors) does not declare a dividend on the Series C Preferred Stock in respect of a Dividend Period, then holders of the Series C Preferred Stock shall not be entitled to receive any dividends, and the Corporation will have no obligation to pay any dividend for that Dividend Period, whether or not dividends on the Series C Preferred Stock or any other series of the Corporation’s preferred stock or Common Stock are declared for any future dividend period. No interest or sum of money in lieu of interest or dividends will be payable in respect of any dividend not declared by the Board of Directors (or a duly authorized committee of the Board of Directors). Holders of the Series C Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series C Preferred Stock as specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(e) Priority ofDividends and Redemption and Repurchase of Junior Stock and Dividend Parity Stock. So long as any share of the Series C Preferred Stock remains outstanding, unless dividends on all outstanding shares of the Series C Preferred Stock for the most recently completed Dividend Period have been paid in full or declared and a sum sufficient for the payment thereof has been set aside for payment, (i) no dividend may be declared or paid or set aside for payment, and no distribution may be made, on any Junior Stock, (ii) no shares of Junior Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, and (iii) no shares of Dividend Parity Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than, in each case:
(i) repurchases, redemptions or other acquisitions of shares of Junior Stock as a result of (x) a reclassification of Junior Stock for or into other Junior Stock, (y) the exchange or conversion of one or more shares of Junior Stock for or into one or more shares of Junior Stock or (z) the purchase of fractional interests in shares of Junior Stock under the conversion or exchange provisions of Junior Stock or the security being converted or exchanged;
(ii) repurchases, redemptions or other acquisitions of shares of Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) repurchases, redemptions or other acquisitions of shares of Junior Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants or (y) a dividend reinvestment or stockholder stock purchase plan;
(iv) any declaration of a dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or other property under any stockholders’ rights plan, or the redemption or repurchase of rights pursuant to the plan;
(v) any dividend paid on Junior Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock;
(vi) any pro rata purchase or pro rata exchange of all or a pro rata portion of the Series C Preferred Stock and any Dividend Parity Stock pursuant to an offer made on the same terms to holders of all shares of the Series C Preferred Stock and to holders of all shares of any Dividend Parity Stock;
(vii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock as a result of (x) a reclassification of Dividend Parity Stock for or into other Dividend Parity Stock or Junior Stock, (y) the exchange or conversion of one or more shares of Dividend Parity Stock for or into one or more shares of other Dividend Parity Stock or Junior Stock or (z) the purchase of fractional interests in shares of Dividend Parity Stock under the conversion or exchange provisions of Dividend Parity Stock or the security being converted or exchanged;
(viii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Dividend Parity Stock or Junior Stock; or
(ix) purchases of shares of the Corporation’s Common Stock pursuant to a contractually binding stock repurchase plan existing prior to the preceding Dividend Period.
If the Board of Directors (or a duly authorized committee of the Board of Directors) elects to declare only partial instead of full dividends for a Dividend Payment Date and related Dividend Period on the shares of the Series C Preferred Stock or any Dividend Parity Stock, then, to the extent permitted by the terms of the Series C Preferred Stock and each outstanding series of Dividend Parity Stock, such partial dividends shall be declared on shares of the Series C Preferred Stock and Dividend Parity Stock, and dividends so declared shall be paid, as to any such dividend payment date and related dividend period, in amounts such that the ratio of the partial dividends declared and paid on each such series to full dividends on each such series is the same. As used in this paragraph, “fulldividends” means, as to any Dividend Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Dividend Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a dividend period with respect to the Series C Preferred Stock or any series of Dividend Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series as applicable (in either case, a “second series”), then, for purposes of this paragraph the Board of Directors (or a duly authorized committee of the Board of Directors) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Dividend Parity Stock and Dividend Period(s) with respect to the Series C Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Dividend Parity Stock and the Series C Preferred Stock.
Subject to the foregoing, dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors (or a duly authorized committee of the Board of Directors) may be declared and paid on any Common Stock or other Junior Stock from time to time out of any funds legally available therefor, and the shares of the Series C Preferred Stock shall not be entitled to participate in any such dividend.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Liquidation Preference Junior Stock, holders of the Series C Preferred Stock will be entitled to receive out of the assets of the Corporation legally available for distribution to its stockholders (i.e., after satisfaction of all of the Corporation’s liabilities to creditors, if any) an amount equal to the Stated Amount, plus any dividends that have been declared but not paid prior to the date of payment of distributions to stockholders, without regard to any undeclared dividends (the “Liquidation Preference”).
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay the Liquidation Preference in full to all holders of the Series C Preferred Stock and all holders of any Liquidation Preference Parity Stock, the amounts paid to the holders of the Series C Preferred Stock and to the holders of all Liquidation Preference Parity Stock shall be pro rata in accordance with the respective aggregate Liquidation Preferences of the Series C Preferred Stock and all such Liquidation Preference Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the Corporation other than the Series C Preferred Stock means the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends in the case of any holder or stock on which dividends accrue on a non-cumulative basis and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued, cumulative dividends, whether or not earned or declared, as applicable.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of the Series C Preferred Stock and all holders of any Liquidation Preference Parity Stock, the holders of Liquidation Preference Junior Stock will be entitled to receive all remaining assets of the Corporation according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the merger, consolidation or other business combination of the Corporation with or into any other entity, including a transaction in which the holders of the Series C Preferred Stock receive cash or property for their shares, or the sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series C Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of the Series C Preferred Stock (i) in whole or in part, from time to time, on any Dividend Payment Date on or after the First Reset Date for cash at a redemption price of the Stated Amount per share or (ii) in whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by us following the occurrence of a Rating Agency Event, or, if no review or appeal process is available or sought with respect to such Rating Agency Event, at any time within 120 days after the occurrence of such Rating Agency Event, at a redemption price in cash equal to $1,020.00 per share, in each of cases (i) and (ii), plus any declared and unpaid dividends to, but excluding, the date fixed for redemption (the “redemption date”), without accumulation of any undeclared dividends. The redemption price for any shares of the Series C Preferred Stock shall be payable on the redemption date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent, if the shares of the Series C Preferred Stock are issued in certificated form. Any declared but unpaid dividends payable on a redemption date that occurs subsequent to the applicable record date for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on the redemption date, but rather shall be paid to the holder of record of the redeemed shares on such record date relating to the applicable Dividend Payment Date as provided in Section 4 above. On and after the redemption date, dividends will cease to accrue on shares of the Series C Preferred Stock, and such shares of the Series C Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price plus any declared and unpaid dividends, without regard to any undeclared dividends, on such shares to, but excluding, the redemption date.
(b) No Sinking Fund. The Series C Preferred Stock is not subject to any mandatory redemption, sinking fund or other similar provisions. Holders of the Series C Preferred Stock have no right to require redemption of any shares of the Series C Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of the Series C Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be at least 10 days and not more than 60 days before the date fixed for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure to duly give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of the Series C Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of the Series C Preferred Stock. Notwithstanding the foregoing, if the shares of the Series C Preferred Stock are issued in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of the Series C Preferred Stock at such time and in any manner permitted by such facility. Each such notice given to a holder shall state: (1) the redemption date; (2) the number of shares of the Series C Preferred Stock to be redeemed and, if less than all shares of the Series C Preferred Stock held by the holder are to be redeemed, the number of shares of the Series C Preferred Stock to be redeemed from such holder or the method for determining such number; (3) the redemption price; (4) if the Series C Preferred Stock is evidenced by definitive certificates, the place or places where certificates for such shares of the Series C Preferred Stock are to be surrendered for payment of the redemption price; and (5) that dividends on such shares will cease to accrue on and after the redemption date.
(d) Partial Redemption. In case of any redemption of only part of the shares of the Series C Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either on a pro rata basis (as nearly as practicable without creating fractional shares) or by lot or in such other manner as the Board of Directors (or a duly authorized committee of the Board of Directors) may determine to be fair and equitable. Subject to the provisions hereof, the Board of Directors (or a duly authorized committee of the Board of Directors) shall have full power and authority to prescribe the terms and conditions on which shares of the Series C Preferred Stock shall be redeemed from time to time. If the Corporation shall have issued certificates for the Series C Preferred Stock and fewer than all shares represented by any certificates are redeemed, new certificates shall be issued representing the unredeemed shares without charge to the holders thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given, and if on or before the redemption date specified in the notice, all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available for that purpose, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation in the case that the shares of the Series C Preferred Stock are issued in certificated form, dividends shall cease to accrue on and after the redemption date for all shares so called for redemption, all shares so called for redemption shall no longer be deemed outstanding and all rights of the holders with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption date, without interest. Any funds unclaimed at the end of two years from the redemption date, to the extent permitted by law, shall be released from the trust so established and may be commingled with the Corporation’s other funds, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
Section 7. Voting Rights.
(a) General. The holders of the Series C Preferred Stock have no voting rights as holders of the Series C Preferred Stock except as set forth below or as otherwise required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of the Series C Preferred Stock, or any other Voting Preferred Stock, shall have not been declared and paid for six full quarterly Dividend Payments, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares, voting together as a class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board of Directors (the “Preferred StockDirectors”), provided that the election of any such directors shall not cause the Corporation to violate the then-applicable corporate governance requirements of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors and provided further that the Board of Directors shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board of Directors shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series C Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), and at each subsequent annual meeting. Such request to call a special meeting for the initial election of the Preferred Stock Directors after a Nonpayment shall be made by written notice, signed by the requisite holders of the Series C Preferred Stock or other Voting Preferred Stock, and delivered to the Secretary of the Corporation in such manner as provided for in Section 9 below, or as may otherwise be required by law.
If and when dividends for at least four consecutive quarterly Dividend Periods following a Nonpayment have been paid in full on the Series C Preferred Stock and any other class or series of Voting Preferred Stock, the holders of the Series C Preferred Stock and all other holders of Voting Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment), the term of office of each Preferred Stock Director so elected shall automatically terminate and the number of directors on the Board of Directors shall automatically decrease by two. In determining whether dividends have been paid for the equivalent of at least four consecutive quarterly Dividend Periods following a Nonpayment, the Corporation may take account of any dividend it elects to pay for any Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Series C Preferred Stock together with all series of Voting Preferred Stock then outstanding (voting together as a single class) to the extent such holders have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding shares of the Series C Preferred Stock and all Voting Preferred Stock when they have the voting rights described above (voting together as a single class); provided that the filling of any such vacancy shall not cause the Corporation to violate the then-applicable corporate governance requirement of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series C Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of the Series C Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Certificate of Incorporation, the vote or consent of the holders of at least two-thirds of the shares of the Series C Preferred Stock at the time outstanding, voting together as a single class with any other series of preferred stock entitled to vote thereon, to the exclusion of all other series of preferred stock, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating:
(i) Amendment of Certificate of Incorporation or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Certificate of Incorporation or this Certificate of Designations that would materially and adversely alter or change the voting powers, preferences or special rights of the Series C Preferred Stock, taken as a whole; provided, however, that the amendment of the Certificate of Incorporation so as to authorize or create, or to increase the authorized amount of, any class or series of capital stock that does not rank senior to the Series C Preferred Stock in either the payment of dividends (whether such dividends are cumulative or non-cumulative) or in the distribution of assets on liquidation, dissolution or winding up of the Corporation shall not be deemed to materially or adversely affect the voting powers, preferences or special rights of the Series C Preferred Stock;
(ii) Authorization of SeniorStock. Any amendment or alteration of the Certificate of Incorporation to authorize or create, or increase the authorized amount of, any shares of any class or series or any securities convertible into shares of any class or series of capital stock of the Corporation ranking senior to the Series C Preferred Stock in the payment of dividends or in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (x) a binding share exchange or reclassification involving the Series C Preferred Stock or (y) a merger or consolidation of the Corporation with another entity (whether or not a corporation), unless in each case (A) the shares of the Series C Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, the shares of the Series C Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (B) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series C Preferred Stock, taken as a whole, immediately prior to such consummation.
“capital stock” does not include convertible or exchangeable debt securities, which, prior to conversion or exchange, rank senior in right of payment to the Series C Preferred Stock.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above would materially and adversely affect the rights, preferences, privileges and voting powers, and restrictions and limitations, taken as a whole, of one or more but not all series of Voting Preferred Stock (including the Series C Preferred Stock for this purpose), then only the series so affected and entitled to vote shall vote, together as a class, to the exclusion of all other series of preferred stock. If all series of preferred stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above, then only a two-thirds approval of each such series that is materially and adversely affected shall be required.
(d) Changes Permitted without Consent. Without the consent of the holders of the Series C Preferred Stock, the Corporation may amend, alter, supplement or repeal any terms of the Series C Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations for the Series C Preferred Stock that may be defective or inconsistent, so long as such action does not materially and adversely affect the rights, preferences, privileges and voting powers of the Series C Preferred Stock, taken as a whole;
(ii) to conform this Certificate of Designations to the description of the Series C Preferred Stock set forth in the Corporation’s final prospectus supplement related to the Series C Preferred Stock, dated October 5, 2021; or
(iii) to make any provision with respect to matters or questions arising with respect to the Series C Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision for Redemption. No vote or consent of the holders of the Series C Preferred Stock will be required pursuant to Section 7(b) or (c) above if, at or prior to the time when the act with respect to which any such vote or consent would otherwise be required pursuant to such Sections, all outstanding shares of the Series C Preferred Stock shall have been redeemed, or shall have been called for redemption on proper notice and sufficient funds shall have been set aside by or on behalf of the Corporation for the benefit of the holders of the Series C Preferred Stock to effect such redemption, in each case pursuant to Section 6 above, unless in the case of a vote or consent required pursuant to clause (ii) of Section 7(c) above if all outstanding shares of the Series C Preferred Stock are being redeemed with the proceeds from the sale of the stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of the Series C Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Directors (or a duly authorized committee of the Board of Directors), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Certificate of Incorporation, the Amended and Restated Bylaws, applicable law and any national securities exchange or other trading facility on which the Series C Preferred Stock may be listed or traded at the time.
In any matter in which the Series C Preferred Stock may vote (as expressly provided in this Certificate of Designations), each share of the Series C Preferred Stock shall be entitled to one vote per $1,000.00 of Liquidation Preference. If the Series C Preferred Stock and any other Liquidation Preference Parity Stock is entitled to vote together as a single class on any matter, the holders of each will vote in proportion to their respective Liquidation Preferences.
Section 8. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent may deem and treat the record holder of any share of the Series C Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
Section 9. Notices. All notices or communications in respect of the Series C Preferred Stock will be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Certificate of Incorporation or Amended and Restated Bylaws or by applicable law.
Section 10. Other Rights. The shares of the Series C Preferred Stock do not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation of the Corporation. The holders of the Series C Preferred Stock shall not have any preemptive rights or conversion rights.
Section 11. Certificates. The Corporation may at its option issue shares of the Series C Preferred Stock without certificates. If DTC or its nominee is the registered owner of the Series C Preferred Stock, the following provisions of this Section 11 shall apply. If and as long as DTC or its nominee is the registered owner of the Series C Preferred Stock, DTC or its nominee, as the case may be, shall be considered the sole owner and holder of all such shares of the Series C Preferred Stock of which DTC or its nominee is the registered owner for all purposes under the instruments governing the rights and obligations of holders of shares of the Series C Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of the Series C Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation shall either print and deliver certificates for the shares of the Series C Preferred Stock or provide for the direct registration of the Series C Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry-only transfers through DTC (or a successor securities depositary), the Corporation shall print certificates for the shares of the Series C Preferred Stock and deliver such certificates to DTC or shall provide for the direct registration of the Series C Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series C Preferred Stock of which DTC or its nominee is the registered owner:
| a) | shall not be entitled to have such Series C Preferred Stock registered in their names; |
|---|---|
| b) | shall not receive or be entitled to receive physical delivery of securities certificates in exchange for<br>beneficial interests in the Series C Preferred Stock; and |
| --- | --- |
| c) | shall not be considered to be owners or holders of the shares of the Series C Preferred Stock for any purpose<br>under the instruments governing the rights and obligations of holders of shares of the Series C Preferred Stock. |
| --- | --- |
Section 12.Restatement of Certificate. On any restatement of the Certificate of Incorporation of the Corporation, Section 1 through Section 11 of this Certificate of Designations shall be included in the Certificate of Incorporation under the heading “4.125% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series C” and this Section 12 may be omitted. If the Board of Directors so determines, the numbering of Section 1 through Section 11 may be changed for convenience of reference or for any other proper purpose.”
***
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS
OF
6.000% FIXED-RATERESET NON-CUMULATIVE PERPETUAL
PREFERRED STOCK, SERIES D
OF
SUMISHO AIR LEASECORPORATION
Section 1. Designation. The distinctive serial designation of such series is “6.000% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series D” (“Series D Preferred Stock”). Each share of the Series D Preferred Stock shall be identical in all respects to every other share of the Series D Preferred Stock, except that shares of the Series D Preferred Stock issued after September 24, 2024 (the “Original Issue Date”) shall accrue dividends from the later of the Original Issue Date and the Dividend Payment Date (as defined herein), if any, immediately prior to the original issue date of such additional shares.
Section 2. Number of AuthorizedShares. The number of authorized shares of the Series D Preferred Stock shall initially be 300,000; provided, however, that any additional shares of the Series D Preferred Stock shall be deemed to form a single series with the Series D Preferred Stock issued pursuant to this Certificate of Designations; provided further, that any additional shares of the Series D Preferred Stock will be issued with a separate CUSIP number unless they are fungible for U.S. federal income tax purposes with the 300,000 shares of the Series D Preferred Stock that were initially offered and issued by the Corporation. The number of authorized shares of the Series D Preferred Stock may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of the Series D Preferred Stock then outstanding) by resolution of the Board of Directors of Sumisho Air Lease Corporation (formerly Air Lease Corporation), a Delaware corporation (the “Corporation” and such board, the “Board of Directors”) (or a duly authorized committee of the Board of Directors), without the vote or consent of the holders of the Series D Preferred Stock. Shares of the Series D Preferred Stock that are redeemed, repurchased or otherwise acquired by the Corporation shall be cancelled and shall revert to authorized but unissued shares of preferred stock undesignated as to series. The Corporation shall have the authority to issue fractional shares of the Series D Preferred Stock.
Section 3. Definitions. As used herein with respect to the Series D Preferred Stock:
(a) “accrual” (or similar terms) used with respect to a dividend or Dividend Period refers only to the determination of the amount of such dividend and does not imply that any right to a dividend in any Dividend Period that arises prior to the date on which such dividend is declared.
(b) “Adjustments” has the meaning set forth in the definition of “Five-year U.S. Treasury Rate.”
(c) “Amended andRestated Bylaws” means the fifth amended and restated bylaws of the Corporation, as may be amended from time to time.
(d) “Board ofDirectors” has the meaning set forth in Section 2.
(e) “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by law or regulation to close in The City of New York.
(f) “Calculation Agent” means, at any time, the Corporation, an entity affiliated with the Corporation, or the person or entity appointed by the Corporation pursuant to a calculation agent agreement between the Corporation and a calculation agent and serving as such agent with respect to the Series D Preferred Stock at such time (including any successor to such person or entity). Deutsche Bank Trust Company Americas will be the calculation agent for the Series D Preferred Stock as of the Original Issue Date.
(g) “Capital Stock” means all capital stock of the Corporation authorized to be issued from time to time under the Certificate of Incorporation, but does not include convertible or exchangeable debt securities, which, prior to conversion or exchange, rank senior in right of payment to the Series D Preferred Stock.
(h) “Certificate of Designations” means this Certificate of Designations relating to the Series D Preferred Stock, as it may be amended or supplemented from time to time.
(i) “Certificate of Incorporation” means the certificate of incorporation of the Corporation, as amended and restated on the date hereof and as it may be further amended from time to time and shall include this Certificate of Designations.
(j) “Common Stock” means the Class C common stock, par value $0.01 per share, of the Corporation.
(k) “Corporation” has the meaning set forth in the Preamble.
(l) “Current Methodology” has the meaning set forth in the definition of “Rating Agency Event.”
(m) “Dividend Parity Stock” means any class or series of Capital Stock of the Corporation that ranks on a parity with the Series D Preferred Stock as to the payment of dividends (whether such dividends are cumulative or non-cumulative). As of the date of this Certificate of Designations, Dividend Parity Stock includes the Series B Preferred Stock and the Series C Preferred Stock.
(n) “Dividend Payment Date” has the meaning set forth in Section 4(a).
(o) “Dividend Period” means each period from and including a Dividend Payment Date (except that the initial Dividend Period shall commence on and include the Original Issue Date of the Series D Preferred Stock) and continuing to, but excluding, the next succeeding Dividend Payment Date.
(p) “DTC” means The Depository Trust Company.
(q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(r) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable: (i) the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, for the five Business Days immediately preceding such Reset Dividend Determination Date (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the most recently published H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination; or (ii) if there are no such published yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, then the rate will be determined by interpolation between the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity for two series of actively traded U.S. treasury securities, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date and (B) the other maturing as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case for the five Business Days appearing (or, if fewer than five Business Days appear, such number of Business Days appearing) under the caption “Treasury Constant Maturities” in the H.15 Daily Update as of 5:00 p.m. (Eastern Time) as of any date of determination.
If the Corporation, in its sole discretion, determines that the Five-year U.S. Treasury Rate cannot be determined in the manner applicable for such rate (which, as of the Original Issue Date, is pursuant to the methods described in clauses (i) or (ii) above) (a “Rate Substitution Event”), the Corporation may, in its sole discretion, designate an unaffiliated agent or advisor, which may include an unaffiliated underwriter for the offering of the Series D Preferred Stock or any affiliate of any such underwriter (the “Designee”), to determine whether there is an industry-accepted successor rate to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate). If the Designee determines that there is such an industry-accepted successor rate, then the “Five-year U.S. Treasury Rate” shall be such successor rate and, in that case, the Designee may adjust the spread and may determine and adjust the business day convention, the definition of Business Day and the Reset Dividend Determination Date to be used and any other relevant methodology for determining or otherwise calculating such successor rate, including any adjustment factor needed to make such successor rate comparable to the then-applicable base rate (which, as of the Original Issue Date, is the initial base rate) in each case, in a manner that is consistent with industry-accepted practices for the use of such successor rate (the “Adjustments”). If the Corporation, in its sole discretion, does not designate a Designee or if the Designee determines that there is no industry-accepted successor rate to then-applicable base rate, then the “Five-year U.S. Treasury Rate” will be the same interest rate (i.e., the same Five-year U.S. Treasury Rate) determined for the prior Reset Dividend Determination Date or, if this sentence is applicable with respect to the first Reset Dividend Determination Date, 3.440%.
(s) “First Reset Date” means December 15, 2029.
(t) “H.15 Daily Update” means the daily statistical release designated as such, or any successor publication, published by the Federal Reserve Bank of New York.
(u) “Junior Stock” means the Common Stock and any other class or series of Capital Stock of the Corporation that ranks junior to the Series D Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(v) “Liquidation Preference” has the meaning set forth in Section 5.
(w) “Liquidation Preference Junior Stock” means any class or series of stock of the Corporation that ranks junior to the Series D Preferred Stock in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation.
(x) “LiquidationPreference Parity Stock” means any class or series of Capital Stock of the Corporation that ranks on a parity with the Series D Preferred Stock in the distribution of assets on the liquidation, dissolution or winding up of the Corporation. As of the date of this Certificate of Designations, Liquidation Preference Parity Stock includes the Series B Preferred Stock and the Series C Preferred Stock.
(y) “Nonpayment” has the meaning set forth in Section 7(b).
(z) “Original Issue Date” has the meaning set forth in Section 1.
(aa) “Preferred Stock Directors” has the meaning set forth in Section 7(b).
(bb) “Rate Substitution Event” has the meaning set forth in the definition of “Five-year U.S. Treasury Rate.”
(cc) “Rating Agency Event” means that any “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act that then publishes a rating for the Corporation amends, clarifies or changes the methodology or criteria that it employed for purposes of assigning equity credit to securities such as the Series D Preferred Stock on the Original Issue Date of the Series D Preferred Stock (the “Current Methodology”), which amendment, clarification or change either (i) shortens the period of time during which equity credit pertaining to the Series D Preferred Stock would have been in effect had the Current Methodology not been changed or (ii) reduces the amount of equity credit assigned to the Series D Preferred Stock as compared with the amount of equity credit that such rating agency had assigned to the Series D Preferred Stock as of the Original Issue Date.
(dd) “Reset Date” means the First Reset Date and each date falling on the fifth anniversary of the preceding Reset Date, including the First Reset Date, which will not be adjusted for Business Days.
(ee) “Reset DividendDetermination Date” means, in respect of any Reset Period, the day falling three Business Days prior to the beginning of such Reset Period.
(ff) “Reset Period” means the period from and including the First Reset Date to, but excluding, the next following Reset Date and thereafter each period from and including each Reset Date to, but excluding, the next following Reset Date.
(gg) “Senior Stock” means any other class or series of the Corporation’s Capital Stock ranking senior to the Series D Preferred Stock either as to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or as to the distribution of assets upon the liquidation, dissolution or winding up of the Corporation.
(hh) “Series B Preferred Stock” means the Corporation’s 4.650% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series B.
(ii) “Series C Preferred Stock” means the Corporation’s 4.125% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series C.
(jj) “Series D Preferred Stock” has the meaning set forth in Section 1.
(kk) “Stated Amount” means, in respect of the Series D Preferred Stock, $1,000.00 per share, and, in respect of any other series of Capital Stock, the stated amount per share specified in the Certificate of Incorporation or applicable certificate of designations (including, in the case of any series that does not use the words “stated amount,” the specified amount of any preference upon the voluntary or involuntary liquidation, dissolution or winding up, without regard to any unpaid dividends that may also be included in the liquidation preference with respect to such shares).
(ll) “Transfer Agent” means the transfer agent with respect to the Series D Preferred Stock, which shall be Equiniti Trust Company, LLC as of the Original Issue Date, and its successor, including any successor transfer agent appointed by the Corporation.
(mm) “Voting Preferred Stock” means any other class or series of preferred stock of the Corporation ranking equally with the Series D Preferred Stock as to dividends (whether cumulative or non-cumulative) and the distribution of assets upon the liquidation, dissolution or winding up of the Corporation and upon which like voting rights to the Series D Preferred Stock have been conferred and are exercisable. As of the date of this Certificate of Designations, Voting Preferred Stock includes the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock. Whether a plurality, majority or other portion of the shares of the Voting Preferred Stock have been voted in favor of any matter shall be determined by reference to the Liquidation Preference of the shares voted.
Section 4. Dividends.
(a) Rate. Holders of the Series D Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors (or a duly authorized committee of the Board of Directors), only out of funds legally available therefor, non-cumulative cash dividends for each Dividend Period payable on the Stated Amount per share of the Series D Preferred Stock at a rate per annum equal to (i) 6.000% from the Original Issue Date to, but excluding, the First Reset Date and (ii) the Five-year U.S. Treasury Rate as of the most recent Reset Dividend Determination Date applicable to each Reset Period plus 2.560%, from and including the First Reset Date; provided, that the dividend rate per annum during any Reset Period will not reset below 6.000% (which equals the initial dividend rate per annum on the Series D Preferred Stock), in each of cases (i) and (ii), payable quarterly, in arrears, on March 15, June 15, September 15 and December 15 of each year, beginning on December 15, 2024.
Each date on which dividends are payable pursuant to this Section 4, subject to adjustment as provided below, is a “Dividend Payment Date,” and dividends for each Dividend Payment Date are payable with respect to the Dividend Period (or portion thereof) ending on the day preceding such respective Dividend Payment Date, in each case to holders of record on the 15th calendar day before such Dividend Payment Date or such other record date not more than 30 nor less than 10 days preceding such Dividend Payment Date fixed for that purpose by the Board of Directors (or a duly authorized committee of the Board of Directors) in advance of payment of each particular dividend.
(b) Business Day Convention. If any Dividend Payment Date is not a Business Day, then such date will nevertheless be a Dividend Payment Date, but dividends on the Series D Preferred Stock, when, as and if declared, will be paid on the next succeeding Business Day (without adjustment in the amount of the dividend per share of the Series D Preferred Stock).
(c) Dividend Computation. The amount of the dividend per share of the Series D Preferred Stock for each Dividend Period (or portion thereof) will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
The applicable dividend rate for each Dividend Period during a Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date for such Reset Period. On each Reset Dividend Determination Date, the Calculation Agent will notify the Corporation of the dividend rate for each Dividend Period during the applicable Reset Period. The Calculation Agent’s determination of any dividend rate and its calculation of the amount of dividends for any Dividend Period, and a record maintained by the Corporation of any Rate Substitution Event and any Adjustments, will be on file at the Corporation’s principal offices, will be made available to any holder of the Series D Preferred Stock upon request and will be final and binding in the absence of manifest error. For the avoidance of doubt, any determination by the Corporation or a Designee pursuant to the second paragraph of the definition of Five-year U.S. Treasury Rate (including, without limitation, with respect to any Rate Substitution Event or Adjustments) will not be subject to the vote or consent of the holders of the Series D Preferred Stock.
(d) Dividends Non-Cumulative. Dividends on shares of the Series D Preferred Stock are not cumulative and are not mandatory. If the Board of Directors (or a duly authorized committee of the Board of Directors) does not declare a dividend on the Series D Preferred Stock in respect of a Dividend Period, then holders of the Series D Preferred Stock shall not be entitled to receive any dividends, and the Corporation will have no obligation to pay any dividend for that Dividend Period, whether or not dividends on the Series D Preferred Stock or any other series of the Corporation’s preferred stock or Common Stock are declared for any future dividend period. No interest or sum of money in lieu of interest or dividends will be payable in respect of any dividend not declared by the Board of Directors (or a duly authorized committee of the Board of Directors). Holders of the Series D Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series D Preferred Stock as specified in this Section 4 (subject to the other provisions of this Certificate of Designations).
(e) Priority ofDividends and Redemption and Repurchase of Junior Stock and Dividend Parity Stock. So long as any share of the Series D Preferred Stock remains outstanding, unless dividends on all outstanding shares of the Series D Preferred Stock for the most recently completed Dividend Period have been paid in full or declared and a sum sufficient for the payment thereof has been set aside for payment, (i) no dividend may be declared or paid or set aside for payment, and no distribution may be made, on any Junior Stock, (ii) no shares of Junior Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, and (iii) no shares of Dividend Parity Stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than, in each case:
(i) repurchases, redemptions or other acquisitions of shares of Junior Stock as a result of (x) a reclassification of Junior Stock for or into other Junior Stock, (y) the exchange or conversion of one or more shares of Junior Stock for or into one or more shares of Junior Stock or (z) the purchase of fractional interests in shares of Junior Stock under the conversion or exchange provisions of Junior Stock or the security being converted or exchanged;
(ii) repurchases, redemptions or other acquisitions of shares of Junior Stock, through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock;
(iii) repurchases, redemptions or other acquisitions of shares of Junior Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors or consultants or (y) a dividend reinvestment or stockholder stock purchase plan;
(iv) any declaration of a dividend in connection with any stockholders’ rights plan, or the issuance of rights, stock or other property under any stockholders’ rights plan, or the redemption or repurchase of rights pursuant to the plan;
(v) any dividend paid on Junior Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock;
(vi) any pro rata purchase or pro rata exchange of all or a pro rata portion of the Series D Preferred Stock and any Dividend Parity Stock pursuant to an offer made on the same terms to holders of all shares of the Series D Preferred Stock and to holders of all shares of any Dividend Parity Stock;
(vii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock as a result of (x) a reclassification of Dividend Parity Stock for or into other Dividend Parity Stock or Junior Stock, (y) the exchange or conversion of one or more shares of Dividend Parity Stock for or into one or more shares of other Dividend Parity Stock or Junior Stock or (z) the purchase of fractional interests in shares of Dividend Parity Stock under the conversion or exchange provisions of Dividend Parity Stock or the security being converted or exchanged;
(viii) repurchases, redemptions or other acquisitions of shares of Dividend Parity Stock through the use of the proceeds of a substantially contemporaneous sale of other shares of Dividend Parity Stock or Junior Stock; or
(ix) purchases of shares of the Corporation’s Common Stock pursuant to a contractually binding stock repurchase plan existing prior to the preceding Dividend Period.
If the Board of Directors (or a duly authorized committee of the Board of Directors) elects to declare only partial instead of full dividends for a Dividend Payment Date and related Dividend Period on the shares of the Series D Preferred Stock or any Dividend Parity Stock, then, to the extent permitted by the terms of the Series D Preferred Stock and each outstanding series of Dividend Parity Stock, such partial dividends shall be declared on shares of the Series D Preferred Stock and Dividend Parity Stock, and dividends so declared shall be paid, as to any such dividend payment date and related dividend period, in amounts such that the ratio of the partial dividends declared and paid on each such series to full dividends on each such series is the same. As used in this paragraph, “full dividends” means, as to any Dividend Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Dividend Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a dividend period with respect to the Series D Preferred Stock or any series of Dividend Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series as applicable (in either case, a “second series”), then, for purposes of this paragraph the Board of Directors (or a duly authorized committee of the Board of Directors) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Dividend Parity Stock and Dividend Period(s) with respect to the Series D Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Dividend Parity Stock and the Series D Preferred Stock.
Subject to the foregoing, dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors (or a duly authorized committee of the Board of Directors) may be declared and paid on any Common Stock or other Junior Stock from time to time out of any funds legally available therefor, and the shares of the Series D Preferred Stock shall not be entitled to participate in any such dividend.
Section 5. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Liquidation Preference Junior Stock, holders of the Series D Preferred Stock will be entitled to receive out of the assets of the Corporation legally available for distribution to its stockholders (i.e., after satisfaction of all of the Corporation’s liabilities to creditors, if any) an amount equal to the Stated Amount, plus any dividends that have been declared but not paid prior to the date of payment of distributions to stockholders, without regard to any undeclared dividends (the “Liquidation Preference”).
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay the Liquidation Preference in full to all holders of the Series D Preferred Stock and all holders of any Liquidation Preference Parity Stock, the amounts paid to the holders of the Series D Preferred Stock and to the holders of all Liquidation Preference Parity Stock shall be pro rata in accordance with the respective aggregate Liquidation Preferences of the Series D Preferred Stock and all such Liquidation Preference Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of stock of the Corporation other than the Series D Preferred Stock means the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends in the case of any holder or stock on which dividends accrue on a non-cumulative basis and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued, cumulative dividends, whether or not earned or declared, as applicable.
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of the Series D Preferred Stock and all holders of any Liquidation Preference Parity Stock, the holders of Liquidation Preference Junior Stock will be entitled to receive all remaining assets of the Corporation according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the merger, consolidation or other business combination of the Corporation with or into any other entity, including a transaction in which the holders of the Series D Preferred Stock receive cash or property for their shares, or the sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
(a) Optional Redemption. The Series D Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of the Series D Preferred Stock (i) in whole or in part, from time to time, beginning September 24, 2029 and on any day thereafter until (and including) the First Reset Date, and on any Dividend Payment Date thereafter, in each case for cash at a redemption price of the Stated Amount per share and (ii) in whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by us following the occurrence of a Rating Agency Event, or, if no review or appeal process is available or sought with respect to such Rating Agency Event, at any time within 120 days after the occurrence of such Rating Agency Event, at a redemption price in cash equal to $1,020.00 per share, in each of cases (i) and (ii), plus any declared and unpaid dividends to, but excluding, the date fixed for redemption (the “redemption date”), without accumulation of any undeclared dividends. The redemption price for any shares of the Series D Preferred Stock shall be payable on the redemption date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent, if the shares of the Series D Preferred Stock are issued in certificated form. Any declared but unpaid dividends payable on a redemption date that occurs subsequent to the applicable record date for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on the redemption date, but rather shall be paid to the holder of record of the redeemed shares on such record date relating to the applicable Dividend Payment Date as provided in Section 4 above. On and after the redemption date, dividends will cease to accrue on shares of the Series D Preferred Stock, and such shares of the Series D Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price plus any declared and unpaid dividends, without regard to any undeclared dividends, on such shares to, but excluding, the redemption date.
(b) No SinkingFund. The Series D Preferred Stock is not subject to any mandatory redemption, sinking fund or other similar provisions. Holders of the Series D Preferred Stock have no right to require redemption of any shares of the Series D Preferred Stock.
(c) Notice of Redemption. Notice of every redemption of shares of the Series D Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be at least 10 days and not more than 60 days before the date fixed for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure to duly give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of the Series D Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of the Series D Preferred Stock. Notwithstanding the foregoing, if the shares of the Series D Preferred Stock are issued in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of the Series D Preferred Stock at such time and in any manner permitted by such facility. Each such notice given to a holder shall state: (1) the redemption date; (2) the number of shares of the Series D Preferred Stock to be redeemed and, if less than all shares of the Series D Preferred Stock held by the holder are to be redeemed, the number of shares of the Series D Preferred Stock to be redeemed from such holder or the method for determining such number; (3) the redemption price; (4) if the Series D Preferred Stock is evidenced by definitive certificates, the place or places where certificates for such shares of the Series D Preferred Stock are to be surrendered for payment of the redemption price; and (5) that dividends on such shares will cease to accrue on and after the redemption date.
(d) Partial Redemption. In case of any redemption of only part of the shares of the Series D Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either on a pro rata basis (as nearly as practicable without creating fractional shares), by lot or in such other manner as the Board of Directors (or a duly authorized committee of the Board of Directors) may determine to be fair and equitable. Subject to the provisions hereof, the Board of Directors (or a duly authorized committee of the Board of Directors) shall have full power and authority to prescribe the terms and conditions on which shares of the Series D Preferred Stock shall be redeemed from time to time. If the Corporation shall have issued certificates for the Series D Preferred Stock and fewer than all shares represented by any certificates are redeemed, new certificates shall be issued representing the unredeemed shares without charge to the holders thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given, and if on or before the redemption date specified in the notice, all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available for that purpose, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation in the case that the shares of the Series D Preferred Stock are issued in certificated form, dividends shall cease to accrue on and after the redemption date for all shares so called for redemption, all shares so called for redemption shall no longer be deemed outstanding and all rights of the holders with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption date, without interest. Any funds unclaimed at the end of two years from the redemption date, to the extent permitted by law, shall be released from the trust so established and may be commingled with the Corporation’s other funds, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
Section 7. Voting Rights.
(a) General. The holders of the Series D Preferred Stock have no voting rights as holders of the Series D Preferred Stock except as set forth below or as otherwise required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of the Series D Preferred Stock, or any other Voting Preferred Stock, shall have not been declared and paid for the equivalent of six full quarterly dividend payments, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares, voting together as a class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board of Directors (the “Preferred Stock Directors”), provided, that the election of any such directors shall not cause the Corporation to violate the then-applicable corporate governance requirements of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors and provided further that the Board of Directors shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board of Directors shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series D Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), and at each subsequent annual meeting. Such request to call a special meeting for the initial election of the Preferred Stock Directors after a Nonpayment shall be made by written notice, signed by the requisite holders of the Series D Preferred Stock or other Voting Preferred Stock, and delivered to the Secretary of the Corporation in such manner as provided for in Section 9 below, or as may otherwise be required by law.
If and when dividends for at least four consecutive quarterly Dividend Periods following a Nonpayment have been paid in full on the Series D Preferred Stock and any other class or series of Voting Preferred Stock, the holders of the Series D Preferred Stock and all other holders of Voting Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment), the term of office of each Preferred Stock Director so elected shall automatically terminate and the number of directors on the Board of Directors shall automatically decrease by two. In determining whether dividends have been paid for the equivalent of at least four consecutive quarterly Dividend Periods following a Nonpayment, the Corporation may take account of any dividend it elects to pay for any Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Series D Preferred Stock together with all series of Voting Preferred Stock then outstanding (voting together as a single class) to the extent such holders have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding shares of the Series D Preferred Stock and all Voting Preferred Stock when they have the voting rights described above (voting together as a single class); provided that the filling of any such vacancy shall not cause the Corporation to violate the then-applicable corporate governance requirement of the New York Stock Exchange (or any other exchange on which the Corporation’s securities may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series D Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of the Series D Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Certificate of Incorporation, the vote or consent of the holders of at least two-thirds of the shares of the Series D Preferred Stock at the time outstanding, voting together as a single class with any other series of preferred stock entitled to vote thereon, to the exclusion of all other series of preferred stock, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting or validating:
(i) Amendment of Certificate of Incorporationor Certificate of Designations. Any amendment, alteration or repeal of any provision of the Certificate of Incorporation or this Certificate of Designations that would materially and adversely alter or change the voting powers, preferences or special rights of the Series D Preferred Stock, taken as a whole; provided, however, that the amendment of the Certificate of Incorporation so as to authorize or create, or to increase the authorized amount of, any class or series of Capital Stock that does not rank senior to the Series D Preferred Stock in either the payment of dividends (whether such dividends are cumulative or non-cumulative) or in the distribution of assets on liquidation, dissolution or winding up of the Corporation shall not be deemed to materially or adversely affect the voting powers, preferences or special rights of the Series D Preferred Stock;
(ii) Authorization of Senior Stock. Any amendment or alteration of the Certificate of Incorporation to authorize or create, or increase the authorized amount of, any shares of any class or series or any securities convertible into shares of any class or series of Capital Stock of the Corporation ranking senior to the Series D Preferred Stock in the payment of dividends or in the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; or
(iii) Share Exchanges, Reclassifications, Mergersand Consolidations and Other Transactions. Any consummation of (x) a binding share exchange or reclassification involving the Series D Preferred Stock or (y) a merger or consolidation of the Corporation with another entity (whether or not a corporation), unless in each case (A) the shares of the Series D Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, the shares of the Series D Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (B) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series D Preferred Stock, taken as a whole, immediately prior to such consummation.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above would materially and adversely affect the rights, preferences, privileges and voting powers, and restrictions and limitations, taken as a whole, of one or more but not all series of Voting Preferred Stock (including the Series D Preferred Stock for this purpose), then only the series so affected and entitled to vote shall vote, together as a class, to the exclusion of all other series of preferred stock. If all series of preferred stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation described above, then only a two-thirds approval of each such series that is materially and adversely affected shall be required.
(d) Changes Permitted without Consent. Without the consent of the holders of the Series D Preferred Stock, the Corporation may amend, alter, supplement or repeal any terms of the Series D Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations for the Series D Preferred Stock that may be defective or inconsistent, so long as such action does not materially and adversely affect the rights, preferences, privileges and voting powers of the Series D Preferred Stock, taken as a whole;
(ii) to conform this Certificate of Designations to the description of the Series D Preferred Stock set forth in the Corporation’s final prospectus supplement related to the Series D Preferred Stock; or
(iii) to make any provision with respect to matters or questions arising with respect to the Series D Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes after Provision forRedemption. No vote or consent of the holders of the Series D Preferred Stock will be required pursuant to Section 7(b) or (c) above if, at or prior to the time when the act with respect to which any such vote or consent would otherwise be required pursuant to such Sections, all outstanding shares of the Series D Preferred Stock shall have been redeemed, or shall have been called for redemption on proper notice and sufficient funds shall have been set aside by or on behalf of the Corporation for the benefit of the holders of the Series D Preferred Stock to effect such redemption, in each case pursuant to Section 6 above, unless in the case of a vote or consent required pursuant to clause (ii) of Section 7(c) above if all outstanding shares of the Series D Preferred Stock are being redeemed with the proceeds from the sale of the stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of the Series D Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Directors (or a duly authorized committee of the Board of Directors), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Certificate of Incorporation, the Amended and Restated Bylaws, applicable law and any national securities exchange or other trading facility on which the Series D Preferred Stock may be listed or traded at the time.
In any matter in which the Series D Preferred Stock may vote (as expressly provided in this Certificate of Designations), each share of the Series D Preferred Stock shall be entitled to one vote per $1,000.00 of Liquidation Preference. If the Series D Preferred Stock and any other Liquidation Preference Parity Stock is entitled to vote together as a single class on any matter, the holders of each will vote in proportion to their respective Liquidation Preferences.
Section 8. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent may deem and treat the record holder of any share of the Series D Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor the Transfer Agent shall be affected by any notice to the contrary.
Section 9. Notices. All notices or communications in respect of the Series D Preferred Stock will be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Certificate of Incorporation or Amended and Restated Bylaws or by applicable law.
Section 10. Other Rights. The shares of the Series D Preferred Stock do not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation of the Corporation. The holders of the Series D Preferred Stock shall not have any preemptive rights or conversion rights.
Section 11. Certificates. The Corporation may at its option issue shares of the Series D Preferred Stock without certificates. If DTC or its nominee is the registered owner of the Series D Preferred Stock, the following provisions of this Section 11 shall apply. If and as long as DTC or its nominee is the registered owner of the Series D Preferred Stock, DTC or its nominee, as the case may be, shall be considered the sole owner and holder of all such shares of the Series D Preferred Stock of which DTC or its nominee is the registered owner for all purposes under the instruments governing the rights and obligations of holders of shares of the Series D Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of the Series D Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation shall either print and deliver certificates for the shares of the Series D Preferred Stock or provide for the direct registration of the Series D Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry-only transfers through DTC (or a successor securities depositary), the Corporation shall print certificates for the shares of the Series D Preferred Stock and deliver such certificates to DTC or shall provide for the direct registration of the Series D Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series D Preferred Stock of which DTC or its nominee is the registered owner:
| a) | shall not be entitled to have such Series D Preferred Stock registered in their names; |
|---|---|
| b) | shall not receive or be entitled to receive physical delivery of securities certificates in exchange for<br>beneficial interests in the Series D Preferred Stock; and |
| --- | --- |
| c) | shall not be considered to be owners or holders of the shares of the Series D Preferred Stock for any purpose<br>under the instruments governing the rights and obligations of holders of shares of the Series D Preferred Stock. |
| --- | --- |
Section 12.Restatement of Certificate. On any restatement of the Certificate of Incorporation of the Corporation, Section 1 through Section 11 of this Certificate of Designations shall be included in the Certificate of Incorporation under the heading “6.000% Fixed-Rate Reset Non-Cumulative Perpetual Preferred Stock, Series D” and this Section 12 may be omitted. If the Board of Directors so determines, the numbering of Section 1 through Section 11 may be changed for convenience of reference or for any other proper purpose.”
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EX-3.2
Exhibit 3.2
FIFTH AMENDED AND RESTATED
BYLAWS OF
SUMISHO AIRLEASE CORPORATION
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
Section 1.1. Registered Office. The registered office of the Corporation shall be fixed in the Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) of the Corporation.
Section 1.2. Other Offices. The Corporation may also have an office or offices, and keep the books and records of the Corporation, except as may otherwise be required by law, at such other place or places, either within or without the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of stockholders, for the election of directors and for the transaction of such other business as may properly come before the meeting, shall be held at such place, if any, on such date, and at such time as may be determined by the Board of Directors.
Section 2.2. Special Meeting. Subject to the rights of the holders of any series of preferred stock, $0.01 par value (the “Preferred Stock”), a special meeting of the stockholders may be called at any time by the majority of the Board of Directors.
Section 2.3. Notice of Stockholders ’ Meetings.
(a) Notice of the place, if any, date, and time of all meetings of the stockholders, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for determining the stockholders entitled to notice of the meeting) and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given, not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting, except as otherwise provided herein or required by law. In the case of a special meeting, the purpose or purposes for which the meeting is called also shall be set forth in the notice. Notice may be given personally, by mail or by electronic transmission in accordance with Section 232 of the General Corporation Law of the State of Delaware (the “DGCL”).
(b) When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than 30 days after the date for which the meeting was originally called, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 7.5(a) of these Bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date for notice of such adjourned meeting.
(c) Notice of any meeting of stockholders may be waived in writing or by electronic transmission, either before or after the meeting, and to the extent permitted by law, will be waived by any stockholder by attendance thereat, in person or by proxy, except when the person objects at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
Section 2.4. Organization.
(a) Meetings of stockholders shall be presided over by the Chairman of the Board of Directors (the “Chairman”), if any, or in his or her absence, by the President, if any, or in his or her absence, by a director designated by the majority of the Board of Directors. The Secretary, or in his or her absence, a person whom the Chairman of the meeting shall appoint, shall act as Secretary of the meeting and keep a record of the proceedings thereof. The Board of Directors shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient.
Section 2.5. Quorum. At any meeting of stockholders, the holders of a majority in voting power of all issued and outstanding stock entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided that where a separate vote by a class or series is required, the holders of a majority in voting power of all issued and outstanding stock of such class or series entitled to vote on such matter, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to such matter. If a quorum is not present or represented at any meeting of stockholders, then the Chairman of the meeting or the holders of a majority in voting power of the stock entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time in accordance with Section 2.6, without notice other than announcement at the meeting and except as provided in Section 2.3(b), until a quorum is present or represented.
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Section 2.6. Adjourned Meeting. Any annual or special meeting of stockholders, whether or not a quorum is present, may be adjourned for any reason from time to time by either the Chairman of the meeting or the holders of a majority in voting power of the stock entitled to vote thereat, present in person or represented by proxy. At any such adjourned meeting at which a quorum may be present, any business may be transacted that might have been transacted at the meeting as originally called.
Section 2.7. Voting.
(a) Except as otherwise provided by law or the Certificate of Incorporation, each holder of stock of the Corporation entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of such stock held of record by such holder on all matters submitted to a vote of stockholders of the Corporation.
(b) Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders at which a quorum is present, all corporate actions to be taken by vote of the stockholders shall be authorized by the affirmative vote of the holders of a majority in voting power of the stock entitled to vote thereon, present in person or represented by proxy, and where a separate vote by class or series is required, if a quorum of such class or series is present, such act shall be authorized by the affirmative vote of the holders of a majority in voting power of the stock of such class or series entitled to vote thereon, present in person or represented by proxy.
Section 2.8. Proxies. Every person entitled to vote for directors, or on any other matter, shall have the right to do so either in person or by one or more agents authorized by a proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary of the Corporation.
Section 2.9. Action by Written Consent. Subject to the rights of the holders of any series of Preferred Stock and unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote.
Section 2.10. Meetings by Remote Communications. The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the DGCL.
ARTICLE III
DIRECTORS
Section 3.1. Powers. Subject to the provisions of the DGCL and to any limitations in the Certificate of Incorporation relating to action required to be approved by the stockholders, the business and affairs of the Corporation shall be managed and shall be exercised by or under the direction of the Board of Directors. In addition to the powers and authorities these Bylaws expressly confer upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or the Certificate of Incorporation required to be exercised or done by the stockholders.
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Section 3.2. Number, Term of Office and Election. The Board of Directors shall consist of such number of directors as determined from time to time by resolution of the Board of Directors. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specific circumstances and except as provided in Section 3.3, directors shall be elected by a majority of the votes cast at the stockholders’ annual meeting in each year. Directors need not be stockholders unless so required by the Certificate of Incorporation or these Bylaws, wherein other qualifications for directors may be prescribed.
Section 3.3. Vacancies. Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, though less than a quorum, and directors so chosen shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor shall be elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
Section 3.4. Resignations and Removal. Any director may resign at any time upon notice given in writing or by electronic transmission to the Board of Directors, the Chairman or the Secretary. Such resignation shall take effect upon receipt of such notice by the Board of Directors, the Chairman or the Secretary, as the case may be. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Subject to the rights of the holders of any series of Preferred Stock and unless otherwise restricted by law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the voting power of all issued and outstanding stock entitled to vote at an election of directors.
Section 3.5. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates and at such time or times, as shall have been established by the Board of Directors and publicized among all directors; provided that no fewer than one regular meeting per year shall be held. A notice of each regular meeting shall not be required.
Section 3.6. Special Meetings. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by a majority of the Board of Directors then in office. Notice of special meetings shall fix the place and time of such meetings and shall be given to each director at least two days prior to the time set for such meeting. Notice of any meeting need not be given to a director who shall, either before or after the meeting, submit a waiver of such notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of notice to such director. A notice of special meeting need not state the purpose of such meeting, and, unless indicated in the notice thereof, any and all business may be transacted at a special meeting.
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Section 3.7. Participation in Meetings by Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting.
Section 3.8. Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, a majority of the authorized number of directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and the vote of a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board of Directors. The Chairman of the meeting or a majority of the directors present may adjourn the meeting to another time and place whether or not a quorum is present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the meeting as originally called.
Section 3.9. Board of Directors Action by Written Consent Without a Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, provided that all members of the Board of Directors consent in writing or by electronic transmission to such action, and the writing or writings or electronic transmission or transmissions are filed with the minutes or proceedings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such action by written consent shall have the same force and effect as a unanimous vote of the Board of Directors.
Section 3.10. Chairman of theBoard of Directors. The Chairman shall preside at meetings of stockholders and directors and shall perform such other duties as the Board of Directors may from time to time determine. If the Chairman is not present at a meeting of the Board of Directors, the President, if any, or in his or her absence, another director chosen by the Board of Directors shall preside.
Section 3.11. Rules and Regulations. The Board of Directors shall adopt such rules and regulations not inconsistent with the provisions of law, the Certificate of Incorporation or these Bylaws for the conduct of its meetings and management of the affairs of the Corporation as the Board of Directors shall deem proper.
Section 3.12. Fees and Compensation of Directors. Directors and members of committees may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the Board of Directors.
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ARTICLE IV
COMMITTEES
Section 4.1. Committees of the Board of Directors. The Board of Directors may, by resolution, designate one or more committees, each such committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee to replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation. All committees of the Board of Directors shall keep minutes of their meetings and shall report their proceedings to the Board of Directors when requested or required by the Board of Directors.
ARTICLE V
OFFICERS
Section 5.1. Officers. The officers of the Corporation shall consist of a President and a Secretary, each of whom shall be appointed by the Board of Directors, each to have such authority, functions or duties as set forth in these Bylaws or as determined by the Board of Directors. The Corporation may also have such other officers as the Board of Directors may in its discretion appoint and such officers shall have such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Board of Directors. Each officer shall hold office for such term as may be prescribed by the Board of Directors and until such person’s successor shall have been duly chosen and qualified, or until such person’s earlier death, disqualification, resignation or removal. Any two of such offices may be held by the same person; provided, however, that no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law, the Certificate of Incorporation or these Bylaws to be executed, acknowledged or verified by two or more officers.
Section 5.2. Compensation. The salaries of the officers of the Corporation and the manner and time of the payment of such salaries shall be fixed and determined by the Board of Directors and may be altered by the Board of Directors from time to time as it deems appropriate, subject to the rights, if any, of such officers under any contract of employment.
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Section 5.3. Removal, Resignation and Vacancies. Any officer of the Corporation may be removed, with or without cause, by the Board of Directors, without prejudice to the rights, if any, of such officer under any contract to which it is a party. Any officer may resign at any time upon written notice to the Corporation, without prejudice to the rights, if any, of the Corporation under any contract to which such officer is a party. If any vacancy occurs in any office of the Corporation, the Board of Directors may appoint a successor to fill such vacancy for the remainder of the unexpired term and until a successor shall have been duly chosen and qualified.
ARTICLE VI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1. Right to Indemnification. Each person who was or is a party or is threatened to be made a party to, or was or is otherwise involved in, any action, suit, arbitration, alternative dispute mechanism, inquiry, judicial, administrative or legislative hearing, investigation or any other threatened, pending or completed proceeding, whether brought by or in the right of the Corporation or otherwise, including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or, while a director, officer, employee, agent, or trustee of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), or by reason of anything done or not done by him or her in any such capacity, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against all expense, liability and loss (including attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974, as amended (“ERISA”) excise taxes or penalties and amounts paid in settlement by or on behalf of the indemnitee) actually and reasonably incurred by such indemnitee in connection therewith; provided, however, that, except as otherwise required by law or provided in Section 6.3 with respect to proceedings to enforce rights under this Article VI, the Corporation shall indemnify any such indemnitee in connection with a proceeding, or part thereof, initiated by such indemnitee (including claims and counterclaims, whether such counterclaims are asserted by (a) such indemnitee, or (b) the Corporation in a proceeding initiated by such indemnitee) only if such proceeding, or part thereof, was authorized or ratified by the Board of Directors.
Section 6.2. Right toAdvancement of Expenses. In addition to the right to indemnification conferred in Section 6.1, an indemnitee shall, to the fullest extent not prohibited by law, also have the right to be paid by the Corporation the expenses (including attorneys’ fees) incurred in defending any proceeding with respect to which indemnification is required under Section 6.1 in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that an advancement of expenses shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 6.2 or otherwise.
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Section 6.3. Right of Indemnitee to Bring Suit. If a request for indemnification under Section 6.1 is not paid in full by the Corporation within 60 days, or if a request for an advancement of expenses under Section 6.2 is not paid in full by the Corporation within 20 days, after a written request has been received by the Corporation, the indemnitee may at any time thereafter bring suit against the Corporation in a court of competent jurisdiction in the State of Delaware seeking an adjudication of entitlement to such indemnification or advancement of expenses. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit to the fullest extent permitted by law. In any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard of conduct for indemnification set forth in the DGCL. Further, in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that the indemnitee has not met any applicable standard of conduct for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VI or otherwise shall be on the Corporation.
Section 6.4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any law, agreement, vote of stockholders or directors, provisions of the Certificate of Incorporation or these Bylaws or otherwise.
8
Section 6.5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 6.6. Indemnification of Employeesand Agents of the Corporation. The Corporation may, to the extent authorized from time to time, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article VI with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
Section 6.7. Nature of Rights. The rights conferred upon indemnitees in this Article VI shall be contract rights that shall vest at the time an individual becomes a director or officer of the Corporation and such rights shall continue as to an indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article VI that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or repeal.
Section 6.8. Settlement of Claims. The Corporation shall not be liable to indemnify any indemnitee under this Article VI for any amounts paid in settlement of any proceeding effected without the Corporation’s written consent, which consent shall not be unreasonably withheld, or for any judicial award if the Corporation was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such proceeding.
Section 6.9. Subrogation. In the event of payment under this Article VI, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.
Section 6.10. Severability. If any provision or provisions of this Article VI shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of this Article VI (including, without limitation, all portions of any paragraph of this Article VI containing any such provision held to be invalid, illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Article VI (including, without limitation, all portions of any paragraph of this Article VI containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent of the parties that the Corporation provide protection to the indemnitee to the fullest enforceable extent.
9
ARTICLE VII
CAPITAL STOCK
Section 7.1. Uncertificated Shares. The shares of the Corporation shall be uncertificated, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be represented by certificates or a combination of certificated and uncertificated shares. Except as otherwise required by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of shares represented by certificates of the same class and series shall be identical. Every holder of stock represented by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by any two authorized officers of the Corporation certifying the number of shares owned by such holder in the Corporation. Any or all such signatures may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 7.2. Transfers of Stock. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation upon authorization by the registered holder thereof or by such holder’s attorney thereunto authorized by a power of attorney duly executed and filed with the Secretary or a transfer agent for such stock, and if such shares are represented by a certificate, upon surrender of the certificate or certificates for such shares properly endorsed or accompanied by a duly executed stock transfer power and the payment of any taxes thereon; provided, however, that the Corporation shall be entitled to recognize and enforce any lawful restriction on transfer.
Section 7.3. Addresses of Stockholders. Each stockholder shall designate to the Secretary an address at which notices of meetings and all other corporate notices may be served or mailed to such stockholder and, if any stockholder shall fail to so designate such an address, corporate notices may be served upon such stockholder by mail directed to the mailing address, if any, as the same appears in the stock ledger of the Corporation or at the last known mailing address of such stockholder.
Section 7.4. Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
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Section 7.5. Record Date for Determining Stockholders.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be more than 60 nor less than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which shall not be more than 60 days prior to such other action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 7.6. Regulations. The Board of Directors may make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Corporation.
ARTICLE VIII
GENERAL MATTERS
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December of the same year, or such other 12 consecutive months as the Board of Directors may designate.
Section 8.2. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 8.3. Maintenance and Inspection of Records. The Corporation shall, either at its principal executive office or at such place or places as designated by the Board of Directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these Bylaws as amended to date, accounting books and other records.
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Section 8.4. Reliance Upon Books, Reports and Records. Each director and each member of any committee designated by the Board of Directors shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 8.5. Subject to Law and Certificate of Incorporation. All powers, duties and responsibilities provided for in these Bylaws, whether or not explicitly so qualified, are qualified by the Certificate of Incorporation and applicable law.
ARTICLE IX
AMENDMENTS
Section 9.1. Amendments. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to adopt, amend or repeal these Bylaws. In addition to any requirements of law and any other provision of these Bylaws or the Certificate of Incorporation, and subject to the rights of the holders of any series of Preferred Stock, the affirmative vote of the holders of a majority in voting power of the issued and outstanding stock entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to amend or repeal, or adopt any provision inconsistent with, any provision of these Bylaws.
The foregoing Bylaws were adopted by the Board of Directors on April 8, 2026, and are effective on the same date.
***
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EX-4.1
Exhibit 4.1
Execution Version
March 24, 2026
TAKEOFF MERGER SUB INC.
AS ISSUER
COMPUTERSHARE TRUST COMPANY, N.A.
AS TRUSTEE, NOTE REGISTRAR, PAYING AGENT, TRANSFER AGENT AND ESCROW
AGENT
INDENTURE
TABLE OF CONTENTS
| Page | ||
|---|---|---|
| ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 | |
| Section 1.01 Definitions | 1 | |
| Section 1.02 Compliance Certificates and Opinions | 14 | |
| Section 1.03 Form of Documents Delivered to Trustee | 15 | |
| Section 1.04 Acts of Holders | 15 | |
| Section 1.05 Notices, Etc., to Trustee and Company | 16 | |
| Section 1.06 Notice to Holders; Waiver | 16 | |
| Section 1.07 Effect of Headings and Table of Contents | 16 | |
| Section 1.08 Successors and Assigns | 16 | |
| Section 1.09 Separability Clause | 17 | |
| Section 1.10 Benefits of Indenture | 17 | |
| Section 1.11 Governing Law | 17 | |
| Section 1.12 Legal Holidays | 17 | |
| Section 1.13 USA Patriot Act | 17 | |
| Section 1.14 Trust Indenture Act | 17 | |
| Section 1.15 NRSRO Compliance | 17 | |
| Section 1.16 Consent to Jurisdiction | 18 | |
| Section 1.17 Waiver of Jury Trial | 18 | |
| Section 1.18 Counterparts | 18 | |
| ARTICLE II NOTE FORMS | 19 | |
| Section 2.01 Forms of Initial Notes | 19 | |
| Section 2.02 Forms of Notes other than the Initial Notes | 19 | |
| Section 2.03 Form of Trustee ’ s Certificate ofAuthentication | 20 | |
| Section 2.04 Provisions of Global Notes other than the Initial Notes | 20 | |
| ARTICLE III THE NOTES | 21 | |
| Section 3.01 Amount Unlimited; Issuable in Series | 21 | |
| Section 3.02 Denominations | 24 | |
| Section 3.03 Execution, Authentication, Delivery and Dating | 24 | |
| Section 3.04 Temporary Notes | 26 | |
| Section 3.05 Registration, Registration of Transfer and Exchange | 26 |
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| Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes | 28 |
|---|---|
| Section 3.07 Payment of Interest; Interest Rights Preserved | 29 |
| Section 3.08 Persons Deemed Owners | 30 |
| Section 3.09 Cancellation | 30 |
| Section 3.10 Computation of Interest | 31 |
| Section 3.11 CUSIP Numbers | 31 |
| ARTICLE IV SATISFACTION AND DISCHARGE | 31 |
| Section 4.01 Satisfaction and Discharge of Indenture | 31 |
| Section 4.02 Application of Trust Money | 32 |
| ARTICLE V REMEDIES | 33 |
| Section 5.01 Events of Default | 33 |
| Section 5.02 Acceleration of Maturity; Rescission and Annulment | 34 |
| Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee | 36 |
| Section 5.04 Trustee May File Proofs of Claim | 37 |
| Section 5.05 Trustee May Enforce Claims Without Possession of Notes | 37 |
| Section 5.06 Application of Money Collected | 37 |
| Section 5.07 Limitation on Suits | 38 |
| Section 5.08 Unconditional Right of Holders to Receive Principal, Premiu m and Interest | 38 |
| Section 5.09 Restoration of Rights and Remedies | 38 |
| Section 5.10 Rights and Remedies Cumulative | 39 |
| Section 5.11 Delay or Omission Not Waiver | 39 |
| Section 5.12 Control by Holders | 39 |
| Section 5.13 Waiver of Past Defaults | 39 |
| Section 5.14 Undertaking for Costs | 40 |
| Section 5.15 Waiver of Stay or Extension Laws | 40 |
| ARTICLE VI THE TRUSTEE | 41 |
| Section 6.01 Certain Duties and Responsibilities | 41 |
| Section 6.02 Notice of Defaults | 43 |
| Section 6.03 Certain Rights of Trustee | 43 |
| Section 6.04 Not Responsible for Recitals or Issuance of Notes | 44 |
| Section 6.05 May Hold Notes | 45 |
| Section 6.06 Money Held in Trust | 45 |
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| Section 6.07 Compensation and Reimbursement | 45 |
|---|---|
| Section 6.08 Disqualification; Conflicting Interests | 45 |
| Section 6.09 Corporate Trustee Required; Eligibility | 46 |
| Section 6.10 Resignation and Removal; Appointment of Successor | 46 |
| Section 6.11 Acceptance of Appointment by Successor | 47 |
| Section 6.12 Merger, Conversion, Consolidation or Succession to Business | 48 |
| Section 6.13 Preferential Collection of Claims Against Company | 49 |
| Section 6.14 Appointment of Authentication Agent | 49 |
| Section 6.15 Roles of Trustee | 50 |
| Section 6.16 Appointment of Co-Trustee | 50 |
| Section 6.17 Authorization to enter into Escrow Agreement | 51 |
| ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | 52 |
| Section 7.01 Company to Furnish Trustee Names and Addresses of Holders | 52 |
| Section 7.02 Preservation of Information; Communications to Holders | 52 |
| Section 7.03 Reports by Trustee | 53 |
| Section 7.04 Reports by Company | 53 |
| ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . | 54 |
| Section 8.01 Company May Consolidate, Etc., Only on Certain Terms | 54 |
| Section 8.02 Successor Corporation Substituted | 56 |
| ARTICLE IX SUPPLEMENTAL INDENTURE | 56 |
| Section 9.01 Supplemental Indentures Without Consent of Holders | 56 |
| Section 9.02 Supplemental Indentures with Consent of Holders | 57 |
| Section 9.03 Execution of Supplemental Indentures | 59 |
| Section 9.04 Effect of Supplemental Indentures | 59 |
| Section 9.05 Reference in Notes to Supplemental Indentures | 59 |
| Section 9.06 Reservation of Rights of Trustee | 59 |
| ARTICLE X COVENANTS | 60 |
| Section 10.01 Payment of Principal, Premium and Interest | 60 |
| Section 10.02 Maintenance of Office or Agency | 60 |
| Section 10.03 Money for Notes Payments to Be Held in Trust | 60 |
| Section 10.04 Corporate Existence | 61 |
| Section 10.05 Payment of Taxes and Other Claims | 62 |
| Section 10.06 Reports | 62 |
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| Section 10.07 Limitation on the Conduct of Business of Holdings | 62 |
|---|---|
| Section 10.08 Limitation on Liens | 62 |
| Section 10.09 [Reserved.] | 64 |
| Section 10.10 Repurchase at the Option of Holders. | 64 |
| Section 10.11 Waiver of Certain Covenants | 66 |
| ARTICLE XI REDEMPTION OF NOTES | 66 |
| Section 11.01 Applicability of Article | 66 |
| Section 11.02 Election to Redeem; Notice to Trustee | 66 |
| Section 11.03 Selection by Trustee of Notes to Be Redeemed | 67 |
| Section 11.04 Notice of Redemption | 67 |
| Section 11.05 Deposit of Redemption Price | 68 |
| Section 11.06 Notes Payable on Redemption Date | 68 |
| Section 11.07 Notes Redeemed in Part | 68 |
| ARTICLE XII SINKING FUNDS | 68 |
| Section 12.01 Applicability of Article | 68 |
| Section 12.02 Satisfaction of Sinking Fund Payments with Notes | 69 |
| Section 12.03 Redemption of Notes for Sinking Fund | 69 |
| ARTICLE XIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE | 69 |
| Section 13.01 Applicability of Article; Company ’ s Option to Effect Defeasanc e or Covenant Defeasance | 69 |
| Section 13.02 Defeasance and Discharge | 70 |
| Section 13.03 Covenant Defeasance | 70 |
| Section 13.04 Conditions to Defeasance or Covenant Defeasance | 71 |
| Section 13.05 Deposited Money and U.S. Government Obligations to Be Held i n Trust; Other Miscellaneous Provisions | 72 |
| Section 13.06 Knowledge of Trustee | 73 |
| ARTICLE XIV GUARANTEE | 74 |
| Section 14.01 Future Note Guarantees | 74 |
| Section 14.02 Limitation on Liability; Termination, Release and Discharge | 74 |
| Section 14.03 No Subrogation | 74 |
| ARTICLE XV ESCROW ARRANGEMENTS | 75 |
| Section 15.01 Escrow of Proceeds | 75 |
| Section 15.02 Release of Escrowed Funds. | 75 |
| Section 15.03 Special Mandatory Redemption | 76 |
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| Appendix A — Provisions Relating to Initial Notes |
|---|
| EXHIBIT INDEX |
| Exhibit<br>A-1-1 — Form of Rule 144A Initial Note (2028 Notes) |
| Exhibit<br>A-1-2 — Form of Regulation S Initial Note (2028 Notes) |
| Exhibit<br>A-2-1 — Form of Rule 144A Initial Note (2029 Notes) |
| Exhibit<br>A-2-2 — Form of Regulation S Initial Note (2029 Notes) |
| Exhibit<br>A-3-1 — Form of Rule 144A Initial Note (2031 Notes) |
| Exhibit<br>A-3-2 — Form of Regulation S Initial Note (2031 Notes) |
| Exhibit<br>A-4-1 — Form of Rule 144A Initial Note (2036 Notes) |
| Exhibit<br>A-4-2 — Form of Regulation S Initial Note (2036 Notes) |
| Exhibit B— Form of Exchange Note |
| Exhibit C — Form of Supplemental Indenture |
CROSS-REFERENCE TABLE*
| Section of Trust Indenture Act of 1939, as amended | Section of Indenture |
|---|---|
| 310(a) | 6.09 |
| 310(b) | 6.08 |
| 6.10 | |
| 311(a) | 6.13 |
| 311(b) | 6.13 |
| 312(a) | 7.01 |
| 7.02 | |
| 312(b) | 7.02 |
| 312(c) | 7.02 |
| 313(a) | 7.03 |
| 313(b) | 7.03 |
| 313(c) | 7.03 |
| 7.03 | |
| 313(d) | 7.03 |
| 314(a) | 7.04 |
| 314(b) | Inapplicable |
| 314(c) | Inapplicable |
| 314(d) | Inapplicable |
| 314(e) | Inapplicable |
| 314(f) | Inapplicable |
| 315(a) | 6.01(a) |
| 6.03 | |
| 315(b) | 6.02 |
NOTE^:^ This table of contents shall not, for any purpose, be deemed to be a part of this Indenture.
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| 315(c) | 6.01 |
|---|---|
| 315(d) | 6.01(c) |
| 315(e) | 5.14 |
| 316(a) | 5.12 |
| 316(b) | 5.07 |
| 316(c) | Inapplicable |
| 317(a) | 5.03 |
| 317(b) | 11.03 |
| 318(a) | 1.02 |
| * | This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the<br>interpretation of any of its terms or provisions. |
| --- | --- |
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INDENTURE, dated as of March 24, 2026, between Takeoff Merger Sub Inc., a Delaware corporation (herein called the “Company”) and Computershare Trust Company, N.A., a national banking association organized under the laws of the United States, as Trustee.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (the “Notes” or the “Securities”), to be issued in one or more series as in this Indenture provided.
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of (i) $800,000,000 aggregate principal amount of the Company’s 4.400% Senior Notes due 2028 (the “2028 Notes”), (ii) $1,200,000,000 aggregate principal amount of the Company’s 4.500% Senior Notes due 2029 (the “2029Notes”), (iii) $1,500,000,000 aggregate principal amount of the Company’s 4.850% Senior Notes due 2031 (the “2031 Notes”) and (iv) $500,000,000 aggregate principal amount of the Company’s 5.500% Senior Notes due 2036 (the “2036 Notes”), in each case, issued on the Issue Date (the 2028 Notes, the 2029 Notes, the 2031 Notes and the 2036 Notes, collectively, the “Initial Notes”) and any other Additional Notes of the Company issued hereunder. Subject to the conditions and compliance with the covenants set forth herein, the Company may issue an unlimited aggregate principal amount of Additional Notes.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as in effect on the date in question;
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(d) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(e) whenever in this Indenture there is mentioned, in any context, principal, interest or any other amount payable in respect of the Notes, such mention will be deemed also to refer to any additional amount that may be payable with respect to that amount under the obligations set forth in Section 10.09.
Certain terms used principally in ARTICLE VI and X, are defined in those Articles. In addition, when used herein the following capitalized terms shall have the meanings set forth below:
“Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.
“Additional Notes” means Notes (other than the Initial Notes) issued from time to time under this Indenture subsequent to the Issue Date.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control, with such first Person. As used in this definition, “Control” means the possession, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Agents” means each of the Paying Agent, Transfer Agent, Authentication Agent and Note **** Registrar.
“Air Lease” means Air Lease Corporation, a Delaware corporation.
“Air Lease Merger” means the transactions contemplated by the Merger Agreement, pursuant to which the Company will merge with and into Air Lease, with Air Lease surviving as Sumisho Air Lease Corporation, an indirect wholly owned subsidiary of the Parent.
“Aircraft Assets” means (x) aircraft, airframes, engines (including spare engines), propellers, parts and other operating assets and pre-delivery payments relating to any of the items in this clause (x) and (y) intermediate or operating leases relating to any of the items in the foregoing clause (x).
“Apollo” means Apollo Capital Management, L.P., a Delaware limited partnership, and any Affiliates thereof.
“Authentication Agent” has the meaning specified in Section 6.14.
“Board of Directors” means either the board of directors of the Company, any committee of such board duly authorized to act hereunder or any officer authorized by the board of directors of the Company or a committee thereof to act under this Indenture.
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“Board Resolution” means a copy of a resolution certified by an authorized officer of the Company, to have been duly adopted by the applicable Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Brookfield” means Brookfield Asset Management Credit and Insurance Solutions Advisor LLC, a Delaware limited liability company, and any Affiliates thereof.
“Business Day,” when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close or such other day as provided in or pursuant to a Directors’ Certificate or supplemental indenture referred to in Section 3.01.
“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Capital Stock” of a Person means equity interests in such Person, including any ordinary shares, preference shares, common stock, preferred stock, limited liability or partnership interests (whether general or limited), and all warrants or options with respect to, or other rights to purchase, the foregoing, but excluding other indebtedness (other than preferred stock) convertible into equity.
“Change of Control” means the occurrence of any of the following:
(1) any event, transaction or series of related transactions whereby a “person” or “group” (as those terms are used in Section 13(d) of the Exchange Act), other than any of the Permitted Holders, becomes the direct “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of a majority in the aggregate of the total voting power of the Company’s Voting Stock, whether as a result of the issuance of securities by the Company, any merger, consolidation, liquidation or dissolution of the Company, or any direct or indirect transfer of securities issued by the Company by the then beneficial owners or otherwise (for purposes of this clause, the beneficial owners shall be deemed to beneficially own any Voting Stock of a Person held by any other Person so long as the beneficial owners beneficially own (as so defined), directly or indirectly, in the aggregate a majority of the voting power of the Voting Stock of the Company);
(2) the adoption of a plan relating to the Company’s liquidation or dissolution; or
(3) the Company’s merger or consolidation with or into another Person or the merger of another Person with or into the Company, or the sale of all or substantially all of the Company’s assets (determined on a consolidated basis in accordance with GAAP) to another Person, in each case, other than a transaction in which the survivor or transferee is a Person whose Voting Stock is at least majority beneficially owned by any of the Permitted Holders.
“Change of Control Triggering Event” has the meaning specified in Section 10.10(a).
“Commission” means the U.S. Securities and Exchange Commission, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
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“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by (i) any Responsible Officer of the Company authorized by the Board of Directors to act under this Indenture, (ii) any two directors of the Company, (iii) any director and the company secretary of the Company or (iv) any director of the Company and any attorney duly authorized pursuant to a power of attorney issued by the Company whether now existing or as may be subsequently issued, further amended, updated or supplemented from time to time, and delivered to the Trustee, the relevant Paying Agent, Note Registrar, Authentication Agent or Transfer Agent, as applicable.
“ConsolidatedTangible Assets” means, at any date, the total assets of the Company and its Subsidiaries reported on the most recently prepared consolidated balance sheet of the Company filed with the Commission or delivered to the Trustee as of the end of a fiscal quarter, less all assets shown on such consolidated balance sheet that are classified and accounted for as intangible assets of the Company or any of its Subsidiaries or that otherwise would be considered intangible assets under generally accepted accounting principles, including, without limitation, franchises, patents and patent applications, trademarks, brand names, unamortized debt discount and goodwill.
“Corporate Trust Office” means the principal office of the Trustee at 1505 Energy Park Drive, St. Paul, MN 55108, Attention: Corporate Trust Services – Takeoff Merger Administrator, or at such other location as shall be designated by written notice to the other parties hereto.
“Corporation” includes corporations, associations, companies and business trusts.
“Covenant Defeasance” has the meaning specified in Section 13.03.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Depositary” means, with respect to the Notes of any series issuable or issued in whole or in part in the form of one or more Global Notes, the Person designated as Depositary by the Company pursuant to Section 3.01 and reasonably satisfactory to the Trustee, and if at any time there is more than one such Person, “Depositary” as used with respect to the Notes of any series shall mean the Depositary with respect to the Notes of such series.
“Directors’Certificate” means a certificate signed on behalf of the Company by (i) any Responsible Officer of the Company authorized to act under this Indenture by the Board of Directors, (ii) any two directors of the Company (ii) any director and the company secretary of the Company, as applicable, or (iii) any director of the Company and any attorney duly authorized pursuant to a power of attorney issued by the Company, whether now existing or as may be subsequently issued, further amended, updated or supplemented from time to time, and delivered to the Trustee.
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“ECA Indebtedness” means any indebtedness incurred in order to fund the deliveries of new Aircraft Assets, which indebtedness is guaranteed by one or more Export Credit Agencies, including guarantees thereof by the Company or any of its Subsidiaries.
“Escrow Account” has the meaning specified in Section 15.01(a).
“Escrow Agent” means Computershare Trust Company, N.A., in its capacity as escrow agent under the Escrow Agreement.
“Escrow Agreement” means that certain Escrow Agreement, dated as of March 24, 2026, among the Company, the Trustee and the Escrow Agent, as such agreement may be amended, supplemented or modified from time to time.
“Escrow EndDate” means December 1, 2026 or, if the Air Lease Merger is not consummated prior to December 1, 2026, the date that is five business days after any later date to which the parties to the Merger Agreement may agree to extend the “End Date” in the Merger Agreement.
“Escrow Release” has the meaning specified in Section 15.02(a).
“Escrow Release Certificate” has the meaning specified in Section 15.01(b).
“Escrow Release Conditions” means the satisfaction or waiver, or that the Company believes will be satisfied or waived substantially concurrently with the release of the Escrowed Property, in accordance with the terms of the Merger Agreement, of all conditions precedent to the consummation of the Air Lease Merger (other than those conditions that by their terms are to be satisfied substantially concurrently with the consummation of the Air Lease Merger), including the merger of the Company with and into Air Lease, with Air Lease surviving as an indirect Wholly Owned Subsidiary of the Parent.
“Escrow Release Date” has the meaning specified in Section 15.02(a).
“Escrowed Property” has the meaning specified in Section 15.01.
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Export Credit Agencies” means collectively, the export credit agencies or other governmental authorities that provide export financing of new Aircraft Assets (including, but not limited to, the Brazilian Development Bank, Compagnie Francaise d’Assurance pour le Commerce Exterieur, His Britannic Majesty’s Secretary of State acting by the Export Credits Guarantee Department, Euler-Hermes Kreditversicherungs AG, the Export-Import Bank of the United States, the Export Development Canada or any successor thereto).
“Fitch” means Fitch Rating Service, Inc., and any successor to the ratings business thereof.
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“Foreign Currency” means any currency, currency unit or composite currency issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such government.
“GAAP” means generally accepted accounting principles in the United States, which are in effect from time to time. All ratio computations based on GAAP contained in the Indenture will be computed in conformity with GAAP.
“Global Note” means (1) with respect to the Initial Notes, a Note in fully registered, global form without interest coupons subject to the provisions of Appendix A hereto and (2) otherwise, a Note in the form prescribed in Section 2.04 evidencing all or part of a series of Notes, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee.
“Governmental Authority” means:
(1) the government of:
(a) the U.S. or any State or other political subdivision thereof, or
(b) any other jurisdiction in which the Company or any Subsidiary of the Company conducts all or any part of its business, or which asserts jurisdiction over any of the Company’s Properties or any of the Properties of any of the Company’s Subsidiaries, or
(2) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Government Obligation” means (x) any security that is (i) a direct obligation of the United States of America or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or interest on the relevant debt security shall be payable, in each case, where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or governments, in each case, where the payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, which, in either case of (i) or (ii), is not callable or redeemable at the option of the issuer or issuers thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any Government Obligation that is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any such Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
“Guarantee” means any guarantee of the Notes pursuant to the terms of this Indenture.
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“Guarantor” means any Subsidiary of the Company that guarantees the Notes in accordance with the provisions of the Indenture, and their respective successors and assigns, in each case, until the Guarantee of such Person has been released in accordance with the provisions of the Indenture.
“Holder” means a Person in whose name a Note is registered in the Note Register.
“Holdings” means Sumisho Air Lease Finance Corporation, a Delaware corporation.
“Indebtedness” means, with respect to any Person, at any time, without duplication,
(1) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(2) its liabilities for the deferred purchase price of Property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such Property);
(3) (a) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases;
(4) all liabilities for borrowed money secured by any Lien with respect to any Property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(5) all its liabilities in respect of letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money); and
(6) any guarantee of such Person with respect to liabilities of a type described in any of clauses (1) through (5) hereof.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Notes established as contemplated by Section 3.01.
“Initial Notes” as defined in the recitals hereto.
“Interest Payment Date,” when used with respect to any Note, means the Stated Maturity of an installment of interest on such Note.
“Investment Grade Rating” means any of: (1) a rating equal to or higher than BBB- (or the equivalent) by S&P, (2) a rating equal to or higher than BBB- (or the equivalent) by Fitch, (3) a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, or (4) a rating equivalent to Investment Grade Rating, as that term is defined for S&P, Fitch and Moody’s, for any other Rating Agency that provides a rating of the Notes.
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“IRS” means the Internal Revenue Service of the U.S., a bureau of the U.S. Department of Treasury.
“Issue Date” means March 24, 2026, the date on which the Initial Notes are first being issued.
“Legal Defeasance” has the meaning specified in Section 13.02.
“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any Capital Lease, upon or with respect to any Property or asset of such Person.
“Maturity,” when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Merger Agreement” means the Agreement and Plan of Merger, dated as of September 1, 2025, by and among Air Lease, the Parent and the Company.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to the ratings business thereof.
“Non-Recourse Indebtedness” means, with respect to any Person, any indebtedness of such Person or its Subsidiaries that is, by its terms, recourse only to specific assets and non-recourse to the assets of such Person generally and that is neither guaranteed by any Affiliate (other than a Subsidiary) of such Person or would become the obligation of any Affiliate (other than a Subsidiary) of such Person upon a default thereunder, other than (i) recourse for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities, prohibited transfers, violations of single purpose entity covenants and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate guaranty or indemnification agreements in non-recourse financings, (ii) recourse to the equity interests of such Person or its Subsidiaries and to a guarantee by the Company or any Affiliate of the Company that does not exceed 10% of the outstanding indebtedness of such Person and its Subsidiaries, including such a guarantee of Warehouse Facility Indebtedness, and (iii) the existence of a guarantee that does not constitute a guarantee of payment of principal, interest or premium on indebtedness.
“Notes” has the meaning stated in the first recital of this Indenture.
“Note Register” and “Note Registrar” have the respective meanings specified in Section 3.05.
“Opinion of Counsel” means a written opinion of counsel reasonably acceptable to the Trustee, the relevant Paying Agent, the Note Registrar, the Authentication Agent or the Transfer Agent, as applicable, who may be counsel for the Company, and who shall be acceptable to the Trustee, the relevant Paying Agent, the Note Registrar, the Authentication Agent or the Transfer Agent if addressed to them.
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“Original Issue Discount Note” means any Note which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding,” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except;
(1) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Notes which have been defeased pursuant to Section 13.02 hereof; and
(4) Notes which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;
provided, however, that
(a) in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Note that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of a Note denominated in a foreign currency or currency unit shall be the U.S. dollar equivalent, determined as of the date of original issuance of such Note, of the principal amount of such Note (or, in the case of an Original Issue Discount Note denominated in a foreign currency or currency unit, the U.S. dollar equivalent, determined as of the date of original issuance of such Note, of the amount determined as provided in (a) above), and
(b) Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company, or of such other obligor.
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“Par Call Date” means, with respect to the 2029 Notes, February 24, 2029 (the date that is one month prior to the maturity date of the 2029 Notes), with respect to the 2031 Notes, February 24, 2031 (the date that is one month prior to the maturity date of the 2031 Notes) and with respect to the 2036 Notes, December 24, 2036 (the date that is three months prior to the maturity date of the 2036 Notes).
“Parent” means Sumisho Air Lease Corporation Designated Activity Company (f/k/a Gladiatora Designated Activity Company), an Irish private limited company.
“Paying Agent” means Computershare Trust Company, N.A. and its successors and assigns, and/or any other Person the Company appoints as Paying Agent.
“Permitted Holders” means one or more of SMBC AC, Sumitomo, Apollo and Brookfield.
“Permitted Jurisdiction” means any of the United States, any state or territory thereof or the District of Columbia.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.
“Place of Payment,” when used with respect to the Notes of any series, means the place or places where the principal of (and premium, if any) and interest on the Notes of that series are payable as specified in or as contemplated by Section 3.01; provided, however, that notwithstanding any other provision of this Indenture, so long as Computershare Trust Company, N.A. is the Trustee and the Paying Agent hereunder, the Place of Payment shall be New York, New York.
“Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock” means any class of Capital Stock of a Person that is preferred over any other class of Capital Stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Property” or “Properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Rating Agencies” means S&P, Fitch, Moody’s and, subsequent to the date of this Indenture, shall include any other credit rating agency that provides a rating of the Notes, so long as that credit rating agency is properly registered with, and recognized by, the Commission as a valid nationally recognized statistical rating organization pursuant to Section 15E of the Exchange Act at all times that such credit rating agency provides a rating of the Notes.
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“Ratings Event” means that at any time within 60 days (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies) from the date of the public notice of a Change of Control or of the Company’s intention or that of any Person to effect a Change of Control, the rating on the Notes is lowered, and the Notes are rated below an Investment Grade Rating, by (1) one Rating Agency if the Notes are rated by two or fewer Rating Agencies or (2) at least a majority of such Rating Agencies if the Notes are rated by three or more Rating Agencies; provided, that a Ratings Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Ratings Event for purposes of the definition of Change of Control Triggering Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company and the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Ratings Event).
“Redemption Date” means the date specified as such in a notice given by the Company to the Holders of any Note.
“Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” with respect to the interest payable on any Interest Payment Date on the Notes of any series means the date specified for that purpose as contemplated by Section 3.01.
“Remaining ScheduledPayments” means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date but for such redemption; provided, however, that if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced by the amount of interest accrued thereon to such Redemption Date.
“Responsible Officer,” when used with respect to the Trustee, means any vice president, assistant vice president, any trust officer, or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-mentioned officers who at that time shall be such officers having direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such trust matter is referred because of his or her knowledge of and familiarity with the particular subject.
“Revolving Credit Agreement” means that certain Revolving Credit Agreement, dated as of November 14, 2025, among Holdings, Sumitomo Mitsui Banking Corporation, Citibank, N.A. and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners, and the other financial institutions party thereto.
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“S&P” means Standard & Poor’s Ratings Services, a subsidiary of S&P Global Inc. and any successor to the ratings business thereof.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Notes authenticated and delivered under this Indenture.
“Securities Act” means the United States Securities Act of 1933, as amended.
“SMBC AC” means SMBC Aviation Capital Limited, a limited company registered in Ireland under company number 270775 with its registered office at Fitzwilliam 28, Fitzwilliam Street Lower, Dublin 2, Ireland, D02 KF20 and any Affiliates thereof.
“Significant Subsidiary” means at any time any Subsidiary that would at such time constitute a “significant subsidiary” (as such term is defined in Regulation S-X of the Commission as in effect on the date of this Indenture) of the Company other than a Subsidiary that is a Special Purpose Aircraft Financing Entity.
“Site” has the meaning specified in Section 1.15.
“Special Mandatory Redemption Amount” has the meaning specified in Section 15.03(a).
“Special Mandatory Redemption Date” has the meaning specified in Section 15.03(a).
“Special Mandatory Redemption Price” means 101% of the principal amount of the Notes being redeemed.
“Special Purpose Aircraft Financing Entity” means a Subsidiary of the Company (x) that engages in no business other than the purchase, finance, refinance, lease, sale and management of Aircraft Assets, the ownership of Special Purpose Aircraft Financing Entities and business incidental thereto; (y) substantially all of the assets of which are comprised of Aircraft Assets and/or Capital Stock in Special Purpose Aircraft Financing Entities; and (z) that is not obligated under, or the organizational documents or financing documents of which prevent it from incurring, in each case, indebtedness for money borrowed other than indebtedness incurred to finance or refinance the purchase, lease or acquisition of Aircraft Assets and the purchase of Special Purpose Aircraft Financing Entities or the cost of construction, repair, refurbishment, modification or improvement thereof.
“Special Record Date” with respect to the payment of any Defaulted Interest, means the date specified pursuant to Section 3.07(a).
“Specified Indebtedness” means with respect to any Person, any Indebtedness of such Person the outstanding principal amount of which equals at least $100,000,000.
“StatedMaturity,” when used with respect to any series of any Note or any installment of principal thereof or interest thereon, means the date specified in the documentation governing such Note as the fixed date on which the principal of such series of Note or such installment of principal or interest is due and payable, subject to any provisions for adjustment or deferral of any such date as contemplated by Section 3.01, and will not include any contingent obligations to repay, redeem or repurchase any such series or such interest or principal prior to the date originally scheduled for the payment thereof.
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“Subsidiary” means (x) any corporation, association or similar business entity (other than a partnership, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors or trustees thereof (or Persons performing similar functions) or (y) any partnership, limited liability company, trust or similar entity of which more than 50% of the capital accounts, distribution rights or total equity, as applicable, is, in the case of clauses (x) and (y), at the time owned, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
“Sumitomo” means Sumitomo Corporation, a company incorporated under the laws of Japan, and any Affiliates thereof.
“Term Loan Credit Agreement” means that certain Term Loan Credit Agreement, dated as of November 14, 2025, among Holdings, Sumitomo Mitsui Banking Corporation, Citibank, N.A. and Goldman Sachs Bank USA, as joint lead arrangers and joint bookrunners, and the other financial institutions party thereto.
“Termination Notice” has the meaning specified in Section 15.01(c).
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Notes of any series shall mean the Trustee with respect to Notes of that series.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“U.S.” means United States.
“Vice President,” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title
“vice president.”
“Voting Stock” means, with respect to any Person, Capital Stock (including shares, interests, membership interests, participations or other equivalents, however designated, in the equity of such Person) of any class or kind having the power to vote for the election of directors, managers, or other voting members of the governing body of such Person.
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“Warehouse Facility” means any financing arrangement of any kind, including, but not limited to, financing arrangements in the form of repurchase facilities, loan agreements, note and/or other security issuance facilities and commercial paper facilities, with a financial institution or other lender or purchaser exclusively to finance or refinance the purchase by the Company or a Subsidiary of the Company of Aircraft Assets.
“WarehouseFacility Indebtedness” means indebtedness under any Warehouse Facility; provided that the amount of any particular Warehouse Facility Indebtedness as of any date of determination shall be calculated in accordance with GAAP.
“Wholly Owned Subsidiary” means, with respect to any Subsidiary of a Person, that all of the shares of Capital Stock or other ownership interests of such Subsidiary (except director’s qualifying shares and, in the case of any Subsidiary in a jurisdiction outside the U.S., shares not exceeding 5% of total shares) are at the time, directly or indirectly, owned by such Person.
Section 1.02 Compliance Certificates and Opinions. Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee, the Note Registrar or the Paying Agent to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, the Note Registrar or the Paying Agent, as applicable, a Directors’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, including any request to authenticate and deliver Notes of any series pursuant to Section 3.03, no additional certificate or opinion need be furnished.
Every Directors’ Certificate or Opinion of Counsel with respect to compliance with a condition or covenant provided for in this Indenture, other than certificates provided pursuant to Section 7.04(d), shall include substantially the following:
(a) a statement that each individual signing such Directors’ Certificate or Opinion of Counsel has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such Directors’ Certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of a director of the Company may be based, insofar as it relates to legal matters, upon a certificate or Opinion of Counsel, or representations by counsel, unless such director or Responsible Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel or representations by counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, a director or Responsible Officer of the Company stating that the Person providing such certificate or Opinion of Counsel or representations by counsel has relied upon information with respect to such factual matters that is in the possession of the Company, unless such Person knows or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may but need not, be consolidated and form one instrument.
Section 1.04 Acts ofHolders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other director authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
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(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, Note Registrar, Paying Agent or Authentication Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Note.
Section 1.05 Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office,
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office or at any other address previously furnished in writing to the Trustee by the Company, or
(c) the Paying Agent or Note Registrar by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given furnished or filed in writing to or with the Paying Agent or Note Registrar, respectively, at the Corporate Trust Office or other equivalent office if the Paying Agent or Note Registrar is not the Trustee, or such other address previously furnished in writing to the Company and the Trustee by the Paying Agent, Authentication Agent or Note Registrar, as the case may be.
Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.08 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 1.09 Separability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11 Governing Law. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to applicable principles of conflicts of law to the extent that application of the law of another jurisdiction would be required thereby.
Section 1.12 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity; provided that no interest, except as provided in Section 5.02(a)(iii), if applicable, shall accrue for **** the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.13 USA Patriot Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the “USA Patriot Act”), the Trustee, Paying Agent, Authentication Agent and the Note Registrar, like all financial institutions, is required to obtain, verify and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee, Paying Agent, Authentication Agent and Note Registrar with such information as the Trustee, Paying Agent, Authentication Agent and Note Registrar may reasonably request in order for the Trustee, Paying Agent, Authentication Agent and Note Registrar to satisfy the requirements of the USA Patriot Act.
Section 1.14 Trust Indenture Act. Prior to qualification of this Indenture under the Trust Indenture Act, the provisions of the Trust Indenture Act shall not be applicable other than as expressly provided herein. Upon qualification of this Indenture, the applicable provisions of the Trust Indenture Act shall apply to the Indenture. If this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, such provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.15 NRSRO Compliance. It is hereby agreed that to the extent that any Note or instrument issued pursuant to this Indenture is rated by a nationally recognized statistical rating organization, Computershare Trust Company, N.A., in its various capacities hereunder, shall have no duty or obligation to (i) maintain any password-protected web site within the meaning of 17 CFR 240.17g-5 a (“Site”) or (ii) upload any information required to be maintained on such a Site.
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Section 1.16 Consent to Jurisdiction. The Company hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of any U.S. federal or state court located in the State and City of New York, Borough of Manhattan, in any action or proceeding arising out of or relating to this Indenture, the Notes and any supplemental indenture or the transactions contemplated hereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court. Each of the parties hereto agrees that a final judgment in any such action or proceeding may be heard and determined in such U.S. federal or state court located in the State and City of New York, Borough of Manhattan. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture shall affect any right that the Trustee, any Agent or any Holder may otherwise have to bring any action or proceeding relating to this Indenture against the Company or its respective properties in the courts of any jurisdiction to enforce any judgment, order or process entered by such courts situated within the State of New York or to enjoin any violations hereof or for relief ancillary hereto or otherwise to collect on loans or enforce the payment of any Notes or to enforce, protect or maintain their rights and claims or for any other lawful purpose. The Company further agrees that any action or proceeding brought against the Trustee, any Agent or any Holder, if brought by the Company, shall be brought only in a U.S. federal or state court located in the State and City of New York, Borough of Manhattan.
Section 1.17 Waiver of Jury Trial. THE COMPANY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INDENTURE, ANY NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 1.17.
Section 1.18 Counterparts. The parties may sign any number of copies of this Indenture, Each signed copy shall be an original, but all of them together represent the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
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ARTICLE II
NOTE FORMS
Section 2.01 Forms of Initial Notes. Provisions relating to the Initial Notes are set forth in Appendix A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Initial Notes shall each be substantially in the forms set forth in Exhibit A-l with respect to the 2028 Notes, Exhibit A-2 with respect to the 2029 Notes, Exhibit A-3 with respect to the 2031 Notes and Exhibit A-4 with respect to the 2036 Notes, which are hereby incorporated in and expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, stock exchange rule, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company).
Section 2.02 Forms of Notes other than the Initial Notes. Provisions relating to the Securities other than the Initial Notes are set forth in Appendix A hereto, which is hereby incorporated in and expressly made a part of this Indenture, unless the Directors’ Certificate delivered, or indenture supplemental thereto entered into, in accordance with Section 3.01 of the Indenture in connection with the issuance of any Securities states that the provisions of Appendix A hereto hall not apply to such Securities. The Exchange Notes shall each be substantially in the form set forth in Exhibit B, which is hereby incorporated in and expressly made a part of this Indenture. The Notes of each series other than the Initial Notes shall be in substantially the forms set forth in the Exhibits hereto, which are hereby incorporated in and expressly made a part of this Indenture unless the Directors’ Certificate delivered, or supplemental indenture thereto entered into, in accordance with Section 3.01 of the Indenture in connection with the issuance of any Securities provides for a different form of Securities. The Notes may have notations, legends or endorsements required by law, stock exchange rule, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). If all of the Notes of any series, established by action taken pursuant to a Board Resolution, are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Note of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Note of such series.
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The definitive Notes shall be printed, lithographed or engraved or may be produced in any other manner, all as determined by the attorney executing such Notes, as evidenced by their execution of such Notes.
Section 2.03 Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Notes of the series designated therein referred to in the within- mentioned Indenture.
| COMPUTERSHARE TRUST COMPANY, N.A. as Trustee |
|---|
| By: |
| Authorized Signatory |
Section 2.04 Provisions of Global Notes other than the Initial Notes. If Notes of a series other than the Initial Notes are issuable in whole or in part in global form, as specified as contemplated by Section 3.01(q), then, notwithstanding the provisions of Sections 3.01 and 3.02, any such Note shall represent such of the Outstanding Notes of such series as shall be specified therein and may provide that it shall represent the aggregate principal amount of Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding Notes represented thereby may from time to time be reduced to reflect exchanges. The global form may be permanent or temporary. Any endorsement of a Note in global form to reflect the amount, or any increase or decrease in the principal amount, of Outstanding Notes represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 3.03 or Section 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver any Note in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or 3.04 has been or simultaneously is delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Note in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 3.01, payment of principal of (and any premium), and interest on, any Note in permanent global form shall be made to the Person or Persons specified therein.
Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Notes other than the Initial Notes, any Global Note shall provide, in addition to the provisions established pursuant to Sections 2.02 and 3.01 and set forth in the preceding paragraphs, that the Depositary will not sell, assign, transfer or otherwise convey any beneficial interest in such Global Note unless such beneficial interest is in an amount equal to an authorized denomination for Notes of such series, and that the Depositary, by accepting such Global Note, agrees to be bound by such provision.
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ARTICLE III
THE NOTES
Section 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Initial Notes which may be authenticated and delivered under this Indenture on the Issue Date is $4,000,000,000 aggregate principal amount. The Company may from time to time after the Issue Date issue Additional Notes under this Indenture in an unlimited principal amount, which may be of the same series or a different series than Notes of any other series previously issued (including the Initial Notes). Any series may be reopened at any time and from time to time, after its original issue date.
The Notes may be issued in one or more series and the Notes of each such series shall rank equally and pari passu with the Notes of each other series, unless otherwise provided pursuant to this Section 3.01. There shall be established in, or pursuant to, a Board Resolution and, subject to Section 3.03, set forth, or determined in the manner provided, in a Directors’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Additional Notes of any series after the Issue Date,
(a) the title of the Notes of the Series (which shall distinguish the Notes of the series from all other Notes);
(b) any limit upon the aggregate principal amount of the Notes of the series which may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes of the same series pursuant to Section 3.04, 3.05, 3.06, 9.05 or 11.07 and except for any Notes which, pursuant to Section 3.03, shall not have been issued and sold by the Company and are therefore deemed never to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Note of the series shall be payable if other than the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of the Notes of the series is payable and any provision for the deferral of any such date;
(e) the rate or rates (or the formula pursuant to which such rate or rates shall be determined) at which the Notes of the series shall bear interest, if any, including the rate of interest applicable on overdue payments of principal or interest, if different from the rate of interest stated in the Note; the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and any provisions for the adjustment or deferral of any such date and the Regular Record Date or any formula for determining the Record Date for the interest payable on any Interest Payment Date;
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(f) the place or places where the principal of (and premium, if any) and interest, if any, on the Notes of the series shall be payable, and the place or places where the Notes of the series may be presented for registration of transfer or exchange and the place or places where notices and demands to or upon the Company in respect of the Notes of the series may be made;
(g) if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which Notes of the series may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase Notes of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Notes of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $2,000 and any integral multiples of $1,000 thereof, the denominations in which Notes of the series shall be issuable;
(j) the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and interest, if any, on the Notes of the series shall be payable if other than the currency of the U.S., which may be different tor principal, premium, if any, and interest, if any;
(k) if the principal of (and premium, if any) or interest, if any, on the Notes of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies other than that in which the Notes are stated to be payable, the currency or currencies in which payment of the principal of (and premium, if any) or interest on Notes of such series as to which such election is made shall be payable, and the period or periods within which, and the terms and conditions upon which, such election may be made;
(l) if the amount of payments of principal of (and premium, if any) or interest, if any, on the Notes of the series may be determined with reference to an index, the manner in which such amounts shall be determined;
(m) if other than the principal amount thereof, the portion of the principal amount of Notes of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(n) if the Notes of the series shall not rank equally and pari passu with the Notes of each other series issued under this Indenture, the ranking of the Notes of the series, provided that the Initial Notes shall always rank at least equally and **** pari passu **** with all other Notes issued **** under this Indenture;
(o) any Event of Default with respect to the Notes of the series, if not set forth herein, and any additions, modifications or deletions in the Events of Default, covenants of the Company, notice requirements or redemption provisions set forth herein with respect to the Notes of such series;
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(p) whether either or both of Section 13.02 and Section 13.03 shall not apply to the Notes of the series;
(q) whether the Notes of the series shall be issued in whole or in part in the form of one or more Global Notes and, in such case, the Depositary for such Global Note or Notes, which Depositary shall be, if then required by applicable law or regulation, a clearing agency registered under the Securities Exchange Act of 1934, as amended; and
(r) any other terms of the series, including the covenants to be applicable to Notes of such series.
The foregoing requirements shall be inapplicable to the Initial Notes; provided that (i) the forms of the Initial Notes shall be set forth in an exhibit to a Directors’ Certificate to be delivered to the Trustee on the Issue Date (ii) such forms shall conform to those set forth in Exhibit A-l, Exhibit A-2, Exhibit A-3 and Exhibit A-4 hereto and (iii) the provisions of Appendix A hereto shall apply.
All Notes of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in, or pursuant to, the Board Resolution referred to above and (subject to Section 3.03) set forth in the Directors’ Certificate referred to above or in any such indenture supplemental hereto. All Notes of any one series need not be issued at one time and, unless otherwise provided, a series may be reopened for issuances of additional Notes of such series.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by a Responsible Officer of the Company and delivered to the Trustee at or prior to the delivery of the Directors’ Certificate setting forth the terms of the series. If all of the Notes of any series established by action taken pursuant to a Board Resolution are not to be issued at one time, it shall not be necessary to deliver a record of such action at the time of issuance of each Note of such series, but an appropriate record of such action shall be delivered at or before the time of issuance of the first Note of such series.
Notwithstanding anything else herein, with respect to any Additional Notes issued subsequent to the date hereof, when the context requires, (1) all references in this Article and elsewhere in this Indenture to a Registration Rights Agreement shall be to the Registration Rights Agreement entered into with respect to such Additional Notes, (2) any references in this Indenture to the Exchange Offer, Exchange Offer Registration Statement, Shelf Registration Statement, and any other term related thereto shall be to such terms as they are defined in such Registration Rights Agreement entered into with respect to such Additional Notes, (3) all time periods described in the Notes with respect to the registration of such Additional Notes shall be as provided in the Registration Rights Agreement entered into with respect to such Additional Notes, (4) any Additional Interest due and payable as set forth in such Registration Rights Agreement, may be paid to the Holders of the Additional Notes immediately prior to the making or the consummation of the Exchange Offer regardless of any other provisions regarding record dates herein, (4) all references in this Indenture, the Notes or Initial Notes to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise and (5) all provisions of this Indenture shall be construed and interpreted to permit the issuance of such Additional Notes and to allow such Additional Notes to become fungible and interchangeable with the Initial Notes originally issued under this Indenture (and Exchange Notes issued in exchange therefor). Indebtedness represented by Additional Notes shall be subject to the covenants contained in this Indenture.
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Section 3.02 Denominations. Except as otherwise specified as contemplated by Section 3.01 for Notes of any series, the Notes of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such provisions with respect to the Notes of any series, the Notes of such series shall be issuable in denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
Section 3.03 Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Company by any attorney duly authorized pursuant to a power of attorney issued by the Company whether now existing or as may be subsequently issued, further amended, updated or supplemented from time to time. The signature of any attorney on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of an individual who was at the time of execution a duly authorized attorney of the Company shall bind the Company, notwithstanding that such individual has ceased to be so authorized prior to the authentication and delivery of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with the Company Order shall authenticate and make available for delivery such Notes. The Trustee shall authenticate and make available for delivery upon such Company Order (a) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $4,000,000,000 and (b) subject to the terms of this Indenture, Additional Notes in an aggregate principal amount to be determined at the time of issuance and specified therein. Such order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
Upon receipt of a Company Order, the Trustee shall authenticate for original issue (i) Exchange Notes in exchange for Initial Notes in an aggregate principal amount not to exceed $4,000,000,000 or (ii) Exchange Notes in exchange for Additional Notes in an aggregate principal amount not to exceed the aggregate principal amount of such Additional Notes so exchanged; provided that such Exchange Notes shall be issuable only upon the valid acceptance for exchange **** of Initial Notes issued on the date hereof or Additional Notes, as the case may be, of a like aggregate principal amount in accordance with an Exchange Offer pursuant to an applicable Registration Rights Agreement. Notwithstanding anything to the contrary in this Indenture or Appendix A, any issuance of Additional Notes after the Issue Date shall be in a principal amount of at least $2,000, whether such Additional Notes are of the same or a different series than the Initial Notes.
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If all of the Notes of any series are not to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures in compliance with the terms of this Indenture for the issuance of such Notes and determining the terms of particular Notes of such series, such as interest rate, maturity date, date of issuance and date from which interest shall accrue. In authenticating such Notes, and accepting the additional responsibilities under this Indenture in relation to such Notes, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in conclusively relying upon, a Directors’ Certificate delivered in accordance with Section 1.02 and an Opinion of Counsel stating,
(a) the form of such Notes is in conformity with the provisions of this Indenture;
(b) if the terms of such Notes have been established by or pursuant to a Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Notes, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel and paid for, will be legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting creditors’ rights generally, and except that such counsel may advise that the enforceability of the Notes is subject to the effect of general principles of equity including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law, and, if applicable, that a judgment for money damages rendered by a court in the U.S. may be expressed in U.S. dollars regardless that the documentation governing such Note requires payments in a different currency, among other things.
If such terms have been so established, and without limiting any of the Trustee’s other protective provisions hereunder, the Trustee shall not be required to authenticate such Notes if the issue of such Notes pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Notes and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Notes of a series are not to be originally issued at one time, it shall not be necessary to deliver the Directors’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the time of authentication of each Note of such series if such documents are delivered at or prior to the time of authentication upon original issuance of the first Note of such series to be issued.
Each Note shall be dated the date of its authentication.
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No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation as provided in Section 3.09 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Note has never been issued and sold by the Company, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04 Temporary Notes. Pending the preparation of definitive Notes of any series, the Company may execute, and upon Company Order, the Trustee shall authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the attorney executing such Securities may determine, as evidenced by their execution of such Notes.
If temporary Notes of any series are issued, the Company will cause definitive Notes of that series to be prepared without unreasonable delay. After the preparation of definitive Notes of such series, the temporary Notes of such series shall be exchangeable for definitive Notes of such series upon surrender of the temporary Notes of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes of any series the Company shall execute, and the Trustee shall authenticate and make available for delivery, in exchange therefor a like principal amount of definitive Notes of the same series and tenor of authorized denominations. Until so exchanged the temporary Notes of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Notes of such series.
Section 3.05 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office a register (the register maintained in such office or in any office or agency of the Company in a Place of Payment being herein referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. The Trustee is hereby appointed “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note of any series at the Corporate Trust Office, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Notes of the same series, of any authorized denominations and of a like tenor and aggregate principal amount and Stated Maturity as the surrendered Note.
At the option of the Holder, Notes of any series may be exchanged for other Notes of the same series, of any authorized denominations and of a like tenor, aggregate principal amount and Stated Maturity, upon surrender of the Notes to be exchanged at the Corporate Trust Office.
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Whenever any Notes are so surrendered for exchange, the Company shall execute and the Trustee shall authenticate and make available for delivery, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Note Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee and the Note Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge to the Holder shall be made for any registration of transfer or exchange of Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 3.04, 9.05 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange any Note during a period beginning at the opening of business 15 days before any selection for redemption of Notes of like tenor and of the series of which such Note is a part and ending at the close of business on the earliest date on which the relevant notice of redemption is deemed to have been given to all Holders of Notes of such series to be redeemed, or (ii) to register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
If at any time the Depositary for the Notes of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Notes of such series or if at any time the Depositary for the Notes of such series shall no longer be eligible under Section 3.01, the Company shall appoint a successor Depositary with respect to the Notes of such series. If a successor Depositary for the Notes of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election to issue Global Notes pursuant to Section 3.01 shall no longer be effective with respect to the Notes of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Notes of such series will authenticate and deliver Notes of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Note or Notes representing such series in exchange for such Global Note or Notes.
The Company may at any time and in its sole discretion determine that the Notes of any series issued in the form of one or more Global Notes shall no longer be represented by such Global Note or Notes. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Notes of such series, will authenticate and deliver Notes of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Note or Notes representing such series in exchange for such Global Note or Notes.
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Notwithstanding any other provision in this Indenture, any transfer of a Global Note shall be subject to the terms of Appendix A hereto. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Notes evidence in whole or in part by a Global Note, the Depositary may not sell, assign, transfer or otherwise convey any beneficial interest in a Global Note evidencing all or part of the Notes of such series unless such beneficial interest is in an amount equal to an authorized denomination for Notes of such series.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated Note is surrendered to the Note Registrar, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Note Registrar (i) evidence to their satisfaction of the destruction, loss or theft of any Note and (ii) such security or indemnity required by the Company, the Trustee and the Note Registrar to save the Company, the Trustee and the Note Registrar and any agent of any of them harmless, then, in the absence of notice to the Company or the Note Registrar that such Note has been acquired by a bona fide purchaser, the Company shall execute and, upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Note, a new Note of the same series and of like tenor, principal amount and Stated Maturity and bearing a number not contemporaneously outstanding. If after the delivery of such new Note, a bona fide purchaser of the original Note in lieu of which such new Note was issued presents for payment such original Note, the Company, the Trustee and the Note Registrar shall be entitled to recover such new Note from the Person to whom it was delivered or any Person taking therefrom, except a holder in due course, and the Trustee, the Note Registrar and the Company shall be entitled to recover upon the indemnity provided therefor to the extent of any loss, damage, cost or expenses incurred by the Company, the Trustee or the Note Registrar or any agent of any of them in connection therewith. Such indemnification of the Company shall not require the posting of a bond.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable or shall have become subject to notice of redemption in full, the Company in its discretion may (after it receives evidence to its satisfaction of such destruction, loss or theft and such security or indemnity as it may then require), instead of issuing a new Note, pay such Note without surrender thereof, except that any mutilated security shall be surrendered to the Note Registrar for cancellation.
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Upon the issuance of any new Note under this Section, the Company may require the payment by the respective Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Note Registrar or the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of that series duly issued hereunder.
The provisions of this Section are exclusive of, and shall preclude (to the extent lawful), all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07 Payment of Interest; Interest Rights Preserved. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Notes, interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Note of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Person or Persons in whose names the Notes of such series (or their respective Predecessor Notes) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee and any relevant Paying Agent in writing of the amount of Defaulted Interest proposed to be paid on each Note of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee any relevant Paying Agent of the notice of the proposed payment. The Company shall promptly notify the Trustee and any relevant Paying Agent of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Notes of such series at his, her or its address as it appears in the Note Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes of such series (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
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(b) The Company may make payment of any Defaulted Interest on the Notes of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be reasonably acceptable to the Trustee.
Unless the Notes of a Series have been accelerated in accordance with Section 5.02, upon payment of the Defaulted Interest related to a series of Notes the Event of Default related to such series of Notes for failure to pay interest on the applicable Interest Payment Date shall be deemed cured and of no further effect as it applies to such Notes.
Subject to the foregoing provisions of this Section, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 3.08 Persons Deemed Owners. Prior to due presentment of a Note for registration of transfer, the Company, the Trustee, the Note Registrar, any relevant Paying Agent and any agent of the Company, the Trustee, the Note Registrar or any relevant Paying Agent may treat the Person in whose name such Note is registered in the Note Register as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 3.07) interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee, the Note Registrar, any relevant Paying Agent nor any agent of the Company, the Trustee, any relevant Paying Agent or the Note Registrar shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Note, nothing herein shall prevent the Company, the Trustee, the Note Registrar or any agent of the Company, the Trustee or the Note Registrar, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and holders of beneficial interests in any Global Note, the operation of customary practices governing the exercise of the rights of the Depositary as Holder of such Global Note.
Neither the Trustee nor any Agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
Section 3.09 Cancellation. All Notes surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it in accordance with its customary procedures. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of in accordance with its internal procedures.
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Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by Section 3.01 for Notes of any series, interest on the Notes of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that the Trustee shall have no liability for any defect in the “CUSIP” numbers as they appear on any Note, notice or elsewhere, and, provided further, that any such notice may state that no representation is made as to the correctness of such **** numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect, and the Trustee, upon receipt of such Company Request and at the sole expense of the Company, shall execute instruments prepared by the Company and reasonably acceptable to the Trustee acknowledging satisfaction and discharge of this Indenture, which instruments shall be reasonably requested by the Company, when
(a) (i) the Company or at any time when the Notes are guaranteed, the Guarantors, have paid or caused to be paid all sums payable by the Company or at any time when the Notes are guaranteed, the Guarantors, hereunder by, as and when the same shall be due and payable;
(ii) all Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed lost or stolen and which have been replaced or paid as provided in Section 3.06 and (B) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Note Registrar for cancellation, or
(iii) all Outstanding Notes not theretofore delivered to the Note Registrar for cancellation shall:
(A) have become due and payable, whether on the Stated Maturity Date, on a Redemption Date or on a Special Mandatory Redemption Date, or
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(B) by their terms, will become due and payable at their Stated Maturity within one year, or
(C) have been called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name,
(D) and at the sole expense, of the Company and the Company or, at any time when the Notes are guaranteed, the Guarantors, in the case of (A), (B) or (C) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee, in trust, sufficient cash or Government Obligations in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee that will generate enough cash to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity, Redemption Date, or a Special Mandatory Redemption Date, as the case may be, of all such Outstanding Notes under this Indenture (provided that, in the case of a Redemption Date or Special Mandatory Redemption Date, if the amount of cash or Government Obligations that the Company or, at any time when the Notes are guaranteed, the Guarantors must have irrevocably deposited cannot be definitively calculated, the Company or, at any time when the Notes are guaranteed, the Guarantors must have irrevocably deposited an amount of cash or Government Obligations that will generate enough cash to pay principal (and premium, if any) and interest in full, without discounting, to the Stated Maturity, Redemption Date or Special Mandatory Redemption Date, as the case may be, it being understood that any excess amounts will be returned to the Company or, at any time when the Notes are guaranteed and at the Company’s direction, the applicable Guarantors promptly following the Redemption Date or the Special Mandatory Redemption Date, as applicable); and
(b) the Company has delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee (acting in any capacity under this Indenture) under Section 6.07 and Article XV, and, if cash or Government Obligations shall have been deposited with the Trustee pursuant to clause (a)(iii) of this Section 4.01, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 and, the obligations of the Trustee under Article XV, shall survive.
Section 4.02 Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all cash or Government Obligations deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
Section 5.01 Events of Default.
“Event of Default,” wherever used herein with respect to Notes of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless it is specifically deleted or modified in the supplemental indenture, if any, or Directors’ Certificate, if any, under which such series of Notes is issued:
(a) a default in the payment of any installment of interest upon any Note of that series when it becomes due and payable, and continuance of such default for a period of 30 days or more; or
(b) a default in the payment of all or any part of the principal of (or premium, if any) on any Note of that series when it becomes due and payable at its Maturity, when it becomes due on the Redemption Date, Special Mandatory Redemption Date, or when due by declaration or otherwise; or
(c) a default in the performance of, or compliance with, any covenants described under Sections 8.01, 8.02, and 10.10; or
(d) a default in the performance of any covenant of the Company in this Indenture or any Note (other than a covenant a default in whose performance is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series of Notes other than that series), and continuance of such default for a period of 90 days after there has been given a written notice, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes of that series, specifying such default and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(e) a default under any mortgage, indenture (including this Indenture) or instrument under which Indebtedness for borrowed money (other than any Indebtedness owed to any Subsidiary or that is Non-Recourse Indebtedness) of the Company or, at any time when the Notes are guaranteed, any Guarantor is issued or is secured or evidenced or the payment of which is guaranteed by the Company, or, at any time when the Notes are guaranteed, any Guarantor, which default constitutes a failure by the Company or such Guarantor to pay principal of such Indebtedness in an amount exceeding $200,000,000 at the final stated maturity date (other than as a result of acceleration), after expiration of any applicable grace periods with respect thereto, or shall have resulted in the Company’s or, at any time when the Notes are guaranteed, Guarantor’s Indebtedness (other than any Indebtedness owed to any Subsidiary or that is Non-Recourse Indebtedness) in the aggregate of $200,000,000 or more being accelerated or becoming due and payable before the date on which it would otherwise have become due and payable, and such acceleration is not rescinded or annulled or such Indebtedness for borrowed money is not discharged within a period of 60 days after there has been given a written notice, by registered or certified mail, to the Company and any applicable Guarantor by the Trustee, or written notice, by registered or certified mail, to each of the Company, such Guarantor and the Trustee by the holders of at least 25% in principal amount of the Outstanding Notes of that series, specifying such default with respect to the Indebtedness and requiring the Company to cause such Indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; or
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(f) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its Property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(g) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its Property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(h) at any time when the Notes are guaranteed, any Guarantee ceases to be in full force and effect in any material respect (except as contemplated by this Indenture) or any Guarantor denies or disaffirms its respective obligations under this Indenture or the Guarantees; or
(i) any other Event of Default provided in a supplemental indenture, if any, or Directors’ Certificate, if any, with respect to Notes of the series issued under such supplemental indenture or Directors’ Certificate.
Section 5.02 Acceleration of Maturity;Rescission and Annulment. If an Event of Default with respect to Notes of any series at the time Outstanding occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes of that series may declare the principal amount (or, if any of the Notes of that series are Original Issue Discount Notes, such portion of the principal amount of such Notes as may be specified in the terms thereof) of all of the Notes of that series to be due and payable immediately, by a notice in writing to the Company, the Guarantors (at any time when the Notes are guaranteed) (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to Notes of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Notes of that series, by written notice to the Company and the Guarantors (at any time when the Notes are guaranteed) and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company or, at any time when the Notes are guaranteed, any Guarantor
has paid or deposited with the Trustee a sum sufficient to pay:
(i) all overdue interest on all Notes of that series,
(ii) the principal of (and premium, if any, on) any Notes of that series which have become due and payable otherwise than by such declaration of acceleration and all interest thereon at the rate or rates prescribed therefor in such Notes,
(iii) to the extent that payment of such interest is lawful, interest upon such overdue interest, if any, at the rate or rates prescribed therefor in such Notes, and
(iv) the compensation, expenses, disbursements, indemnity obligations and advances owing to the Trustee, its agents and counsel pursuant to Section 6.07;
and
(b) all Events of Default with respect to Notes of that series, other than the nonpayment of the principal of Notes of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13 or otherwise remedied.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or rescission and annulment thereof, with respect to Notes of a series, all or part of which is represented by a Global Note, the Trustee shall establish a record date for determining Holders of Outstanding Notes of such series entitled to join in such declaration of acceleration, or rescission and annulment, as the case may be, which record date shall be at the close of business on the day the Trustee receives such declaration of acceleration, or rescission and annulment, as the case may be. The Holders of such affected Notes on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such declaration of acceleration, or rescission and annulment as the case may be, whether or not such Holders remain Holders after such record date; provided that unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having been obtained prior to the day which is 90 days after such record date, such declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new declaration of acceleration, or rescission or annulment thereof, as the case may be, that is identical to a declaration of acceleration, or rescission or annulment thereof, which has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.02.
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Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any installment of interest on any of the Notes of such series when such interest becomes due and payable and such default continues for a period of 30 days,
(b) default is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof, or
(c) default is made in the making or satisfaction of any sinking fund payment or analogous obligation when and if the same becomes due pursuant to the terms of any Note,
the Company and, at any time when the Notes are guaranteed, the Guarantors will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal, including any sinking fund payment or analogous obligations (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Notes, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company and, at any time when the Notes are guaranteed, the Guarantors fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company and, at any time when the Notes are guaranteed, the Guarantors or any other obligor upon such Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the Property of the Company and, at any time when the Notes are guaranteed, the Guarantors or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to Notes of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Notes of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 5.04 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, at any time when the Notes are guaranteed, the Guarantors or any other obligor upon the Notes or the Property of the Company, at any time when the Notes are guaranteed, the Guarantors or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or, at any time when the Notes are guaranteed, the Guarantors for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other Property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims WithoutPossession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be paid and applied as provided in Section 5.06.
Section 5.06 Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee (in each of its capacities hereunder) under Section 6.07;
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Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and
Third: To the Company or to such party as a court of competent jurisdiction shall direct.
Section 5.07 Limitation on Suits. No Holder of any Note of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Notes of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Notes of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have **** the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.07) interest on such Note on the Stated Maturity or Maturities expressed in such Note (or, in the case of redemption, on the Redemption Date or Special Mandatory Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired or affected without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
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Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. To the extent permitted by applicable law, the assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver. To the extent permitted by applicable law, no delay or omission of the Trustee or of any Holder of any Notes to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be, in accordance with the terms of this Indenture.
Section 5.12 Control by Holders. The Holders of a majority in principal amount of the Outstanding Notes of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Notes of such series; provided that
(a) such direction shall not, to the actual knowledge of a Responsible Officer of the Trustee, be in conflict with any rule of law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any purported direction with respect to Notes of a series all or part of which is represented by a Global Note, the Trustee shall establish a record date for determining Holders of Outstanding Notes of such series entitled to join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such direction, whether or not such Holders remain Holders after such record date; provided that unless such majority in principal amount shall have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any Holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new direction identical to a direction which has been cancelled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.12.
Section 5.13 Waiver of Past Defaults. By written instruction delivered to the Company and the Trustee, the Holders of not less than a majority in principal amount of the Outstanding Notes of any series may, on behalf of the Holders of all the Notes of such series, waive any past default or compliance with certain covenants or other provisions hereunder with respect to such series and its consequences, except a default
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(a) in the payment of the principal of (or premium, if any) or interest on any Note of such series, or
(b) in respect of a covenant or provision hereof which, under ARTICLE IX, cannot be modified or amended without the consent of the Holder of each Outstanding Note of such series affected.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to waive any past default hereunder. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to waive any default hereunder, whether or not such Holders remain Holders after such record date; provided that unless such majority in principal amount shall have been obtained prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note by his or her acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate more than 10% in principal amount of the Outstanding Notes of any series or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Note on or after the Stated Maturity or Maturities expressed in such Note (or, in the case of redemption, on or after the Redemption Date or Special Mandatory Redemption Date, as applicable).
Section 5.15 Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted, to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default actually known to a Responsible Officer of the Trustee,
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct (provided that an ordinary negligence standard shall be applied with respect to the handling of funds), except that
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was grossly negligent (provided that an ordinary negligence standard shall be applied with respect to the handling of funds) in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Notes of any series, determined as provided in Section 5.12, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Notes of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(e) The Trustee shall not incur any liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including but not limited to natural disaster, war or other circumstances beyond its reasonable control, the Trustee shall be prevented or forbidden from doing or performing any act or thing which the terms of this Indenture provide shall or may be done or performed, or by reason of any exercise of, or failure to exercise, any discretion provided for in this Indenture.
(f) The Trustee shall not be required to take any action hereunder if it shall have reasonably determined, or has been advised by counsel, that such action is likely to result in liability on the part of the Trustee or is contrary to the terms hereof or is otherwise contrary to law.
(g) The Trustee may, at the expense of the Company, consult with counsel and other skilled professionals to be selected in good faith and employed by it. The Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel or other such persons as long as no Responsible Officer of the Trustee shall have any actual knowledge that such opinion or advice is inappropriate or based on incorrect information.
(h) The Trustee shall not be responsible or liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(i) Whenever the Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Indenture, or is unsure as to the application, intent, interpretation or meaning of any provision of this Indenture, the Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Company, prior to the occurrence of an Event of Default actually known to a Responsible Officer of the Trustee, or to the Holders of the relevant series of Notes, after the occurrence of an Event of Default actually known to a responsible Officer of the Trustee, requesting instruction as to the course of action to be adopted, and, to the extent the Trustee acts in good faith in accordance with any such instruction received by the Company or Holders of a majority in principal amount of the Outstanding Notes of such series, the Trustee shall not be liable on account of such action to any person. If the Trustee shall not have received appropriate instructions from the relevant person or persons within twenty (20) calendar days of sending such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) the Trustee may, but shall be under no duty to, take or refrain from taking such action which is consistent, in the Trustee’s judgment, with this Indenture, and the Trustee shall have no liability to any person for any such action or inaction.
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Section 6.02 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Notes of any series which is actually known by a Responsible Officer of the Trustee, the Trustee shall transmit by mail to all Holders of Notes of such series as their names and addresses appear in the Note Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Note of such series or in the payment of any sinking fund installment with respect to Notes of such series, the Trustee shall be protected in withholding such notice if and so long as it in good faith determine that the withholding of such notice is in the interest of the Holders of Notes of such series. For the purpose of this Section the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Notes of such series.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and the Trustee need not investigate any fact or matter contained in such document;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or as otherwise expressly provided herein and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) before the Trustee acts or refrains from acting, it may require a Directors’ Certificate or an Opinion of Counsel or both. The Trustee will not be liable for any action it takes or omits to take in good faith in reliance on such Directors’ Certificate or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(e) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no additional liability of any kind by reason of such inquiry or investigation;
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(f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or gross negligence (ordinary negligence with respect to the handling of funds) on the part of any agent or attorney appointed with due care by it hereunder;
(g) the Trustee may request that the Company deliver a Directors’ Certificate setting forth the names of individuals and/or titles of persons authorized at such time to take specified actions pursuant to this Indenture, which Directors’ Certificate may be signed by any person authorized to sign a Directors’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(h) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture;
(i) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent;
(k) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder Prior to taking any action under this Indenture, the Trustee will be entitled to indemnification satisfactory to it in its sole discretion against all losses, liabilities, fees and expenses caused by taking or not taking such action in accordance with this Indenture; and
(l) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; and hacking, cyber-attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 6.04 Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of Notes or the proceeds thereof. Additionally, the Holders shall have no recourse against the Trustee with respect to the obligations of the Company hereunder or under the Notes.
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Section 6.05 May Hold Notes. The Trustee, any Paying Agent, any Note Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Notes and, subject to Sections 6.08 and 6.12, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar or such other agent.
Section 6.06 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder.
Section 6.07 Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall be agreed to in writing between the Company and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, court costs, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense disbursement or advance as may be attributable to its gross negligence (ordinary negligence with respect to the handling of funds) or willful misconduct as finally adjudicated by a court of competent jurisdiction; and
(c) to indemnify the Trustee, its affiliates, officers, directors, employees, shareholders and agents for, and to hold each of them harmless against, any loss, liability or expense incurred without gross negligence (ordinary negligence with respect to the handling of funds) or willful misconduct as finally adjudicated by a court of competent jurisdiction on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder.
The provisions of this Section 6.07 shall survive any termination of this Indenture, defeasance of the Notes in accordance with ARTICLE XIII and the resignation and removal of the Trustee in accordance with Section 6.10.
Section 6.08 Disqualification; Conflicting Interests. The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act.
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Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which is eligible pursuant to the Trust Indenture Act to act as such and shall be a corporation organized and doing business under the laws of the U.S., any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. No obligor upon the Notes or Person directly or indirectly controlling, controlled by, or under common control with such obligor shall serve as Trustee upon the Notes. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Notes of one or more series by giving 30 days prior written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Trustee with respect to the Notes of such series.
(c) The Trustee may be removed at any time with respect to the Notes of any series by Act of the Holders of a majority in principal amount of the Outstanding Notes of such series, delivered in writing to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company, or by any Holder who has been a bona fide Holder of a Note for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company, or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its Property shall be appointed or any public officer shall take charge or control of the Trustee or of its Property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company by a Board Resolution of the Company may remove the Trustee with respect to all Notes, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Notes and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect of the Notes of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Notes of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Notes of one or more or all series and that at any time there shall be only one Trustee with respect to the Notes of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Notes of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Notes of such series delivered to the Company, and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Notes of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Notes of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Note of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Notes of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Notes of any series and each appointment of a successor Trustee with respect to the Notes of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Notes of such series as their names and addresses appear in the Note Register. Each notice shall include the name of the successor Trustee with respect to the Notes of such series and the address of its Corporate Trust Office.
(g) Notwithstanding replacement of the Trustee pursuant to Section 6.10, the retiring Trustee shall continue to benefit from the Company’s obligations under Section 6.07 and the Company shall pay to any replaced or removed Trustee all amounts owed under Section 6.07 upon such replacement or removal.
(h) Notwithstanding anything herein to the contrary, any removal of, or resignation by, the Trustee in one capacity hereunder, or any successor thereto in such capacity, shall, notwithstanding anything herein to the contrary, be deemed to constitute a removal of, or resignation by, the Trustee, in each other capacity as it is appointed hereunder, and the provisions of this Indenture, including, without limitation, the removal and resignation provisions hereof, shall be interpreted consistently with this 6.10(h).
Section 6.11 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall, at the expense of the Company, duly assign, transfer and deliver to such successor Trustee all Property and money held by such retiring Trustee hereunder.
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(a) In case of the appointment hereunder of a successor Trustee with respect to the Notes of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Notes of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Notes of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Notes, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Notes of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Notes of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all Property and money held by such retiring Trustee hereunder with respect to the Notes of that or those series to which the appointment of such successor Trustee relates.
(b) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(c) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
(d) The resigning Trustee shall have no responsibility or liability for any action or inaction of a successor trustee.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be sold, merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided that such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Notes shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such Notes.
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Section 6.13 Preferential Collection of Claims Against Company. The Trustee is subject to and shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.14 Appointment of AuthenticationAgent. At any time when any of the Notes of one or more series remain outstanding, the Trustee may appoint an Authentication Agent or Agents (the “Authentication Agent”) with respect to Notes of one or more series which shall be authorized to act on behalf of the Trustee to authenticate Notes of such series, and Notes so authenticated shall be entitled to the benefits hereof and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made herein to the authentication and delivery of Notes by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authentication Agent and a certificate of authentication executed on behalf of the Trustee by an Authentication Agent. Each Authentication Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the U.S., any State thereof or the District of Columbia, authorized under such laws to act as Authentication Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authentication Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authentication Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authentication Agent shall cease to be eligible in accordance with the provisions of this Section, such Authentication Agent shall resign immediately in the manner and with the effect specified in this Section. The Authentication Agent shall initially be the Trustee.
Any corporation into which an Authentication Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authentication Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authentication Agent, shall continue to be an Authentication Agent; provided that such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authentication Agent.
An Authentication Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authentication Agent by giving written notice thereof to such Authentication Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authentication Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authentication Agent which shall be acceptable to the Company and shall mail notice of such appointment to each Holder of Notes of the series with respect to which such Authentication Agent will serve. Any successor Authentication Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authentication Agent. No successor Authentication Agent shall be appointed unless eligible under the provisions of this Section. The provisions of Section 6.07 shall also apply to any Authentication Agent.
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The Company agrees to pay to each Authentication Agent from time to time reasonable compensation for its services under this Section. Pursuant to each appointment made under this Section, the Notes of each series covered by such appointment may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the form (i) set forth on Exhibit A-l with respect to the 2028 Notes, Exhibit A-2 with respect to the 2029 Notes, Exhibit A-3 with respect to the 2031 Notes and Exhibit A-4 with respect to the 2036 Notes or (ii) set forth in Section 2.03 for all other Notes.
Section 6.15 Roles of Trustee. For the avoidance of doubt, the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by the Trustee in each of its capacities in which it may serve, mutatis mutandis, as well as to each agent, custodian and other person employed by it to act hereunder.
Section 6.16 Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the funds may at the time be located, the Trustee shall have the power and may execute and deliver all instruments necessary to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the funds, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the funds, or any part hereof, and subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.09 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.10 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the funds or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee;
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(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article. Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
Section 6.17 Authorization to enter intoEscrow Agreement. Each Holder, by its acceptance of a Note, consents and agrees to the terms of the Escrow Agreement, as the same may be in effect or may be amended from time to time in writing by the parties thereto, and authorizes and directs the Trustee to enter into and acknowledge the Escrow Agreement and to perform its obligations and exercise its rights thereunder in accordance herewith and therewith. The Company shall do or cause to be done all such acts and things as may be reasonably necessary or proper, or as may be required by the provisions of the Escrow Agreement, to assure and confirm to the Trustee the security interests contemplated by the Escrow Agreement or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the applicable Notes, according to the intent and purpose herein expressed. The Company shall take, or shall cause to be taken, any and all actions reasonably required to create and maintain, as security for the obligations of the Company under this Indenture and the Notes as provided in the Escrow Agreement, a valid and enforceable first-priority security interest in and on all the Escrowed Property, in favor of the Trustee for the benefit of the Holders, superior to and prior to the rights of third Persons and subject to no other Liens.
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ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) either (i) not later than the date specified in the applicable series of Notes in each year in the case of Original Issue Discount Notes of any series which by their terms do not bear interest prior to Maturity, or (ii) not more than 15 days after each Regular Record Date in the case of Notes of any other series, a list, each in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Notes of such series as of the preceding date specified in such series of Notes or as of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Note Registrar.
Section 7.02 Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Note Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(a) If three or more Holders (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Note for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Indenture or under the Notes and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
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(b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. Every Holder of Notes, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b) (or pursuant to the Trust Indenture Act, as if the Trust Indenture Act were inapplicable), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).
Section 7.03 Reports by Trustee. Within 60 days after the first May 15 occurring subsequent to the initial issuance of Notes hereunder and within 60 days after May 15 in each year thereafter, the Trustee shall transmit by mail to all Holders a brief report dated as of such reporting date that complies with Section 313(a) of the Trust Indenture Act (but if no event described in Section 313(a) of the Trust Indenture Act has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Section 313(b)(2) of the Trust Indenture Act. The Trustee shall also transmit by mail all reports as required by Section 313(c) of the Trust Indenture Act.
A copy of each report at the time of its mailing to Holders shall be mailed to the Company and filed with the Commission and each stock exchange, if any, on which any Notes are listed in accordance with Section 313(d) of the Trust Indenture Act. The Company shall promptly notify the Trustee when any Notes are listed or delisted on any stock exchange.
Section 7.04 Reports by Company. Whether or not required by the rules and regulations of the Commission, so long as any Notes remain Outstanding, the Company shall furnish to the Holders or cause the Trustee to furnish to the Holders (or file with the Commission for public availability), the following:
(a) all quarterly and annual reports that would be required to be filed with the Commission on Form 10-Q and 10-K, or any successor form, if the Company were required to file such reports, containing the information required to be contained therein, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to annual reports only, a report on the Company’s consolidated financial statements by the Company’s certified independent accountants; and
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(b) all current reports that would be required to be filed with the Commission on Form 8-K, or any successor form, if the Company were required to file such reports containing the information required to be contained therein.
in each case, within **** the time periods specified in the Commission’s rules and regulations **** applicable to a “non-accelerated filer,” after giving effect to all applicable extensions and cure periods.
(c) if requested by any Holder, furnish to such Holder or to any prospective purchaser designated by such Holder, the Company’s business and financial information as required by paragraph (d)(4) of Rule 144A of the Securities Act, so long as the Notes remain Outstanding;
(d) furnish to the Trustee, within 120 days after the end of the Company’s fiscal year, and no less often than annually, a certificate from a principal executive officer, principal financial officer or principal accounting officer of the Company as to his or her knowledge that (i) no Event of Default or (ii) no event that, with the giving of notice, the passage of time, or both, would constitute an Event of Default, has occurred and is continuing at such time; provided that if an event specified in (i) or (ii) above has occurred, the certificate shall specify all such events and the nature and status thereof and what action the Company plans to take to cure such default or Event of Default;
For the avoidance of doubt, the availability of the foregoing reports on the Commission’s EDGAR filing system will be deemed to satisfy the foregoing delivery requirements. The terms of this Indenture shall not impose any duty on the Company under the Sarbanes-Oxley Act of 2002 and the related Commission rules that would not otherwise be applicable.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
(a) Neither the Company nor, at any time when the Notes are guaranteed, any Guarantor will consolidate or merge with or into or wind up into (whether or not the Company or such Guarantor is the surviving corporation), in one or more related transactions, any Person unless:
(i) the resulting or surviving Person (the “Successor Company”) is the Company, such Guarantor, a Wholly Owned Subsidiary of the Company or such Guarantor or a Person organized and existing under the laws of a Permitted Jurisdiction;
(ii) the Successor Company (if other than the Company or the applicable Guarantor) expressly assumes, in the form provided in Exhibit C hereto, all of the obligations of the Company or the applicable Guarantor under the Notes and the Indenture pursuant to a supplemental indenture;
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(iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(iv) the Company and the applicable Guarantor, if any, shall have delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up or disposition, and such supplemental indenture, if any, comply with this Indenture.
(b) Neither the Company nor, at any time when the Notes are guaranteed, any Guarantor will sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the Company’s or such Guarantor’s properties and assets, in one or more related transactions, to any Person unless:
(i) the Person receiving the sale, assignment, conveyance, transfer, lease or disposition is a Wholly Owned Subsidiary of the Company or a Guarantor or a Person organized and existing under the laws of a Permitted Jurisdiction;
(ii) the Person receiving the sale, assignment, conveyance, transfer, lease or disposition expressly assumes all of the obligations of the Company or such Guarantor under the Indenture and Guarantee (in the case of a Guarantor) pursuant to a supplemental indenture;
(iii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(iv) the Company and the applicable Guarantor, if any, shall have delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, stating that such sale, assignment, conveyance, transfer, lease or disposition, and such supplemental indenture, if any, comply with this Indenture.
Notwithstanding anything herein to the contrary, for purposes of this Section 8.01, the lease of Aircraft Assets in the ordinary course of business of the Company, any of the Company’s Subsidiaries or at any time when the Notes are guaranteed, any Guarantors shall not be considered the lease of all or substantially all of the Company’s, or at any time when the Notes are guaranteed, any Guarantor’s Properties and assets.
A single transaction or a series of related transactions between or among the Company and its wholly-owned Subsidiaries will not be subject to the provisions of this Section 8.01.
In addition, if the conditions described in Section 8.01 are satisfied, the Company and, at any time the Notes are guaranteed, such Guarantor need not obtain the approval of the Holders in order to merge, consolidate or convey, transfer or lease all or substantially all of the Company’s or such Guarantor’s Properties and assets to another Person. Neither the Company nor, at any time when the Notes are guaranteed, any Guarantor will liquidate or dissolve other than in connection with a transaction permitted by this Article VIII. For the avoidance of doubt, nothing in this Article VIII shall prohibit the consummation of the Air Lease Merger.
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Section 8.02 Successor Corporation Substituted. Upon any consolidation by the Company with or merger by the Company into any other Person in which the Company is not the surviving entity or any conveyance, transfer or lease of all or substantially of the Company’s Properties and assets in a single transaction or a series of related transactions in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such successor Person had been named as the Company herein and therein, and thereafter, except in the case of a lease of the Company’s Properties and assets, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE IX
SUPPLEMENTAL INDENTURE
Section 9.01 Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company and, at any time when the Notes are guaranteed, the Guarantors, when authorized by a Board Resolution, and the Trustee (when instructed by Company Order), at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or, at any time when the Notes are guaranteed, to any Guarantor and the assumption by any such successor of the covenants of the Company herein and in the Notes and, at any time when the Notes are guaranteed, the Guarantees; or
(b) to add to the covenants of the Company or to add any additional Events of Default for the benefit of the Holders of all or any series of Notes (and if such covenants are to be for the benefit of less than all series of Notes, stating that such covenants are expressly being included solely for the benefit of such series); or
(c) to surrender any right or power herein conferred upon the Company or, at any time when the Notes are guaranteed, the Guarantors; or
(d) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Note Outstanding **** of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(e) to secure all or any series of the Notes; or
(f) to establish the form or terms of Additional Notes of any series as permitted by Sections 2.02 and 3.01 or to provide for the issuance of Additional Notes having terms substantially identical in all material respects to the Initial Notes issued on the Issue Date, and all Exchange Notes issued in exchange for Initial Notes, and which shall be treated, together with other outstanding Initial Notes, as a single class of securities; or
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(g) to add to, delete from, or to revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, other than the Notes; or
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or
(i) to cure any ambiguity, omission or defect, or to correct or supplement any provision herein or in the Notes which may be inconsistent with any other provision herein or in the Notes or, at any time when the Notes are guaranteed, the Guarantees or to make any other provisions with respect to matters or questions arising under this Indenture or in the Notes; or
(j) to make any provision which does not materially adversely affect the interests of the Holders of the Notes; or
(k) to conform the text of this Indenture or the Notes of a series to any provision of a related “Description of Notes” to the extent that such provision in the related “Description of Notes” was intended to be a verbatim, or substantially verbatim, recitation of a provision of this Indenture, the Notes of a series or, at any time when the Notes are guaranteed, the Guarantees (as provided for in a Directors’ Certificate to the Trustee).
Section 9.02 Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes of each series affected by such supplemental indenture, by act of said Holders delivered to the Company and the Trustee, the Company and, at any time when the Notes are guaranteed, the Guarantors, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Notes with respect to the series of securities that constitutes the Notes of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon, or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Note that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or adversely affect any right of repayment at the option of the Holder of any Note, following the occurrence of a Change of Control Triggering Event with respect to such Change of Control Triggering Event, or change the coin or currency in which any Note or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or
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(b) reduce the percentage in principal amount of the Outstanding Notes of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify the Company’s obligation to redeem the Notes through a Special Mandatory Redemption, as described in Section 15.03 in a manner that would adversely affect the Holder of any Note, or
(d) amend, change or modify any provision of this Indenture that would cause any of the Outstanding Notes or, at any time when the Notes are guaranteed, the Guarantees not to be pari passu in right of payment with the Company’s or, at any time when the Notes are guaranteed, the Guarantors’ existing unsecured and unsubordinated Indebtedness in a manner adverse to the Holders of such Outstanding Notes.
(e) The Escrow Agreement may not be amended, supplemented or otherwise modified without the prior written consent of the parties thereto; provided that no provisions of the Escrow Agreement may be waived or modified in any manner materially adverse to the Holders of the Notes without the written consent of the Holders of a majority in principal amount of the Outstanding Notes; provided, further, that the Company, the Trustee, and the Escrow Agent may amend, supplement or otherwise modify the Escrow Agreement without the consent of the Holders:
| (1) | to cure any ambiguity, omission, mistake, defect, error or inconsistency, (to provide for uncertificated Notes<br>in addition to or in place of certificated Notes); |
|---|---|
| (2) | to make any change that would provide any additional rights or benefits to the Holders or that does not<br>adversely affect any such Holder in any material respect; or |
| --- | --- |
| (3) | to conform the text of the Escrow Agreement to any provision of a related “Description of Notes” to<br>the extent that such provision in the related “Description of Notes” was intended to be a verbatim, or substantially verbatim, recitation of a provision of this Indenture, the Notes of a series or, at any time when the Notes are<br>guaranteed, the Guarantees (as provided for in a Directors’ Certificate to the Trustee). |
| --- | --- |
(f) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Notes or which modifies the rights of the Holders of Notes of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Notes of any other series.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
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It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive and (subject to Section 6.01) shall be fully protected in relying upon, a Directors’ Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture is the legal, valid and binding obligation of the Company and, at any time when the Notes are guaranteed, each Guarantor, enforceable against the Company in accordance with its terms, subject to customary exceptions, and complies with the provisions herein. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby to the extent provided therein.
Section 9.05 Reference in Notes to Supplemental Indentures. Notes of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall, if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes of such series.
Section 9.06 Reservation of Rights of Trustee. Notwithstanding anything to the contrary in Sections 9.01 or 9.02, no supplemental indenture or modification or amendment to this Indenture which has the effect of (i) materially increasing the obligations or duties of the Trustee hereunder, (ii) materially decreasing the compensation or rights of the Trustee hereunder, or (iii) materially and adversely affecting the Trustee, shall become effective without the prior consent of the Trustee.
Section 9.07 Compliance with Trust Indenture Act After Qualification. After qualification of this Indenture under the Trust Indenture Act, any supplemental indenture thereafter executed will conform to the requirements of the Trust Indenture Act.
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ARTICLE X
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Notes that it will duly and punctually pay the principal of (and premium, if any) and interest on the Notes of that series in accordance with the terms of the Notes and this Indenture, subject to the provisions of any modifications provided by the supplemental indenture, if any, or the Directors’ Certificate, if any, under which such series of Notes is issued.
Section 10.02 Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Notes an office or agency (which may be an office of the Trustee, any Paying Agent, or the Note Registrar) where Notes of that series may be presented or surrendered for payment, where Notes of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Notes of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Notes of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03 Money for Notes Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Notes, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Notes of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly but in any event within five
(5) Business Days notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Notes, it will, prior to each due date of the principal of (and premium, if any) or interest on any Notes of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly but in any event within five (5) Business Days notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Notes other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Notes of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the Notes of that series) in the making of any payment of principal (and premium, if any) or interest on the Notes of that series; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any Paying Agent shall also be entitled to the benefits and protections afforded the Trustee under ARTICLE VI.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company in trust for the payment of the principal of (and premium, if any) or interest on any Note of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04 Corporate Existence. Subject to ARTICLE VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect their corporate existence and the rights (charter and statutory) and franchises of the Subsidiaries, if applicable (unless merged into the Company or a Subsidiary); provided, however, that the Company and shall not be required to preserve any such right or franchise if it shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the and/or any Subsidiary and that the loss thereof is not adverse in any material respect to the Holders.
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Section 10.05 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent and to the extent the same have become due and payable, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any Significant Subsidiary or upon the income, profits or Property of the Company or any Significant Subsidiary, and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Property of the Company or any Significant Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim if (a) the amount, applicability or validity thereof is being contested in good faith by appropriate proceedings, and the Company or any Subsidiary has established adequate reserves therefor in accordance with GAAP on the books of the Company or such Subsidiary, (b) the nonpayment of all such taxes, assessments, charges and claims in the aggregate is not adverse in any material respect to the Holders, or (c) the lessee of an Aircraft Asset is obliged under its lease agreement with the Company or such Subsidiary to discharge such taxes, assessments, charges and claims.
Section 10.06 Reports. The Company will deliver, transmit and furnish all reports, certificates and other documents required to be delivered, transmitted and furnished pursuant to Section 7.04 herein.
Section 10.07 Limitation on the Conduct of Business of Holdings. If Holdings incurs Specified Indebtedness, the Company shall not permit Holdings to become liable for any material obligations, hold any material assets or engage in any significant business activities or operations other than: (1) in connection with its ownership of the Capital Stock of the Company and its Subsidiaries, as applicable, (2) the maintenance of its legal existence, (3) the consummation of the issuance of the Notes, (4) performing any obligations with respect to this Indenture and any activities relating to any permitted refinancing of the Notes, (5) performing its obligations as a borrower under, and performing any activities relating to any permitted refinancing of the Term Loan Credit Agreement and the Revolving Credit Agreement and (6) in each case any activities incidental to the foregoing. At any time that Holdings is not an obligor under Specified Indebtedness, this Section 10.07 shall not be applicable.
Section 10.08 Limitation on Liens. Except as provided below, the Company will not, and will not permit any Subsidiary to, at any time pledge or otherwise subject to any Lien any of its or such Subsidiary’s property, tangible or intangible, real or personal (hereinafter “property”), without thereby expressly securing all of the debt securities outstanding under this Indenture (together, if the Company so chooses, with any other securities entitled to the benefit of a similar covenant) equally and ratably with any and all other indebtedness for borrowed money or Capital Leases, including any guarantee, secured by such Lien, so long as any such other indebtedness or Capital Lease shall be so secured, and the Company covenants that if and when any such Lien is created, such debt securities will be so secured thereby**; provided,that**, this restriction shall not apply to any Lien on any property existing as of the date of this Indenture or to the following Liens securing indebtedness for borrowed money or Capital Leases, including any guarantee:
(a) any Lien on any property (including Aircraft Assets and Capital Stock in any Special Purpose Aircraft Financing Entity) securing Non-Recourse Indebtedness;
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(b) any Lien on any property (including Aircraft Assets and Capital Stock in any Special Purpose Aircraft Financing Entity) (a) existing at the time of acquisition of such property or the entity owning such property (including acquisition through merger or consolidation), or (b) given to secure the payment of all or any part of the purchase, lease or acquisition thereof or the cost of construction, repair, refurbishment, modification or improvement of property (including Aircraft Assets and Capital Stock in any Special Purpose Aircraft Financing Entity) or to secure any indebtedness (including ECA Indebtedness) or Capital Lease incurred prior thereto, at the time of, or within 180 days (18 months in the case of Aircraft Assets and Capital Stock in any Special Purpose Aircraft Financing Entity) after, the acquisition, construction, repair, refurbishment, modification or improvement of property (including Aircraft Assets and Capital Stock in any Special Purpose Aircraft Financing Entity) for the purpose of financing all or part of the purchase, lease or acquisition thereof or the cost of construction, repair, refurbishment, modification or improvement;
(c) Liens by a Subsidiary as security for indebtedness owed to the Company or any Subsidiary;
(d) a banker’s lien or right of offset of the holder of such indebtedness in favor of any lender of moneys or holder of commercial paper of the Company or any Subsidiary in the ordinary course of business on moneys of the Company or such Subsidiary deposited with such lender or holder in the ordinary course of business;
(e) mechanic’s, workmen’s, repairmen’s, materialmen’s or carriers’ Liens or other similar Liens arising in the ordinary course of business or deposits or pledges to obtain the release of any such Liens;
(f) any Lien arising out of a judgment or award against the Company with respect to which the Company shall in good faith be prosecuting an appeal or proceedings for review or Liens incurred by the Company for the purpose of obtaining a stay or discharge in the course of any legal proceeding to which the Company is a party;
(g) any Lien for taxes not yet subject to penalties for nonpayment or contest, or minor survey exceptions, or minor encumbrances, assessments or reservations of, or rights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties, which encumbrances, assessments, reservations, rights and restrictions do not in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the Company’s business;
(h) any Lien to secure obligations with respect to any interest rate, foreign currency exchange, swap, collar, cap or similar agreements entered into in the ordinary course of business to hedge or mitigate risks related to the Company’s or any of its Subsidiaries’ indebtedness for borrowed money and not for speculative purposes; provided, however, that the collateral securing any Liens permitted by this clause (h) shall be limited to U.S. dollars, Foreign Currency and/or Government Obligations;
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(i) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien existing on the date of this Indenture or referred to in the foregoing clauses, including in connection with the refinancing of indebtedness of the Company and its Subsidiaries secured by such Lien; and
(j) other Liens not permitted by any of clauses (a) through (i) above on any property, now owned or hereafter acquired; provided, that, no such Liens shall be incurred pursuant to this clause (j) if the aggregate principal amount of outstanding indebtedness (without duplication for any guarantee of such indebtedness) and Capital Leases secured by Liens incurred pursuant to this clause (j) subsequent to the date of this Indenture, including the Lien proposed to be incurred, shall exceed 20% of Consolidated Tangible Assets after giving effect to such incurrence and the use of proceeds of such indebtedness or Capital Leases.
This Section 10.08 does not limit Liens that do not secure indebtedness for borrowed money or Capital Leases.
Any Lien that is granted to secure the debt securities outstanding under this Indenture pursuant to this Section 10.08 will be automatically released and discharged at the same time as the release (other than through the exercise of remedies with respect thereto) of each Lien that gave rise to such obligations to secure such debt securities under this Section 10.08.
Section 10.09 [Reserved.]
Section 10.10 Repurchase at the Option of Holders.
(a) If a Change of Control accompanied by a Ratings Event (a “Change of Control Triggering Event”) occurs at any time, unless the Company has exercised its right to **** redeem the Notes pursuant to ARTICLE XI, each Holder of the Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to a Change of Control offer on the terms set forth in this Indenture at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased, to, but not including, the date of repurchase. Within 30 days following the date upon which the Change of Control Triggering Event, occurred, or, at the Company’s option, prior to any Change of Control but after the public announcement of the Change of Control, unless the Company has otherwise exercised its right to redeem the Notes, it will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase the Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”), pursuant to the procedures required by this Indenture and described in such notice. The **** notice, if sent prior to the date of the consummation of the Change of Control, will state that the Change of Control offer is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. Unless the Company defaults in such payment, all Notes accepted for payment pursuant to the Change of Control offer will cease to accrue interest after such payment date. The Company will comply with the requirements of Rule 14e-l under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions in this Indenture applicable to a Change of Control offer, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached these respective obligations under this Indenture by virtue of such compliance.
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(b) On the payment date in relation to a Change of Control offer, the Company will to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with a Directors’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(c) The Paying Agent will promptly mail to each Holder properly tendered the purchase price for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(d) The Company will publicly announce the results of the Change of Control offer on or as soon as practicable after the Change of Control payment date.
(e) Notwithstanding anything to the contrary herein, the Company will not be required to make a Change of Control offer pursuant to this Section 10.10 if a third party makes the Change of Control offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control offer or the Company has exercised its right to redeem the Notes as described in Section 11.02, unless and until there is a default in payment of the applicable redemption price.
(f) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in a Change of Control offer, and the Company, or any third party making a Change of Control offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such holders, the Company will have the right, upon not less than ten nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to the Change of Control offer described above, to redeem all notes that remain outstanding following such purchase at a redemption price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date.
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(g) Notwithstanding anything to the contrary herein, a Change of Control offer may be made in advance of a Change of Control, conditioned upon consummation of such Change of Control, if a definitive agreement is in place for the Change of Control at the time the Change Control offer is made.
(h) The Company will deliver to the Trustee a Directors’ Certificate specifying the Holders who properly tendered its Notes pursuant to this Section 10.10.
Section 10.11 Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 10.04 to 10.10, inclusive, with respect to the Notes of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Notes of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to waive compliance with any term, provision or condition referred to in the immediately preceding paragraph. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to waive, compliance with any such term, provision or condition, whether or not such Holders remain Holders after such record date; provided that unless such requisite percentage in principal amount shall have been obtained prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
ARTICLE XI
REDEMPTIONOF NOTES
Section 11.01 Applicability of Article. Notes of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Notes of any series) in accordance with this Article; provided that if any provision of any series of Notes shall conflict with any provision of this **** Article, the provision of such series of Notes shall govern.
Section 11.02 Election toRedeem; Notice to Trustee. The election of the Company to redeem any Notes shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Notes of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the tenor, if applicable, of the Notes to be redeemed, and of the principal amount of Notes of such series to be redeemed. In the case of any redemption of Notes prior to the expiration of any restriction on such redemption provided in the terms of such Notes or elsewhere in this Indenture, the Company shall furnish the Trustee with a Directors’ Certificate evidencing compliance with such restriction.
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Section 11.03 Selection by Trustee of Notes to Be Redeemed. If less than all the Notes of any series are to be redeemed (unless all of the Notes of a specified tenor are to be redeemed), the particular Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Notes of such series subject to such redemption and not previously called for redemption, by such method as the Trustee shall deem fair and appropriate (in accordance with the applicable procedures of the Depositary) and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Notes of that series or any integral multiple thereof) of the principal amount of Notes of such series of a denomination larger than the minimum authorized denomination for Notes of that series.
The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.
Section 11.04 Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than ten nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed, at his or her address appearing in the Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Notes of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Notes to be redeemed;
(d) the CUSIP and ISIN numbers of the Notes to be redeemed;
(e) that on the Redemption Date the Redemption Price will become due and payable upon each such Note or portion thereof to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
(f) the place or places where such Notes are to be surrendered for payment of the Redemption Price; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Notes to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company. If the Trustee is to give such notice, the Company shall instruct the Trustee in writing no later than ten Business Days (unless a shorter period is agreed to by the Trustee) before the desired notice mailing date. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
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Section 11.05 Deposit of Redemption Price. By 12:00 p.m. in New York, NY on the Business Day prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Notes which are to be redeemed on that date
Section 11.06 Notes Payable on Redemption Date. Notice of redemption having been given to the Holders as set forth in Section 11.04, the Notes or portion thereof so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Notes shall cease to bear interest. Upon surrender of any such Note for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that unless otherwise specified as contemplated by Section 3.01 for Notes of any series, **** installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Note.
Section 11.07 Notes Redeemed inPart. Any Note which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of such Note without service charge, a new Note or Notes of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered. If a Global Note is so surrendered, such new Note so issued shall be a new Global Note.
ARTICLE XII
SINKING FUNDS
Section 12.01 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Notes of a series except as otherwise specified as contemplated by Section 3.01 for Notes of such series. The minimum amount of any sinking fund payment provided for by the terms of Notes of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the **** terms of Notes of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Notes of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Notes of any series as provided for by the terms of Notes of such series.
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Section 12.02 Satisfaction of Sinking Fund Payments with Notes. The Company (1) may deliver to the Trustee Outstanding Notes of a series (other than any previously called for redemption) and (2) may apply as a credit Notes of a series which have been redeemed either at the election of the Company pursuant to the terms of such Notes or through the application of permitted optional sinking fund payments pursuant to the terms of such Notes, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Notes of such series required to be made pursuant to the terms of such Notes as provided for by the terms of such series; provided that such Notes have not been previously so credited. Such Notes shall be received and **** credited for such purpose by the Trustee at the Redemption Price specified in such Notes for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Notes for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Notes, the Company will deliver to the Trustee a Directors’ Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Notes of that series pursuant to Section 12.02 and will also deliver to the Trustee any Notes to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Notes to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Notes shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
LEGALDEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. Unless otherwise provided pursuant to Section 3.01, this Article shall be **** applicable to the Notes of any series, and the Company may at its option by Board Resolution, at any time, with respect to the Notes of such series, elect to have either Section 13.02 (if applicable) or Section 13.03 (if applicable) be applied to the Outstanding Notes of such series upon compliance with the conditions set forth below in this Article.
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Section 13.02 Defeasance and Discharge. Upon the Company’s exercise of the above option applicable to this Section, the Company and, at any time the Notes are guaranteed, each Guarantor shall be deemed to have been discharged from its and obligations with respect to the Outstanding Notes and, at any time the Notes are guaranteed, the Guarantees of such series on and after the date the conditions precedent set forth in Section 13.04 are satisfied but subject to satisfaction of the conditions subsequent set forth in Section 13.04 (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed **** to have paid and discharged the entire indebtedness represented by the Outstanding Notes of such series and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Notes of such series to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments of the principal of (and premium, if any) and interest on such Notes when such payments are due, (B) the Company’s obligations with respect to such Notes under Sections 3.04, 3.05, 3.06, 10.02 and 10.03 and such obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties, immunities and other provisions in respect of the Trustee hereunder and (D) this Article. Subject to compliance with this Article, the Company may exercise its option under this Section 13.02 notwithstanding the prior exercise of its option under Section 13.03 with respect to the Notes of such series. Following a Legal Defeasance, payment of the Notes of such series may not be accelerated because of an Event of Default.
Section 13.03 Covenant Defeasance. Upon the Company’s exercise of the above option applicable to this Section, the Company and, at any time the Notes are guaranteed, each Guarantor, to the extent applicable, shall be released from its obligations under Section 10.04 through 10.10 (and any other Sections applicable to such Notes that are determined pursuant to Section 3.01 to be subject to this provision) and the occurrence of an Event of Default specified in Section 5.01(c) (insofar as it is with respect to Section 10.10) or Section 5.01(d) (insofar as it is with respect to Sections 10.04 through 10.09 or any other Section applicable to such Notes that are determined pursuant to Section 3.01 to be subject to this provision) or Section 5.01(e) shall be deemed not to be an Event of Default with respect to the Outstanding Notes of such series on and after the date the conditions precedent set forth in Section 13.04 are satisfied but subject to satisfaction of the conditions subsequent set forth in Section 13.04 (hereinafter, “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes and, at any time the Notes are guaranteed, each Guarantee of such series the Company and, at any time the Notes are guaranteed, each Guarantor, to the extent applicable, may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Notes and, at any time the Notes are guaranteed, the Guarantees, to the extent applicable, shall be unaffected thereby. Following a Covenant Defeasance, payment of the Notes of such series may not be accelerated because of an Event of Default specified in Section 5.01(e) or by reference to such other Section specified above in this Section 13.03.
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Section 13.04 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions precedent or, as specifically noted below, subsequent to application of either Section 13.02 or Section 13.03 to the Outstanding Notes of such series:
(a) the Company or, at any time when the Notes are guaranteed, the Guarantors shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.09 who shall agree to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes, (A) cash in U.S. dollars in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, cash in U.S. dollars in an amount, or (C) a combination thereof, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, sufficient, without reinvestment, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest on the Outstanding Notes of such series to maturity or redemption, as the case may be, and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Notes of such series on the due dates thereof (provided that, in the case of a Redemption Date, if the amount of cash or Government Obligations that the Company or, at any time when the Notes are guaranteed, the Guarantors must have irrevocably deposited cannot be definitively calculated, the Company or, at any time when the Notes are guaranteed, the Guarantors must have irrevocably deposited an amount of cash or Government Obligations that will generate enough cash to pay principal (and premium, if any) and interest in full, without discounting, to the Redemption Date, it being understood that any excess amounts will be returned to the Company or, at any time when the Notes are guaranteed, the applicable Guarantors promptly following the Redemption Date). Before such deposit the Company may make arrangements satisfactory to the Trustee for the redemption of Notes at a future date or dates in accordance with ARTICLE XI, which shall be given effect in applying the foregoing. For purposes of this Section, the Government Obligations may not be callable or redeemable at the option of the issuer of such Government Obligations. The Company will deliver a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to such Government Obligation or a specific payment of principal of or interest on such Government Obligation held by such custodian for the account of the Trustee, as holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of principal of or interest on the Government Obligation evidenced by such depositary receipt.
(b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Notes or, at any time when the Notes are guaranteed, the Guarantees of such series shall have occurred and be continuing (A) on the date of such deposit (other than an Event of Default arising in connection with the substantially contemporaneous borrowing of funds to fund such deposit and the granting of any security interest securing such borrowing, in each case, other than in contemplation of an event of the type described in clauses (f) and (g) of Section 5.01) or (B) insofar as Sections 5.01(f) and 5.01(g) are concerned, at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that the condition in this clause (b) is a condition subsequent and shall not be deemed satisfied until the expiration of such period).
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(c) Such Legal Defeasance or Covenant Defeasance shall not (A) cause the Trustee for the Notes of such series to have a conflicting interest as defined in Section 6.08 or for purposes of the Trust Indenture Act with respect to any Notes of the Company or (B) result in the trust arising from such deposit to constitute, unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended.
(d) Such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture (other than an Event of Default arising in connection with the substantially contemporaneous borrowing of funds to fund such deposit and the granting of any security interest securing such borrowing, in each case, other than in contemplation of any event of the type described in clauses (f) and (g) of Section 5.01) or any other material agreement or instrument to which the Company is a party or by which it is bound.
(e) Such Legal Defeasance or Covenant Defeasance shall not cause any Notes of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(f) In the case of an election under Section 13.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been published by, the IRS a ruling, or (y) since the date of this Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Notes of the series to be defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred.
(g) In the case of an election under Section 13.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Notes of the series to be defeased will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred.
(h) Such Legal Defeasance or Covenant Defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company or, at any time when the Notes are guaranteed, the Guarantors in connection therewith pursuant to Section 3.01.
(i) The Company shall have delivered to the Trustee a Directors’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance under Section 13.02 or the Covenant Defeasance under Section 13.03 (as the case may be) have been complied with.
Section 13.05 Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 10.03, **** all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee – collectively, for purposes of this Section 13.05, the “Trustee”) pursuant to Section 13.04 in respect of the Outstanding Notes of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (but not including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash in U.S. dollars or Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any cash in U.S. dollars or Government Obligations held by it as provided in Section 13.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (upon which the Trustee may rely conclusively), are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Anything herein to the contrary notwithstanding, if and to the extent the deposited cash in U.S. dollars or Government Obligations (or the proceeds thereof) either (i) cannot be applied by the Trustee in accordance with this Section because of a court order or (ii) are for any reason insufficient in amount, then the Company’s obligations to pay principal of (and premium, if any) and interest on the Notes of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any case specified in clause (i), the Company’s interest in the deposited money and Government Obligations (and proceeds thereof) shall be reinstated to the extent the Company’s payment obligations are reinstated.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 13.06 Knowledge of Trustee. Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of moneys to or by the Trustee, or the taking of any other action by the Trustee, unless and until a Responsible Officer of the Trustee has actual knowledge or unless same shall have received written notice thereof mailed or delivered to the Trustee at its Corporate Trust Office (attn: Corporate Trust Services – Takeoff Merger Administrator), and such notice clearly references the Notes, the Company or this Indenture, from the Company or any Holder; provided that if at least three Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of the principal or interest on any Note) the Trustee shall not have received with respect to such moneys the notice provided for in this Section, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary that may be received by it within three Business Days prior to or on or after such date. For the avoidance of doubt, delivery of reports, information and documents to the Trustee under Section 7.04 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Directors’ Certificates). It is also understood and agreed that the sole responsibility of the Trustee with respect to any reports furnished to it pursuant to Section 7.04 shall be to furnish copies of the same to the Holders under the conditions specified in Section 7.04.
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ARTICLE XIV
GUARANTEE
Section 14.01 Future Note Guarantees. Concurrently with the consummation of the Air Lease Merger and at any time thereafter, each Subsidiary of the Company that guarantees any Specified Indebtedness of Holdings or the Company will fully and unconditionally guarantee the Notes on a senior unsecured basis by executing and delivering to the Trustee a supplemental indenture in accordance with the provisions in ARTICLE IX.
Section 14.02 Limitation on Liability; Termination, Release and Discharge.
(a) The obligations of any Guarantor hereunder shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of the such Guarantor result in the obligations of the Company not constituting a fraudulent conveyance, fraudulent transfer or similar illegal transfer under applicable law.
(b) A Guarantor shall be released and relieved of its obligations under this Guarantee in the event that:
(i) there is a Legal Defeasance or Covenant Defeasance of the Notes pursuant to Article XIII;
(ii) there is a sale or other disposition of such Guarantor following which such Guarantor is no longer a direct or indirect Subsidiary of the Company; or
(iii) upon the request of the Company and the receipt by the Trustee of an officer’s certificate certifying that such Guarantor is not a guarantor of Specified Indebtedness of Holdings or the Company;
provided, in each case, such transactions are carried out pursuant to and in accordance with all **** applicable covenants and provisions hereof.
Section 14.03 No Subrogation. The Guarantors shall not be entitled to any right of subrogation in respect of any of the guaranteed obligations of the Company until payment in full of all guaranteed obligations. If any amount shall be paid to a Guarantor on account of such subrogation rights at any time when all of the obligations of the Company shall not have been paid in full in cash, such amount shall be held by the Guarantor in trust for the Trustee and the Holders, segregated from other funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to the Trustee in the exact form received by the Guarantors (duly endorsed by the Parent to the Trustee, if required), to be applied against the obligations of the Company.
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ARTICLE XV
ESCROW ARRANGEMENTS
Section 15.01 Escrow of Proceeds. Unless otherwise indicated in any Director’s Certificate or supplemental indenture with respect to Additional Notes, this Article XV shall apply only with respect to the Initial Notes.
(a) The Company has deposited an amount equal to the net proceeds of the offering of the Initial Notes sold on the Issue Date into an escrow account (the “Escrow Account”) (such net proceeds, together with any other funds or property from time to time held by the Escrow Agent in the Escrow Account, the “Escrowed Property”).
(b) The Escrowed Property will be held in the Escrow Account until the earliest of (i) the date on which the Company delivers to the Escrow Agent and the Trustee an officer’s certificate in the form attached as Exhibit [C] to the Escrow Agreement (an “Escrow Release Certificate”), (ii) the Escrow End Date, and (iii) the date on which the Company delivers written **** notice to the Escrow Agent and the Trustee that (A) the Company will not pursue the consummation of the Air Lease Merger and that the Merger Agreement has been terminated or (B) the Merger Agreement has been amended, modified or waived, or any consent has been granted with respect thereto, in a manner that would be materially adverse to the holders (as reasonably determined by the Company) (such notice, a “Termination Notice”).
(c) Pursuant to the Escrow Agreement, the Company has granted the Trustee, for its benefit and the benefit of the holders, subject to certain liens of the Escrow Agent, a first-priority security interest in the Escrow Account and all Escrowed Property to secure the payment of the Special Mandatory Redemption Amount; provided, however, that such lien and security interest shall automatically be released and terminate at such time as the Escrowed Property is released from the Escrow Account on the Escrow Release Date. The Escrow Agent will be permitted to invest the Escrowed Property in accordance with the Escrow Agreement.
Section 15.02 Release of EscrowedFunds.
(a) Pursuant to the Escrow Agreement, the Company will only be entitled to direct the Escrow Agent to release the Escrowed Property (in which case the Escrowed Property will be paid to or as directed by the Company) (the “Escrow Release”) upon delivery to the Escrow Agent and the Trustee, on or prior to the Escrow End Date, of an Escrow Release Certificate certifying that the Escrow Release Conditions shall have been satisfied or that the Company believes will be satisfied substantially concurrently with the release of the Escrowed Property (the date of the Escrow Release is hereinafter referred to as the “Escrow Release Date”). The Escrowed Property will be distributed on the Escrow Release Date as directed by the Company.
(b) The Escrow Release shall occur promptly upon satisfaction of the Escrow Release Conditions on or prior to the Escrow End Date. Upon the occurrence of the Escrow Release, the Escrowed Property and any investment earnings thereon shall be paid out in accordance with the Escrow Agreement and the balance of the Escrow Account shall be reduced to zero.
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Section 15.03 Special Mandatory Redemption.
(a) Notwithstanding anything to the contrary in Article XI hereof, if (i) the Escrow Release Conditions have not been fulfilled or (ii) the Company has not delivered a Termination Notice to the Escrow Agent and the Trustee, in each case, on or prior to 10:00 a.m. (New York time) on the Escrow End Date, (x) the Trustee shall send a notice of Special Mandatory Redemption on behalf of the Company to the Holders (with copies to the Company, Sumitomo and SMBC AC) on the Escrow End Date (or if such day is not a Business Day, then the next succeeding Business Day) and (y) the Company will be required to redeem the Initial Notes on the fifth Business Day following the Escrow End Date at the Special Mandatory Redemption Price, plus accrued and unpaid interest on the Initial Notes to, but excluding, the date of redemption (such date, the “Special Mandatory Redemption Date”) (the Special Mandatory Redemption Price, plus accrued and unpaid interest on the Notes to, but excluding, the applicable Special Mandatory Redemption Date, the “Special MandatoryRedemption Amount”).
(b) If the Company delivers a Termination Notice prior to the Escrow End Date to the Escrow Agent and the Trustee, (i) the Trustee shall send a notice of Special Mandatory Redemption on behalf of the Company to the Holders (with copies to the Company, Sumitomo and SMBC AC) no later than the next Business Day following delivery of the Termination Notice to the Escrow Agent and to the Trustee and (ii) the Company will be required to redeem the Initial Notes on the fifth Business Day following the date on which the Trustee sends the notice of Special Mandatory Redemption to the Holders, at the Special Mandatory Redemption Amount.
(c) On or before the Business Day on which the Trustee sends a notice of Special Mandatory Redemption on behalf of the Company to the Holders, the Trustee shall send a notice to Sumitomo and SMBC AC (with a copy to the Company) setting forth, with reasonable supporting calculations, the balance of the Escrow Account and the amount of funds, if any, required to be received from or on behalf of Sumitomo and SMBC AC to pay the Special Mandatory Redemption Amount on the applicable Special Mandatory Redemption Date in excess of the Escrowed Property, and containing applicable payment instructions.
(d) On or before the Business Day immediately prior to the applicable Special Mandatory Redemption Date, (i) the Escrow Agent shall release the Escrow Property (including any investment earnings thereon) to the Trustee, and (ii) the Company shall have caused Sumitomo and SMBC AC to have deposited with the Trustee, in trust for the benefit of the Holders, cash in U.S. dollars, any amounts required to pay the Special Mandatory Redemption Amount on the applicable Special Mandatory Redemption Date in excess of the Escrowed Property. On the applicable Special Mandatory Redemption Date, the Trustee shall cause the redemption of the Initial Notes and the payment to the Holders of the Special Mandatory Redemption Amount. The Trustee will disburse to the Company any Escrow Property remaining after redemption of the Initial Notes and payment of fees and expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | /s/ Noriyuki Hiruta |
| Name: Noriyuki Hiruta | |
| Title: Chief Executive Officer |
[Signature Page toIndenture]
| COMPUTERSHARE TRUST COMPANY , N.A. as Trustee | |
|---|---|
| By: | /s/ Corey J. Dahlstrand |
| Name: Corey J. Dahlstrand | |
| Title: Vice President |
[Signature Pageto Indenture]
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES
The following provisions shall apply to Initial Notes:
| 1. | DEFINITIONS. |
|---|---|
| 1.1 | Definitions |
| --- | --- |
For the purposes of this Appendix A (the “Appendix”) the following terms shall have the meanings indicated below:
“Agent Members” has the meaning specified in Section 2.1(b) of this Appendix.
“Broker-Dealer” has the meaning assigned to that term pursuant to the applicable Registration Rights Agreement.
“Clearstream” means Clearstream Banking, société anonyme, or any successor securities clearing agency.
“Definitive Note” means a certificated Initial Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend.
“Depositary” means, with respect to the Notes, The Depository Trust Company, its nominees and their respective successors.
“Euroclear” means the Euroclear Clearance System or any successor securities clearing agency.
“Exchange Notes” means the notes issued in an Exchange Offer pursuant to Section 2.1(v) of this Appendix.
“Exchange Offer” has the meaning set forth for such term in the applicable Registration
Rights Agreement.
“Exchange Offer Registration Statement” has the meaning set forth for such term in the applicable Registration Rights Agreement.
“Global Notes” means either or both of the Rule 144A Global Notes or the Regulation S
Global Notes, as the context may require.
“Global Notes Legend” means the legend set forth under that caption in Exhibit A-1, Exhibit A-2, Exhibit A-3 and Exhibit A-4 to the Indenture.
A-1
“Initial Purchasers” means SMBC Nikko Securities America, Inc., Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, BNP Paribas Securities Corp, BofA Securities, Inc., Credit Agricole Securities (USA) Inc., Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., MUFG, Securities Americas Inc., R. Seelaus & Co., LLC, RBC Capital Markets, LLC, Wells Fargo Securities, LLC, Australia and New Zealand Banking Group Limited, BBVA Securities, Inc., Bank of China (Europe) S.A., BMO Capital Markets Corp., Caixa Bank S.A., CIBC World Markets Corp., Citizens JMP Securities, LLC, DBS Bank Ltd., ICBC Standard Bank Plc, KeyBanc Capital Markets Inc., Lloyds Securities Inc., Mizuho Securities USA LLC, NatWest Market Securities Inc., Oversea-Chinese Banking Corporation Limited, PNC Capital Markets LLC, Scotia Capital (USA) Inc., Huntington Securities, Inc., TD Securities (USA) LLC, Truist Securities, Inc. and U.S. Bancorp Investments, Inc.
“Initial Notes” means the Notes issued on the Issue Date. The Initial Notes and any Additional Notes of the same series and all Exchange Notes issued in exchange for Initial Notes or any Additional Notes of the same series shall be treated as a single class for all purposes under this Appendix, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes and any Exchange Notes.
“Letter of Transmittal” means any letter of transmittal prepared by the Company and sent to all Holders of Notes for use by such Holders in connection with an Exchange Offer.
“Notes Custodian” means the custodian with respect to a Global Note (as appointed by the Depositary) or any successor person thereto, who shall initially be the Trustee.
“Purchase Agreement” means the Purchase Agreement dated as of March 10, 2026, among the Company, and the Representatives on behalf of the several Initial Purchasers.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of March 24, 2026, among the Company and the Representatives of the Initial Purchasers, as such agreement may be amended, supplemented or modified from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the Company and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Global Notes” has the meaning specified in Section 2.1(b) of this Appendix.
“Regulation S Notes” means all Initial Notes offered and sold outside the U.S. in reliance on Regulation S.
“Representatives” means SMBC Nikko Securities America, Inc., Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC acting on behalf of the several Initial Purchasers.
A-2
“Restricted Period,” with respect to any Notes, means the period of 40 consecutive days beginning on and including the later of (a) the day on which such Notes are first offered to persons other than distributors (as defined in Regulation S under the Securities Act) in reliance on Regulation S, notice of which day shall be promptly given by the Company to the Trustee, and (b) the Issue Date; and with respect to any Additional Notes that are Transfer Restricted Notes, it means the comparable period of 40 consecutive days.
“Restricted Notes Legend” means the legend set forth in Section 2.2(f)(i) of this Appendix.
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Global Notes” has the meaning specified in Section 2.1(b) of this Appendix.
“Rule 144A Notes” means all Initial Notes offered and sold to QIBs in reliance on Rule 144A.
“Shelf Registration Statement” has the meaning assigned to that term in the applicable Registration Rights Agreement.
“Transfer Restricted Definitive Notes” means Definitive Notes that bear or are required to bear or are subject to the Restricted Notes Legend.
“Transfer Restricted Global Notes” means Global Notes bearing the Restricted Notes
Legend.
“Transfer RestrictedNotes” means Transfer Restricted Definitive Notes and Transfer
Restricted Global Notes.
“Unrestricted Definitive Note” means Definitive Notes and any other Notes that are not required to bear, or are not subject to, the Restricted Notes Legend.
“Unrestricted Global Note” means a Global Note that does not bear the Restricted Notes Legend.
| 2. | THE NOTES. |
|---|---|
| 2.1 | Form and Dating; Global Notes. |
| --- | --- |
| (a) | The Initial Notes will be (i) offered and sold by the Company pursuant to the Purchase Agreement and<br>(ii) resold initially only to (1) persons reasonably believed to be QIBs in reliance on Rule 144A and (2) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S. Such Initial Notes may thereafter be<br>transferred to (i) the Company or any of its affiliates, (ii) pursuant to a registration statement that has been declared effective under the Securities Act, (iii) for so long as the securities are eligible for resale pursuant to Rule<br>144A under the Securities Act, to persons reasonably believed to be QIBs as defined in Rule 144A under the Securities Act, (iv) pursuant to offers and sales to non-U.S. Persons in offshore transactions<br>within the meaning of Regulation S under the Securities Act and in accordance with the laws applicable to such purchaser in the jurisdiction in which such purchase is made or pursuant to another available exemption from the registration requirements<br>of the Securities Act. |
| --- | --- |
A-3
| (b) | Global Notes. (i) Rule 144A Notes initially shall be represented by one or more **** permanent<br>Global Notes in fully registered, global form without interest coupons (collectively, the “Rule 144A Global Notes”). Regulation S Notes initially shall be represented by one or more permanent Global Notes in fully registered,<br>global form without interest coupons (collectively, the “Regulation S Global Notes”); provided that any such Regulation S Global Notes shall be deemed to be a “temporary global security” for purposes of Rule 904 under<br>Regulation S until expiration of the Restricted Period. Such Global Notes shall bear the Global Note Legend. Such Global Notes initially shall (i) be registered in the name of a nominee of the Depositary for credit of the respective principal<br>amount of the individual beneficial interests represented by such Global Notes to the account of one or more Agent Members, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear the Restricted Notes Legend.<br> |
|---|
Ownership of beneficial interests in a Global Note will be limited to Persons who have accounts with the Depositary or Persons who hold interests through members of, or direct or indirect participants in, the Depositary, Euroclear or Clearstream (“Agent Members”). Agent Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, Euroclear or Clearstream under the Global Notes. So long as the Depositary, or its nominee, is the registered owner or holder of a Global Note, the Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the Notes represented by such Global Note for all purposes under the Indenture and the Notes, and the Depositary may be treated by the Company, the Trustee, the Note Registrar and any agent of the Company, the Trustee or the Note Registrar as the absolute owner of the Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent, nor shall anything require, the Company, the Trustee, the Note Registrar or any agent of the Company, the Trustee or the Note Registrar from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary, Euroclear or Clearstream, as the case may be, and their respective Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note.
| (i) | Transfers of Global Notes shall be limited to transfers in whole but not in part, to the Depositary, its<br>successors or their respective nominees. Interests of beneficial Owners in the Global Notes may be transferred or exchanged for Definitive Notes only in accordance with the applicable rules and procedures of the Depositary, Euroclear or Clearstream,<br>as the case may be, and the provisions of Section 2.2 of this Appendix. |
|---|
A-4
| (ii) | In addition, a Global Note shall be exchangeable for Definitive Notes if (i) the Depositary at any time<br>(x) notifies the Company that it is unwilling or unable to continue as Depositary for such Global Note and the Company thereupon fails to appoint a successor Depositary within 90 days or (y) has ceased to be a clearing agency registered<br>under the Exchange Act, or (ii) amounts evidenced by such Global Note have become immediately due and payable in accordance with Section 5.02 of the Indenture. Upon receipt of notice of such exchange from the Company, the Depositary or the<br>Trustee, as the case may be, the Company will use best efforts to make arrangements with the Depositary for the exchange of interests in the Global Notes for individual Definitive Notes and cause the requested individual Definitive Notes to be<br>executed and delivered to the Trustee in sufficient quantities and, upon Company Order, authenticated by the Trustee (or the Authentication Agent) for delivery to Holders. Persons exchanging interests in a Global Note for individual Definitive Notes<br>will be required to provide the Note Registrar and the Trustee with (a) written instructions and other information required by the Company and the Trustee to complete, execute, authenticate and deliver such individual Definitive Notes and<br>(b) in the case of an exchange of an interest in a Transfer Restricted Note, certification that such interest is not in violation of Rule 144A, upon which certification the Note Registrar and the Trustee may rely with no duty of inquiry. In all<br>cases, Definitive Notes delivered in exchange for any Global Note or beneficial interests therein shall be registered in the names, and issued in any approved denominations, requested by or on behalf of the Depositary, in accordance with its<br>customary procedures. |
|---|---|
| (iii) | In connection with the transfer of a Global Note as an entirety to beneficial owners pursuant to subsection<br>(i) of this Section 2.1(b), such Global Note shall be deemed to be surrendered to the Note Registrar for cancellation, and the Company shall execute, and upon Company Order, the Trustee or the Authentication Agent shall authenticate and<br>make available for delivery to each beneficial Owner identified by the Depositary in writing in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.<br> |
| --- | --- |
| (iv) | Any Transfer Restricted Note delivered in exchange for an interest in a Global Note pursuant to<br>Section 2.2 shall, except as otherwise provided in Section 2.2, bear the Restricted Notes Legend. |
| --- | --- |
| (v) | Notwithstanding the foregoing, through the Restricted Period, a beneficial interest in such Regulation S Global<br>Note may be held only through Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 2.2. |
| --- | --- |
| (vi) | The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and<br>Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes in accordance with applicable procedures. |
| --- | --- |
A-5
| 2.2 | Transfer and Exchange. |
|---|---|
| (a) | Transfer and Exchange of Global Notes. A Global Note may not be transferred **** as a whole except as<br>set forth in Section 2.1(b). Global Notes will not be exchanged by the Company for Definitive Notes except under the circumstances described in Section 2.1(b)(i) and (ii). Global Notes also may be exchanged or replaced, in whole or in<br>part, as provided in Sections 3.04 and 3.06 of this Indenture. Beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.2(b) or 2.2(g). |
| --- | --- |
| (b) | Transfer and Exchange of Beneficial Interests in Global Notes. The transfer and **** exchange of<br>beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the applicable rules and procedures of the Depositary. Beneficial interests in Transfer Restricted Global<br>Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers and exchanges of beneficial interests in the Global Notes also shall require compliance with either<br>subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable: |
| --- | --- |
| (i) | Transfer of Beneficial Interests in the Same Global Note. Beneficial **** interests in any Transfer<br>Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Transfer Restricted Global Note in accordance with the transfer restrictions set forth in the Restricted Notes Legend;<br>provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial **** interests in a Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person<br>(other than an Initial Purchaser). A beneficial interest in an Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions<br>shall be required to be delivered to the Trustee or the Note Registrar to effect the transfers described in this Section 2.2(b)(i). |
| --- | --- |
| (ii) | Transfers and Exchanges of Beneficial Interests Between Global Notes. **** In connection with all<br>transfers and exchanges of beneficial interests between Global Notes, the transferor of such beneficial interest must deliver to the Note Registrar (1) a written order from an Agent Member given to the Depositary in accordance with the<br>applicable rules and procedures of the Depositary directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and<br>(2) instructions given in accordance with the applicable rules and procedures of the Depositary containing information regarding the Agent Member account to be credited with such increase. Upon consummation of an Exchange Offer by the Company<br>in accordance with Section 2.2(v), the requirements of this Section 2.2(b)(ii) shall be deemed to have been satisfied upon receipt by the Note Registrar of the instructions contained in the Letter of Transmittal (or is deemed to have made<br>such certifications if delivery is made through the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable) delivered by the Holder of such beneficial interests in the Transfer Restricted Global Notes. Upon<br>satisfaction of all of the requirements for transfer or exchange of beneficial interests in any Global Note that is not subject to Section 2.2(b)(i) and the Notes or otherwise applicable under the Securities Act, the Note Registrar shall adjust<br>the principal amount of the relevant Global Note pursuant to Section 2.2(g). |
| --- | --- |
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| (iii) | Transfer of Beneficial Interests to Another Transfer Restricted Global Note. A beneficial interest in a<br>Transfer Restricted Global Note may be **** transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Transfer Restricted Global Note if the transfer complies with the requirements of<br>Section 2.2(b)(ii) as well as the following: |
|---|---|
| (A) | if the transferee will take delivery in the form of a beneficial interest in a Rule 144A Global Note, then the<br>transferor must certify (in the form set forth as an Exhibit to the Regulation S Global Note) to the effect that such transfer is being made to a Person whom the transferor reasonably believes to be a QIB in a transaction meeting the requirements of<br>Rule 144A; and |
| --- | --- |
| (B) | if the transferee will take delivery in the form of a beneficial interest in a Regulation S Global Note, then<br>the transferor must certify (in the form set forth as an Exhibit to the Rule 144A Global Note) to the effect that such transfer is being made in accordance with Rule 903 or Rule 904 of Regulation S. |
| --- | --- |
| (iv) | Transfer and Exchange of Beneficial Interests in a Transfer Restricted Global Note for Beneficial Interestsin an Unrestricted Global Note. A **** beneficial interest in a Transfer Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery<br>thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.2(b)(ii) above as well as the following: |
| --- | --- |
| (A) | such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the applicable<br>Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or is deemed to have made such<br>certifications if delivery is made through the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable) that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange<br>Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company; |
| --- | --- |
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| (B) | such transfer is effected pursuant to a Shelf Registration Statement in accordance with the applicable<br>Registration Rights Agreement; |
|---|---|
| (C) | such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance<br>with the applicable Registration Rights Agreement; or |
| --- | --- |
| (D) | the Note Registrar receives the following: |
| --- | --- |
| (i) | if the holder of such beneficial interest in a Transfer Restricted Global Note proposes to exchange such<br>beneficial interest for a beneficial interest in an Unrestricted Global Note, such holder must provide a certificate in the form attached to the applicable Unrestricted Global Note; or |
| --- | --- |
| (ii) | if the holder of such beneficial interest in a Transfer Restricted Global Note proposes to transfer such<br>beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, such holder must provide a certificate in the form attached to the applicable Unrestricted Global Note,<br> |
| --- | --- |
and, in each case set forth in this subparagraph (D), if the Note Registrar so requests or if the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable, so require, an Opinion of Counsel in form reasonably acceptable to the Note Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. If any such transfer or exchange is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an written order of the Company in the form of a Directors’ Certificate in accordance with Section 3.01, the Authentication Agent shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred or exchanged pursuant to subparagraph (B) or (D) above.
| (v) | Transfer and Exchange of Beneficial Interests in an Unrestricted Global Note for Beneficial Interests in aTransfer Restricted Global Note. Beneficial interests in an Unrestricted Global Note cannot be **** exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Transfer Restricted Global Note.<br> |
|---|
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| (c) | Transfer and Exchange of Beneficial Interests in Global Notes for Definitive Notes. A beneficial<br>interest in a Global Note may not be exchanged for a Definitive **** Note except under the circumstances described in Section 2.1(b)(i) and (ii). A beneficial interest in a Global Note may not be transferred to a Person who takes delivery<br>thereof in the form of a Definitive Note except under the circumstances described in Section 2.1(b)(ii). |
|---|---|
| (d) | Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes. Transfers and<br>exchanges of Definitive Notes for beneficial interests in **** Global Notes shall require compliance with either subparagraph (i), (ii) or (iii) below, as applicable: |
| --- | --- |
| (i) | Transfer Restricted Definitive Notes to Beneficial Interests in Transfer Restricted Global Notes. If any<br>Holder of a Transfer Restricted Definitive **** Note proposes to exchange such Transfer Restricted Definitive Note for a beneficial interest in a Transfer Restricted Global Note or to transfer such Transfer Restricted Note to a Person who takes<br>delivery thereof in the form of a beneficial interest in a Transfer Restricted Global Note, then, upon receipt by the Note Registrar of the following documentation: |
| --- | --- |
| (A) | if the Holder of such Transfer Restricted Definitive Note proposes to exchange such Transfer Restricted<br>Definitive Note for a beneficial interest in a Transfer Restricted Global Note, a certificate from such Holder in the form attached to the applicable Transfer Restricted Global Note; |
| --- | --- |
| (B) | if such Transfer Restricted Definitive Note is being transferred to a QIB to accordance with Rule 144A under<br>the Securities Act, a certificate from such Holder in the form attached to the applicable Transfer Restricted Global Note; |
| --- | --- |
| (C) | if such Transfer Restricted Definitive Note is being transferred to a<br>Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate from such Holder in the form attached to the applicable Transfer Restricted Global<br>Note; |
| --- | --- |
| (D) | if such Transfer Restricted Definitive Note is being transferred pursuant to an exemption from the registration<br>requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate from such Holder in the form attached to the applicable Transfer Restricted Global Note; or |
| --- | --- |
| (E) | if such Transfer Restricted Definitive Note is being transferred to the Company or a Subsidiary thereof, a<br>certificate from such Holder in the form attached to the applicable Transfer Restricted Global Note; |
| --- | --- |
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the Note Registrar shall cancel the Transfer Restricted Definitive Note, and increase or cause to be increased the aggregate principal amount of the appropriate Transfer Restricted Global Note.
| (ii) | Transfer Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a<br>Transfer Restricted Definitive **** Note may exchange such Transfer Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Transfer Restricted Definitive Note to a Person who takes delivery thereof in<br>the form of a beneficial interest in an Unrestricted Global Note only if the Note Registrar receives the following: |
|---|---|
| (A) | such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the applicable<br>Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or is deemed to have made such<br>certifications if delivery is made through the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable) that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange<br>Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company; |
| --- | --- |
| (B) | such transfer is effected pursuant to a Shelf Registration Statement in accordance with the applicable<br>Registration Rights Agreement; |
| --- | --- |
| (C) | such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance<br>with the applicable Registration Rights Agreement; or |
| --- | --- |
| (D) | the Note Registrar receives the following: |
| --- | --- |
| (i) | if the Holder of such Transfer Restricted Definitive Note proposes to exchange such Transfer Restricted<br>Definitive Note for a beneficial interest in an Unrestricted Global Note, a certificate from such Holder in the form attached to the applicable Unrestricted Global Note; or |
| --- | --- |
| (ii) | if the Holder of such Transfer Restricted Definitive Note proposes to transfer such Transfer Restricted<br>Definitive Note to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note a certificate from such Holder in the form attached to the applicable Unrestricted Global Note, |
| --- | --- |
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and, in each case set forth in this subparagraph (D), if the Note Registrar so requests or if the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable, so require, an Opinion of Counsel in form reasonably acceptable to the Note Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions of any of the subparagraphs in this subparagraph (ii), the Note Registrar shall cancel the Transfer Restricted Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. If any such transfer or exchange is effected pursuant to this subparagraph (ii) at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an written order of the Company in the form of a Directors’ Certificate, the Trustee (or the Authentication Agent) shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of Transfer Restricted Definitive Notes transferred or exchanged pursuant to this subparagraph (ii).
| (iii) | Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an<br>Unrestricted Definitive Note may exchange **** such Unrestricted Definitive Note for a beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive Note to a Person who takes delivery thereof in the form of a<br>beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Note Registrar shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the<br>aggregate principal amount of one of the Unrestricted Global Notes. If any such transfer or exchange is effected pursuant to this subparagraph (iii) at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue<br>and, upon receipt of an written order of the Company in the form of a Directors’ Certificate, the Authentication Agent shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal<br>amount of Unrestricted Definitive Notes transferred or exchanged pursuant to this subparagraph (iii). |
|---|---|
| (iv) | Unrestricted Definitive Notes to Beneficial Interests in Transfer Restricted Global Notes. An<br>Unrestricted Definitive Note cannot be **** exchanged for, or transferred to a Person who takes delivery thereof in the form of, a beneficial interest in a Transfer Restricted Global Note. |
| --- | --- |
| (e) | Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request **** by a Holder of<br>Definitive Notes and such Holder’s compliance with the provisions of this Section 2.2(e), the Note Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting<br>Holder shall present or surrender to the Note Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Note Registrar duly executed by such Holder or by its attorney duly authorized<br>in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.2(e). |
| --- | --- |
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| (i) | Transfer Restricted Definitive Notes to Transfer Restricted Definitive Notes. A Transfer Restricted<br>Definitive Note may be transferred to and **** registered in the name of a Person who takes delivery thereof in the form of a Transfer Restricted Definitive Note if the Note Registrar receives the following: |
|---|---|
| (A) | if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a<br>certificate in the form attached to the applicable Transfer Restricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry; |
| --- | --- |
| (B) | if the transfer will be made pursuant to Rule 903 or Rule 904 under the Securities Act, then the transferor<br>must deliver a certificate in the form attached to the applicable Transfer Restricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry; |
| --- | --- |
| (C) | if the transfer will be made pursuant to an exemption from the registration requirements of the Securities Act<br>in accordance with Rule 144 under the Securities Act, a certificate in the form attached to the applicable Transfer Restricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry; and |
| --- | --- |
| (D) | if such transfer will be made to the Company or a Subsidiary thereof, a certificate in the form attached to the<br>applicable Transfer Restricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry. |
| --- | --- |
| (ii) | Transfer Restricted Definitive Notes to Unrestricted Definitive Notes. **** Any Transfer Restricted<br>Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note if the Note Registrar receives the following:<br> |
| --- | --- |
| (A) | such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the applicable<br>Registration Rights Agreement and the holder of the beneficial interest to be exchanged, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal (or is deemed to have made such<br>certifications if delivery is made through the applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable) that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange<br>Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company; |
| --- | --- |
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| (B) | such transfer is effected pursuant to a Shelf Registration Statement in accordance with the applicable<br>Registration Rights Agreement; |
|---|---|
| (C) | such transfer is effected by a Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance<br>with the applicable Registration Rights Agreement; or |
| --- | --- |
| (D) | the Note Registrar receives the following: |
| --- | --- |
| (i) | if the Holder of such Transfer Restricted Definitive Note proposes to exchange such Transfer Restricted<br>Definitive Note for an Unrestricted Definitive Note, a certificate from such Holder in the form attached to the applicable Unrestricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry; or<br> |
| --- | --- |
| (ii) | if the Holder of such Transfer Restricted Definitive Note proposes to transfer such Note to a Person who shall<br>take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form attached to the applicable Unrestricted Definitive Note upon which the Trustee and the Note Registrar may rely with no duty of inquiry,<br> |
| --- | --- |
and, in each case set forth in this subparagraph (D), if the Note Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act.
| (iii) | Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder **** of an Unrestricted<br>Definitive Note may transfer such Unrestricted Definitive Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note at any time. Upon receipt of a request to register such a transfer, the Note Registrar shall<br>register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof. |
|---|---|
| (iv) | Unrestricted Definitive Notes to Transfer Restricted Definitive Notes. **** An Unrestricted Definitive<br>Note cannot be exchanged for, or transferred to a Person who takes delivery thereof in the form of, a Transfer Restricted Definitive Note. |
| --- | --- |
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| (v) | Exchange Offer. Upon the occurrence of an Exchange Offer in accordance **** with the applicable<br>Registration Rights Agreement, the Company will issue and, upon receipt of a Company Order in accordance with Section 3.03, the Trustee will authenticate: |
|---|---|
| (A) | one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the<br>beneficial interests in the Restricted Global Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal (or are deemed to have made such certifications if delivery is made through the<br>applicable rules and procedures of the Depositary, Euroclear or Clearstream, as applicable) that (i) they are not Broker-Dealers, (ii) they are not participating in a distribution of the Exchange Notes and (iii) they are not<br>affiliates (as defined in Rule 144) of the Company; and |
| --- | --- |
| (B) | Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted<br>Definitive Notes accepted for exchange in the Exchange Offer by Persons that certify in the applicable Letters of Transmittal (or is deemed to have made such certifications if delivery is made through the applicable rules and procedures of the<br>Depositary, Euroclear or Clearstream, as applicable) that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.<br> |
| --- | --- |
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.
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| (f) | Legend. **** |
|---|---|
| (i) | Except as permitted by the following paragraphs (ii), (iii) or (iv), each Note certificate evidencing the<br>Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend<br>only): |
| --- | --- |
“THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
Each Definitive Note shall bear the following additional legend:
“IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.”
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| (ii) | Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Note Registrar shall<br>permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the legends set forth above and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing<br>to the Note Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Initial Note and upon which the Trustee and the Note Registrar may rely with no duty of<br>inquiry). |
|---|---|
| (g) | Cancellation or Adjustment of Global Note. At such time as all beneficial **** interests in a<br>particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in<br>accordance with Section 3.09 of this Indenture. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest<br>in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Note Registrar or by the Depositary, at the<br>direction of the Note Registrar, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other<br>Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Note Registrar or by the Depositary, at the direction of the Note Registrar to reflect such increase. |
| --- | --- |
| (h) | Obligations with Respect to Transfers and Exchanges of Notes. |
| --- | --- |
| (i) | To permit registrations of transfers and exchanges, the Company shall execute and the Trustee (or the<br>Authentication Agent) shall upon Company Order authenticate Definitive Notes and Global Notes at the Company’s request. |
| --- | --- |
| (ii) | No service charge shall be made for any registration of transfer or exchange, but the Company may require<br>payment of a sum sufficient to cover any transfer tax or other governmental charges payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchanges pursuant to Sections 3.04 or<br>11.07 of the Indenture). |
| --- | --- |
| (iii) | Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, a Paying<br>Agent or the Note Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever,<br>whether or not such Note is overdue, and none of the Company, the Trustee, a Paying Agent or the Note Registrar shall be affected by notice to the contrary. |
| --- | --- |
| (iv) | All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same<br>debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange. |
| --- | --- |
A-16
| (i) | No Obligation of the Trustee or the Note Registrar. **** |
|---|---|
| (i) | Neither the Trustee nor the Note Registrar shall have any responsibility or obligation to any beneficial owner<br>of a Global Note, any Agent Member of, or any participant in, the Depositary or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership<br>interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or<br>with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to the Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in<br>the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee and the Note Registrar may rely and shall be<br>fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners. |
| --- | --- |
| (ii) | Neither the Trustee nor the Note Registrar shall have any obligation or duty to monitor, determine or inquire<br>as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial<br>owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to<br>determine substantial compliance as to form with the express requirements hereof. |
| --- | --- |
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| (j) | Transfers of Notes Held by Affiliates. Notwithstanding anything to the contrary **** in this<br>Section 2.2, any certificate (i) evidencing a Note that has been transferred to an affiliate (as defined in Rule 405 of the Securities Act) of the Company, as evidenced by a notation on the certificate of transfer or certificate of<br>exchange for such transfer or in the representation letter delivered in respect thereof, or (ii) evidencing a Note that has been acquired from an affiliate (other than by an affiliate) of the Company in a transaction or a chain of transactions<br>not involving any public offering, as evidenced by a notation on the certificate of transfer or certificate of exchange for such transfer or in the representation letter delivered in respect thereof, shall, until one year after the last date on<br>which either the Company or any affiliate of the Company was an owner of such Note, in each case, be in the form of a permanent Definitive Note and bear the Restricted Notes Legend subject to the restrictions in this Section 2.2. The Note<br>Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Section 2.2(j). The Company, at its sole cost and expense, shall have the right to inspect and make copies of all such letters,<br>notices or other written communications at any reasonable time upon the giving of reasonable advance written notice to the Note Registrar. |
|---|
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EXHIBITA-1-1
[FORM OF FACE OF RULE 144A INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF RULE 144A INITIAL NOTE]
| No. A-[ ] | $ |
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4.400% Senior Notes due March 24, 2028
CUSIP No. 873923 AA4
ISIN No. US873923AA44
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto]^2^ on March 24, 2028.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^2^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF RULE 144A INITIAL NOTE]
4.400% Senior Notes due March 24, 2028
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.]^3^
| 2. | METHOD OF PAYMENT |
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The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^3^ | For Restricted Notes only. |
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
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Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
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The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon<br>discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined herein) plus 15<br>basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Stated Maturity of the Notes (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Stated Maturity on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
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If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the Stated Maturity. If there is no United States Treasury security maturing on such Stated Maturity, but there are two or more United States Treasury securities with a maturity date equally distant from such Stated Maturity, one with a maturity date preceding such Stated Maturity and one with a maturity date following such Stated Maturity, we shall select the United States Treasury security with a maturity date preceding such Stated Maturity. If there are two or more United States Treasury securities maturing on such Stated Maturity for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
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| 6. | OFFER TO REPURCHASE |
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Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
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Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
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The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
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The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
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If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
| 11. | DISCHARGE AND DEFEASANCE |
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Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
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| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
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The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
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No director, officer, employee, incorporator or holder of any equity interests in the Company or, at any time when the Notes are guaranteed, the Guarantors’ or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, or, at any time when the Notes are Guaranteed, any obligations of the Guarantors under the Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
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Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
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The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
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check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2 (j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes, and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ☐ | to the Company or Subsidiary thereof; or |
|---|---|---|
| (2) | ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| (3) | ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| (4) | ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom<br>notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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| (5) | ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after<br>the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture); |
|---|---|---|
| (6) | ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable<br>holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933; or |
| (7) | ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Date: | |
|---|---|
| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br><br><br>Amount of this<br><br><br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br> <br>GlobalNote<br> <br>following such<br><br><br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
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EXHIBITA-1-2
[FORM OF FACE OF REGULATION S INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH FN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF REGULATION S INITIAL NOTE]
| No. S-[ ] | $ |
|---|
4.400% Senior Notes due March 24, 2028
CUSIP No. U81972 AA6
ISIN No. USU81972AA62
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto] ^4^ March 24, 2028.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^4^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF the Company has caused this instrument to be duly executed.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF REGULATION S INITIAL NOTE]
4.400% Senior Notes due March 24, 2028
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.] ^5^
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^5^ | For Restricted Notes only. |
|---|
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon<br>discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined herein) plus 15<br>basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the 2028 Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Stated Maturity of the Notes (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Stated Maturity on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the Stated Maturity. If there is no United States Treasury security maturing on such Stated Maturity, but there are two or more United States Treasury securities with a maturity date equally distant from such Stated Maturity, one with a maturity date preceding such Stated Maturity and one with a maturity date following such Stated Maturity, we shall select the United States Treasury security with a maturity date preceding such Stated Maturity. If there are two or more United States Treasury securities maturing on such Stated Maturity for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
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| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
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| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ****
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| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
A-2-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2(j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes; and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ☐ | to the Company or Subsidiary thereof; or |
|---|---|---|
| (2) | ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| (3) | ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| (4) | ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom<br>notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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| (5) | ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after<br>the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture); |
|---|---|---|
| (6) | ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable<br>holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933; or |
| (7) | ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: | |
|---|---|
| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br><br><br>Amount of this<br><br><br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br><br><br>Global Note<br> <br>followingsuch<br> <br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
|---|
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EXHIBITA-2-1
[FORM OF FACE OF RULE 144A INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF RULE 144A INITIAL NOTE]
| No. A-[ ] | $ |
|---|
4.500% Senior Notes due March 24, 2029
CUSIP No. 873923 AC0
ISIN No. US873923AC00
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto]^6^ on March 24, 2029.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^6^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A.,<br><br><br>as Trustee certifies that this is one of the Notes<br><br><br>referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF RULE 144A INITIAL NOTE]
4.500% Senior Notes due March 24, 2029
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.] ^7^
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^7^ | For Restricted Notes only. |
|---|
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to February 24, 2029 (one month prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) (a) | the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon discounted<br>to the Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the<br>applicable Treasury Rate (as defined herein) plus 15 basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
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Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or, at any time when the Notes are guaranteed, the Guarantors’ or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, or, at any time when the Notes are Guaranteed, any obligations of the Guarantors under the Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
A-1-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
A-1-11
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2 (j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes, and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) ☐ | to the Company or Subsidiary thereof; or |
|---|---|
| (2) ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| --- | --- |
| (3) ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| --- | --- |
| (4) ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the<br>Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule<br>144A under the Securities Act of 1933; or |
| --- | --- |
A-1-12
| (5) ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities<br>Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture);<br> |
|---|---|
| (6) ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate<br>of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by<br>Rule 144 under the Securities Act of 1933; or |
| --- | --- |
| (7) ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of<br>1933. |
| --- | --- |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
A-1-13
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Date: | |
|---|---|
| NOTICE : To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br> <br>GlobalNote<br> <br>following such<br><br><br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
|---|
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EXHIBITA-2-2
[FORM OF FACE OF REGULATION S INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH FN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF REGULATION S INITIAL NOTE]
| No. S-[ ] | $ |
|---|
4.500% Senior Notes due March 24, 2029
CUSIP No. U81972 AB4
ISIN No. USU81972AB46
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto]^8^ on March 24, 2029.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^8^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF the Company has caused this instrument to be duly executed.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
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| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF REGULATION S INITIAL NOTE]
4.500% Senior Notes due March 24, 2029
| 1. | INTEREST |
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TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.]^9^
| 2. | METHOD OF PAYMENT |
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The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^9^ | For Restricted Notes only. |
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
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Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
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The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
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The Company may redeem the Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to February 24, 2029 (one month prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) (a) | the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon discounted<br>to the Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the<br>applicable Treasury Rate (as defined herein) plus 15 basis points less (b) interest accrued to the Redemption Date, and |
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| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
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plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
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The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
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Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
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Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
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The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
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The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
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If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
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Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
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The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
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The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
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Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
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No director, officer, employee, incorporator or holder of any equity interests in the Company or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
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This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
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Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
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THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ****
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
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The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note. ****
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
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check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
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| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2(j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes; and<br> |
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check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
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| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) ☐ | to the Company or Subsidiary thereof; or |
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| (2) ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
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| (3) ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
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| (4) ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the<br>Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule<br>144A under the Securities Act of 1933; or |
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| (5) ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities<br>Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture);<br> |
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| (6) ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate<br>of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by<br>Rule 144 under the Securities Act of 1933; or |
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| (7) ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of<br>1933. |
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Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Date: | |
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| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br> <br>GlobalNote<br> <br>following such<br><br><br>decrease<br><br><br>or increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
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EXHIBITA-3-1
[FORM OF FACE OF RULE 144A INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF RULE 144A INITIAL NOTE]
| No. S-[ ] | $ |
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4.850% Senior Notes due March 24, 2031
CUSIP No. 873923 AE6
ISIN No. US873923AE65
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto]^10^ on March 24, 2031.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^10^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF RULE 144A INITIAL NOTE]
4.850% Senior Notes due March 24, 2031
| 1. | INTEREST |
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TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.]^1^^1^
| 2. | METHOD OF PAYMENT |
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The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^11^ | For Restricted Notes only. |
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
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Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to February 24, 2031 (one month prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) (a) | the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon discounted<br>to the Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the<br>applicable Treasury Rate (as defined herein) plus 20 basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem such Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
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The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or, at any time when the Notes are guaranteed, the Guarantors’ or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, or, at any time when the Notes are Guaranteed, any obligations of the Guarantors under the Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other<br>side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2 (j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes, and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ☐ | to the Company or Subsidiary thereof; or |
|---|---|---|
| (2) | ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| (3) | ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| (4) | ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom<br>notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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| (5) | ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after<br>the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture); |
|---|---|---|
| (6) | ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable<br>holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933; or |
| (7) | ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Date: | ||
|---|---|---|
| NOTICE: | To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br> <br>GlobalNote<br> <br>following such<br><br><br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
|---|
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EXHIBITA-3-2
[FORM OF FACE OF REGULATION S INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH FN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF REGULATION S INITIAL NOTE]
| No. S-[ ] | $ |
|---|
4.850% Senior Notes due March 24, 2031
CUSIP No. U81972 AC2
ISIN No. USU81972AC29
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto] ^12^ on March 24, 2031.
Interest Payment Dates: March 24 and September 24.
Record Dates: March 9 and September 9.
Additional provisions of this Note are set forth on the other side of this Note.
| ^12^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF the Company has caused this instrument to be duly executed.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Dated: March 24, 2026 | |
| --- | |
| CERTIFICATE OF AUTHENTICATION | |
| --- | |
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
| --- | --- |
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF REGULATION S INITIAL NOTE]
4.850% Senior Notes due March 24, 2031
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 and September 24 of each year, commencing September 24, 2026. Interest on the Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.]^13^
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^13^ | For Restricted Notes only. |
|---|
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to February 24, 2031 (one month prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon<br>discounted to the |
|---|
Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable Treasury Rate (as defined herein) plus 20 basis points less (b) interest accrued to the Redemption Date, and
| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
|---|
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem such Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
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The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ****
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note. ****
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other<br>side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2(j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes; and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) | ☐ | to the Company or Subsidiary thereof; or |
|---|---|---|
| (2) | ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| (3) | ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| (4) | ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom<br>notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or |
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| (5) ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities<br>Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture);<br> |
|---|---|
| (6) ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate<br>of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by<br>Rule 144 under the Securities Act of 1933; or |
| --- | --- |
| (7) ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of<br>1933. |
| --- | --- |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: | |
|---|---|
| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br><br><br>Amount of this<br><br><br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br><br><br>Amount of this<br><br><br>Global Note | PrincipalAmount of thisGlobalNotefollowing suchdecrease orincrease | Signature ofauthorizedsignatory ofTrusteeorNotesCustodian |
|---|
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EXHIBITA-4-1
[FORM OF FACE OF RULE 144A INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF RULE 144A INITIAL NOTE]
| No. A-[ ] | $ |
|---|
5.500% Senior Notes due March 24, 2036
CUSIP No. 873923 AG1
ISIN No. US873923AG14
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto] ^14^ on March 24, 2036.
Interest Payment Dates: March 24 and September 24
Record Dates: March 9 and September 9
Additional provisions of this Note are set forth on the other side of this Note.
| ^14^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A.,<br>as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF RULE 144A INITIAL NOTE]
5.500% Senior Notes due March 24, 2036
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.] ^1^^5^
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^15^ | For Restricted Notes only. |
|---|
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to December 24, 2035 (three months prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) (a) | the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon discounted<br>to the Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the<br>applicable Treasury Rate (as defined herein) plus 25 basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On the Par Call Date, the Company may redeem such Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
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The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or, at any time when the Notes are guaranteed, the Guarantors’ or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, or, at any time when the Notes are Guaranteed, any obligations of the Guarantors under the Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2(j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes; and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) ☐ | to the Company or Subsidiary thereof; or |
|---|---|
| (2) ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| --- | --- |
| (3) ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| --- | --- |
| (4) ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the<br>Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule<br>144A under the Securities Act of 1933; or |
| --- | --- |
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| (5) ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities<br>Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture);<br> |
|---|---|
| (6) ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate<br>of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by<br>Rule 144 under the Securities Act of 1933; or |
| --- | --- |
| (7) ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of<br>1933. |
| --- | --- |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Date: | |
|---|---|
| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date of<br><br><br>Exchange | Amount of<br><br><br>decrease in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Amount of<br><br><br>increase in<br><br><br>Principal<br> <br>Amount ofthis<br> <br>Global Note | Principal<br><br><br>Amount of this<br> <br>GlobalNote<br> <br>following such<br><br><br>decrease or<br><br><br>increase | Signature of<br><br><br>authorized<br> <br>signatoryof<br> <br>Trustee or<br><br><br>Notes<br><br><br>Custodian |
|---|
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EXHIBITA-4-2
[FORM OF FACE OF REGULATION S INITIAL NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH FN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Restricted Notes Legend]
[THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR IN THE CASE OF RULE 144A NOTES, AND 40 DAYS IN THE CASE OF REGULATION S NOTES AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.]
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[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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[FORM OF REGULATION S INITIAL NOTE]
| No. S-[ ] | $ |
|---|
5.500% Senior Notes due March 24, 2036
CUSIP No. U81972 AD0
ISIN No. USU81972AD02
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto] ^16^ on March 24, 2036.
Interest Payment Dates: March 24 and September 24
Record Dates: March 9 and September 9
Additional provisions of this Note are set forth on the other side of this Note.
| ^16^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF the Company has caused this instrument to be duly executed.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: March 24, 2026
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF REGULATION S INITIAL NOTE]
5.500% Senior Notes due March 24, 2036
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on March 24 andSeptember 24 of each year, commencing September 24, 2026. Interest on the **** Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from March 24, 2026 until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful. [All references in the Indenture or this Note to “interest” shall be deemed to include Additional Interest, if any, unless the context requires otherwise. The Company will pay all Additional Interest, if any, in the same manner on the dates and in the amounts set forth in the applicable Registration Rights Agreement.] ^1^^7^
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the March 9 or September 9 next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| ^17^ | For Restricted Notes only. |
|---|
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| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes in whole or in part at any time or from time to time at the applicable redemption prices. Prior to December 24, 2035 (three months prior to the maturity date of the Notes) (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) (a) | the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon discounted<br>to the Redemption Date (assuming that such Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the<br>applicable Treasury Rate (as defined herein) plus 25 basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the applicable Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On the Par Call Date, the Company may redeem such Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
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The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the applicable Par Call Date. If there is no United States Treasury security maturing on such Par Call Date, but there are two or more United States Treasury securities with a maturity date equally distant from such Par Call Date, one with a maturity date preceding such Par Call Date and one with a maturity date following such Par Call Date, we shall select the United States Treasury security with a maturity date preceding such Par Call Date. If there are two or more United States Treasury securities maturing on such Par Call Date for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
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The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
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| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
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| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. ****
| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note. ****
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned:
| ☐ | has requested the Trustee by written order to deliver in exchange for its beneficial interest in the Global<br>Note held by the Depositary a Note or Notes in definitive registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above); and<br> |
|---|
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | is exchanging this Note in connection with an expected transfer to an affiliate of the Company as contemplated<br>in Section 2.2(j) of Appendix A to the Indenture. |
| --- | --- |
| ☐ | has requested the Trustee by written order to exchange or register the transfer of a Note or Notes; and<br> |
| --- | --- |
check the following, if applicable:
| ☐ | is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the Indenture; or<br> |
|---|---|
| ☐ | the transferee is an affiliate of the Company as contemplated in Section 2.2(j) of Appendix A to the<br>Indenture. |
| --- | --- |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
| (1) ☐ | to the Company or Subsidiary thereof; or |
|---|---|
| (2) ☐ | to the Note Registrar for registration in the name of the Holder, without transfer; or |
| --- | --- |
| (3) ☐ | pursuant to an effective registration statement under the Securities Act of 1933; or |
| --- | --- |
| (4) ☐ | inside the United States to a “qualified institutional buyer” (as defined in Rule 144A under the<br>Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule<br>144A under the Securities Act of 1933; or |
| --- | --- |
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| (5) ☐ | outside the United States in an offshore transaction within the meaning of Regulation S under the Securities<br>Act in compliance with Rule 903 or Rule 904 under the Securities Act of 1933 and such Note shall be held immediately after the transfer through Euroclear or Clearstream until the expiration of the Restricted Period (as defined in the Indenture);<br> |
|---|---|
| (6) ☐ | by the undersigned who, together with its immediate predecessor holders who are not the Company or an affiliate<br>of the Company, has held such beneficial interest for a continuous period at least equal to the entire applicable holding period under Rule 144(d)(1) of the Securities Act of 1933 and otherwise pursuant to the exemption from registration provided by<br>Rule 144 under the Securities Act of 1933; or |
| --- | --- |
| (7) ☐ | pursuant to another available exemption from registration provided by Rule 144 under the Securities Act of<br>1933. |
| --- | --- |
Unless one of the boxes is checked, the Note Registrar will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Note Registrar may require, prior to **** registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Date: | Your Signature: |
|---|
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TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Dated: | |
|---|---|
| NOTICE: To be executed by an executive officer |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date ofExchange | Amount ofdecrease inPrincipalAmount of thisGlobal Note | Amount ofincrease inPrincipalAmount of thisGlobal Note | PrincipalAmount of thisGlobal Notefollowing suchdecrease orincrease | Signature ofauthorizedsignatory ofTrustee orNotesCustodian |
|---|
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EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Each Definitive Note shall bear the following additional legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
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[Each Note shall bear the following additional legend:]
[EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF), (A) AN ‘‘EMPLOYEE BENEFIT PLAN’’ AS DEFINED IN AND SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (‘‘ERISA’’), (B) A ‘‘PLAN’’ AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE ‘‘CODE’’), (C) A PERSON INVESTING ‘‘PLAN ASSETS’’ (WITHIN THE MEANING OF ERISA), (D) ANY ENTITY WHOSE UNDERLYING ASSETS ARE DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE ‘‘PLAN ASSETS’’ BY REASON OF SUCH EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER AN APPLICABLE EXEMPTION OR EXCEPTION FROM THE PROHIBITIONS UNDER SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR LAWS OR RULES).]
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| [FORM OF EXCHANGE NOTE] | |
|---|---|
| No. A-[ ] | $ |
| [ ]% Senior Notes due [ ] 20[ ] | |
| CUSIP No. [ ] | |
| ISIN No. [ ] |
TAKEOFF MERGER SUB INC., a Delaware corporation, promises to pay to CEDE & CO., or registered assigns, the principal sum of Dollars [listed on the Schedule of Increases or Decreases in Global Note attached hereto] ^18^ on [ ], 20[ ].
Interest Payment Dates: [ **** ] and [ **** ].
Record Dates: [ **** ] and [ **** ].
Additional provisions of this Note are set forth on the other side of this Note.
| ^18^ | Use the Schedule of Increases and Decreases language if Security is in Global Form. |
|---|
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | |
| Name: | |
| Title: |
Dated: [ ]
CERTIFICATE OF AUTHENTICATION
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee certifies that this is one of the Notes referred to in the Indenture. | |
|---|---|
| By: | |
| Authorized Signatory |
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[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
[ ]% Senior Notes due [ ] [ ], 20[ ]
| 1. | INTEREST |
|---|
TAKEOFF MERGER SUB INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company shall pay interest semiannually in arrears on [ ] and [ ] of each year, commencing [ ], 20[ ]. Interest on the Notes shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from [ ], 20[ ] until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal at the rate borne by the Notes and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
| 2. | METHOD OF PAYMENT |
|---|
The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders at the close of business on the [ ] or [ ] next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date (whether or not a Business Day). The Holders must surrender Notes to a Paying Agent to collect principal payments. The Company shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal and interest) shall be made by the Paying Agent by wire transfer of immediately available funds to the accounts specified by Depositary. The Company will make all payments in respect of a certificated Note (including principal and interest) at the office of each Paying Agent, except that, at the option of the Company, payment of interest may be made by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the U.S. if such Holder elects payment by wire transfer by giving written notice to the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Paying Agent may accept in its discretion).
| 3. | PAYING AGENT, SECURITY REGISTRAR AND AUTHENTICATION AGENT |
|---|
Initially, the Trustee will act as Paying Agent, Note Registrar and Authentication Agent. The Company may appoint and change any Paying Agent or Note Registrar without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may act as Paying Agent or Note Registrar.
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| 4. | INDENTURE |
|---|
The Company issued the Notes under an Indenture dated as of March 24, 2026 (the “Indenture”), between the Company and Computershare Trust Company, N.A., as trustee (the “Trustee”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all terms and provisions of the Indenture, and the Holders (as defined in the Indenture) are referred to the Indenture for a statement of such terms and provisions. To the extent the provisions of this Note are inconsistent with the provisions of the Indenture, the Indenture shall govern.
The Notes are senior unsecured obligations of the Company.
| 5. | OPTIONAL REDEMPTION |
|---|
The Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the Remaining Scheduled Payments of principal and interest thereon<br>discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined herein) plus 15<br>basis points less (b) interest accrued to the Redemption Date, and |
|---|---|
| (2) | 100% of the principal amount of the Notes to be redeemed; |
| --- | --- |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any redemption date, the yield determined by us in accordance with the following two paragraphs.
The Treasury Rate shall be determined by us after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)-H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities-Treasury constant maturities-Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, we shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the [Stated Maturity of the Notes]/[applicable Par Call Date] (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to [the Stated Maturity]/[applicable Par Call Date] on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
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If on the third business day preceding the redemption date H.15 TCM is no longer published, we shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to the [Stated Maturity]/[Par Call Date]. If there is no United States Treasury security maturing on [such Stated Maturity]/[the applicable Par Call Date], but there are two or more United States Treasury securities with a maturity date equally distant from [such Stated Maturity]/[the Par Call Date], one with a maturity date preceding [such Stated Maturity]/[the Par Call Date] and one with a maturity date following [such Stated Maturity]/[the Par Call Date], we shall select the United States Treasury security with a maturity date preceding [such Stated Maturity]/[the Par Call Date]. If there are two or more United States Treasury securities maturing on [such Stated Maturity]/[the Par Call Date] for such series of Notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, we shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Notice of any optional redemption will be mailed at least ten days but not more than 60 days before the Redemption Date to each registered holder of any of the Notes to be redeemed. Unless the Company defaults in the payment of the redemption price and accrued interest, on and after the Redemption Date, interest will cease to accrue on the Notes or any portion thereof called for redemption. On or before the Redemption Date, the Company will deposit with a Paying Agent, or the Trustee, sufficient funds to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate (and in accordance with the procedures of the Depositary).
The notice of redemption that relates to any Note that is redeemed in part only will state the portion of the principal amount thereof to be redeemed. Any redemption of the Notes at the Company’s option may, if so provided in the applicable redemption notice, be made subject to the satisfaction of one or more conditions precedent.
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| 6. | OFFER TO REPURCHASE |
|---|
Upon the occurrence of a Change of Control Triggering Event, the Company will make an offer to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest to, but not including, the date of repurchase. Following a Change of Control Triggering Event, the offer will be made in accordance with Section 10.10 of the Indenture.
| 7. | SINKING FUND |
|---|
Except as set forth in Section 6, the Company is not required to make any mandatory redemption or sinking fund payments with respect to the Notes.
| 8. | DENOMINATIONS; TRANSFER; EXCHANGE |
|---|
The Notes are in registered form, without coupons, in denominations of $2,000 and integral multiple of $1,000 in excess thereof. A Holder shall register the transfer of or exchange of Notes in accordance with the Indenture. Upon any registration of transfer or exchange, the Note Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.
| 9. | PERSONS DEEMED OWNERS |
|---|
The registered Holder of this Note shall be treated as the owner of it for all purposes.
| 10. | UNCLAIMED MONEY |
|---|
If money for the payment of principal or interest remains unclaimed for two years, the Trustee and the Paying Agent shall pay the money back to the Company at its written request unless an abandoned property law designates another Person. After any such payment, the Holders entitled to the money must look to the Company for payment as general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
| 11. | DISCHARGE AND DEFEASANCE |
|---|
Subject to certain conditions, the Company at any time may terminate some of or all their obligations under the Notes and the Indenture if the Company deposits with the Trustee cash in U.S. dollars or Government Obligations for the payment of principal of and interest on the Notes to redemption, or maturity, as the case may be.
| 12. | AMENDMENT, WAIVER |
|---|
The Indenture and the Notes may be amended or supplemented as provided in the Indenture.
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| 13. | DEFAULTS AND REMEDIES |
|---|
The Events of Default relating to the Notes are defined in Section 5.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company and the Holders shall be as set forth in the Indenture.
| 14. | TRUSTEE DEALINGS WITH THE COMPANY |
|---|
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
| 15. | NO RECOURSE AGAINST OTHERS |
|---|
No director, officer, employee, incorporator or holder of any equity interests in the Company or, at any time when the Notes are guaranteed, the Guarantors’ or any direct or indirect parent corporation, as such, shall have any liability for any obligations of the Company under the Notes, or, at any time when the Notes are Guaranteed, any obligations of the Guarantors under the Guarantees, the Indenture or for any claim based on, in respect of, or by reason of, his or her status as a director, officer, employee, incorporator or holder of equity interests. Each Holder by accepting a Note waives and releases all such liability.
| 16. | AUTHENTICATION |
|---|
This Note shall not be valid until an authorized signatory of the Trustee (or an Authentication Agent) manually signs the certificate of authentication on the other side of this Note.
| 17. | ABBREVIATIONS |
|---|
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
| 18. | GOVERNING LAW |
|---|
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLEPRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
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| 19. | CUSIP NUMBERS, ISINS AND COMMON CODES |
|---|
The Company has caused CUSIP numbers and ISINs to be printed on the Notes and has directed the Trustee to use CUSIP numbers and ISINs. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it thetext of this Note.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
| Date: | Your Signature: | |
|---|---|---|
| Sign exactly as your name appears on the other side of this Note |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Principal | Signature of | |||
|---|---|---|---|---|
| Amount of | Amount of | Amount of this | authorized | |
| decrease in | increase in | Global Note | signatory of | |
| Principal | Principal | following such | Trustee or | |
| Date of | Amount of this | Amount of this | decrease or | Notes |
| Exchange | Global Note | Global Note | increase | Custodian |
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EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of [ ], between [ ], a [ ] (the “SuccessorCompany”), and Computershare Trust Company, N.A., a national banking association organized under the laws of the United States, as trustee under the indenture referred to below (the “Trustee”).
WITNESSETH:
WHEREASTakeoff Merger Sub Inc., a Delaware corporation **** (the “Company”) **** has **** heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified from time to time, the “Indenture”) dated as of March 24, 2026, providing for the issuance of the Company’s [•]% Senior Notes due [•], 20[•] initially in the aggregate principal amount of $[•] and Additional Notes (as defined in the Indenture) thereunder from time to time (collectively, the “Notes”);
WHEREAS the Company has [consolidated with] [merged with and into] [conveyed, transferred or leased its Properties and assets substantially as an entirety to] the Successor Company;
WHEREAS Section 8.01(b) of the Indenture provides that under certain circumstances the Successor Company is required to execute and deliver to the Trustee a supplemental indenture pursuant to which the Successor Company expressly assumes the Company’s obligations under the Indenture and the Notes with respect to all series of Notes on the terms and conditions set forth, herein, and therein; and
WHEREAS pursuant to Section 9.01(a) of the Indenture, the Trustee and the Successor Company are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Successor Company and the Trustee mutually covenant and agree for the equal and ratable benefit of Holders as follows:
Defined Terms. As used in this Supplemental Indenture, terms defined in the **** Indenture or in the preamble or recitals hereto are used herein as therein defined. The words “herein,” “hereof,” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
Assumption of Obligations. The Successor Company hereby agrees to assume all****obligations of the Company as set forth under the Indenture and the Notes with respect to all series of Notes on the terms and subject to the conditions set forth therein and to be bound by all applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of the Company under the Indenture and the Notes.
Notices. All notices or other communications to the Successor Company shall be **** given to the following address: [ ].
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Ratification of Indenture; Supplemental Indentures Part of Indenture. Except****as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter shall be bound hereby.
Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE **** GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Trustee Makes No Representation. The Trustee makes no representation as to the **** validity or sufficiency of this Supplemental Indenture.
Counterparts. The parties may sign any number of copies of this Supplemental **** Indenture. Each signed copy shall be an original, but all of them together represent the same instrument. This Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
Effect of Headings. The Section headings herein are for convenience only and shall **** not affect the construction thereof.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| [SUCCESSOR COMPANY] | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | |
| By: | |
| Name: | |
| Title: |
B-3
EX-4.2
Exhibit 4.2
Execution Version
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated March 24, 2026 (this “Agreement”) is entered into by and among Takeoff Merger Sub Inc., a Delaware corporation (the “Company”), and SMBC Nikko Securities America, Inc., Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC, as representatives (together, the “Representatives”) of the several initial purchasers listed in Schedule 1 hereto.
The Company and the Representatives are parties to the Purchase Agreement dated March 10, 2026 (the “Purchase Agreement”), which provides for the sale by the Company to the Initial Purchasers of $800,000,000 aggregate principal amount of the Company’s 4.400% Senior Notes due 2028 (the “2028 Notes”), $1,200,000,000 aggregate principal amount of the Company’s 4.500% Senior Notes due 2029 (the “2029 Notes”), $1,500,000,000 aggregate principal amount of the Company’s 4.850% Senior Notes due 2031 (the “2031 Notes”) and $500,000,000 aggregate principal amount of the Company’s 5.500% Senior Notes due 2036 (the “2036 Notes” and, together with the 2028 Notes, the 2029 Notes and the 2031 Notes, the “Securities” and each, a “Series” of Securities).
As an inducement to the Initial Purchasers to enter into the Purchase Agreement, the Company has agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
| 1. | Definitions. As used in this Agreement, the following terms shall have the following meanings:<br> |
|---|
“Air Lease” shall mean Air Lease Corporation, a Delaware corporation.
“Air Lease Merger” shall mean the transactions contemplated by the Merger Agreement, pursuant to which the Company will merge with and into Air Lease, with Air Lease surviving as an indirect wholly owned subsidiary of the Parent.
“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
“Company” shall have the meaning set forth in the preamble and shall also include the Company’s successors.
“Escrow Agreement” shall mean that certain Escrow Agreement, dated as of March 24, 2026, among the Company, the Trustee and Computershare Trust Company, N.A., in its capacity as escrow agent (the “Escrow Agent”), as such agreement may be amended, supplemented or modified from time to time.
“Escrow End Date” shall mean December 1, 2026 or, if the Air Lease Merger is not consummated prior to December 1, 2026, the date that is five Business Days after any later date to which the parties to the Merger Agreement may agree to extend the “End Date” in the Merger Agreement.
“Escrowed Property” shall mean the net proceeds of the offering of the Securities deposited into an escrow account pursuant to the Escrow Agreement, together with any other funds or property from time to time held by the Escrow Agent in the escrow account.
“Escrow Release Date” shall mean the date, on or prior to the Escrow End Date, that the Escrowed Property is released in accordance with the Escrow Agreement.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“Exchange Dates” shall have the meaning set forth in Section 2(a)(ii) hereof.
“Exchange Offer” shall mean collectively, the exchange offers by the Company of the corresponding Series of Exchange Securities for each Series of Registrable Securities pursuant to Section 2(a) hereof.
“Exchange Offer Registration” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Exchange Securities” shall mean each Series of senior notes issued by the Company under the Indenture containing terms identical to the applicable Series of Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities of such Series in exchange for the applicable Series of Securities pursuant to the Exchange Offer.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Company or used or referred to by the Company in connection with the sale of the Securities or the Exchange Securities.
“Holders” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture; provided that, for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers that hold Exchange Securities for so long as such Participating Broker-Dealer is required to deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.
“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.
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“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.
“Indenture” shall mean the Indenture relating to the Securities dated as of March 24, 2026 among the Company and Computershare Trust Company, N.A., as trustee, as supplemented by an officer’s certificate dated as of March 24, 2026, as may be further supplemented or amended from time to time in accordance with the terms thereof.
“Initial Purchasers” shall mean the initial purchasers named in Schedule 1 hereto, collectively.
“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.
“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities of all Series, treated for the purposes hereof as one class (except as otherwise set forth herein); provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if the Company shall issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement (such additional Securities, “Additional Securities”), such Additional Securities and the Registrable Securities to which this Agreement relates shall, subject to the terms of this Agreement, be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained (with such Additional Securities deemed to be Registrable Securities and the holders of such Additional Securities deemed to be Holders).
“Majority Participating Holders” shall mean the Participating Holders who are Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities held by all Participating Holders; provided that whenever the consent or approval of Participating Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by the Company or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Participating Holders of such required percentage or amount; and provided, further, that any Additional Securities and the Registrable Securities to which this Agreement relates shall, subject to the terms of this Agreement, be treated together as one class for purposes of determining whether the consent or approval of Participating Holders who are Holders of a specified percentage of Registrable Securities has been obtained (with such Additional Securities deemed to be Registrable Securities and the holders of such Additional Securities deemed to be Holders).
“Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated as of September 1, 2025, by and among Air Lease, the Parent, and the Company.
“Notice and Questionnaire” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Company upon receipt of a Shelf Request from such Holder.
3
“Parent” shall mean Sumisho Air Lease Corporation Designated Activity Company (f/k/a Gladiatora Designated Activity Company), an Irish private limited company.
“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.
“Participating Holder” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof (or, in the case of a holder of Additional Securities, if any, a similar questionnaire in accordance with the registration rights agreement relating to such Additional Securities).
“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.
“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean each Series of Securities; provided that a Series of Securities shall cease to be Registrable Securities upon the earliest to occur of the following:
(i) when a Registration Statement with respect to such Series of Securities has become effective under the Securities Act and such series of Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Series of Securities cease to be outstanding, (iii) except in the case of a Series of Securities that otherwise remain Registrable Securities and that are held by an Initial Purchaser and that are ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated, and (iv) when all of the Securities of such Series of Securities have been resold pursuant to Rule 144 under the Securities Act, provided that the Company shall have removed or caused to be removed any restrictive legend on such series of Securities.
“Registration Default” shall mean the occurrence of any of the following: (i) the Exchange Offer is not completed on or prior to the Target Registration Date, (ii) the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Registration Date, (iii) if the Company receives a Shelf Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request, (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 30 days or (v) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter, on more than two occasions in any 12-month period during the Shelf Effectiveness Period, the Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement; provided that in the cases of clauses (iv) and (v) the Company will be permitted to suspend the use of the Prospectus that is part of such Shelf Registration Statement without causing a Registration Default if the Company’s management determines to do so for valid business reasons, including circumstances relating to pending corporate developments and similar events or filings with the SEC, for a period not to exceed 30 days in any three-month period and not to exceed an aggregate of 90 days in any twelve-month period, and without specifying the nature of the event giving rise to a suspension in any notice of suspension provided to the Holders.
4
“Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Company and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Majority Participating Holders of all series and which counsel may also be counsel for the Initial Purchasers) and (viii) the fees and disbursements of the independent registered public accountants, including the expenses of any special audits, “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of the applicable series of Registrable Securities by a Holder. Notwithstanding the foregoing, except as specifically provided above, the Company shall not be responsible for the fees and expenses of the Initial Purchasers in connection with an Exchange Offer, except for the reasonable and documented fees and expenses of counsel to the Initial Purchasers in connection therewith to the extent such counsel is also counsel to the Holders as described in clause (vii) of this definition.
“Registration Statement” shall mean any registration statement filed under the Securities Act of the Company that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities” shall have the meaning set forth in the preamble.
5
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company that covers all or a portion of the Registrable Securities (but no other securities unless (i) approved by the Majority Participating Holders or (ii) such securities are Additional Securities) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.
“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.
“Staff” shall mean the staff of the SEC.
“Target Registration Date” shall mean a date no later than 270 days after the Escrow Release Date or if such 270th day is not a Business Day, the next succeeding Business Day.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3(e) hereof.
“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.
| 2. | Registration Under the Securities Act. (a) To the extent not prohibited by any applicable law or<br>applicable interpretations of the Staff with respect to any Series Securities, the Company shall use their commercially reasonable efforts to (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to<br>exchange all the Registrable Securities for the corresponding Series of Exchange Securities and (y) have such Registration Statement become and remain effective until consummation of the Exchange Offer or, if one or more Participating Holders<br>participate in the Exchange Offer until 180 days after the last Exchange Date. The Company shall commence the Exchange Offer with respect to any Series of Securities promptly after the Exchange Offer Registration Statement for such Series is<br>declared effective by the SEC and use their commercially reasonable efforts to complete the Exchange Offer for such Series of Securities not later than 60 days after such effective date. |
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6
After the Exchange Offer Registration Statement of a Series of Securities has become effective, the Company shall commence the Exchange Offer for such Series of Securities by mailing or making available the related Prospectus, appropriate letters of transmittal and other accompanying documents to each Holder of the applicable Series stating, in addition to such other disclosures as are required by applicable law, substantially the following:
| (i) | that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities of the<br>applicable Series validly tendered and not properly withdrawn will be accepted for exchange; |
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| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such<br>notice is mailed or made available) (the “Exchange Dates”); |
| --- | --- |
| (iii) | that any Registrable Security of the applicable Series not tendered will remain outstanding and continue to<br>accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein; |
| --- | --- |
| (iv) | that any Holder electing to have a Registrable Security of the applicable Series exchanged pursuant to the<br>Exchange Offer will be required to (A) surrender such Registrable Security, together with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange<br>otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the last Exchange Date; and |
| --- | --- |
| (v) | that any Holder will be entitled to withdraw its election, not later than the close of business on the last<br>Exchange Date, by (A) sending to the institution and at the address specified in the notice, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities of the applicable<br>Series delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable<br>Securities. |
| --- | --- |
As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Company that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company or, if it is an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable and (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.
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As soon as practicable after the last Exchange Date, the Company shall:
| (I) | accept for exchange Registrable Securities of the applicable Series or portions thereof validly tendered and<br>not properly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement; and |
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| (II) | deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of a particular<br>Series or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, the corresponding Series of Exchange Securities equal in principal amount to the principal<br>amount of the Registrable Securities tendered by such Holder. |
| --- | --- |
The Company shall use its commercially reasonable efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff, (ii) no action or proceeding shall have been instituted or threatened in any court or by any governmental agency with respect to the Exchange Offer and (iii) all governmental approvals shall have been obtained that the Issuer deems necessary for the consummation of the Exchange Offer.
| (b) | In the event that (i) the Company is required to conduct the Exchange Offer pursuant to Section 2(a)<br>but determines that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be completed as soon as practicable after the last Exchange Date because it would violate any applicable law,<br>SEC rules or regulations or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by the Target Registration Date or (iii) upon receipt of a written request (a “Shelf<br>Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Company shall use its commercially reasonable efforts to cause to be filed as<br>soon as practicable after such determination date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities of the applicable Series by the Holders thereof (offering such Holders<br>the opportunity to include their Registrable Securities thereon, and advising such Holders that the distribution of such Registrable Securities will be made in accordance with the method selected by the Majority Holders participating in the Shelf<br>Registration) and to have such Shelf Registration Statement become effective by the later of (a) the Target Registration Date and (b) 90 days after delivery of such Shelf Request; provided that no Holder will be entitled to have any<br>Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and<br>provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof. |
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8
In the event that the Company is required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Company shall use its commercially reasonable efforts to file and have declared effective by the SEC (or file and become effective automatically, as the case may be) both an Exchange Offer Registration Statement pursuant to Section 2(a) above with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offer.
The Company agrees to use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the date that is the earliest of (i) one year following the date such Shelf Registration Statement is declared effective, (ii) the date when no Securities covered by such Shelf Registration Statement constitute Registrable Securities, and (iii) the date when Holders, other than Holders that are “affiliates” (as defined in Rule 144) of the Company, have actually sold such Securities pursuant to Rule 144 or any successor or similar rule thereto (the “Shelf Effectiveness Period”). The Company further agrees to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Participating Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Company agrees to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.
| (c) | The Company shall pay all Registration Expenses in connection with any registration pursuant to<br>Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities<br>pursuant to the Shelf Registration Statement. |
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| (d) | An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become<br>effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically<br>effective upon filing with the SEC as provided by Rule 462 under the Securities Act. |
| --- | --- |
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If a Registration Default occurs with respect to a Series of Registrable Securities, the interest rate on such series of Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until and including the date such Registration Default ends, up to a maximum increase of 0.50% per annum for such series of Registrable Securities regardless of the number of Registration Defaults. A Registration Default ends when the Securities cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) or clause (v) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing with respect to a Series of Securities, then, until the next date that there is no Registration Default with respect to such Series of Securities, the increase in interest rate provided for by this paragraph shall apply to such Series of Registrable Securities as if there occurred a single Registration Default with respect to such Series of Registrable Securities that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no such Registration Default. All additional interest on the applicable Series of Registrable Securities will be paid by the Company on the next scheduled interest payment date for such series of Registrable Securities in the same manner as interest is paid on such series of Registrable Securities. Following the time that a series of Registrable Securities are registered or, with respect to the Shelf Registration, following the time that the Shelf Registration is no longer required to be effective, the accrual of additional interest for such Series of Registrable Securities will cease to accrue; provided, however, that (a) in no event will additional interest accrue after the Effectiveness Period, and (b) if a Holder is not able to or does not provide the representations and information required in connection with a Shelf Registration under Section 3(b) or otherwise required by this Agreement in a timely manner and is therefore not named as a selling security holder in a Shelf Registration Statement, the Holder will not be entitled to receive any additional interest with respect to its Registrable Securities.
| (e) | Without limiting the remedies available to the Initial Purchasers and the Holders, the Company acknowledges<br>that any failure by the Company to comply with its obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that<br>it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Company’s obligations<br>under Section 2(a) and Section 2(b) hereof. The provisions for liquidated damages set forth in Section 2(d) above shall be the only monetary remedy available to Holders under this Agreement or the Indenture in respect of Registration<br>Defaults. |
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| 3. | Registration Procedures. (a) In connection with their obligations pursuant to Section 2(a) and<br>Section 2(b) hereof, the Company shall as expeditiously as possible: |
| --- | --- |
| (i) | prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which<br>form (A) shall be selected by the Company, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof and (C) shall comply as to form in all material respects with<br>the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC to be filed therewith; and use their commercially reasonable efforts to cause such Registration Statement to become<br>effective and remain effective for the applicable period in accordance with Section 2 hereof; |
| --- | --- |
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| (ii) | prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as<br>may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed<br>pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(a)(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the<br>Registrable Securities or Exchange Securities; |
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| (iii) | to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is<br>required to be filed by the Company with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed; |
| --- | --- |
| (iv) | in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for the Initial<br>Purchasers and such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary prospectus or Free Writing Prospectus, and<br>any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) below,<br>the Company consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the Participating Holders and any such Underwriters in<br>connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with<br>applicable law; |
| --- | --- |
| (v) | use its commercially reasonable efforts to register or qualify the Registrable Securities under all applicable<br>state securities or blue sky laws of such jurisdictions as any Participating Holder covered by a Registration Statement shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such<br>Participating Holders covered by a Registration Statement in connection with any filings required to be made with FINRA; and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder<br>covered by a Registration Statement to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder covered by a Registration Statement; provided that the Company shall not be required to<br>(1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction<br>or (3) subject itself to taxation in any such jurisdiction if it is not so subject; |
| --- | --- |
11
| (vi) | notify counsel for the Initial Purchasers and, in the case of a Shelf Registration, notify each Participating<br>Holder and counsel for such Participating Holders promptly and, if requested in writing by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post-effective<br>amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or any state<br>securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or<br>any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Company of any notice of objection of the SEC to the use of<br>a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of<br>Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities<br>cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for<br>such purpose, (5) of the happening of any event known to the Company during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue<br>in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading (in the case of any Free Writing Prospectus, when<br>read together with the Prospectus) and (6) of any determination by the Company that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate;<br> |
|---|---|
| (vii) | use their commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of<br>a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, at<br>the earliest practicable moment and provide immediate notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution; |
| --- | --- |
12
| (viii) | in the case of a Shelf Registration, furnish or make available to each Participating Holder, without charge, at<br>least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested); |
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| (ix) | in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely<br>preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with<br>the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities; |
| --- | --- |
| (x) | upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, use their commercially<br>reasonable efforts to prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document<br>incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as<br>the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company shall<br>notify the Participating Holders (in the case of a Shelf Registration Statement) and the Initial Purchasers and any Participating Broker-Dealers known to the Company (in the case of an Exchange Offer Registration Statement) to suspend use of the<br>Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and the Initial Purchasers, as applicable, hereby agree to suspend use of<br>the Prospectus or any Free Writing Prospectus, as the case may be, until the Company has amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission; |
| --- | --- |
13
| (xi) | a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing<br>Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference into a Registration Statement (other than a Form 8-K), a Prospectus or a Free Writing Prospectus after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration<br>Statement, to the Participating Holders and their counsel) and make such of the representatives of the Company as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the<br>Participating Holders or their counsel) available for discussion of such document; and the Company shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or<br>supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders and their counsel) shall not have<br>previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Participating Holders or their counsel) shall reasonably object; |
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| (xii) | obtain a CUSIP number for each series of Exchange Securities or Registrable Securities, as the case may be, not<br>later than the initial effective date of a Registration Statement; |
| --- | --- |
| (xiii) | cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the<br>Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust<br>Indenture Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the<br>Indenture to be so qualified in a timely manner; |
| --- | --- |
| (xiv) | in the case of a Shelf Registration, make available for inspection by a representative of the Participating<br>Holders (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by the Majority Participating Holders and any attorneys and<br>accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of the Company and its subsidiaries, and cause the respective officers, directors and<br>employees of the Company to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that if any such information is identified by the<br>Company as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with,<br>an impairment of or in derogation of the rights and interests of any Inspector, Holder or Underwriter; |
| --- | --- |
14
| (xv) | [Reserved;] |
|---|---|
| (xvi) | if reasonably requested by any Participating Holder, promptly include in a Prospectus supplement or<br>post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such Prospectus supplement or such post-effective amendment<br>as soon as the Company has received notification of the matters to be so included in such filing; |
| --- | --- |
| (xvii) | in the case of a Shelf Registration, enter into such customary agreements and take all such other commercially<br>reasonable actions in connection therewith (including those requested by the Majority Participating Holders) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering<br>and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of the Company and its subsidiaries and<br>the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in<br>underwritten offerings and confirm the same if and when requested, (2) obtain opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders and such<br>Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain<br>“comfort” letters from the independent registered public accountants of the Company (and, if necessary, any other registered public accountant of any subsidiary of the Company, or of any business acquired by the Company for which<br>financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable<br>Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any<br>preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and certificates as may be reasonably requested by the Majority Holders or the Underwriters, and which are customarily delivered in underwritten<br>offerings, to evidence the continued validity of the representations and warranties of the Company made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; and<br> |
| --- | --- |
15
| (b) | In the case of a Shelf Registration Statement, the Company may require each Participating Holder to furnish to<br>the Company a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Company may from time to time reasonably request in writing.<br> |
|---|---|
| (c) | Each Participating Holder agrees that, upon receipt of any notice from the Company of the happening of any<br>event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement until such Participating<br>Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Company, such Participating Holder will deliver to the Company all<br>copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of receipt of such<br>notice. |
| --- | --- |
| (d) | If the Company shall give any notice to suspend the disposition of Registrable Securities pursuant to a<br>Registration Statement, the Company shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such<br>notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions The Company may give any such<br>notice only twice during any 365-day period and any such suspensions shall not exceed 30 days for each suspension and there shall not be more than two suspensions in effect during any 365-day period. |
| --- | --- |
| (e) | The Participating Holders who desire to do so may sell such Registrable Securities in an Underwritten Offering.<br>In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”) that will administer the offering will be selected by the Majority Participating Holders; provided,<br>however, that such Underwriter must be reasonably satisfactory to the Company; and provided, further, that each of SMBC Nikko Securities America, Inc., Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC shall be<br>deemed to be reasonably satisfactory to the Company. No Holder of Registrable Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees to sell such Holder’s Registrable Securities on the basis<br>provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents<br>required under the terms of such underwriting arrangements. |
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16
| 4. | Participation of Broker-Dealers in Exchange Offer. (a) The Staff has taken the position that any<br>broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating<br>Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange<br>Securities. |
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The Company understands that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
| (b) | In light of the above, and notwithstanding the other provisions of this Agreement, to the extent a<br>Participating Broker-Dealer participates in an exchange Offer with respect to a Series of Registrable Securities, the Company agrees to amend or supplement the applicable Prospectus contained in the applicable Exchange Offer Registration Statement<br>for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(d) hereof), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers<br>consistent with the positions of the Staff recited in Section 4(a) above. The Company further agrees that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during<br>such period in connection with the resales contemplated by this Section 4. |
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| (c) | The Initial Purchasers shall have no liability to the Company or any Holder with respect to any request that<br>they may make pursuant to Section 4(b) hereof. |
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17
| 5. | Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each<br>Initial Purchaser and each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the<br>Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and<br>expenses are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any omission or alleged omission to state therein<br>a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing<br>Prospectus or any “issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact<br>necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each such person for any legal or other expenses reasonably incurred by such person in connection<br>with investigating or defending any such action or claim as such expenses are incurred, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue<br>statement or omission made in reliance upon and in conformity with any information relating to any Initial Purchaser or information relating to any Holder furnished to the Company in writing through the Representatives or any selling Holder,<br>respectively, expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Company will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals<br>participating in the distribution, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the<br>Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information. The indemnity agreement contained in this subsection shall not inure to the benefit of any Holder or<br>Participating Broker-Dealer from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned, to the extent that a prospectus relating to such Securities was required to be delivered by such Holder or<br>Participating Broker-Dealer under the Securities Act in connection with such purchase and any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there was not sent or given to such person,<br>at or prior to the sale of such Securities to such person, a copy of such prospectus if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer. |
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| (b) | Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, the Initial<br>Purchasers and the other selling Holders, the directors of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Company, any Initial Purchaser and any other selling Holder within<br>the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out<br>of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Company in writing by such Holder expressly for use<br>in any Registration Statement, any Prospectus and any Free Writing Prospectus. |
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18
| (c) | If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall<br>be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”) shall promptly notify the Person against whom<br>such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b)<br>above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve<br>it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying<br>Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 5 that the Indemnifying<br>Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the<br>right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary;<br>(ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available<br>to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and<br>representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any<br>pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release<br>of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of<br>fault, culpability or a failure to act by or on behalf of any Indemnified Person. In no event shall the indemnifying party or parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their<br>own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. An indemnifying party shall not be liable for<br>any settlement of any claim or action effected without its written consent, which consent may not be unreasonably withheld. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party<br>reimburse the indemnified party for fees and expenses of counsel as contemplated by this paragraph, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is<br>entered into more than 45 days after receipt by the indemnifying party of such request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into, and<br>(iii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided, however, that the indemnifying party shall not be liable for such settlement if the<br>delay in such reimbursement is due to (A) a dispute, with reasonable basis, regarding the amount of fees and expenses for which such reimbursement is sought or (B) a good-faith dispute based on the advice of counsel regarding the<br>indemnified party’s entitlement to reimbursement of such fees and expenses. |
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19
| (d) | If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified<br>Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid<br>or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company from the offering of the Securities and the<br>Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by<br>applicable law or if the Indemnified Person failed to give the notice required under paragraph (c) above, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault<br>of the Company on the one hand and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of<br>the Company on the one hand and the Holders on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates<br>to information supplied by the Company or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. |
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| (e) | The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this<br>Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph<br>(d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal<br>or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by<br>which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or<br>alleged omission. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint. |
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20
| (f) | The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies<br>that may otherwise be available to any Indemnified Person at law or in equity. |
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| (g) | The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full<br>force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of<br>the Company or the officers or directors of or any Person controlling the Company, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.<br> |
| --- | --- |
- General.
| (a) | No Inconsistent Agreements. The Company represents, warrants and agrees that (i) the rights<br>granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of any other outstanding securities issued or guaranteed by the Company under any other agreement and (ii) neither the<br>Company has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions<br>hereof. |
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| (b) | Amendments and Waivers. The provisions of this Agreement, including the provisions of this<br>sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of the Majority Holders of each series of Registrable<br>Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as<br>against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties<br>hereto. |
| --- | --- |
| (c) | Notices. All notices and other communications provided for or permitted hereunder shall be made<br>in writing by hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance<br>with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if to the Company, initially at the Company’s address set forth in the<br>Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement<br>and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally<br>delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of<br>all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture. |
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21
| (d) | Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the<br>successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or<br>other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such<br>Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and<br>provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to the Company with respect to any failure by a<br>Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement. |
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| (e) | Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made<br>hereunder between the Company, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the<br>rights of other Holders hereunder. |
| --- | --- |
| (f) | Counterparts. This Agreement may be executed in any number of counterparts and by the parties<br>hereto in separate counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the<br>parties and delivered (by telecopy, electronic delivery or otherwise) to the other parties. Signatures to this Agreement transmitted by facsimile transmission or electronic format (e.g., “.pdf” or “.tif”) form, or by any<br>other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. The words “execution,”<br>“signed,” “signature,” and words of like import in this Agreement or any agreement entered into in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of<br>which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal<br>Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act (e.g. DocuSign). |
| --- | --- |
22
| (g) | Headings. The headings in this Agreement are for convenience of reference only, are not a part of<br>this Agreement and shall not limit or otherwise affect the meaning hereof. |
|---|---|
| (h) | Governing Law. This Agreement, and any claim, controversy or dispute arising under or related to<br>this Agreement, shall be governed by and construed in accordance with the laws of the State of New York. |
| --- | --- |
| (i) | Entire Agreement; Severability. This Agreement contains the entire agreement between the parties<br>relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid,<br>void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Company and the<br>Initial Purchasers shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable<br>provisions. |
| --- | --- |
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| TAKEOFF MERGER SUB INC. | |
|---|---|
| By: | /s/ Noriyuki Hiruta |
| Name: Noriyuki Hiruta | |
| Title: Chief Executive Officer |
[Signature Page toRegistration Rights Agreement]
Confirmed and accepted as of the date first written above:
SMBC NIKKO SECURITIES AMERICA, INC.
CITIGROUP GLOBAL MARKETS INC.
GOLDMAN SACHS & CO. LLC
For themselves and on behalf of the several Initial Purchasers listed in Schedule 1 hereto
| SMBC NIKKO SECURITIES AMERICA, INC. | |
|---|---|
| By: | /s/ Arthur M. Rubin |
| Name: | Arthur M. Rubin |
| Title: | Managing Director |
| CITIGROUP GLOBAL MARKETS INC. | |
| By: | /s/ Adam D. Bordner |
| Name: | Adam D. Bordner |
| Title: | Managing Director |
| GOLDMAN SACHS & CO. LLC | |
| By: | /s/ Jonathan Zwart |
| Name: | Jonathan Zwart |
| Title: | Managing Director |
[Signature Page toRegistration Rights Agreement ]
Schedule 1
Initial Purchasers
SMBC Nikko Securities America, Inc.
Citigroup Global Markets Inc.
Goldman Sachs & Co. LLC
BNP Paribas Securities Corp
BofA Securities, Inc.
Credit Agricole Securities (USA) Inc.
Deutsche Bank Securities Inc.
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
R. Seelaus & Co., LLC
RBC Capital Markets, LLC
Wells Fargo Securities, LLC
Australia and New Zealand Banking Group Limited
BBVA Securities, Inc.
Bank of China (Europe) S.A.
BMO Capital Markets Corp.
Caixa Bank S.A.
CIBC World Markets Corp.
Citizens JMP Securities, LLC
DBS Bank Ltd.
ICBC Standard Bank Plc
KeyBanc Capital Markets Inc.
Lloyds Securities Inc.
Mizuho Securities USA LLC
NatWest Market Securities Inc.
Oversea-Chinese Banking Corporation Limited
PNC Capital Markets LLC
Scotia Capital (USA) Inc.
Huntington Securities, Inc.
TD Securities (USA) LLC
Truist Securities, Inc.
U.S. Bancorp Investments, Inc.
EX-10.3
Exhibit 10.3
Execution Version
FIRST AMENDMENT
THIS FIRST AMENDMENT (this “Agreement”), dated as of March 25, 2026, is entered into by SUMISHO AIR LEASE FINANCE CORPORATION, a Delaware corporation (the “Existing Borrower”), TAKEOFF MERGER SUB INC. (the “New Borrower”), SUMITOMO MITSUI BANKING CORPORATION, as administrative agent (the “Administrative Agent”), and the Lenders party hereto.
RECITALS
WHEREAS, the Existing Borrower, the several banks and other financial institutions or entities party thereto as of the date hereof (the “Lenders”), and the Administrative Agent have entered into that certain Term Loan Credit Agreement, dated as of November 14, 2025 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Agreement, the “Amended Credit Agreement”);
WHEREAS, the Existing Borrower has requested that certain provisions of the Existing Credit Agreement be amended as set forth herein pursuant to Section 10.1 of the Existing Credit Agreement, and the Lenders party hereto (constituting all of the Lenders) are willing to agree to such amendments (including the Borrower Assignment (as defined below)) on the terms set forth herein;
WHEREAS, on the Amendment Effective Date, the Existing Borrower desires, pursuant to Section 10.1 and 10.6(a) of the Existing Credit Agreement and the terms of this Agreement, to assign all of its rights and Obligations under the Existing Credit Agreement and the other Loan Documents (collectively, the “Existing Loan Documents”) to the New Borrower, and the New Borrower desires to automatically assume all of the rights and Obligations of the Existing Borrower under the Existing Loan Documents pursuant to the terms of this Agreement (the “Borrower Assignment”); and
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Amended Credit Agreement.
Amendment.
(a) Effective solely upon the occurrence of the Amendment Effective Date, (i) the Existing Credit Agreement shall be hereby amended to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and to add the double- underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Exhibit A hereto and (ii) Schedule 4.15 (Subsidiaries) of the Existing Credit Agreement shall be amended and restated in its entirety in the form attached as Exhibit B hereto.
(b) From and after the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Existing Credit Agreement as modified by this Agreement.
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- Borrower Assignment. The Existing Borrower, the New Borrower, the Administrative Agent and each Lender agree that, on the Amendment Effective Date:
(a) The Existing Borrower hereby, without further action or notice, assigns and transfers all of its rights and Obligations under the Existing Loan Documents as Borrower to the New Borrower.
(b) The New Borrower automatically, without further action or notice, assumes the Existing Borrower’s Obligations as Borrower under the Existing Loan Documents and the parties hereto hereby agree that (i) it shall be bound by all provisions of the Loan Documents applicable to the Borrower, (ii) it may exercise every right and power of the Borrower and (iii) it shall perform and observe, each and every one of the covenants, rights, promises, agreements, terms, conditions, obligations, appointments, duties and liabilities of the Borrower and a Loan Party under the Loan Documents. On and following the Amendment Effective Date, all references to the “Borrower” in all Existing Loan Documents shall be deemed to refer to the New Borrower.
(c) The Existing Borrower is hereby automatically released from all liabilities and obligations as Borrower and a Loan Party under the Existing Loan Documents (other than any indemnification and other contingent obligations that arose under the Existing Loan Documents prior to the Amendment Effective Date).
(d) The execution and effectiveness of this Agreement by each Lender party hereto constitutes the consent of all Lenders to the Borrower Assignment pursuant to Section 10.6(a) of the Existing Credit Agreement.
- Conditions Precedent. The effectiveness of this Agreement (including the Borrower Assignment) is subject to the satisfaction or waiver (by the Administrative Agent and each Lender) of the following conditions precedent (the date of such satisfaction or waiver, the “Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Agreement, properly executed by the Existing Borrower, the New Borrower, the Administrative Agent and each Lender;
(b) The Administrative Agent shall have received (i) certificates of the New Borrower, dated the Amendment Effective Date, substantially in the form of Exhibit B-1 to the Existing Credit Agreement, with appropriate insertions and attachments, including the certificate of incorporation or formation of the New Borrower certified by the relevant authority of the jurisdiction of organization of the New Borrower, (ii) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (iii) a good standing certificate for the New Borrower from its jurisdiction of organization;
(c) The Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to the New Borrower, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C to the Existing Credit Agreement; and
2
(d) The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as is reasonably requested in writing at least ten Business Days prior to the Amendment Effective Date by the Administrative Agent or the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and if the New Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Existing Borrower shall have delivered to each requesting Lender at least three business days prior to the Amendment Effective Date (to the extent request by such Lender at least ten business days prior to the Amendment Effective Date) a beneficial ownership certification in relation to the New Borrower.
Payment of Expenses. In accordance with the terms of Section 10.5 of the Existing Credit Agreement, the New Borrower agrees to reimburse, or to cause Parent to reimburse, the Administrative Agent for all reasonable and documented out of pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, including all reasonable and documented fees and disbursements of counsel to the Administrative Agent (paid directly to such counsel if requested by the Administrative Agent), in each case, to the extent payable in accordance with Section 10.5 of the Existing Credit Agreement.
Miscellaneous.
(a) Except as specifically modified above, the Loan Documents, and the obligations of the New Borrower under the Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents nor, except as expressly provided herein, constitute a waiver or amendment of any provision of any of the Loan Documents.
(b) (i) The Existing Borrower and the New Borrower acknowledge and consent to all of the terms and conditions of this Agreement, (ii) the New Borrower affirms all of its obligations as Borrower under the Loan Documents and (iii) the New Borrower agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge the obligations of the Borrower under the Loan Documents.
(c) The Existing Borrower and the New Borrower, as applicable, represent and warrant that:
(i) The execution, delivery and performance by the Existing Borrower and the New Borrower of this Agreement is within its respective corporate or other organizational powers and the Existing Borrower and the New Borrower have taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by the Existing Borrower and the New Borrower, and constitutes a legal, valid and binding obligation, respectively, of the Existing Borrower and the New Borrower, enforceable against the Existing Borrower and the New Borrower, as applicable, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
3
(iii) The execution and delivery by the Existing Borrower and the New Borrower, respectively, of this Agreement and performance by the Existing Borrower and the New Borrower of this Agreement, respectively, (a) will not violate any material Requirement of Law applicable to any Group Member, any Organizational Document of any Group Member or, except as could not reasonably be expected to have a Material Adverse Effect, any Contractual Obligation of any Group Member and (b) will not result in, or require, the creation or imposition of any Lien on any Group Member’s property or revenues. No Requirement of Law, Organizational Document or Contractual Obligation applicable to the Existing Borrower, the New Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
(iv) Before and after giving effect to this Agreement and the Borrower Assignment, (A) all representations and warranties of the New Borrower and Existing Borrower, as applicable, set forth in the Loan Documents are true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the date hereof, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, and (B) no Event of Default shall have occurred and be continuing.
(d) At any time and from time to time, upon the Administrative Agent’s request and at the sole expense of the New Borrower, the New Borrower and/or the Existing Borrower, as applicable, will promptly and duly execute and deliver any and all further instruments and documents and take such further action as the Administrative Agent reasonably deems necessary to effect the purposes of this Agreement.
(e) This Agreement may be in the form of an electronic record and may be executed using Electronic Signatures. Each of the parties hereto agrees that any Electronic Signature on or associated with this Agreement shall be valid and binding on such Person to the same extent as a manual, original signature and will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. This Agreement may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper counterparty which has been converted into electronic form (such as scanned into PDF format), or an electronically signed counterpart converted into another format, for transmission, delivery and/or retention. The provisions of Section 10.20 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
(f) In the event of any conflict between the terms of this Agreement and the terms of the Amended Credit Agreement or the other Loan Documents, the terms of this Agreement shall control.
(g) Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(h) The terms of the Existing Credit Agreement with respect to governing law, submission to jurisdiction, waiver of venue and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
4
Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
| ADMINISTRATIVE AGENT: | |
|---|---|
| SUMITOMO MITSUI BANKING CORPORATION,<br><br><br>as Administrative Agent and as a Lender | |
| By: | /s/ Laurent Levy |
| Name: Laurent Levy | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BORROWER: | |
|---|---|
| TAKEOFF MERGER SUB INC., | |
| as New Borrower | |
| By: | /s/ Ichiro Tatara |
| Name: | Ichiro Tatara |
| Title: | President and Secretary |
| SUMISHO AIR LEASE FINANCE CORPORATION, | |
| as Existing Borrower | |
| By: | /s/ Ichiro Tatara |
| Name: | Ichiro Tatara |
| Title: | President and Secretary |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| CITIBANK, N.A., as a Lender | |
|---|---|
| By: | /s/ Maureen Maroney |
| Name: Maureen Maroney | |
| Title: Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| GOLDMAN SACHS BANK USA,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Edwina Stewart |
| Name: Edwina Stewart | |
| Title: Authorised Signatory |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BANK OF AMERICA, N.A.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Elliot Hartman |
| Name: Elliot Hartman | |
| Title: Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BNP PARIBAS,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Mathieu Vidal |
| Name: | Mathieu Vidal |
| Title: | Director |
| By: | /s/ Celine Chatainier |
| Name: | Celine Chatainier |
| Title: |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Laurent Delvart |
| Name: | Laurent Delvart |
| Title: | Managing Director |
| By: | /s/ Laurent Wiscart |
| Name: | Laurent Wiscart |
| Title: | Executive Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| DEUTSCHE BANK AG NEW YORK BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Annie Chung |
| Name: Annie Chung | |
| Title: Managing Director | |
| By: | /s/ Marko Lukin |
| Name: Marko Lukin | |
| Title: Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| HSBC BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Ross Donaldson |
| Name: Ross Donaldson | |
| Title: Director, CIB |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| MUFG BANK, LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Tye Holmes |
| Name: Tye Holmes | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| ROYAL BANK OF CANADA,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Scott Umbs |
| Name: Scott Umbs | |
| Title: Authorized Signatory |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| SUMITOMO MITSUI TRUST BANK, LIMITED, NEW YORK BRANCH<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Takuya Uekusa |
| Name: Takuya Uekusa | |
| Title: Deputy General Manager |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Nathan R. Rantala |
| Name: Nathan R. Rantala | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, SINGAPORE BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Niroshan Somasekeran |
| Name: Niroshan Somasekeran | |
| Title: Head of REI Interanationl & CF S&SEA |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Cara Younger |
| Name: Cara Younger | |
| Title: Managing Director | |
| By: | /s/ Armen Semizian |
| --- | --- |
| Name: Armen Semizian | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BANK OF CHINA (OPE) S.A. DUBLIN BRANCH,<br>as a Lender |
|---|
| By: |
| Name: |
| Title: |
All values are in Euros.
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BANK OF CHINA, LOS ANGELES BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Liming Xiao |
| Name: Liming Xiao | |
| Title: SVP & Deputy Branch Manager |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| BANK OF MONTREAL,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Lauren Harte |
| Name: Lauren Harte | |
| Title: Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| CAIXABANK, S.A., UNITED KINGDOM BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Sergi Periago Estornell |
| Name: | Sergi Periago Estornell |
| Title: | Head of Client Coverage |
| By: | /s/ Victor Granero |
| Name: | Victor Granero |
| Title: | Country Manager UK |
[Signature Page to First Amendment to Term Loan Credit Agreement]
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Edward Turowski |
| Name: Edward Turowski | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| CITIZENS BANK, N.A.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Darran Wee |
| Name: Darran Wee | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| DBS BANK LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Cheng Yu Hua |
| Name: Cheng Yu Hua | |
| Title: Attorney-in-fact |
[Signature Page to First Amendment to Term Loan Credit Agreement]
INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Xiaoxing Huang |
| Name: Xiaoxing Huang | |
| Title: Director | |
| By: | /s/ Robert O’Brien |
| Name: Robert O’Brien | |
| Title: Executive Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| KEYBANK NATIONAL ASSOCIATION,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Tad L. Stainbrook |
| Name: Tad L. Stainbrook | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| LLOYDS BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Hilary Cochrane |
| Name: | Hilary Cochrane, |
| Title: | Associate Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| MIZUHO BANK, LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Donna DeMagistris |
| Name: Donna DeMagistris | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| NATIONAL WESTMINSTER BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Adam Kirk |
| Name: Adam Kirk | |
| Title: Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
OVERSEA-CHINESE BANKING CORPORATION LIMITED, NEW YORK AGENCY,
as a Lender
| By: | /s/ Charles Ong |
|---|---|
| Name: | Charles Ong |
| Title: | Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| PNC BANK, NATIONAL ASSOCIATION,<br> <br>as<br>a Lender | |
|---|---|
| By: | /s/ Maxwell Feinstein |
| Name: | Maxwell Feinstein |
| Title: | Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY,
| as a Lender | |
|---|---|
| By: | /s/ Andrew Cotter |
| Name: Andrew Cotter | |
| Title: Director | |
| By: | /s/ Carlos Duarte |
| --- | --- |
| Name: Carlos Duarte | |
| Title: Associate Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| THE HUNTINGTON NATIONAL BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Phil Andresen |
| Name: Phil Andresen | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
THE TORONTO-DOMINION BANK, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Betty Chang |
| Name: Betty Chang | |
| Title: Authorized Signatory |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| TRUIST BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Michael J. Landry |
| Name: Michael J. Landry | |
| Title: Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION,<br> <br>as<br>a Lender | |
|---|---|
| By: | /s/ Paul F. Johnson |
| Name: Paul F. Johnson | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Term Loan Credit Agreement]
CREDIT INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Andrew McKuin |
| Name: Andrew McKuin | |
| Title: Managing Director | |
| By: | /s/ Adrienne Molloy |
| Name: Adrienne Molloy | |
| Title: Managing Director |
[Signature Page to First Amendment to Term Loan Credit Agreement]
CTBC BANK CO., LTD., NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Mingdao Li |
| Name: Mingdao Li | |
| Title: SVP and Branch Manager |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| THE KOREA DEVELOPMENT BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Seung Hyun Kim |
| Name: Seung Hyun Kim | |
| Title: Head of Global Corporate Banking Team Global Financial Cooperation<br>Center |
[Signature Page to First Amendment to Term Loan Credit Agreement]
| The Bank of East Asia. Limited, Los Angeles Branch,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Calvin Shih |
| Name: Calvin Shih | |
| Title: Credit Manager | |
| By: | /s/ Simon Keung |
| Name: Simon Keung | |
| Title: General Manager |
[Signature Page to First Amendment to Term Loan Credit Agreement]
EXHIBIT A
[see attached]
EXHIBIT B
Schedule 4.15
None.
Exhibit A ****
$1,000,000,000
TERM LOAN CREDIT AGREEMENT
among
~~SUMISHO~~ TAKEOFF MERGER SUB INC.
(to be merged with and into AIR LEASE ~~FINANCE~~CORPORATION on the Closing Date),
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
and
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent
Dated as of November 14, 2025,
as amended by the First Amendment, dated as of March 25, 2026
SUMITOMO MITSUI BANKING CORPORATION, CITIBANK, N.A. and GOLDMAN SACHS
BANK USA,
as Joint Lead Arrangers and Joint Bookrunners
and
CITIBANK, N.A. and GOLDMAN SACHS
BANK USA,
as Syndication Agents
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TABLE ~~OFCONTENTS~~OF CONTENTS
| Page | |||
|---|---|---|---|
| Section 1. | DEFINITIONS | 1 | |
| 1.1 | Defined Terms | 1 | |
| 1.2 | Other Definitional Provisions | 27 | |
| 1.3 | Interest Rates | 28 | |
| 1.4 | Divisions | 29 | |
| 1.5 | No Pre-Closing Obligations of Air Lease | 29 | |
| Section 2. | AMOUNT AND TERMS OF COMMITMENTS | 29 | |
| 2.1 | Commitments | 29 | |
| 2.2 | Procedure for Borrowing | 29 | |
| 2.3 | [Reserved] | 29 | |
| 2.4 | [Reserved] | 30 | |
| 2.5 | Fees | 30 | |
| 2.6 | Termination or Reduction of Commitments | 30 | |
| 2.7 | Optional Prepayments | 30 | |
| 2.8 | Conversion and Continuation Options | 31 | |
| 2.9 | Limitations on Term Benchmark Tranches | 31 | |
| 2.10 | Interest Rates and Payment Dates | 31 | |
| 2.11 | Computation of Interest and Fees | 32 | |
| 2.12 | Inability to Determine Interest Rate | 32 | |
| 2.13 | Pro Rata Treatment and Payments | 34 | |
| 2.14 | Requirements of Law | 36 | |
| 2.15 | Taxes | 37 | |
| 2.16 | Indemnity | 40 | |
| 2.17 | Change of Lending Office | 40 | |
| 2.18 | Replacement of Lenders | 40 | |
| 2.19 | Defaulting Lenders | 41 | |
| 2.20 | Illegality. | 41 | |
| Section 3. | [RESERVED] | 42 | |
| Section 4. | REPRESENTATIONS AND WARRANTIES | 42 | |
| 4.1 | Financial Condition | 42 | |
| 4.2 | No Change | 42 | |
| 4.3 | Existence; Compliance with Law | 42 | |
| 4.4 | Power; Authorization; Enforceable Obligations | 42 | |
| 4.5 | No Legal Bar | 43 | |
| 4.6 | Litigation | 43 | |
| 4.7 | No Default | 43 | |
| 4.8 | Ownership of Property | 43 | |
| 4.9 | Intellectual Property | 43 | |
| 4.10 | Taxes | 43 | |
| 4.11 | Federal Regulations | 44 | |
| 4.12 | Labor Matters | 44 |
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| 4.13 | ERISA | 44 |
|---|---|---|
| 4.14 | Investment Company Act; Other Regulations | 44 |
| 4.15 | Subsidiaries | 44 |
| 4.16 | Use of Proceeds | 45 |
| 4.17 | Environmental Matters | 45 |
| 4.18 | Accuracy of Information, etc. | 45 |
| 4.19 | Anti-Corruption Laws and Sanctions | 45 |
| 4.20 | Solvency | 46 |
| 4.21 | Service Agreement | 46 |
| 4.22 | Outbound Investment Rules | 46 |
| Section 5. | CONDITIONS PRECEDENT | 46 |
| 5.1 | Conditions to Effectiveness of this Agreement | 46 |
| 5.2 | Conditions to the Closing Date | 47 |
| 5.3 | [Reserved] | 49 |
| 5.4 | Limitations on Actions of Administrative Agent and Lenders Between the Effective Date and the Closing Date | 49 |
| Section 6. | AFFIRMATIVE COVENANTS | 50 |
| 6.1 | Financial Statements | 50 |
| 6.2 | Certificates; Other Information | 51 |
| 6.3 | Payment of Obligations | 52 |
| 6.4 | Maintenance of Existence; Compliance | 52 |
| 6.5 | Maintenance of Property; Insurance | 52 |
| 6.6 | Inspection of Property; Books and Records; Discussions | 52 |
| 6.7 | Notices | 52 |
| 6.8 | Use of Proceeds | 53 |
| 6.9 | Accuracy of Information | 53 |
| 6.10 | Future Guarantors | 53 |
| Section 7. | NEGATIVE COVENANTS | 53 |
| 7.1 | Financial Condition Covenants | 54 |
| 7.2 | Indebtedness | 54 |
| 7.3 | Fundamental Changes | 54 |
| 7.4 | [Reserved] | 55 |
| 7.5 | Transactions with Affiliates | 55 |
| 7.6 | Changes in Fiscal Periods | 55 |
| 7.7 | Lines of Business | 55 |
| 7.8 | Outbound Investment Rules | 55 |
| Section 8. | EVENTS OF DEFAULT | 56 |
| Section 9. | THE AGENTS | 58 |
| 9.1 | Appointment | 58 |
| 9.2 | Delegation of Duties | 58 |
| 9.3 | Exculpatory Provisions | 58 |
| 9.4 | Reliance by Administrative Agent | 59 |
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| 9.5 | Notice of Default | 59 |
|---|---|---|
| 9.6 | Non-Reliance on Agents and Other Lenders | 59 |
| 9.7 | Indemnification | 60 |
| 9.8 | Agent in Its Individual Capacity | 60 |
| 9.9 | Successor Administrative Agent | 60 |
| 9.10 | Arrangers and Syndication Agents | 61 |
| 9.11 | Certain ERISA Matters | 61 |
| 9.12 | Acknowledgments with respect to Payments | 62 |
| Section 10. | MISCELLANEOUS | 63 |
| 10.1 | Amendments and Waivers | 63 |
| 10.2 | Notices | 64 |
| 10.3 | No Waiver; Cumulative Remedies | 65 |
| 10.4 | Survival of Representations and Warranties | 65 |
| 10.5 | Payment of Expenses and Taxes | 66 |
| 10.6 | Successors and Assigns; Participations and Assignments | 67 |
| 10.7 | Adjustments; Set-off | 70 |
| 10.8 | Counterparts; Integration; Effectiveness; Electronic Execution | 70 |
| 10.9 | Severability | 71 |
| 10.10 | Integration | 71 |
| 10.11 | GOVERNING LAW | 72 |
| 10.12 | Submission To Jurisdiction; Waivers | 72 |
| 10.13 | Acknowledgements | 73 |
| 10.14 | Releases | 73 |
| 10.15 | Confidentiality | 74 |
| 10.16 | WAIVERS OF JURY TRIAL | 75 |
| 10.17 | USA Patriot Act | 75 |
| 10.18 | Acknowledgement Regarding Any Supported QFCs | 75 |
| 10.19 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 76 |
| 10.20 | Sustainability | 77 |
| 10.21 | Consent to Disclosure | 77 |
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SCHEDULES:
| 1.1A | Commitments |
|---|---|
| 1.1B | Target Indebtedness |
| 4.15 | Subsidiaries |
EXHIBITS:
| A | Form of Assignment and Assumption |
|---|---|
| B-1 | Form of Secretary’s Certificate |
| B-2 | Form of Solvency Certificate |
| C | Form of Legal Opinion of Davis Polk & Wardwell, LLP |
| D | Form of Compliance Certificate |
| E-1 - E-4 | Form of U.S. Tax Compliance Certificate |
| G | Form of Guaranty |
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TERM LOAN CREDIT AGREEMENT (this “Agreement”), dated as of November 14, 2025, ~~among SUMISHO AIR LEASE FINANCECORPORATION~~as amended by the First Amendment, dated as of March 25, 2026, among TAKEOFF MERGER SUB INC., a Delaware corporation (the “Borrower”) (which will merge with and into Air Lease Corporation, a Delaware corporation (“Air Lease”) pursuant to the Acquisition on the Closing Date, with Air Lease surviving the merger), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”), SUMITOMO MITSUI BANKING CORPORATION, as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
“ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1.0%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to Section 2.12 hereof (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.12(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the ABR as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.
“ABR Loans”: Term Loans the rate of interest applicable to which is based upon the ABR.
“Acquired Business”: as defined in the definition of “Acquisition”.
“Acquisition”: the acquisition by Sumisho Air Lease Corporation Designated Activity Company (the “Parent”) of, directly or indirectly, Air Lease ~~Corporation, a Delaware corporation (“Air Lease”)~~and/or one or more of its subsidiaries (Air Lease and its respective subsidiaries and businesses, collectively, the “Acquired Business”), through ~~Takeoff Merger Sub Inc.~~ ~~(“Merger Sub”),a wholly owned merger subsidiary of~~ the Borrower pursuant to the Agreement and Plan of Merger dated as of September 1, 2025 (the “Signing Date”), among the Parent, ~~Merger Sub~~the Borrower and Air Lease and certain other parties thereto (as amended, restated, amended and restated or otherwise modified from time to time, and together with the appendices, exhibits and schedules thereto, the “Acquisition Agreement”).
“Acquisition Agreement”: as defined in the definition of “Acquisition”.
“Acquisition Termination Date” means the earliest of (a) the consummation of the Acquisition without using the Term Loans, (b) the termination of the Parent’s (and ~~Merger Sub’s~~the Borrower’s) obligation to consummate the Acquisition pursuant to the Acquisition Agreement and (c) the date that is five Business Days after the End Date (as defined in the Acquisition Agreement as in effect on the Signing Date) as it may be extended in accordance with Section 8.01(b)(i) of the Acquisition Agreement as in effect on the Signing Date.
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“Acquisition Transaction Representations”: the representations made by Air Lease with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Parent and ~~Merger Sub~~the Borrower have the right to terminate its and their respective obligations to consummate the Acquisition (or otherwise do not have an obligation to close) under the Acquisition Agreement as a result of a failure of such representations in the Acquisition Agreement to be accurate and without liability to the Parent or ~~Merger Sub~~the Borrower).
“Adjusted Daily Simple SOFR”: for any day, a rate equal to the Daily Simple SOFR, plus 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate”: for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent”: Sumitomo Mitsui Banking Corporation, together with its Affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”: as to any Person, any other Person that, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Indemnitee”: as defined in Section 9.7.
“Agents”: the collective reference to the Administrative Agent and any other agent identified on the cover page of this Agreement.
“Aggregate Exposure Percentages”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Extensions of Credit at such time to the Total Extensions of Credit at such time.
“Agreement”: as defined in the preamble hereto.
“Aircraft Assets”: aircraft, airframes, engines (including spare engines), parts and pre-delivery payments relating to the foregoing.
“Air Lease”: as defined in the ~~definition of“Acquisition”~~preamble hereto.
“ALC Warehouse”: ALC Warehouse Borrower, LLC, a Delaware limited liability company.
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“Ancillary Document”: as defined in Section 10.8(b).
“Anti-Corruption Laws”: (a) United States laws, rules and regulations applicable to the Borrower and its Subsidiaries concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, and (b) the UK Bribery Act of 2010 to the extent applicable to the Borrower and its Subsidiaries.
“Apollo”: means Apollo Capital Management, L.P., a Delaware limited partnership, and any Affiliates thereof.
“Applicable Margin”: with respect to Term Loans of any Type at any time, the applicable rate per annum which is applicable at such time with respect to such Term Loans of such Type as set forth in the Pricing Grid.
“Applicable Percentage”: as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the Total Commitments. Notwithstanding the foregoing, Applicable Percentages shall be determined without regard to any Defaulting Lender’s Commitment.
“Approved Bank”: any commercial or investment bank whose long-term senior unsecured debt is rated at least Baa3 from Moody’s and at least BBB- from S&P.
“Arrangers”: the Lead Arrangers and Joint Bookrunners identified on the cover page of this Agreement.
“Assignee”: as defined in Section 10.6(b).
“Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit A.
“Available Commitment”: as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Commitment then in effect over (b) such Lender’s Extensions of Credit then outstanding.
“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.12.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
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“Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, Irish law examiner, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark”: initially, with respect to any (i) Daily Simple SOFR Loan, the Daily Simple SOFR or (ii) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Daily Simple SOFR or Term SOFR Rate, as applicable, or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.12.
“Benchmark Replacement”: for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent, in consultation with the Borrower, for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment; If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such times.
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“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion, in consultation with Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
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(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12.
“Benefit Plan”: any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Part 4, Subpart B of Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, or (c) any Person whose assets include (for purposes of the Plan Asset Regulations) the assets of any such “employee benefit plan” or “plan”.
“Benefitted Lender”: as defined in Section 10.7(a).
“BHC Act Affiliate”: as defined in Section 10.18(b).
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors”: (a) with respect to a corporation, the Board of Directors of the corporation or (other than for purposes of determining Change of Control) the executive committee of the Board of Directors; and (b) with respect to any other Person, the board or committee of such Person serving a similar function.
“Borrower”: as defined in the preamble hereto.
“Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Term Loans hereunder.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City, Chicago or Los Angeles are authorized or required by law to close, provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, Daily Simple SOFR Loans, any such day that is only an U.S. Government Securities Business Day.
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“Brookfield”: means Brookfield Asset Management Credit and Insurance Solutions Advisor LLC, a Delaware limited liability company, and any Affiliates thereof.
“Business Hours”: the hours of any Business Day during the period running from (and including) 9:00 A.M., New York City Time to (and including) 6:00 P.M., New York City Time.
“Capital Lease”: at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability (and that is classified as a finance lease) in accordance with GAAP.
“Capital Stock”: with respect to any Person, all equity interests in such Person, including any Common Stock, Preferred Stock, limited liability or partnership interests (whether general or limited), and all warrants or options with respect to, or other rights to purchase, the foregoing, but excluding Convertible Notes and Indebtedness (other than Preferred Stock) convertible into equity.
“Cash and Cash Equivalents”: (a) cash and cash equivalents, as defined in accordance with GAAP, and (b) commercial paper, certificates of deposit, guaranteed investment contracts, repurchase agreements and similar securities where the obligor to the Borrower is rated A (or equivalent rating) or above by any Ratings Agency (or in the case of commercial paper, rated P-1 or higher by Moody’s or A-1 or higher by S&P).
“Change of Control”: means (a) prior to an IPO, the Permitted Holders shall cease to beneficially own or control, directly or indirectly through one or more holding company parents of the Borrower, more than fifty percent (50%) of the Voting Stock of the Borrower unless the Permitted Holders otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint 50% or more of the board of directors or equivalent governing body of the Borrower and (b) after an IPO, the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group, other than the Permitted Holders (directly or indirectly, including through one or more holding companies), of Capital Stock representing 50% or more of the Voting Stock in the IPO Entity, unless the Permitted Holders (directly or indirectly, including through one of more holding companies) otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint 50% or more of the board of directors or equivalent governing body of the IPO Entity. For the avoidance of doubt, the consummation of the Acquisition shall be deemed to not be a Change of Control.
For purposes of this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, (ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) if any Person or “group” (other than a Permitted Holder) includes one or more Permitted Holders, the issued and outstanding Capital Stock of the Borrower or the IPO Entity, as applicable, directly or indirectly owned by the Permitted Holders that are part of such Person or “group” shall not be treated as being owned by such Person or “group” for purposes of determining whether this definition is triggered, (iv) a Person or “group” (other than a Permitted Holder) shall not be deemed to beneficially own Capital Stock (x) to be acquired by such Person or “group” pursuant to an equity or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Capital Stock in connection with the transactions contemplated by such agreement or (y) solely as a result of veto or approval rights in any joint venture agreement, shareholder agreement, investor rights agreement or other similar agreement (in each case, so long as such Person does not have the right to direct the voting of the Capital Stock subject to such right), (v) a Person or group (other than a Permitted Holder) will not be deemed to beneficially own Capital Stock of another Person as a result of its ownership of Capital Stock or other securities of such other Person’s parent (or related contractual rights) unless it owns more than 50% of the total voting power of the Capital Stock of such Person’s parent and (vi) the right to acquire Capital Stock (so long as such Person does not have the right to direct the voting of the Capital Stock subject to such right) or any veto power in connection with the acquisition or disposition of Capital Stock will not cause a party to be a beneficial owner.
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“Closing Date”: the date on which the conditions precedent set forth in Section 5.2 shall have been satisfied or waived in accordance with Section 10.1.
“CME Term SOFR Administrator”: CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator selected by the Administrative Agent in its reasonable discretion).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Commitment”: as to any Lender, the obligation of such Lender, if any, to make Term Loans in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Commitment” opposite such Lender’s name on Schedule 1.1A, in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The amount of the Total Commitments as of the Effective Date is $1,000,000,000.
“Common Stock”: any class of capital stock or share capital of any corporation now or hereafter authorized, the right of which to share in distributions of either earnings or assets of such corporation is without limit as to any amount or percentage.
“Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit D.
“Consolidated Adjusted EBITDA”: with reference to any period, Consolidated Net Income for such period plus, to the extent deducted in determining Consolidated Net Income, depreciation, amortization, interest expense, income taxes, stock based compensation expense and any other non-cash, non-recurring losses or charges of the Borrower and its consolidated Subsidiaries.
“Consolidated Interest Expense”: for any period, all interest expense in respect of Indebtedness of the Borrower and its consolidated Subsidiaries deducted in determining Consolidated Net Income together with all interest capitalized or deferred during such period and not deducted in determining Consolidated Net Income for such period, excluding all debt discount and expense amortized or required to be amortized in the determination of Consolidated Net Income for such period.
“Consolidated Net Income”: with reference to any period, the net income (or loss) of the Borrower and its consolidated Subsidiaries for such period, on a consolidated basis, provided that there shall be excluded any net income, gain or losses during such period from (a) any change in accounting principles in accordance with GAAP, (b) any prior period adjustment resulting from any change in accounting principles in accordance with GAAP, (c) any discontinued operations and (d) any extraordinary items.
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“Consolidated Shareholders’ Equity”: as of any date of determination, shareholders’ equity as reflected in the Borrower’s consolidated financial statements at such date.
“Consolidated Unencumbered Assets”: the assets of the Borrower and its Subsidiaries on a consolidated basis, consisting of (a) Cash and Cash Equivalents and Marketable Securities, in each case to the extent not subject to a Lien (other than customary bankers’ liens and rights of setoff and offset) and (b) non-pledged Aircraft Assets, valued at the net book value thereof.
“Consolidated Unsecured Indebtedness”: Unsecured Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis after eliminating intercompany items.
“Contractual Obligation”: as to any Person, any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Convertible Notes”: Indebtedness of the Borrower or any parent entity thereof that is optionally convertible into Common Stock of the Borrower or any parent entity thereof (and/or cash based on the value of such Common Stock) and/or Indebtedness of a Subsidiary of the Borrower that is optionally exchangeable for Common Stock of the Borrower or any parent entity thereof (and/or cash based on the value of such Common Stock).
“Corresponding Tenor”: with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity”: as defined in Section 10.18(b).
“Covered Party”: as defined in Section 10.18(a).
“Credit Party”: the Administrative Agent or any other Lender.
“Daily Simple SOFR”: for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Daily Simple SOFR Loan”: a Term Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.
“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
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“Defaulting Lender”: any Lender (a) that has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Term Loans, (ii) [reserved] or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) that has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) that has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Term Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent or (d) that has, or whose Lender Parent has, become the subject of a (i) Bankruptcy Event or (ii) a Bail-In Action.
“Default Right”: as defined in Section 10.18(b).
“Disposition”: with respect to any property, any sale, lease (other than in the ordinary course of business), sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Capital Stock”: with respect to any Person, any Capital Stock of such Person that by its terms is (1) required to be redeemed or redeemable at the option of the holder prior to the Maturity Date in effect at the time of issuance for consideration other than Qualified Capital Stock; or (2) convertible at the option of the holder into Disqualified Capital Stock or exchangeable for Indebtedness.
“Disqualified Lender”: means, collectively, (i) any person that is identified in writing by the Borrower to the Arrangers prior to the Signing Date as a “Disqualified Lender”, (ii) such other persons identified in writing by the Borrower to the Arrangers prior to the date hereof, or, after the date hereof, identified in writing by the Borrower to the Administrative Agent, and that is a competitor of the Borrower and (iii) affiliates of the persons identified pursuant to clause (i) or (ii) that are either clearly identifiable as affiliates solely on the basis of their name or identified in writing by the Borrower to the Arrangers prior to the date hereof, or, after the date hereof, identified in writing by the Borrower to the Administrative Agent (it being understood that, notwithstanding anything herein to the contrary, in no event shall any such identification apply retroactively to disqualify any parties that have previously acquired or have agreed to acquire an assignment, participation interest or allocation of commitments under the Facility that is otherwise permitted hereunder, but upon the effectiveness of such designation, any such party may not acquire or agree to acquire any additional commitments (or allocations thereof), loans or participations).
“Dollars” and “$”: dollars in lawful currency of the United States.
“Early Commitment Termination Date”: as defined in Section 2.19(e).
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which all conditions precedent set forth in Section 5.1 are satisfied or waived by all Lenders.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee”: (a) any Lender and any Affiliate of any Lender, and (b) (i) a commercial bank organized under the laws of the United States or any state thereof, (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof, provided that, with respect to this clause (iii), (A) such bank is acting through a branch or agency located in the United States or (B) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country and (iv) a finance company, insurance company, mutual fund, leasing company or other financial institution or fund (whether a corporation, partnership or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business, and having total assets in excess of $250,000,000; provided that, in each case, except with the consent of the Borrower, no Disqualified Lender and, solely with respect to any assignments made prior to the Closing Date, no Person that is not an Approved Bank shall be an Eligible Assignee.
“Equityholding Vehicle”: means any direct or indirect parent company of the Borrower and any equityholder thereof through which Management Investors hold Capital Stock of such direct or indirect parent company.
“Environmental Laws”: any Requirements of Law concerning protection of the environment or exposure to toxic or deleterious materials.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate”: any trade or business (whether or not incorporated) that, together with any Group Member, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event”: (a) any Reportable Event; (b) the existence with respect to any Plan of a Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Group Member or any ERISA Affiliate to make any required contribution to a Multiemployer Plan; (e) the incurrence by any Group Member or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (f) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (g) the receipt by any Group Member or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Group Member or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; or (i) the receipt by any Group Member or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Group Member or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA.
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“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Term Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Exchange Act”: the Securities Exchange Act of 1934, as amended.
“Extensions of Credit”: as to any Lender at any time, an amount equal to the sum of the aggregate principal amount of all Term Loans held by such Lender then outstanding.
“Facility”: the Commitments and the extensions of credit thereunder.
“FATCA”: Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any regulations or official interpretations thereof.
“FCA”: as defined in Section 1.3.
“Federal Funds Effective Rate”: for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate.
“Federal Reserve Bank of New York’s Website”: the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Federal Reserve Board”: means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letter”: as defined in Section 2.5(b)
“Fee Payment Date”: as defined in Section 2.5(a).
“First Amendment”: means that certain First Amendment dated as of the First Amendment Effective Date.
“First Amendment Effective Date”: means March 25, 2026.
“Fitch”: Fitch Rating Service, Inc.
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“Floor”: the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR shall be 0%.
“Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
“GAAP”: generally accepted accounting principles in the United States as in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 4.1. At any time after the Closing Date, the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP will thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided, however, that any such election, once made, will be irrevocable; provided further that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS will remain as previously calculated or determined in accordance with GAAP. The Borrower will give prior written notice of any such election made in accordance with this definition to the Administrative Agent.
“Goldman Sachs”: Goldman Sachs Bank USA.
“Governmental Authority”: any nation or government of any jurisdiction, any state or other political subdivision thereof, whether provincial, state, or local, and any department, ministry, agency, authority, instrumentality, regulatory body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Group Members”: the collective reference to the Borrower and its Subsidiaries.
“Guarantee Obligations”: with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Indebtedness or obligation or any property constituting security therefor; (b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation; (c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation; or (d) otherwise to assure the owner of such Indebtedness or obligation against loss in respect thereof. In any computation of the Indebtedness or other liabilities of the obligor under any Guarantee Obligation, the Indebtedness or other obligations that are the subject of such Guarantee Obligation shall be assumed to be direct obligations of such obligor to the extent of such obligor’s liability with respect thereto.
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“Guarantor”: from and after the Closing Date, ~~Air Lease and~~ each Subsidiary that executes and delivers a Guaranty; provided that upon release or discharge of such Subsidiary from the Guaranty in accordance with this Agreement, such Subsidiary ceases to be a Guarantor.
“Guaranty”: collectively, one or more guaranties of the Obligations made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit G, including any supplements to an existing Guaranty in substantially the form that is a part of Exhibit G.
“IFRS” means international financial reporting standards and interpretations issued by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.
“Indebtedness”: of any Person at any date, without duplication, (a) its liabilities for borrowed money and its redemption obligations in respect of Preferred Stock that is mandatorily redeemable at the option of the holder thereof prior to the Maturity Date in effect at the time of the issuance of such Preferred Stock; (b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable and accrued expenses arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property); (c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as Capital Leases; (d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities) (up to the fair market value of such property); (e) all its reimbursement obligations in respect of drawn letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money); (f) the net aggregate Swap Termination Value of all Swap Agreements of such Person; and (g) any Guarantee Obligation of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
“Indemnified Liabilities”: as defined in Section 10.5.
“Indemnitee”: as defined in Section 10.5.
“Index Debt”: senior, unsecured, long-term indebtedness for borrowed money of the Borrower (or, prior to the Closing Date, of Air Lease) that is not guaranteed by any other Person or subject to any other credit enhancement.
“Insolvent”: with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
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“Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June, September and December to occur while such Term Loan is outstanding and the Maturity Date, (b) as to any Term Benchmark Loan having an Interest Period of three months or less, the last day of such Interest Period and the Maturity Date, (c) as to any Term Benchmark Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and the Maturity Date and (d) with respect to any Daily Simple SOFR Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Term Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Maturity Date.
“Interest Period”: as to any Term Benchmark Loan, (i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Term Benchmark Loan, and ending one, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Term Benchmark Loan and ending one, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 4:00 P.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto,; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend beyond the Maturity Date; and
(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
“Investors”: means each of SMBC AC, Sumitomo, Apollo and Brookfield.
“IPO”: means (x) the initial underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8 or comparable filing in any other applicable jurisdiction) of common Capital Stock of the Borrower or a parent entity of the Borrower resulting in such common Capital Stock being publicly traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union, (y) the purchase or other acquisition, by merger, consolidation or otherwise, of a majority of the Capital Stock of the Borrower or a parent entity of the Borrower by any publicly traded special purpose acquisition company, targeted acquisition company or any entity similar to the foregoing (or any subsidiary thereof) that is listed on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union or (z) such other transaction that results in the common Capital Stock of the Borrower or a parent entity of the Borrower being publicly held or traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union, including pursuant to a direct listing of such Capital Stock.
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“IPO Entity”: means, at any time upon and after an IPO, either the Borrower or a parent entity of the Borrower, as the case may be, the Capital Stock of which were (x) issued or otherwise sold in a transaction described in clause (x) of the definition of “IPO”, (y) purchased or otherwise acquired, by merger, consolidated or otherwise, in a transaction described in clause (y) of the definition of “IPO” or (z) publicly listed in a transaction described in clause (z) of the definition of “IPO”; provided that, immediately following the IPO, unless the Borrower is the IPO Entity, the Borrower is a direct or indirect subsidiary of such IPO Entity and such IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets owned or conducted, directly or indirectly, by the Borrower immediately prior to the IPO.
“IRS”: as defined in Section 2.15(e).
“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Venture”: as to any Person, any other Person designated as a “joint venture” (1) that is not a Subsidiary of such Person and (2) in which such Person owns less than 100% of the equity or voting interests.
“Lender Parent”: with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a Subsidiary.
“Lenders”: as defined in the preamble hereto.
“Lien”: with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement and any Capital Lease, upon or with respect to any property or asset of such Person.
“Loan Documents”: this Agreement, the First Amendment, the Notes, ~~the~~each Guaranty and any amendment, waiver, supplement or other modification to any of the foregoing.
“Loan Parties”: each Group Member that is a party to a Loan Document.
“Management Investors”: means the current or former members of the board of directors or equivalent governing body, officers, managers, employees, other service providers, members or partners of the Borrower and/or its Subsidiaries who are, in each case, (i) natural persons and (ii) (directly or indirectly through one or more investment vehicles) investors in the Borrower (or any direct or indirect parent thereof), including such current or former members of the board of directors or equivalent governing body, officers, managers, employees, other service providers, members or partners owning through an Equityholding Vehicle.
“Marketable Securities”: either (a) debt securities that are rated BBB- or above by Fitch, BBB- or above by S&P, or Baa3 or above by Moody’s or (b) senior debt securities of issuers that are rated BBB- or above by Fitch, BBB- or above by S&P, or Baa3 or above by Moody’s.
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“Material Adverse Effect”: (i) a material adverse effect on the business, assets, property or financial condition of the Borrower and its Subsidiaries taken as a whole or (ii) a material impairment on the validity or enforceability of this Agreement or any of the other Loan Documents or the totality of the rights or remedies of the Lenders hereunder or thereunder.
“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
“Maturity Date”: the date that is eighteen months after the Closing Date.
“Moody’s”: Moody’s Investors Service, Inc.
“Multiemployer Plan”: a plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA that is contributed to or required to be contributed to by any Group Company or any ERISA Affiliate.
“Non-Excluded Taxes”: as defined in Section 2.15(a).
“Non-Recourse Indebtedness”: with respect to any Person, any Indebtedness of such Person or its Subsidiaries that is, by its terms, recourse only to specific assets and non-recourse to the assets of such Person generally and that is neither guaranteed by any Affiliate (other than a Subsidiary) of such Person or would become the obligation of any Affiliate (other than a Subsidiary) of such Person upon a default thereunder; provided, however, that the existence of a guarantee that is not a guarantee of payment of Indebtedness shall not cause the related Indebtedness to fail to be Non-Recourse Indebtedness.
“Non-U.S. Lender”: as defined in Section 2.15(e).
“Notes”: the collective reference to any promissory note evidencing Term Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it.
“Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Term Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Term Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred or suffered to exist, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.
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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Organizational Document”: as to any Person, the certificate of incorporation and by-laws, constitution or other organizational or governing documents of such Person.
“Other Connection Taxes”: with respect to any Credit Party, Taxes imposed as a result of a present or former connection between such Credit Party and the jurisdiction imposing such Tax (other than connections arising solely from such Credit Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Term Loan or Loan Document).
“Other Taxes”: any and all present or future stamp, court, documentary, intangible, recording, filing or similar taxes or any excise or property taxes arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, including any interest, additions to tax or penalties applicable thereto, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment or sale of a participation (other than an assignment made pursuant to Section 2.18).
“Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023; as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101 et seq.
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Parent”: as defined in the definition of “Acquisition”.
“Parent Company” means any legal entity that, directly or indirectly, owns 100% of the Capital Stock of the Borrower.
“Participant”: as defined in Section 10.6(c).
“Participant Register”: as defined in Section 10.6(c).
“Patriot Act”: as defined in Section 10.17.
“Payment”: as defined in Section 9.12.
“Payment Notice”: as defined in Section 9.12.
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
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“Permitted Holders”: means (a) the Investors, (b) the Management Investors (including, for the avoidance of doubt, any Equityholding Vehicle through which Management Investor holds Capital Stock), (c) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any parent entity of the Borrower or the Borrower, acting in such capacity, (d) any “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing are members, so long as, in the case of this clause (d), the Permitted Holders under clause (a) or (b) above and any Permitted Parent directly or indirectly collectively beneficially own more than 50% of the relevant Voting Stock beneficially owned by the group in Borrower or the IPO Entity, as applicable, (e) any Permitted Parent and (f) any Permitted Plan; provided, that for the purpose of determining whether a Change of Control has occurred no Person or group shall be a “Permitted Holder” under clause (a), (b) or (d) above if and to the extent that it beneficially owns or controls, directly or indirectly, a greater percentage of the Voting Stock of the Borrower than Sumitomo beneficially owns or controls.
“Permitted Parent”: means any direct or indirect parent entity of the Borrower or an IPO Entity that at the time it became a parent entity of the Borrower or an IPO Entity had at least 50% of its Voting Stock owned or controlled by Permitted Holders.
“Permitted Plan”: means any employee benefit plan of the Borrower or any of its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Pension Plan”: any Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
“Plan Asset Regulations”: of 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Person”: an individual, company, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, government, state or agency of a state or any association, Governmental Authority or other entity of whatever nature.
“Plan”: any employee benefit plan as defined in Section 3(3) of ERISA, including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Group Member or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Preferred Stock”: any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Pricing Grid”: with respect to any Term Benchmark Loan, Daily Simple SOFR Loan, or ABR Loan, or with respect to the Ticking Fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Applicable Margin for Term Benchmark Loans and Daily Simple SOFR Loans”, “Applicable Margin for ABR Loans” or “Ticking Fee Rate”, as the case may be, based upon the ratings by Moody’s, S&P and Fitch, respectively, applicable on such date to the Index Debt:
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| Rating for the Index Debt | Applicable Margin for<br>Term Benchmark Loans<br>and Daily Simple<br>SOFR Loans | Applicable Margin for<br>ABR Loans | Ticking Fee Rate | ||||||
|---|---|---|---|---|---|---|---|---|---|
| Level I<br><br><br>Rating for the Index Debt of at least BBB+ by S&P/BBB+ by Fitch/Baa1 by Moody’s | 1.125 | % | 0.125 | % | 0.15 | % | |||
| Level II<br><br><br>Rating for the Index Debt of at least BBB by S&P/BBB by Fitch/Baa2 by Moody’s and not Level I | 1.250 | % | 0.250 | % | 0.20 | % | |||
| Level III<br><br><br>Rating for the Index Debt of at least BBB- by S&P/BBB- by Fitch/Baa3 by Moody’s and not Level I or<br>II | 1.500 | % | 0.500 | % | 0.25 | % | |||
| Level IV<br><br><br>Rating for the Index Debt below Level III | 1.750 | % | 0.750 | % | 0.30 | % |
Applicable Margins and Ticking Fee Rate shall be based on the senior public unsecured rating of the Borrower (or, prior to the Closing Date, of Air Lease) from S&P, Fitch and Moody’s (each, a “Ratings Agency”). If there is only one senior public unsecured rating with respect to the Borrower (or, prior to the Closing Date, of Air Lease), the Applicable Margin and Ticking Fee Rate shall be determined with reference to such rating. If the senior public unsecured ratings established by S&P, Fitch or Moody’s shall fall within different Levels, the Applicable Margin and Ticking Fee Rate shall be determined by either (a) the senior public unsecured rating which is the consensus majority of such ratings or (b) in the event of a different senior public unsecured rating from each Ratings Agency and the highest and lowest of such ratings are not more than two Levels apart, the senior public unsecured rating which is neither the highest nor lowest of such ratings but rather the senior public unsecured rating between the higher and lower of such ratings or (c) in the event of a different senior public unsecured rating from each Ratings Agency and the highest and lowest of such ratings are more than two Levels apart, the senior public unsecured rating which is one Level below the Level for the highest of such ratings. If the Borrower has a senior public unsecured rating by only two of the Ratings Agencies, the Applicable Margin and Ticking Fee Rate shall be determined by either (i) the equivalent senior public unsecured rating of each of the two such Ratings Agencies, or (ii) in the event of split senior public unsecured ratings, (A) the higher of such senior public unsecured rating, provided, however, the lower of such senior public unsecured ratings shall be no greater than one Level below the higher of such senior public unsecured ratings or (B) in the event the lower of such senior public unsecured rating is greater than one Level below the higher of such senior public unsecured rating, the Applicable Margin and Ticking Fee Rate shall be determined based on the senior public unsecured rating which is one Level below the higher of such senior public unsecured rating. If the senior public unsecured ratings established by S&P, Fitch or Moody’s shall be changed, such change shall be effective as of the date on which it is first announced by the applicable Ratings Agency and if none of S&P, Fitch or Moody’s shall have in effect a senior public unsecured rating, the Applicable Margin and Ticking Fee Rate shall be based on Level IV. Each change in the Applicable Margin and Ticking Fee Rate shall apply during the period commencing on the effective date of the applicable change in senior public unsecured rating and ending on the date immediately preceding the effective date of the next such change in senior public unsecured rating.
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“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Prohibited Transaction”: as defined in Section 406 of ERISA and Section 4975(c) of the Code.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning specified in Section 10.18(b).
“QFC Credit Support” has the meaning specified in Section 10.18.
“Qualified Capital Stock”: all Capital Stock of a Person other than Disqualified Capital Stock.
“Ratings Agencies”: collectively, S&P, Fitch and Moody’s (as defined in the definition of “Pricing Grid”).
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is Daily Simple SOFR, then four Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
“Register”: as defined in Section 10.6(b)(v).
“Regulation U”: Regulation U of the Board as in effect from time to time.
“Regulatory Authority” has the meaning assigned to it in Section 10.15.
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“Relevant Governmental Body”: the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB, or, in each case, any successor thereto.
“Relevant Rate”: (i) with respect to any Term Benchmark Loan, the Adjusted Term SOFR Rate or (ii) with respect to any Daily Simple SOFR Loan, the Adjusted Daily Simple SOFR, as applicable.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043, with respect to a Pension Plan.
“Required Lenders”: at any time, the holders of more than 50% of (a) the Total Commitments then in effect or, (b) if the Commitments have expired or been terminated, the Total Extensions of Credit then outstanding; provided that, in the case of clauses (a) and (b) above, for the purpose of determining the Required Lenders needed for any waiver, amendment, modification or consent of or under this Agreement or any other Loan Document, any Lender that is the Borrower or an Affiliate of the Borrower shall be disregarded.
“Requirement of Law”: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: the chief executive officer, president, chief financial officer or treasurer of the Borrower, but in any event, with respect to financial matters, the chief financial officer of the Borrower.
“S&P”: Standard & Poor’s Ratings Group, a division of S&P Global, Inc.
“Sanctions”: economic or financial sanctions laws, regulations, or trade embargoes imposed, enacted, administered, or enforced from time to time by any Sanctions Authority.
“Sanctions Authority” means the United States Government (including OFAC and the US Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or the Government of Canada (and the related governmental institution Global Affairs Canada (and any other agency of the Canadian government)).
“Sanctioned Country”: at any time, a country or territory which is the subject or target of country-wide or territory-wide Sanctions (including currently, Cuba, Iran, North Korea, the Crimea, the so-called Luhansk People’s Republic, so-called Donetsk People’s Republic, and the non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine).
“Sanctioned Person”: at any time, any Person that is the subject or target of Sanctions, including, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, or the European Union, any EU member state or His Majesty’s Treasury of the United Kingdom or the Government of Canada (and the related governmental institution Global Affairs Canada (and any other agency of the Canadian government)), (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person that is the subject or target of Sanctions by operation of a relationship of ownership or control by any such Person or Persons.
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“SEC”: the Securities and Exchange Commission or any successor thereto.
“Secured Indebtedness”: any Indebtedness secured by a Lien.
“Significant Subsidiary”: any Subsidiary that would be a “Significant Subsidiary” of the Borrower within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Signing Date”: as defined in the definition of “Acquisition”.
“SMBC AC”: means SMBC Aviation Capital Limited, a limited company registered in Ireland under company number 270775 with its registered office at Fitzwilliam 28, Fitzwilliam Street Lower, Dublin 2, Ireland, D02 KF20 and any Affiliates thereof.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the Federal Reserve Bank of New York’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date”: has the meaning specified in the definition of “Daily Simple SOFR”.
“SOFR Rate Day”: has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvent”: (a) the fair value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and (d) the Borrower and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
“SPC Subsidiary”: a Special Aircraft Financing Entity that has acquired from a Person other than the Borrower or a Subsidiary a single Aircraft Asset and is prohibited by its organizational documents or loan documents or other related financing documents, without extension, replacement, modification or renewal thereof, from incurring Indebtedness, other than the Indebtedness incurred to finance such acquisition.
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“Special Aircraft Financing Entity”: (a) any Subsidiary of the Borrower (i) that is a borrower under a lending facility for the purpose of purchasing or financing Aircraft Assets, (ii) that has no Indebtedness other than Indebtedness that is non-recourse to the Borrower and its Subsidiaries (other than (A) such Subsidiary and its Subsidiaries and (B) a limited recourse pledge of the equity of any such Subsidiary) and the payment of such Indebtedness is not guaranteed by or would become the obligation of the Borrower and its Subsidiaries (other than such Subsidiary and its Subsidiaries), and (iii) that engages in no business other than the purchase, finance, lease, sale and management of Aircraft Assets and the ownership of special purpose entities engaged in such purchase, finance, lease, sale and management, and business incidental thereto and (b) any such special purpose entity described in the foregoing clause (a)(iii) that is a Subsidiary of a Special Aircraft Financing Entity; provided that “Special Aircraft Financing Entity” shall include, without limitation, ALC Warehouse.
“Special Purpose Finance Subsidiary” means any Wholly-Owned Subsidiary of the Borrower (i) formed solely for the purpose of incurring Indebtedness the proceeds of which will be used to provide financing to the Borrower or other Subsidiaries of the Borrower that are Guarantors and (ii) which engages in no business or operations (other than activities directly related and limited to the incurrence and servicing of Indebtedness and its maintenance of existence, including without limitation the investment, advance, dividend, distribution or other transfer of such proceeds of such Indebtedness (including without limitation any right to receive repayment from the Borrower or any Guarantor), and the opening of deposit, securities or other accounts) and does not own any assets (including, for the avoidance of doubt, any Subsidiary) (other than proceeds of Indebtedness and any related repayment rights from the Borrower or any Guarantor, any rights it may have under the documents governing such Indebtedness directly related and limited to the incurrence or servicing of such Indebtedness (but, for the avoidance of doubt, not including any operating assets), any deposit, securities or other accounts, and any rights under any Swap Agreement and any proceeds thereof) or have any liabilities (other than the incurrence of Indebtedness, any obligations it may have under the documents governing such Indebtedness directly related and limited to the incurrence or servicing of such Indebtedness, any obligations with respect to any deposit, securities or other accounts, any obligations under any Swap Agreement, and any obligations arising from the maintenance of such Subsidiary’s existence).
“Specified Indebtedness”: with respect to any Person, any Indebtedness of such Person the outstanding principal amount of which equals at least $100,000,000.
“Specified Representations” means the representations and warranties set forth in Section 4.3(a), Section 4.4 (other than the third sentence thereof), Section 4.5(b), Section 4.11, Section 4.14, Section 4.19(c) and Section 4.20.
“Subordinated Obligation”: any Indebtedness of the Borrower (whether outstanding on the Effective Date or thereafter incurred) that is expressly subordinated or junior in right of payment to the Term Loans pursuant to a written agreement.
“Subsidiary”: as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership can ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Sumitomo”: means Sumitomo Corporation, a company incorporated under the laws of Japan, and any affiliates thereof.
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“Supported QFC”: as defined in Section 10.18.
“Swap Agreement”: (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including, but without limitation, any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement.
“Swap Termination Value”: in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date of determination prior to the date referenced in clause (a), the amounts(s) determined as the mark to market values(s) for such Swap Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements.
“Syndication Agents”: the Syndication Agents identified on the cover page of this Agreement.
“Synthetic Lease”: at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as a non-finance lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Target Indebtedness”: the existing indebtedness of the Acquired Business set forth on Schedule 1.1B hereto.
“Target Debt Consents”: obtaining consents under the Target Indebtedness in order to permit such existing indebtedness to remain outstanding following consummation of the Acquisition.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark”: when used in reference to any Term Loan or borrowing, refers to whether such Term Loan, or the Term Loans comprising such borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate, other than pursuant to clause (c) of the definition of ABR.
“Term Loans”: the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Term SOFR Determination Day”: has the meaning assigned to it under the definition of Term SOFR Reference Rate.
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“Term SOFR Rate”: with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum equal to the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate”: for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
“Term Benchmark Tranche”: the collective reference to Term Benchmark Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Term Loans shall originally have been made on the same day).
“Ticking Fee”: as defined in Section 2.5(a).
“Ticking Fee Rate”: the percentage rate per annum which is applicable at such time as set forth in the Pricing Grid under the heading “Ticking Fee Rate”.
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
“Total Extensions of Credit”: at any time, the aggregate amount of the Extensions of Credit of the Lenders outstanding at such time.
“Transferee”: any Assignee or Participant.
“Type”: as to any Term Loan, its nature as an ABR Loan, Term Benchmark Loan or Daily Simple SOFR Loan.
“UK Financial Institutions”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“U.S. Special Resolution Regimes”: as defined in Section 10.18.
“United States”: the United States of America.
“Unsecured Aircraft Financing Debt”: as defined in Section 7.2(c).
“Unsecured Indebtedness”: Indebtedness as to which the obligor thereunder has not granted a Lien in favor of the holder(s) thereof as collateral security for the repayment of such Indebtedness; provided that for the avoidance of doubt obligations with respect to Capital Leases and obligations with respect to Swap Agreements shall not constitute Unsecured Indebtedness.
“Voting Stock”: Capital Stock of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect the corporate directors (or Persons performing similar functions).
“Wholly-Owned Subsidiary”: at any time, any Subsidiary one hundred percent of all of the equity interests (except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Borrower and the Borrower’s other Wholly-Owned Subsidiaries at such time.
“Withdrawal Liability”: any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
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(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP (provided that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein); provided that if the Borrower elects or is required to report under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election, as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated hereby, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall, with respect to Indebtedness, be construed to mean incur, create, issue, assume or become liable in respect of (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3 Interest Rates. The interest rate on a Term Loan denominated in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.12(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
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1.4 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
1.5 No Pre-Closing Obligations of Air Lease. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that in no event shall Air Lease or any of its Subsidiaries be required to enter into, incur any liabilities or obligations under or provide any indemnities pursuant to this Agreement, the Guaranty or any other Loan Document prior to the Closing Date.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Commitments. (a) Subject to the terms and conditions hereof, each Lender severally agrees to make Term Loans (which, for the avoidance of doubt, shall be denominated in Dollars) to the Borrower on the Closing Date in an amount not to exceed such Lender’s Commitment at such time and no Lender will be required to make Extensions of Credit in excess of its Commitment. Amounts borrowed under this Section 2.1(a) and repaid or prepaid may not be reborrowed. The Term Loans may from time to time be Term Benchmark Loans (or, in accordance with Section 2.12, Daily Simple SOFR Loans) or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.8. The failure of any Lender to make any Term Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Term Loans as required.
(b) The Borrower shall repay all outstanding Term Loans on the Maturity Date.
2.2 Procedure for Borrowing. Subject to the occurrence of the Closing Date, the Borrower may borrow under the Commitments on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent (a) prior to 1:00 P.M., New York City time, three Business Days prior to the requested Borrowing Date, in the case of Term Benchmark Loans or (b) prior to 11:00 A.M., New York City time, on the requested Borrowing Date, in the case of ABR Loans, specifying (i) the amount and Type of Term Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Term Benchmark Loans, the respective amounts of each such Type of Term Loan and the respective lengths of the initial Interest Period therefor. Each borrowing under the Commitments shall be in an amount equal to (w) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Commitments are less than $1,000,000, such lesser amount), in the case of Term Benchmark Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice delivered under clause (a) or (b) of the first proviso of this Section 2.2 from the Borrower, the Administrative Agent shall promptly notify each applicable Lender thereof, and each applicable Lender will make the amount of its pro rata share of each applicable borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 3:00 P.M., New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent not later than 3:30 P.M., New York City time on such Borrowing Date crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent.
2.3 [Reserved].
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2.4 [Reserved].
2.5 Fees
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than with respect to any Defaulting Lender) a ticking fee (the “Ticking Fee”) for the period from and including (i) November 30, 2025 until (ii) the earlier to occur of (a) the Closing Date or (b) the date of termination or expiration in full of the Commitments without the occurrence of the Closing Date (such earlier date, the “Fee Payment Date”), computed at the Ticking Fee Rate on the daily average of the aggregate undrawn Commitments of such Lender during such period (calculated on the basis of the actual number of days elapsed in a 360-day year). The Ticking Fee will be fully earned and due and payable in full in cash on the Fee Payment Date.
(b) The Borrower agrees to pay to the Administrative Agent and the Arrangers the fees in the amounts and on the dates as set forth in any fee agreements ~~with~~between the Parent and the Administrative Agent and/or the Arrangers (collectively, the “Fee Letter”) and to perform any other obligations contained therein. Notwithstanding anything to the contrary in this Section 2.5(b), the Arrangers and the Borrower agree and acknowledge that the “Ticking Fee” (as defined in the Fee Letter) (i) has not accrued as of the date of this Agreement and will not accrue at any time hereafter and (ii) ~~shallbe~~was replaced in all respects by the Ticking Fee set forth in this Agreement.
2.6 Termination or Reduction of Commitments.
(a) The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall ratably reduce permanently the Commitments then in effect.
(b) Unless previously terminated, the Commitments shall automatically terminate in full on the earlier of (a) if the Closing Date has not occurred prior to the Acquisition Termination Date, on the Acquisition Termination Date and (b) the Closing Date after giving effect to funding of the Term Loans on such date.
2.7 Optional Prepayments. The Borrower may at any time and from time to time prepay the Term Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 1:00 P.M., New York City time, three Business Days prior thereto, in the case of Term Benchmark Loans and no later than 4:00 P.M., New York City time, one Business Day prior thereto, in the case of ABR Loans; in each case which notice shall specify the date and amount of prepayment and whether the prepayment is of Term Benchmark Loans or ABR Loans; provided, that if a Term Benchmark Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Term Loans that are ABR Loans), accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof.
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2.8 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Term Benchmark Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the proposed conversion date, provided that any such conversion of Term Benchmark Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Term Benchmark Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor), provided that no ABR Loan may be converted into a Term Benchmark Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders has determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
(b) Any Term Benchmark Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Term Loans, provided that no Term Benchmark Loan may be continued as such (A) when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations or (B) if an Event of Default specified in clause (i) or (ii) of Section 8(f) with respect to the Borrower is in existence; provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Term Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
2.9 Limitations on Term Benchmark Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Term Benchmark Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Term Benchmark Loans comprising each Term Benchmark Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen (15) Benchmark Tranches shall be outstanding at any one time.
2.10 Interest Rates and Payment Dates. (a) Each Term Benchmark Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Adjusted Term SOFR Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Term Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2% (ii) if all or a portion of any interest payable on any Term Loan or any Ticking Fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand by the Administrative Agent.
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2.11 Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Term SOFR Rate and/or Daily Simple SOFR. Any change in the interest rate on a Term Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.12, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time (to the extent then applicable), that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Loan, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Term Loans (or its Term Loan) included in such Borrowing for such Interest Period or (B) at any time (to the extent then applicable), Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Term Loans (or its Term Loan) included in such Borrowing;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new interest election request in accordance with the terms of Section 2.8 or a new borrowing request in accordance with the terms of Section 2.2, (1) any interest election request that requests the conversion of any borrowing to, or continuation of any borrowing as, a Term Benchmark borrowing and any borrowing request that requests a Term Benchmark borrowing shall instead be deemed to be an interest election request or borrowing request, as applicable, for (x) an Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above and (2) if applicable, any borrowing request that requests a Daily Simple SOFR Loan shall instead be deemed to be a borrowing request, as applicable, for an ABR borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or Daily Simple SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.12(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or Daily Simple SOFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new interest election request in accordance with the terms of Section 2.8 or a new borrowing request in accordance with the terms of Section 2.2, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Term Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above, on such day, and (2) if applicable, any Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
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(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent, in consultation with Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.12, including the definitions referenced in this Section 2.12.
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(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark borrowing or if applicable, Daily Simple SOFR Loan of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a Term Benchmark borrowing into a request for a borrowing of or conversion to (A) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan or if applicable, Daily Simple SOFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or Daily Simple SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.12, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Term Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) if applicable, any Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
2.13 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder and, except as provided in Section 2.19, each payment by the Borrower on account of any ticking fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Applicable Percentages of the relevant Lenders.
(b) Except as otherwise provided in Section 2.19, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Lenders.
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(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 4:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to 12:00 Noon, New York City time on the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing in this Section 2.13(e) shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.13(d), 2.13(e), 2.15(e)) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
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2.14 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority charged with administration thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any such Governmental Authority made subsequent to the date hereof:
(i) shall subject any Credit Party to any tax of any kind whatsoever (other than (A) Non-Excluded Taxes or Other Taxes covered by Section 2.15 and (B) Taxes described in the first sentence of Section 2.15(a) immediately before the proviso and clauses (w) through (y) of Section 2.15(a)) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit (or, subject to Section 10.6(c), participations therein) by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Term SOFR Rate or Daily Simple SOFR Rate; or
(iii) shall impose on such Lender any other condition affecting its Term Benchmark Loans or Daily Simple SOFR Loans or its obligation to make or maintain Term Benchmark Loans or Daily Simple SOFR Loans;
and the result of any of the foregoing is to increase the cost to such Lender or such other Credit Party, by an amount that such Lender or other Credit Party deems to be material, of making, converting into, continuing or maintaining Term Benchmark Loans or Daily Simple SOFR Loans, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or such other Credit Party, upon its demand, any additional amounts necessary to compensate such Lender or such other Credit Party for such increased cost or reduced amount receivable. If any Lender or such other Credit Party becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital or liquidity requirements (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.
(c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented.
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(d) A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate a Lender pursuant to this Section for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
2.15 Taxes. (a) All payments made by or on behalf of any Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income (however denominated) Taxes and franchise Taxes (imposed in lieu of net income Taxes) and branch profits Taxes imposed on the Administrative Agent or any Lender by any Governmental Authority in a jurisdiction (or political subdivision thereof) in which the Administrative Agent or Lender is organized, in which its applicable lending office is located, or that are Other Connection Taxes; provided that, if any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender as determined in good faith by the applicable withholding agent, (i) such amounts shall be paid to the relevant Government Authority in accordance with applicable law and (ii) the amounts so payable by the applicable Loan Party to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such withholding or deduction had not been made; provided further, however, that notwithstanding anything in this Agreement to the contrary, the Borrower shall not be required to increase any such amounts payable to any Lender or other recipient with respect to any Non-Excluded Taxes (w) that are attributable to such Lender’s or other recipient’s failure to comply with the requirements of paragraph (e) or (f) of this Section, (x) that are United States withholding Taxes (including United States federal, state and local backup withholding taxes) resulting from any Requirement of Law in effect on the date such Lender becomes a party to this Agreement (or designates a new lending office), except in each case to the extent that, pursuant to this paragraph, additional amounts with respect to such Non-Excluded Taxes were payable either to such Lender’s assignor (if any) at the time of assignment or to such Lender at the time it designated a new lending office or (y) that are imposed by reason of FATCA. The payment of Taxes described in clauses (w) through (y) of this Section 2.15(a) shall not result in any indemnity payment under Section 2.15(c).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
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(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as promptly as possible thereafter such Loan Party shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by such Loan Party showing payment thereof or other evidence of such payment reasonably satisfactory to the Administrative Agent. Subject to Section 2.15(a), if (i) any Loan Party fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or (ii) any Non-Excluded Taxes or Other Taxes are imposed directly upon the Administrative Agent or any Lender (including, in the case of a Lender that is classified as a partnership for U.S. federal income tax purposes, a person treated as a beneficial owner thereof for U.S. federal tax purposes), such Loan Party shall indemnify the Administrative Agent and the Lenders within 10 days after demand therefor, for the full amount of any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) in the case of (i), or any such direct imposition in the case of (ii). In the case of any Lender making a claim under this Section 2.15(c) on behalf of any of its beneficial owners, an indemnity payment under this Section 2.15(c) shall be due only to the extent that such Lender is able to establish that such beneficial owners supplied to the applicable Persons such properly completed and executed documentation necessary to claim any applicable exemption from, or reduction of, such Non-Excluded Taxes or Other Taxes.
(d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(c) relating to the maintenance of a Participant Register, in either case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Each Lender that is a “United States Person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of U.S. Internal Revenue Service (“IRS”) Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal withholding tax. Each Lender (or Transferee) that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) and that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) (i) two copies of either IRS Form W-8BEN or W-8BEN-E, as applicable, Form W-8IMY (together with any applicable underlying IRS Forms) or Form W-8ECI, as applicable, (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a statement substantially in the form of Exhibit E and the applicable IRS Form W-8BEN or W-8BEN-E, as applicable, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments under this Agreement and the other Loan Documents or (iii) any other form prescribed by the applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable requirements of law to permit the Borrower and the Administrative Agent to determine the withholding or deduction required to be made. Such forms shall be delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation) and from time to time thereafter upon the request of the Borrower or the Administrative Agent. In addition, each Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Lender. Each Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower or the Administrative Agent (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this Section, a Lender shall not be required to deliver any form pursuant to this paragraph that such Lender is not legally able to deliver.
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(f) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or submission would not materially prejudice the legal or commercial position of such Lender.
(g) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(h) If the Administrative Agent or any Lender determines, in its sole discretion, exercised in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.15 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Lender attributable to such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such Loan Party, upon the request of such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender in the event such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to any Loan Party or any other Person.
(i) The agreements in this Section 2.15 shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
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2.16 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Term Benchmark Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Term Benchmark Loan after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Term Benchmark Loans on a day that is not the last day of an Interest Period with respect thereto. In the case of a Term Benchmark Loan, such indemnification shall be such Lender’s actual losses, but shall not exceed the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, at the Adjusted Term SOFR Rate that would have been applicable for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Term Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
2.17 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.14 or 2.15 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Term Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending offices to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.14 or 2.15(a). Each Lender may at its option make any Term Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Term Loan; provided, for the avoidance of doubt, the Lender shall cause such branch or Affiliate to provide any forms required to be provided pursuant to Section 2.15(e)-(g) as if such branch or Affiliate were the Lender.
2.18 Replacement of Lenders. The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.14 or 2.15(a), (b) becomes a Defaulting Lender, (c) [reserved] or (d) does not consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this Agreement or any other Loan Document that requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the consent of the Required Lenders has been obtained), with a replacement financial institution; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) if applicable, prior to any such replacement, such Lender shall have taken no action under Section 2.17 so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.14 or 2.15(a), (iv) the replacement financial institution shall purchase, at par, all Term Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.16 if any Term Benchmark Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.14 or 2.15(a), as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto. Notwithstanding the foregoing, replaced Lenders will not be obliged to take any steps to find a replacement other than to cooperate with the relevant assignment process described above.
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2.19 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.5(a);
(b) the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all affected Lenders;
(c) [reserved]; and
(d) [reserved].
(e) Termination of Defaulting Lenders. The Borrower shall have the right, in its sole discretion, to terminate the Commitment of any Defaulting Lender by giving the Administrative Agent and such Defaulting Lender a written notice setting forth its election and a termination date (an “Early Commitment Termination Date”), which date shall not be earlier than three (3) Business Days after the date on which such notice has been given, except as otherwise agreed by the Administrative Agent and such Defaulting Lender. On the Early Commitment Termination Date, such Defaulting Lender’s Commitment shall terminate and, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall (i) prepay all of such Defaulting Lender’s outstanding Term Loans together with interest thereon accrued to such Early Commitment Termination Date, (ii) pay all Ticking Fees accrued to such Early Commitment Termination Date, except as otherwise provided in Section 2.19(a) and (iii) pay all amounts then owing to such Defaulting Lender pursuant to Sections 2.14, 2.15, 2.16 and 10.5 for which demand has been made to the Borrower prior to such Early Commitment Termination Date. Upon termination of such Defaulting Lender’s Commitment in accordance with this Section 2.19(e), such Defaulting Lender shall cease to be a party hereto.
2.20 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent) (an “Illegality Notice”), (a) any obligation of the affected Lenders to make Term Benchmark Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to Term Benchmark Loans, shall be suspended, and (b) the interest rate on which ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “ABR”, in each case until each affected Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any affected Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term Benchmark Loans to ABR Loans (the interest rate on which ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “ABR”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Term Benchmark Loans to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14.
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SECTION 3. [RESERVED].
SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Term Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender (i) on the Effective Date (other than with respect to Section 4.1) and (ii) on the Closing Date after giving effect to the Acquisition on the Closing Date that:
4.1 Financial Condition. On and after the Closing Date, when delivered, the financial statements described in Section 5.2(c) and the most recent audited financial statements described in Section 6.1(a) delivered pursuant to this Agreement after the Closing Date, fairly present in all material respects the financial condition of the Persons covered thereby on a consolidated basis as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP, subject, in the case of the unaudited financial statements, to normal year-end adjustments and the absence of footnotes.
4.2 No Change. Since December 31, 2024, there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.
4.3 Existence; Compliance with Law. Each Loan Party and, to the extent any Subsidiary directly or indirectly owns Aircraft Assets, such Subsidiary (a) is duly organized or duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation (if applicable), (b) has the power and authority to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification and the failure to so qualify would reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate (or limited liability or other entity, as appropriate) power and authority to execute, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required by or on behalf of the Borrower or any other Loan Party in connection with the extensions of credit hereunder or with the execution, delivery, or performance by any Loan Party or enforceability against any Loan Party of this Agreement or any of the Loan Documents. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents by the Loan Parties, the borrowings hereunder and the use of the proceeds thereof (a) will not violate any material Requirement of Law applicable to any Group Member, (b) will not violate any Organizational Document of any Group Member or (as of the Effective Date and the Closing Date) any Contractual Obligation of any Group Member with respect to any Indebtedness of any Group Member with an aggregate principal or committed amount in excess of $200,000,000, (c) will not violate, except as could not reasonably be expected to have a Material Adverse Effect, any Contractual Obligation of any Group Member and (d) will not result in, or require, the creation or imposition of any Lien on any Group Member’s properties or revenues. No Requirement of Law, Organizational Document or Contractual Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
4.6 Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. No Group Member is in default under or with respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property. Except as could not reasonably be expected to have a Material Adverse Effect, each Group Member has title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its Aircraft Assets and its other property.
4.9 Intellectual Property. Except as could not reasonably be expected to have a Material Adverse Effect, (i) each Group Member owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted, (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does the Borrower know of any valid basis for any such claim and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
4.10 Taxes. Each Group Member has filed or caused to be filed all federal, state and other material tax returns that, to the knowledge of the Borrower, are required to be filed and has paid or made provision for the payment of all taxes shown to be due and payable on said returns or on any material assessments made against it or any of its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority other than (a) any tax the amount or validity of which is currently being contested in good faith by appropriate actions and with respect to which reserves in conformity with generally accepted accounting principles in the United States have been provided on the books of the relevant Group Member, and (b) any tax returns or taxes to the extent that the failure to file such tax returns or pay such taxes could not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed, and, to the knowledge of the Borrower, no material claim is being asserted, with respect to any such material tax, fee or other charge.
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4.11 Federal Regulations. No part of the proceeds of any Term Loans, and no other extensions of credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect for any purpose that violates the provisions of the Regulations of the Board or (b) for any purpose that violates the provisions of the Regulations of the Board. No more than 25% of the assets of the Group Members consist of “margin stock” as so defined. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member.
4.13 ERISA. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each Group Member and each of their respective ERISA Affiliates is in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder; (ii) no ERISA Event has occurred or is reasonably expected to occur; and (iii) all amounts required by applicable law with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by any Group Member or any ERISA Affiliate or to which any Group Member or any ERISA Affiliate has an obligation to contribute have been accrued in accordance with Statement of Financial Accounting Standards No. 106. The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic No. 715: Compensation Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of such Pension Plan allocable to such accrued benefits, and the present value of all accumulated benefit obligations under each underfunded Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic No. 715: Compensation Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of all such underfunded Pension Plans.
4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) that limits its ability to incur or suffer to exist Indebtedness.
4.15 Subsidiaries. As of the Effective Date and the Closing Date, Schedule 4.15 sets forth the name and jurisdiction of incorporation or formation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party; provided that Schedule 4.15 may be updated by written notice from the Borrower to the Administrative Agent after the Effective Date and prior to the Closing Date.
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4.16 Use of Proceeds. The proceeds of the Term Loans shall be used to finance the Acquisition, refinance Indebtedness in connection with the Acquisition and pay fees and expenses related to the Acquisition.
4.17 Environmental Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: no Group Member has released or disposed of Materials of Environmental Concern at any property or facility owned or operated by any Group Member in a manner that would reasonably be expected to give rise to liability under any applicable Environmental Law, nor to the knowledge of the Borrower are Materials of Environmental Concern present at any property or facility owned or operated by any Group Member or at any other location in conditions that would reasonably be expected to give rise to liability under any applicable Environmental Law.
4.18 Accuracy of Information, etc. No statement or information contained in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or written or formally presented information (other than the financial projections and forward-looking information referred to in the immediately succeeding sentence below and information of a general economic or industry specific nature) furnished by any Loan Party or any of its agents to the Administrative Agent, the Lenders or any of their respective Affiliates, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole, as of the date such statement or information was so furnished, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not materially misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The financial projections and other forward-looking information contained in the materials referenced above have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished by or on behalf of the Borrower, any Loan Party or any of their respective agents, as the case may be, to the Administrative Agent, the Lenders or any of their respective Affiliates, it being recognized by the Administrative Agent, the Lenders and their respective Affiliates that such projections and forward-looking information are not to be viewed as facts and that actual results during the period or periods covered by any such projections or forward-looking information may differ from the projected results set forth therein, and such differences may be material. As of the Effective Date and the Closing Date, there is no fact known to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein, in the other Loan Documents, in the Confidential Information Memorandum or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other Loan Documents.
4.19 Anti-Corruption Laws and Sanctions.
(a) Within 120 days of the Closing Date, the Borrower will implement and maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employers and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees, and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
(b) None of the Borrower, any Subsidiary thereof, or any of their respective directors, officers, employees, or, to the knowledge of the Borrower, agents, is a Sanctioned Person.
(c) No Term Loan or use of proceeds will violate the Patriot Act, any Anti-Corruption Laws or applicable Sanctions.
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Section 4.19(a)-(c) shall apply other than to the extent that such representation/warranty would result in a violation of Council Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of the European Union) as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, or any similar applicable blocking or anti-boycott law or regulation in the United Kingdom.
4.20 Solvency. As of the Closing Date, after giving effect to the Acquisition and the other transactions contemplated hereby to occur on the Closing Date, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent.
4.21 Service Agreement. As of the Closing Date, SMBC Aviation Capital Limited, as Servicer, and the ~~Borrower~~Parent , Air Lease and certain of their respective subsidiaries, as Service Recipients, has executed and delivered the Servicing Agreement, which is in full force and in effect and is on terms substantially consistent in all material respects with the “Servicing Agreement Term Sheet” provided by the Borrower to the Administrative Agent and the Lenders prior to the date hereof.
4.22 Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries is a ‘covered foreign person’ as that term is defined in the Outbound Investment Rules as of the date hereof. Neither the Borrower nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in any activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
SECTION 5. CONDITIONS PRECEDENT.
5.1 Conditions to Effectiveness of this Agreement. The effectiveness of this Agreement is subject to the conditions precedent that the Administrative Agent shall have received all of the following, each duly executed, dated a date satisfactory to the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, each (except for any Note, of which only the original shall be signed) in sufficient number of counterparts to provide one for each Lender:
(a) Credit Agreement. The Administrative Agent shall have received this Agreement executed and delivered by the Administrative Agent, the Borrower and each Person listed on Schedule 1.1A.
(b) Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid, and all reasonable expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel) at least two Business Days prior to the Effective Date.
(c) Organizational Documents; Officer’s Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received (i) certificates of the Borrower, dated the Effective Date, substantially in the form of Exhibit B-1, with appropriate insertions and attachments, including the certificate of incorporation or formation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower, (ii) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (iii) a good standing certificate for the Borrower from its jurisdiction of organization.
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(d) Legal Opinions. The Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to the Borrower, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C.
(e) [Reserved].
(f) Patriot Act Information. The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as is reasonably requested in writing at least ten Business Days prior to the Effective Date by the Administrative Agent or the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Borrower shall have delivered to each requesting Lender at least three business days prior to the Effective Date (to the extent request by such Lender at least ten business days prior to the Effective Date) a beneficial ownership certification in relation to the Borrower.
For the purpose of determining compliance with the conditions specified in this Section 5.1, each Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 5.1 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
5.2 Conditions to the Closing Date. The occurrence of the Closing Date and the agreement of each Lender to make any extension of credit to the Borrower requested to be made by it on the Closing Date is subject to the Effective Date having occurred and the satisfaction of the following conditions precedent prior to the Acquisition Termination Date:
(a) Acquisition. All of the conditions precedent to the consummation of the Acquisition as set forth in the Acquisition Agreement shall have been satisfied or waived in accordance with the terms thereof and hereof, without giving effect to any amendments, modifications, supplements or waivers by the Parent or the Borrower (or any of their respective affiliates) thereto or consents by the Parent or the Borrower (or any of their respective affiliates) thereunder that are materially adverse to the Arrangers or the Lenders in their capacities as such without each Arranger’s prior written consent (not to be unreasonably withheld, conditioned or delayed), provided that the Arrangers shall be deemed to have consented to any amendment, modification, supplement or waiver if they do not object in writing 5 business days after the receipt of notice thereof by the respective personnel of each Arranger that have been designated by each Arranger to the Company for the purpose of receiving such notice (it being understood and agreed that, (a) without prejudice to any of the other conditions set forth in this Section 5.2, any modification, amendment or express waiver or consents by the Parent or the Borrower (or any of their respective affiliates) that results in (i) an increase to the purchase price shall be deemed not to be materially adverse to the Arrangers and the Lenders to the extent (x) such increase to the purchase price does not exceed 10% in the aggregate or (y) such increase to the purchase price is financed with equity issued by the Borrower or (ii) a decrease to the purchase price shall be deemed not to be materially adverse to the Arrangers and the Lenders if such purchase price decrease does not exceed 10% in the aggregate and such decrease shall reduce dollar-for-dollar the commitments under the Bridge Facility) and (b) any adverse modification, amendment or waiver of the provisions of Section 5.01(i) of the Acquisition Agreement or any term as used therein (which, for the avoidance of doubt, shall not include any exercise of Permitted Discretion (as defined in the Acquisition Agreement), the provision (or withholding) of any consent or the making of any determination expressly contemplated therein) shall be deemed to be materially adverse to the Arrangers and the Lenders).
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(b) No Company Material Adverse Effect. Since the Signing Date, there shall not have occurred any circumstance, occurrence, effect, change, event or development that has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Signing Date).
(c) Financial Statements. The Arrangers shall have received (a)(i) the audited statements of operations and other comprehensive income/loss of Air Lease for the years ended December 31, 2023 and December 31, 2024, the audited balance sheets of Air Lease as of December 31, 2023 and December 31, 2024 and the audited statements of shareholders’ equity and cash flows of Air Lease for the years ended December 31, 2023 and December 31, 2024 and (ii) such financial statements as of and for any subsequent fiscal year ended at least 60 days before the Closing Date and (b) unaudited balance sheets of Air Lease and the related unaudited statements of operations and other comprehensive income/loss and shareholders’ equity and cash flows of Air Lease as of and for (i) the fiscal quarters ended March 31, 2025 and June 30, 2025 and (ii) each subsequent fiscal quarter (other than the fourth fiscal quarter of any year) ended after the date of Air Lease’s most recent audited financial statements (and the corresponding periods of the prior fiscal year) and at least 40 days before the Closing Date. The Arrangers hereby acknowledge that (x) the public filing by Air Lease with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any of the foregoing financial statements will satisfy the requirements of this paragraph and (y) as of the date hereof, the Arrangers have received the financial statements of Air Lease for the fiscal years ended December 31, 2023 and December 31, 2024 and for the fiscal quarters ended March 31, 2025 and June 30, 2025 (it being understood and agreed that each of the conditions set forth in clauses (a)(i) and (b)(i) of this Section 5.2 (c) has been satisfied as of the date hereof).
(d) Pro Forma Financial Statements. The Arrangers shall have received unaudited pro forma consolidated balance sheets and the related unaudited pro forma consolidated income statements of the Borrower and its subsidiaries (after giving effect to the Acquisition and the Transactions) for each of (i) the most recent fiscal year of the Borrower for which audited consolidated financial statements are provided pursuant to Section 5.2(c)(a) and (ii) the year-to-date interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited consolidated financial statements of the Borrower provided pursuant to Section 5.2(c)(b) above.
(e) Payment of Fees and Expenses. All costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior to the Closing Date and the fees contemplated by the Fee Letter payable to each Arranger, the Administrative Agent and the Lenders shall have been paid on or prior to the Closing Date, in each case, to the extent required by the Fee Letter or the Loan Documents to be paid on or prior to the Closing Date.
(f) Organizational Documents; Officer’s Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received (i) a certificate of the Borrower, dated the Closing Date, confirming satisfaction of the conditions set forth in Section 5.2(a) and Section 5.2(i), (ii) a solvency certificate of the Borrower dated the Closing Date, substantially in the form of Exhibit B-2 and (iii) with respect to any Guarantor on the Closing Date, (A) certificates of such Guarantor, dated the Closing Date, substantially in the form of Exhibit B-1, with appropriate insertions and attachments, including the certificate of incorporation or formation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party, (B) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of the Guaranty and the other Loan Documents to which it is a party and the consummation of the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) a good standing certificate for each such Guarantor from its jurisdiction of organization.
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(g) Legal Opinions. ~~The~~If applicable, the Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to each Guarantor (if any) on the Closing Date, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C.
(h) Borrowing Notice. The Administrative Agent shall have received notice, pursuant to Section 2.2, of the Term Loans to be drawn on the Closing Date.
(i) Accuracy of Representations/No Default. At the time of and upon giving effect to the borrowing and application of the Term Loans on the Closing Date, (i) each Acquisition Transaction Representation shall be true and correct (but only to the extent that Parent and ~~Merger Sub~~the Borrower have the right to terminate its and their respective obligations to consummate the Acquisition (or otherwise do not have an obligation to close) under the Acquisition Agreement as a result of a failure of such representations in the Acquisition Agreement to be accurate and without liability to them), (ii) the Specified Representations shall be true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect) and (iii) there shall not exist any Event of Default, solely with respect to the Borrower, under Section 8(a) or 8(f) of this Agreement.
(j) Refinancing. Any Target Indebtedness for which Target Debt Consents have not been obtained shall have been repaid in full and all commitments thereunder shall have been terminated.
(k) Guaranty. The Administrative Agent shall have received a Guaranty executed and delivered by ~~(x) Air Lease and (y)~~each Subsidiary (if any) of the Borrower which is required by Section 6.10 to become a Guarantor.
For the purpose of determining compliance with the conditions specified in this Section 5.2, each Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 5.2 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
5.3 [Reserved].
5.4 Limitations on Actions of Administrative Agent and Lenders Between the Effective Date and the Closing Date. During the period from and including the Effective Date and to and including the earlier of the date of termination of the Commitments and the Closing Date, and notwithstanding (a) any failure by the Borrower or any of its Subsidiaries to comply with any of the covenants or other provisions of the Loan Documents, (b) the occurrence of any Default or Event of Default or (c) any provision to the contrary in any Loan Document, neither the Administrative Agent nor any Lender shall be entitled to (i) rescind, terminate or cancel the Loan Documents or any of its Commitments thereunder or exercise any right or remedy under the Loan Documents, to the extent to do so would prevent, limit or delay the making of its Term Loans under this Agreement, (ii) refuse to participate in making its Term Loans under this Agreement or (iii) exercise any right of set-off or counterclaim in respect of its Term Loans under this Agreement to the extent to do so would prevent, limit or delay the making of its Term Loans under this Agreement; provided that, for the avoidance of doubt, the Closing Date and any extension of credit on the Closing Date shall be subject to the satisfaction of the conditions precedent in Section 5.2. For the avoidance of doubt, (x) the rights and remedies of the Lenders and the Administrative Agent with respect to any condition precedent set forth in Section 5.2 shall not be limited in the event that any such condition precedent is not satisfied and (b) subject to the occurrence of the Closing Date, all of the rights, remedies and entitlements of the Administrative Agent and the Lenders under the Loan Documents shall be available notwithstanding that such rights, remedies or entitlements were not available prior to such time as a result of the foregoing.
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SECTION 6. AFFIRMATIVE COVENANTS.
The Borrower hereby agrees that, so long as the Commitments remain in effect or any Term Loan or other amount is owing to any Lender or the Administrative Agent hereunder, subject to Section 10.14(b), the Borrower shall and shall cause each of its Subsidiaries (only, in the case of Sections 6.1 and 6.2, after the Closing Date) to:
6.1 Financial Statements. Furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form, the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit by KPMG LLP or other independent certified public accountants of nationally recognized standing;
(b) not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, a copy of the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of (x) income for such quarter and for the period from the beginning of such fiscal year to the close of such quarter, and (y) cash flows for the period from the beginning of such fiscal year to the close of such quarter setting forth in each case in comparative form, the figures for the previous year (other than for the first year occurring after the Closing Date), certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes).
All such financial statements shall be prepared in reasonable detail and in accordance with generally accepted accounting principles in the United States applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods.
No financial statement required to be delivered pursuant to 6.1(a) or (b) shall be required to include acquisition or purchase accounting adjustments relating to the Acquisition or any acquisition or investment to the extent it is not practicable to include any such adjustments in such financial statement.
Any financial statements furnished pursuant to the foregoing may (i) exclude any comparative or prior period financial statement that the Borrower determines is not comparable, whether by virtue of purchase accounting adjustments made in connection with the Acquisition or otherwise and (ii) in the case of any period that would otherwise straddle the Closing Date, be limited to a period that commences on the Closing Date.
Notwithstanding the foregoing, the obligations referred to in Section 6.1 and 6.2(b) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the applicable financial statements of any Parent Company; provided that to the extent such information relates to a parent of the Borrower, if and so long as such Parent Company (or any subsidiary thereof, other than the Borrower and its Subsidiaries) will have independent assets or operations, such information is accompanied by unaudited summary consolidating information that explains the differences between the information relating to such Parent Company (or any subsidiary thereof, other than the Borrower and its Subsidiaries) and its independent assets or operations, on the one hand, and the information relating to the Borrower and its Subsidiaries on a stand-alone basis, on the other hand.
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In lieu of furnishing the Administrative Agent and each Lender with the items referred to in Sections 6.1(a) and 6.1(b), the Borrower may make available such items on the Borrower’s website www.airleasecorp.com, at www.sec.gov or at such other website as notified to the Administrative Agent and the Lenders, which shall be deemed to have satisfied the requirements of delivery of such items in accordance with this Section 6.1.
6.2 Certificates; Other Information
Furnish to the Administrative Agent and each Lender (or, in the case of clause (e), to the relevant Lender):
(a) concurrently with the delivery of the annual and quarterly financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) a Compliance Certificate containing all information and calculations necessary for determining compliance by the Borrower with Sections 7.1(a), (b), and (c) as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be;
(b) concurrently with the delivery of the annual and quarterly financial statements pursuant to Section 6.1, a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the comparable periods of the previous year;
(c) promptly following receipt thereof, copies of (i) any documents described in Section 101(k) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the relevant Group Member or ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, such Group Member or the ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices promptly after receipt thereof;
(d) within a reasonable period of time, such additional financial and other information (not including reports and other materials to the extent filed with the SEC) as any Lender may from time to time reasonably request; and
(e) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (to the extent applicable).
Nothing in the foregoing or in Section 6.6 will require the Borrower to disclose or permit the inspection of any document or information if the same would (i) contravene applicable law or a binding confidentiality obligation not entered into in contemplation of this paragraph or (ii) compromise attorney-client or any other legal privilege, so long as the Borrower uses commercially reasonable efforts to disclose such information to the maximum extent possible without contravening such law or obligation or without compromising such privilege.
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6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations (including Taxes) of whatever nature, except (a) where the amount or validity thereof is currently being contested in good faith by appropriate actions and reserves in conformity with generally accepted accounting principles in the United States with respect thereto have been provided on the books of the relevant Group Member, or (b) where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.4 Maintenance of Existence; Compliance. (a) Preserve, renew and keep in full force and effect its organizational existence, except as otherwise permitted by Section 7.3, (b) comply with all Requirements of Law except to the extent that failure to comply therewith could not reasonably be expected to have a Material Adverse Effect and (c) within 120 days of the Closing Date, maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
6.5 Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance to the extent and against such risks as is commonly maintained by companies engaged in the same or similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries in conformity with generally accepted accounting principles in the United States and all material Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and (b) permit, upon five Business Days’ notice, representatives of the Administrative Agent or any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time but not more than two times per fiscal year.
6.7 Notices. Promptly give notice to the Administrative Agent and each Lender as soon as practicable, but in no event later than five Business Days after the Borrower obtains knowledge of the occurrence of:
(a) any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of any Group Member or (ii) litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, that in either case, if not cured or if adversely determined, as the case may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) which could reasonably be expected to have a Material Adverse Effect or (ii) which relates to any Loan Document;
(d) an ERISA Event that could reasonably be expected to have a Material Adverse Effect, as soon as possible and in any event within 30 days after the Borrower knows or has reason to know thereof;
(e) promptly after any Ratings Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt after the Closing Date, written notice of such rating change; and
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(f) any development or event that has had or could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the relevant Group Member proposes to take with respect thereto.
6.8 Use of Proceeds. The proceeds of the Term Loans will be used only for the purposes set forth in Section 4.16. No part of the proceeds of any Term Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. The Borrower and its Subsidiaries shall not use, and the respective directors, officers, employees and agents of the Borrower and its Subsidiaries shall not, directly or knowingly indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is the target or subject of Sanctions, in each case, in violation of Sanctions, or (C) in any manner that would result in the violation of any Sanctions by any Person (including any Person participating in the Loans, whether as administrative agent, arranger, issuing bank, lender, underwriter, advisor, investor or otherwise).
Section 6.8 shall apply other than to the extent that such covenant would result in a violation of Council Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of the European Union) as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, or any similar applicable blocking or anti-boycott law or regulation in the United Kingdom.
6.9 Accuracy of Information. The Borrower will ensure that all written or formally presented information furnished to the Administrative Agent or the Lenders in connection with this Agreement or any amendment or modification hereof or waiver hereunder, taken as a whole, when furnished, (and, with respect to information presented or furnished regarding Air Lease by the Borrower before the occurrence of the Closing Date, to the knowledge of the Borrower) complies with the representation made in Section 4.18.
6.10 Future Guarantors. The Borrower shall cause each Subsidiary that, on the Closing Date or any time thereafter, guarantees any Specified Indebtedness of the Borrower ~~or Air Lease~~, to execute and deliver to the Administrative Agent a Guaranty; provided that such Subsidiary ~~(other than Air Lease)~~ may be released from its Guaranty at such time as it no longer guarantees any Specified Indebtedness of the Borrower ~~or Air Lease~~.
SECTION 7. NEGATIVE COVENANTS.
The Borrower hereby agrees that so long as the Commitments remain in effect or any Term Loan or other amount is owing to any Lender or the Administrative Agent hereunder, subject to Section 10.14(b), the Borrower shall not, and shall not permit any of its Subsidiaries (only, in the case of Sections 7.1 and 7.7, after the Closing Date) to, directly or indirectly:
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7.1 Financial Condition Covenants.
(a) Consolidated Shareholders’ Equity. Permit the Consolidated Shareholders’ Equity as at the last day of any fiscal quarter of the Borrower ending after the Closing Date to be less than $2,500,000,000.
(b) Consolidated Unencumbered Assets. Permit the Consolidated Unencumbered Assets as at the last day of any fiscal quarter of the Borrower ending after the Closing Date to be less than 125% of the Consolidated Unsecured Indebtedness as at the last day of such fiscal quarter.
(c) Consolidated Interest Coverage Ratio. As of the end of any fiscal quarter ending after the Closing Date, permit the ratio of (i) Consolidated Adjusted EBITDA for such fiscal quarter together with the three fiscal quarters which immediately precede such fiscal quarter to (ii) Consolidated Interest Expense during such period to be less than 1.50 to 1.00.
7.2 Indebtedness. Permit any Subsidiary to create, issue, incur, assume or become liable in respect of any Unsecured Indebtedness, except:
(a) Indebtedness of any Guarantor;
(b) Indebtedness of a Subsidiary owed to the Borrower or to a Wholly-Owned Subsidiary;
(c) Indebtedness of an SPC Subsidiary incurred to finance the acquisition of a single Aircraft Asset on an unsecured basis (“Unsecured Aircraft Financing Debt”); provided that such Unsecured Aircraft Financing Debt becomes Secured Indebtedness within 90 days of incurrence; provided, further, that, at any one time, no more than three (3) SPC Subsidiaries may have Unsecured Aircraft Financing Debt outstanding;
(d) other Indebtedness in the aggregate for all Subsidiaries of the Borrower under this clause (d) not exceeding $250,000,000 at any time outstanding;
(e) Indebtedness of a Special Purpose Finance Subsidiary, provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(f) Indebtedness under the Loan Documents.
7.3 Fundamental Changes. (a) Other than the Acquisition, enter into any merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or, in a single transaction or in a related series of transactions Dispose of all or substantially all of the property or business of the Borrower and its Subsidiaries, taken as a whole.
(b) Notwithstanding Section 7.3(a), any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Guarantor; (ii) any Guarantor may be merged or consolidated with or into any Subsidiary if after giving effect to such merger or consolidation, the surviving Person is a Guarantor; (iii) any Subsidiary that is not a Guarantor may be merged or consolidated with or into any other Subsidiary; and (iv) any Subsidiary may be merged or consolidated with or into any Person so long as any such transaction referred to in this clause (iv) would not result in the Disposition of all or substantially all of the property or business of the Borrower and its Subsidiaries, taken as a whole; (v) any Subsidiary may Dispose of any or all of its assets to the Borrower or any other Subsidiary (upon voluntary dissolution, winding up or liquidation or otherwise); provided that, if the Subsidiary making such Disposition is a Guarantor, the recipient shall be the Borrower or a Guarantor; and (vi) any Subsidiary that is not a Guarantor may liquidate, wind up or dissolve itself if it has no assets.
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7.4 [Reserved].
7.5 Transactions with Affiliates. Enter into any transaction or group of related transactions that are material in relation to the business, operations, financial condition or properties of the Borrower and its Subsidiaries taken as a whole (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Borrower or another Subsidiary or a Joint Venture), except upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than could reasonably be obtainable in a comparable arm’s length transaction with a Person who is not an Affiliate. The restrictions in this Section shall not apply to (1) any leasing transaction, including, without limitation, a transaction in which an Aircraft Asset is subleased to a customer of the Borrower or any Subsidiary, involving one or more Subsidiaries for the purposes of effecting aircraft registration or tax planning; (2) any amendment to, or replacement of, any agreement with an Affiliate that is in effect on the Closing Date so long as any such amendment or replacement agreement is not more disadvantageous to Lenders, as determined in good faith by the Board of Directors of the Borrower, in any material respect than the original agreement as in effect on the Closing Date; (3) dividends, stock repurchases and investments, so long as no Event of Default would result as a consequence thereof; (4) the issuance of Common Stock or Preferred Stock by the Borrower including in connection with the exercise or conversion of options, warrants, convertible securities or similar rights to acquire or purchase Common Stock or Preferred Stock; (5) [reserved], (6) any directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Borrower or a Subsidiary thereof that are (x) approved in good faith by the Borrower’s Board of Directors, the independent members of the Borrower’s Board of Directors, or the Compensation Committee of the Borrower’s Board of Directors, as applicable, or (y) otherwise customary and reasonable and (7) the Acquisition and the transactions to be entered into in connection therewith.
7.6 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than December 31 or change the Borrower’s method of determining fiscal quarters.
7.7 Lines of Business. Engage in any business if, as a result, the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole, are engaged on the date of this Agreement.
7.8 Outbound Investment Rules. The Borrower will not, and will not permit any of their Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules as of the date hereof, or (b) engage, directly or indirectly, in any activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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SECTION 8. EVENTS OF DEFAULT.
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Term Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Term Loan, or any other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest becomes due in accordance with the terms hereof or within five Business Days after demand for any other amount in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other written statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect (or, in the case of any such representation or warranty under this Agreement or any other Loan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) on or as of the date made or deemed made and, if capable of remedy, such default shall continue unremedied for a period of 30 days after notice to the Borrower from the Administrative Agent or the Required Lenders; or
(c) any Loan Party shall default in the observance or performance of any agreement contained in Section 6.4(a) (with respect to the Borrower only), Section 6.7(a), or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of 30 days after notice to the Borrower from the Administrative Agent or the Required Lenders; or
(e) any Group Member shall default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness by such Person (or the payment of which is a Guarantee Obligation of such Person), other than Indebtedness owed to any Group Member, Non-Recourse Indebtedness of any Group Member, whether such Indebtedness or Guarantee Obligation now exists, or is created after the Effective Date, which default (i) is caused by a failure to pay principal of, interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such mortgage, indenture or instrument (a “payment default”) or (ii) results in the acceleration of such Indebtedness prior to its stated maturity; and, in each case the outstanding principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $200,000,000 or more; provided further that in connection with any series of Convertible Notes, (x) any conversion of such Indebtedness by a holder thereof into shares of Common Stock, cash or a combination of cash and shares of Common Stock, (y) the rights of holders of such Convertible Notes to convert into shares of Common Stock, cash or a combination of cash and shares of Common Stock and (z) the rights of holders of such Convertible Notes to require any repurchase by the Borrower of such Convertible Notes in cash upon a fundamental change shall not, in itself, constitute an Event of Default under this paragraph (e); or
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(f) (i) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment (that, in the case of such appointments, is not discharged within 60 days) or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall consent to, approve of, or acquiesce in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall generally not, or shall admit in writing its inability to, pay its debts as they become due; or (vi) or the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall make a general assignment for the benefit of its creditors; or
(g) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a United States district court to administer any Pension Plan, (iii) the PBGC shall institute proceedings to terminate any Pension Plan(s), or (iv) any Loan Party or any of their respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, could, in the judgment of the Required Lenders, reasonably be expected to result in a Material Adverse Effect; or
(h) one or more final judgments or decrees shall be entered against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary involving in the aggregate a liability (excluding amounts covered by indemnities, the terms of which are reasonably satisfactory to the Required Lenders, or covered by insurance as to which the relevant insurance company has not denied coverage) of $200,000,000 or more, which judgments or decrees shall not have been vacated, discharged, stayed or bonded within 60 days after such judgment becomes final; or
(i) any subordination agreement with respect to a Subordinated Obligation shall cease, for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert in writing; or
(j) except as permitted hereunder or thereunder, this Agreement or the guarantee contained in the Guaranty shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assert in writing; or
(k) a Change of Control shall occur;
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then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Term Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Term Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable.
SECTION 9. THE AGENTS.
9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.
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9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy or email message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Term Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Term Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates.
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9.7 Indemnification. The Lenders agree to indemnify each Agent and its officers, directors, employees, Affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Term Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Term Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements as determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from such Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Term Loans made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. Additionally, if the Lender then acting as Administrative Agent is a Defaulting Lender by virtue of clause (d) or (e) of the definition thereof, then Administrative Agent may be removed by the Required Lenders or the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Term Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any removed Administrative Agent’s removal or retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 9 and of Section 10.5 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
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9.10 Arrangers and Syndication Agents. Neither the Arrangers nor the Syndication Agents shall have any duties or responsibilities hereunder in their respective capacities as such.
9.11 Certain ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Term Loans, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Term Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Term Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or the Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender in connection with the Loans, the Commitments or this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
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(c) The Administrative Agent hereby informs the Lenders that it is not undertaking to provide investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that it has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Term Loans, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Term Loans, or the Commitments for an amount less than the amount being paid for an interest in the Term Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, ticking fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
9.12 Acknowledgments with respect to Payments.
(a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands in writing the return of such Payment (or a portion thereof) within 90 days of transfer, such Lender shall promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 9.12 shall be conclusive, absent manifest error.
(b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon written demand from the Administrative Agent, it shall promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
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(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment on the Obligations as determined by the Borrower.
(d) Each party’s obligations under this Section 9.12 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
SECTION 10. MISCELLANEOUS.
10.1 Amendments and Waivers. Subject to Section 2.12(b), neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (i) reduce or forgive the principal amount or extend the final scheduled date of maturity of any Term Loan, or reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or increase the Commitment of any Lender or extend the scheduled date of any payment thereof or extend the expiration date of any Lender’s Commitment, in each case without the written consent of each Lender directly affected thereby; provided, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Commitments shall not be deemed to constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not be deemed to constitute an increase of the Commitment of such Lender; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders or consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents or release all or substantially all of the Guarantors from their obligations under the Guaranty, in each case without the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.13 without the written consent of all Lenders; (v) amend, modify or waive any provision of any Section hereof that expressly requires the consent of all the Lenders without the written consent of all Lenders; and (vi) amend, modify or waive any provision of Section 9 or any other provision of any Loan Document that affects the Administrative Agent without the written consent of the Administrative Agent. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Term Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
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Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
10.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto:
| Borrower: | ~~Sumisho Air Lease Finance Corporation~~Takeoff Merger Sub Inc. |
|---|---|
| c/o The Corporation Trust Company | |
| Corporation Trust Center | |
| 1209 Orange St | |
| Wilmington, New Castle, Delaware 19801 | |
| Attention: Ichiro Tatara, Makoto Saito and Tomo Maedomari | |
| Email: ichiro.tatara@sumitomocorp.com, makoto-c.saito@sumitomocorp.com and tomo.maedomari@sumitomocorp.com | |
| Telephone: +81 (70) 3887-9939, +81 (70) 8816-5411 and | |
| +81 (80) 9872-7065 | |
| With a copy to, which shall not constitute notice: | |
| Davis Polk & Wardwell LLP | |
| 450 Lexington Avenue | |
| New York, NY 10017 | |
| Attention: Jack Orford | |
| Telephone: (212) 450-3529 | |
| E-mail: jack.orford@davispolk.com | |
| Administrative Agent | |
| (on behalf of the Borrower): | As separately provided to the Borrower. |
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| Administrative Agent | |
|---|---|
| (on behalf of the Lenders): | Sumitomo Mitsui Banking Corporation |
| Address: 277 Park Avenue | |
| New York, NY 10172 | |
| United States | |
| Attention: Jonathan Malek and Taoheed Agbabiaka | |
| Email: SpecializedLoanOpsServicing@smbcgroup.com; | |
| jonathan.malek@smbcgroup.com; | |
| taoheed.agbabiaka@smbcgroup.com |
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Term Loans and other extensions of credit hereunder.
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10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Arrangers and the Syndication Agents for all their reasonable and documented out of pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of one firm of counsel to the Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall reasonably deem appropriate (or, prior to the Closing Date, in the manner separately agreed), (b) to pay or reimburse each Lender and the Administrative Agent for all its documented out of pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including the reasonable and documented fees and disbursements of one firm of counsel to all such Persons, one local counsel, as necessary, in each appropriate jurisdiction and, in the case of an actual or perceived conflict of interest where the Person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Person, (c) to pay, indemnify, and hold each Lender and the Administrative Agent harmless from, any and all recording and filing fees that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, and (d) to pay, indemnify, and hold each Lender, the Administrative Agent, the Arrangers and the Syndication Agents, their respective Affiliates, and their respective officers, directors, employees, agents, and advisors (each, an “Indemnitee”) harmless from and against any and all other liabilities, losses, damages, penalties, claims or expenses incurred with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including any claim, litigation, investigation or proceeding regardless of whether any Indemnitee is a party thereto and whether or not the same are brought by the Borrower, its equity holders, Affiliates or creditors or any other Person, including any of the foregoing relating to the use of proceeds of the Term Loans and the reasonable and documented fees and disbursements of one firm of counsel to all Indemnities, one local counsel, as necessary, in each appropriate jurisdiction and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities have resulted from (x) the gross negligence, willful misconduct or bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment, (y) the material breach of such Indemnitee’s obligations hereunder or under any other Loan Document as determined by a court of competent jurisdiction in a final and non-appealable judgment or (z) any dispute solely among such Indemnitees (other than any actions (I) against an Indemnitee solely in its capacity in or fulfilling its role as Administrative Agent, Arranger or Syndication Agent or any similar role under this Agreement, unless such actions arise from gross negligence, willful misconduct or bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment or (II) arising out of any act of omission of the Borrower). Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all liabilities, losses, damages, claims or expenses incurred under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, except to the extent resulting from the conduct referred to in clauses (x) or (y) of the preceding sentence. No Indemnitee shall be liable for any damages arising from the unauthorized use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems, except to the extent any such damages arise from the gross negligence or willful misconduct or material breach in bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment. No Indemnitee and none of the Borrower or any of the Borrower’s Affiliates or directors, officers, employees, advisors or agents shall be liable for any indirect, special, exemplary, punitive or consequential damages in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided, this shall in no way relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. All amounts due under this Section 10.5 shall be payable not later than 20 Business Days after written demand therefor. The Borrower shall not be liable for the settlement of any action or proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed). If any settlement of any action is consummated with the written consent of the Borrower, the Borrower agrees to indemnify and hold harmless each Indemnitee from and against any and all liabilities, losses, damages, claims or expenses by reason of such settlement in accordance with the provisions of this Section 10.5. The Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (a) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee from all liability on claims that are the subject matter of such proceedings and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the chief financial officer (Telephone No. (310) 553-0555) (Telecopy No. (310) 553-0999), at the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of this Agreement and the repayment of the Term Loans and all other amounts payable hereunder. Notwithstanding the foregoing, indemnification for Non-Excluded Taxes and Other Taxes shall be governed by, and be subject to the qualifications and requirements set forth in, Section 2.15.
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10.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).
(b) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to (I) prior to the Closing Date, any of Affiliate of such Lender; provided, that the assigning Lender shall not be released from its Commitment so assigned to the extent that such Affiliate fails to fund such Commitment on the Closing Date, and (II) from and after the funding of the Term Loans on the Closing Date, one or more Persons that are Eligible Assignees (each, an “Assignee”), other than a natural person, the Borrower or any Affiliate of the Borrower, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Term Loans at the time owing to it) with the prior written consent of (with respect to this clause (II)):
(i) the Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender or, if an Event of Default with respect to the Borrower under Section 8(a) or (f) has occurred and is continuing, any other Person; and provided, further, that the Borrower shall be deemed to have consented to any such assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within twenty Business Days after having received notice thereof;
(ii) the Administrative Agent (such consent not to be unreasonably withheld or delayed), provided that no consent of the Administrative Agent shall be required for an assignment to a Lender or an Affiliate of a Lender.
Notwithstanding the foregoing or anything to the contrary otherwise contained herein, assignments of the Term Loans and Commitments among Goldman Sachs, Goldman Sachs Lending Partners LLC, Goldman Sachs International Bank and Goldman Sachs Bank Europe SE shall be permitted without consent of any party hereto.
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(iii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Term Loans, the amount of the Commitments or Term Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default with respect to the Borrower under Section 8(a) or (f) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates, if any;
(B) (1) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (payable by the assigning Lender) and (2) the assigning Lender shall have paid in full any amounts owing by it to the Administrative Agent; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate- level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(iv) Subject to acceptance and recording thereof pursuant to paragraph (b)(vi) below, from and after the effective date specified in each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section; provided, that if such assignment or transfer by a Lender is treated as a sale of a participation, such Lender shall be subject to the requirements of paragraph (c) relating to the Participant Register.
(v) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount (and stated interest) of the Term Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall, absent manifest error, be conclusive and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
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(vi) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities other than to a Disqualified Lender (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Term Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph (d) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of, and subject to the limitations of, Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender and, to the extent disclosed to them, each Loan Party, shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement notwithstanding notice to the contrary; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Term Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Term Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) A Participant shall not be entitled to receive any greater payment under Section 2.14 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Sections 2.14 or 2.15 unless such Participant agrees, for the benefit of Borrower, to be subject to the provisions of Sections 2.14 and 2.15 as if it were a Lender (it being understood that the documentation required under Sections 2.15(e), (f) and (g) shall, subject to applicable law, be delivered to the participating Lender).
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(e) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
(f) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (d) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to it (other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived by the Borrower, to the extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, any Affiliate thereof or any of their respective branches or agencies to or for the credit or the account of the Borrower; provided that if any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of set-off. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such application made by such Lender, provided that the failure to give such notice shall not affect the validity of such application.
10.8 Counterparts; Integration; Effectiveness; Electronic Execution. (a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
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(b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 10.2), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “executed”, “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each Loan Party hereby agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and the Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, agrees that the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and waives any claim against the Administrative Agent or any Lender for any liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of the Borrower and/or any Loan Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
10.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
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10.11 GOVERNING LAW. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER AND ANY CLAIM OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “COMPANY MATERIAL ADVERSE EFFECT” (AS DEFINED IN THE ACQUISITION AGREEMENT) AND WHETHER OR NOT A COMPANY MATERIAL ADVERSE EFFECT (AS DEFINED IN THE ACQUISITION AGREEMENT) HAS OCCURRED, (II) THE DETERMINATION OF THE ACCURACY OF ANY ACQUISITION TRANSACTION REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF, THE PARENT AND/OR ~~MERGERSUB~~THE BORROWER HAVE THE RIGHT TO TERMINATE ITS OR THEIR RESPECTIVE OBLIGATION TO CONSUMMATE THE ACQUISITION UNDER THE ACQUISITION AGREEMENT WITHOUT LIABILITY TO THEM AND (III) THE DETERMINATION OF WHETHER THE CONDITIONS TO THE CONSUMMATION OF THE ACQUISITION SET FORTH IN THE ACQUISITION AGREEMENT HAVE BEEN SATISFIED OR WAIVED, IN EACH CASE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS DEFINED IN THE ACQUISITION AGREEMENT) OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the county of New York, the courts of the United States for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and appellate courts from any thereof; provided, that nothing contained herein or in any other Loan Document will prevent any Lender or the Administrative Agent from bringing any action to enforce any award or judgment or exercise any right in any other forum in which jurisdiction can be established;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower at its address set forth in Section 10.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and
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(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any indirect, special, exemplary, punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges and agrees that:
(a) no fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised or are advising the Loan Parties on other matters, and the relationship between the Credit Parties, on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is solely that of creditor and debtor;
(b) the Credit Parties, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their Affiliates on the part of the Credit Parties in respect of the transactions contemplated by this Agreement and the other Loan Documents;
(c) the Loan Parties are capable of evaluating and understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents;
(d) the Loan Parties have been advised that the Credit Parties are engaged in a broad range of transactions that may involve interests that differ from the Loan Parties’ interests and that the Credit Parties have no obligation to disclose such interests and transactions to the Loan Parties;
(e) the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(f) each Credit Party has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their Affiliates or any other Person in respect of the transactions contemplated by this Agreement and the other Loan Documents;
(g) none of the Credit Parties has any obligation to the Loan Parties or their Affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express writing executed and delivered by such Credit Party and the Loan Parties or any such Affiliate; and
(h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Credit Parties or among the Loan Parties and the Credit Parties.
10.14 Releases. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any action requested by the Borrower having the effect of releasing any guarantee obligations to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document, that has been consented to in accordance with Section 10.1 or permitted by Section 6.10.
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(b) At such time as the Term Loans and the other obligations (other than contingent indemnification obligations for which no claim has been made) under the Loan Documents shall have been paid in full and the Commitments have been terminated, all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Loan Documents shall terminate.
10.15 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all Information (as defined below); provided that nothing herein shall prevent the Administrative Agent or any Lender from disclosing any such information (a) to the Administrative Agent or any other Lender or any Affiliate thereof, (b) subject to an agreement to comply with the provisions of this Section, to any actual or prospective Transferee, (c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its Affiliates, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed other than by reason of disclosure by such Administrative Agent or Lender, as applicable, in breach of this Section 10.15, (h) to the National Association of Insurance Commissioners or any similar organization, to the extent required by such organization, or to any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i) in the case of the Administrative Agent or any Arranger hereunder, information routinely provided by arrangers to any data service provider, including league table providers, that serve the lending industry, (j) in connection with the exercise of any remedy hereunder or under any other Loan Document, (k) any direct, indirect, actual or prospective counterparty (and its advisor) to any Swap Agreement or other substantially similar transaction related to the Obligations under this Agreement or other transaction under which payments are to be made by reference to the Borrower and its Obligations, this Agreement or payments hereunder, (l) to the extent required by a potential or actual insurer, reinsurer or insurance broker in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement or (m) if agreed by the Borrower in its sole discretion, to any other Person. “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Borrower; provided that in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.15 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents or any Issuing Bank or Lender in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For the avoidance of doubt, nothing in this Section 10.15 shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this Section 10.15 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
Each Lender acknowledges that information furnished to it pursuant to this Agreement or the other Loan Documents may include material non-public information concerning the Borrower and its Affiliates and their related parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws.
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All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the other Loan Documents will be syndicate-level information, which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its administrative questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law, including Federal and state securities laws.
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.17 USA Patriot Act. Each Lender hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the names and addresses of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act.
10.18 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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(b) As used in this Section 15.23, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
10.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Solely to the extent that any Lender that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write- Down and Conversion Powers of the applicable Resolution Authority.
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10.20 Sustainability. In order for Lenders to comply with their regulatory reporting obligations in relation to sustainability, Lenders may request from the Borrower information on aspects related to sustainability issues related to this Agreement and/or its activity that are necessary to comply with these obligations.
10.21 Consent to Disclosure. The Borrower may provide personal data to DBS Bank (including without limitation personal data of its office holders, employees, shareholders and beneficial owners) in connection with the Borrower establishing and maintaining its relationship with DBS Bank. When providing any personal data to DBS Bank, the Borrower confirms that it is lawfully providing the data for DBS Bank to use and disclose for the purposes of: (aa) providing products or services to the Borrower; (bb) meeting the operational, administrative and risk management requirements of DBS Group; and (cc) complying with any requirement, as DBS Group reasonably deems necessary, under any law or of any court, government authority or regulator.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
~~SUMISHO AIR LEASE FINANCECORPORATION~~TAKEOFF MERGER SUB INC.,
| as the Borrower | |
|---|---|
| By: | |
| Name: | |
| Title: |
[Signature Page toCredit Agreement]
SUMITOMO MITSUI BANKING CORPORATION., as Administrative
Agent and a Lender
| By: | |
|---|---|
| Name: | |
| Title: |
[Signature Page toCredit Agreement]
| [ ] as a Lender | |
|---|---|
| By: | |
| Name: | |
| Title: |
Exhibit B: Increasing Commitment Lenders
Exhibit C-1: New Lenders
Exhibit C-2: New Lender Notice Detail
Schedule 1: Schedule 1.1A — Commitment
Schedule 1: Schedule 1.1B — Target Indebtedness
EX-10.4
Exhibit 10.4
Execution Version
FIRST AMENDMENT
THIS FIRST AMENDMENT (this “Agreement”), dated as of March 25, 2026, is entered into by SUMISHO AIR LEASE FINANCE CORPORATION, a Delaware corporation (the “Existing Borrower”), TAKEOFF MERGER SUB INC. (the “New Borrower”), SUMITOMO MITSUI BANKING CORPORATION, as administrative agent (the “Administrative Agent”), and the Lenders party hereto.
RECITALS
WHEREAS, the Existing Borrower, the several banks and other financial institutions or entities party thereto as of the date hereof (the “Lenders”), and the Administrative Agent have entered into that certain Revolving Credit Agreement, dated as of November 14, 2025 (as amended, restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”; the Existing Credit Agreement as amended by this Agreement, the “Amended Credit Agreement”);
WHEREAS, the Existing Borrower has requested that certain provisions of the Existing Credit Agreement be amended as set forth herein pursuant to Section 10.1 of the Existing Credit Agreement, and the Lenders party hereto (constituting all of the Lenders) are willing to agree to such amendments (including the Borrower Assignment (as defined below)) on the terms set forth herein;
WHEREAS, on the Amendment Effective Date, the Existing Borrower desires, pursuant to Section 10.1 and 10.6(a) of the Existing Credit Agreement and the terms of this Agreement, to assign all of its rights and Obligations under the Existing Credit Agreement and the other Loan Documents (collectively, the “Existing Loan Documents”) to the New Borrower, and the New Borrower desires to automatically assume all of the rights and Obligations of the Existing Borrower under the Existing Loan Documents pursuant to the terms of this Agreement (the “Borrower Assignment”); and
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Amended Credit Agreement.
Amendment.
(a) Effective solely upon the occurrence of the Amendment Effective Date, (i) the Existing Credit Agreement shall be hereby amended to delete the stricken text (indicated textually in the same manner as the following example: ~~stricken text~~) and to add the double- underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Exhibit A hereto and (ii) Schedule 4.15 (Subsidiaries) of the Existing Credit Agreement shall be amended and restated in its entirety in the form attached as Exhibit B hereto.
(b) From and after the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to the “Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Existing Credit Agreement as modified by this Agreement.
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- Borrower Assignment. The Existing Borrower, the New Borrower, the Administrative Agent and each Lender agree that, on the Amendment Effective Date:
(a) The Existing Borrower hereby, without further action or notice, assigns and transfers all of its rights and Obligations under the Existing Loan Documents as Borrower to the New Borrower.
(b) The New Borrower automatically, without further action or notice, assumes the Existing Borrower’s Obligations as Borrower under the Existing Loan Documents and the parties hereto hereby agree that (i) it shall be bound by all provisions of the Loan Documents applicable to the Borrower, (ii) it may exercise every right and power of the Borrower and (iii) it shall perform and observe, each and every one of the covenants, rights, promises, agreements, terms, conditions, obligations, appointments, duties and liabilities of the Borrower and a Loan Party under the Loan Documents. On and following the Amendment Effective Date, all references to the “Borrower” in all Existing Loan Documents shall be deemed to refer to the New Borrower.
(c) The Existing Borrower is hereby automatically released from all liabilities and obligations as Borrower and a Loan Party under the Existing Loan Documents (other than any indemnification and other contingent obligations that arose under the Existing Loan Documents prior to the Amendment Effective Date).
(d) The execution and effectiveness of this Agreement by each Lender party hereto constitutes the consent of all Lenders to the Borrower Assignment pursuant to Section 10.6(a) of the Existing Credit Agreement.
- Conditions Precedent. The effectiveness of this Agreement (including the Borrower Assignment) is subject to the satisfaction or waiver (by the Administrative Agent and each Lender) of the following conditions precedent (the date of such satisfaction or waiver, the “Amendment Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Agreement, properly executed by the Existing Borrower, the New Borrower, the Administrative Agent and each Lender;
(b) The Administrative Agent shall have received (i) certificates of the New Borrower, dated the Amendment Effective Date, substantially in the form of Exhibit B-1 to the Existing Credit Agreement, with appropriate insertions and attachments, including the certificate of incorporation or formation of the New Borrower certified by the relevant authority of the jurisdiction of organization of the New Borrower, (ii) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (iii) a good standing certificate for the New Borrower from its jurisdiction of organization;
(c) The Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to the New Borrower, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C to the Existing Credit Agreement; and
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(d) The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as is reasonably requested in writing at least ten Business Days prior to the Amendment Effective Date by the Administrative Agent or the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and if the New Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Existing Borrower shall have delivered to each requesting Lender at least three business days prior to the Amendment Effective Date (to the extent request by such Lender at least ten business days prior to the Amendment Effective Date) a beneficial ownership certification in relation to the New Borrower.
Payment of Expenses. In accordance with the terms of Section 10.5 of the Existing Credit Agreement, the New Borrower agrees to reimburse, or to cause Parent to reimburse, the Administrative Agent for all reasonable and documented out of pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Agreement, including all reasonable and documented fees and disbursements of counsel to the Administrative Agent (paid directly to such counsel if requested by the Administrative Agent), in each case, to the extent payable in accordance with Section 10.5 of the Existing Credit Agreement.
Miscellaneous.
(a) Except as specifically modified above, the Loan Documents, and the obligations of the New Borrower under the Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms. This Agreement is a Loan Document. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents nor, except as expressly provided herein, constitute a waiver or amendment of any provision of any of the Loan Documents.
(b) (i) The Existing Borrower and the New Borrower acknowledge and consent to all of the terms and conditions of this Agreement, (ii) the New Borrower affirms all of its obligations as Borrower under the Loan Documents and (iii) the New Borrower agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge the obligations of the Borrower under the Loan Documents.
(c) The Existing Borrower and the New Borrower, as applicable, represent and warrant that:
(i) The execution, delivery and performance by the Existing Borrower and the New Borrower of this Agreement is within its respective corporate or other organizational powers and the Existing Borrower and the New Borrower have taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by the Existing Borrower and the New Borrower, and constitutes a legal, valid and binding obligation, respectively, of the Existing Borrower and the New Borrower, enforceable against the Existing Borrower and the New Borrower, as applicable, in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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(iii) The execution and delivery by the Existing Borrower and the New Borrower, respectively, of this Agreement and performance by the Existing Borrower and the New Borrower of this Agreement, respectively, (a) will not violate any material Requirement of Law applicable to any Group Member, any Organizational Document of any Group Member or, except as could not reasonably be expected to have a Material Adverse Effect, any Contractual Obligation of any Group Member and (b) will not result in, or require, the creation or imposition of any Lien on any Group Member’s property or revenues. No Requirement of Law, Organizational Document or Contractual Obligation applicable to the Existing Borrower, the New Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
(iv) Before and after giving effect to this Agreement and the Borrower Assignment, (A) all representations and warranties of the New Borrower and Existing Borrower, as applicable, set forth in the Loan Documents are true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the date hereof, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, and (B) no Event of Default shall have occurred and be continuing.
(d) At any time and from time to time, upon the Administrative Agent’s request and at the sole expense of the New Borrower, the New Borrower and/or the Existing Borrower, as applicable, will promptly and duly execute and deliver any and all further instruments and documents and take such further action as the Administrative Agent reasonably deems necessary to effect the purposes of this Agreement.
(e) This Agreement may be in the form of an electronic record and may be executed using Electronic Signatures. Each of the parties hereto agrees that any Electronic Signature on or associated with this Agreement shall be valid and binding on such Person to the same extent as a manual, original signature and will constitute the legal, valid and binding obligation of such Person enforceable against such Person in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered. This Agreement may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance of a manually signed paper counterparty which has been converted into electronic form (such as scanned into PDF format), or an electronically signed counterpart converted into another format, for transmission, delivery and/or retention. The provisions of Section 10.20 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
(f) In the event of any conflict between the terms of this Agreement and the terms of the Amended Credit Agreement or the other Loan Documents, the terms of this Agreement shall control.
(g) Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
(h) The terms of the Existing Credit Agreement with respect to governing law, submission to jurisdiction, waiver of venue and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
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Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
| ADMINISTRATIVE AGENT: | |
|---|---|
| SUMITOMO MITSUI BANKING CORPORATION,<br><br><br>as Administrative Agent and as a Lender | |
| By: | /s/ Laurent Levy |
| Name: Laurent Levy | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BORROWER: | |
|---|---|
| TAKEOFF MERGER SUB INC.,<br> <br>as New<br>Borrower | |
| By: | /s/ Ichiro Tatara |
| Name: | Ichiro Tatara |
| Title: | President and Secretary |
| SUMISHO AIR LEASE FINANCE CORPORATION,<br><br><br>as Existing Borrower | |
| By: | /s/ Ichiro Tatara |
| Name: | Ichiro Tatara |
| Title: | President and Secretary |
[Signature Page to First Amendment to Revolving Credit Agreement]
| CITIBANK, N.A.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Maureen Maroney |
| Name: Maureen Maroney | |
| Title: Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
| GOLDMAN SACHS BANK USA,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Edwina Stewart |
| Name: Edwina Stewart | |
| Title: Authorised Signatory |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BANK OF AMERICA, N.A.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Elliot Hartman |
| Name: Elliot Hartman | |
| Title: Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BNP PARIBAS,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Mathieu Vidal |
| Name: | Mathieu Vidal |
| Title: | Director |
| By: | /s/ Celine Chatainier |
| Name: | Celine Chatainier |
| Title: |
[Signature Page to First Amendment to Revolving Credit Agreement]
| CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Laurent Delvart |
| Name: | Laurent Delvart |
| Title: | Managing Director |
| By: | /s/ Laurent Wiscart |
| Name: | Laurent Wiscart |
| Title: | Executive Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| DEUTSCHE BANK AG NEW YORK BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Annie Chung |
| Name: Annie Chung | |
| Title: Managing Director | |
| By: | /s/ Marko Lukin |
| Name: Marko Lukin | |
| Title: Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| HSBC BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Ross Donaldson |
| Name: Ross Donaldson | |
| Title: Director, CIB |
[Signature Page to First Amendment to Revolving Credit Agreement]
| MUFG BANK, LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Tye Holmes |
| Name: Tye Holmes | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| ROYAL BANK OF CANADA,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Scott Umbs |
| Name: Scott Umbs | |
| Title: Authorized Signatory |
[Signature Page to First Amendment to Revolving Credit Agreement]
| SUMITOMO MITSUI TRUST BANK, LIMITED, NEW YORK BRANCH, | |
|---|---|
| as a Lender | |
| By: | /s/ Takuya Uekusa |
| Name: Takuya Uekusa | |
| Title: Deputy General Manager |
[Signature Page to First Amendment to Revolving Credit Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Nathan R. Rantala |
| Name: Nathan R. Rantala | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, SINGAPORE BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Niroshan Somasekeran |
| Name: Niroshan Somasekeran | |
| Title: Head of REI Interanationl & CF S&SEA |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. NEW YORK BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Cara Younger |
| Name: Cara Younger | |
| Title: Managing Director | |
| By: | /s/ Armen Semizian |
| --- | --- |
| Name: Armen Semizian | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BANK OF CHINA (OPE) S.A. DUBLIN BRANCH,<br>as a Lender |
|---|
| By: |
| Name: |
| Title: |
All values are in Euros.
[Signature Page to First Amendment to Revolving Credit Agreement]
| BANK OF CHINA, LOS ANGELES BRANCH,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Liming Xiao |
| Name: Liming Xiao | |
| Title: SVP & Deputy Branch Manager |
[Signature Page to First Amendment to Revolving Credit Agreement]
| BANK OF MONTREAL,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Lauren Harte |
| Name: Lauren Harte | |
| Title: Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
CAIXABANK, S.A., UNITED KINGDOM BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Sergi Periago Estornell |
| Name: | Sergi Periago Estornell |
| Title: | Head of Client Coverage |
| By: | /s/ Victor Granero |
| Name: | Victor Granero |
| Title: | Country Manager UK |
[Signature Page to First Amendment to Revolving Credit Agreement]
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Edward Turowski |
| Name: Edward Turowski | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| CITIZENS BANK, N.A.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Darran Wee |
| Name: Darran Wee | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
| DBS BANK LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Cheng Yu Hua |
| Name: Cheng Yu Hua | |
| Title: Attorney-in-fact |
[Signature Page to First Amendment to Revolving Credit Agreement]
INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Xiaoxing Huang |
| Name: Xiaoxing Huang | |
| Title: Director | |
| By: | /s/ Robert O’Brien |
| Name: Robert O’Brien | |
| Title: Executive Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| KEYBANK NATIONAL ASSOCIATION,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Tad L. Stainbrook |
| Name: Tad L. Stainbrook | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
| LLOYDS BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Hilary Cochrane |
| Name: | Hilary Cochrane , |
| Title: | Associate Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| MIZUHO BANK, LTD.,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Donna DeMagistris |
| Name: Donna DeMagistris | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| NATIONAL WESTMINSTER BANK PLC,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Adam Kirk |
| Name: Adam Kirk | |
| Title: Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
OVERSEA-CHINESE BANKING CORPORATION LIMITED, NEW YORK AGENCY,
| as a Lender | |
|---|---|
| By: | /s/ Charles Ong |
| Name: Charles Ong | |
| Title: | Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| PNC BANK, NATIONAL ASSOCIATION,<br> <br>as<br>a Lender | |
|---|---|
| By: | /s/ Maxwell Feinstein |
| Name: Maxwell Feinstein | |
| Title: | Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY,
| as a Lender | |
|---|---|
| By: | /s/ Andrew Cotter |
| Name: Andrew Cotter | |
| Title: Director | |
| By: | /s/ Carlos Duarte |
| --- | --- |
| Name: Carlos Duarte | |
| Title: Associate Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| THE HUNTINGTON NATIONAL BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Phil Andresen |
| Name: Phil Andresen | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
THE TORONTO-DOMINION BANK, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Betty Chang |
| Name: Betty Chang | |
| Title: Authorized Signatory |
[Signature Page to First Amendment to Revolving Credit Agreement]
| TRUIST BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Michael J. Landry |
| Name: Michael J. Landry | |
| Title: Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
| U.S. BANK NATIONAL ASSOCIATION,<br> <br>as<br>a Lender | |
|---|---|
| By: | /s/ Paul F. Johnson |
| Name: Paul F. Johnson | |
| Title: Senior Vice President |
[Signature Page to First Amendment to Revolving Credit Agreement]
CREDIT INDUSTRIEL ET COMMERCIAL, NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Andrew McKuin |
| Name: Andrew McKuin | |
| Title: Managing Director | |
| By: | /s/ Adrienne Molloy |
| Name: Adrienne Molloy | |
| Title: Managing Director |
[Signature Page to First Amendment to Revolving Credit Agreement]
CTBC BANK CO., LTD., NEW YORK BRANCH,
| as a Lender | |
|---|---|
| By: | /s/ Mingdao Li |
| Name: Mingdao Li | |
| Title: SVP and Branch Manager |
[Signature Page to First Amendment to Revolving Credit Agreement]
| THE KOREA DEVELOPMENT BANK,<br> <br>as a<br>Lender | |
|---|---|
| By: | /s/ Seung Hyun Kim |
| Name: Seung Hyun Kim | |
| Title: Head of Global Corporate Banking | |
| Team Global Financial Cooperation Center |
[Signature Page to First Amendment to Revolving Credit Agreement]
| The Bank of East Asia. Limited, Los Angeles Branch,<br><br><br>as a Lender | |
|---|---|
| By: | /s/ Calvin Shih |
| Name: Calvin Shih | |
| Title: Credit Manager | |
| By: | /s/ Simon Keung |
| Name: Simon Keung | |
| Title: General Manager |
[Signature Page to First Amendment to Revolving Credit Agreement]
EXHIBIT A
[see attached]
EXHIBIT B
Schedule 4.15
None.
Exhibit A
$3,500,000,000
REVOLVING CREDIT AGREEMENT
among
~~SUMISHO~~ TAKEOFF MERGER SUB INC.
(to be merged with and into AIR LEASE ~~FINANCE~~CORPORATION on the Closing Date),
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
and
SUMITOMO MITSUI BANKING CORPORATION,
as Administrative Agent
Dated as of November 14, 2025,
as amended by the First Amendment, dated as of March 25, 2026
SUMITOMO MITSUI BANKING CORPORATION, CITIBANK, N.A. and GOLDMAN SACHS
BANK USA,
as Joint Lead Arrangers and Joint Bookrunners
and
CITIBANK, N.A. and GOLDMAN SACHS
BANK USA,
as Syndication Agents
i
TABLE ~~OFCONTENTS~~OF CONTENTS
| Page | |||
|---|---|---|---|
| Section 1. | DEFINITIONS | 1 | |
| 1.1 | Defined Terms | 1 | |
| 1.2 | Other Definitional Provisions | 28 | |
| 1.3 | Interest Rates | 29 | |
| 1.4 | Divisions | 29 | |
| 1.5 | No Pre-Closing Obligations of Air Lease | 30 | |
| Section 2. | AMOUNT AND TERMS OF COMMITMENTS | 30 | |
| 2.1 | Commitments | 30 | |
| 2.2 | Procedure for Borrowing | 31 | |
| 2.3 | Swingline Loans | 32 | |
| 2.4 | [Reserved] | 33 | |
| 2.5 | Fees | 33 | |
| 2.6 | Termination or Reduction of Commitments | 34 | |
| 2.7 | Optional Prepayments | 34 | |
| 2.8 | Conversion and Continuation Options | 34 | |
| 2.9 | Limitations on Term Benchmark Tranches | 35 | |
| 2.10 | Interest Rates and Payment Dates | 35 | |
| 2.11 | Computation of Interest and Fees | 35 | |
| 2.12 | Inability to Determine Interest Rate | 36 | |
| 2.13 | Pro Rata Treatment and Payments | 38 | |
| 2.14 | Requirements of Law | 39 | |
| 2.15 | Taxes | 41 | |
| 2.16 | Indemnity | 44 | |
| 2.17 | Change of Lending Office | 44 | |
| 2.18 | Replacement of Lenders | 44 | |
| 2.19 | Defaulting Lenders | 45 | |
| 2.20 | Illegality | 46 | |
| Section 3. | [RESERVED] | 46 | |
| Section 4. | REPRESENTATIONS AND WARRANTIES | 46 | |
| 4.1 | Financial Condition | 46 | |
| 4.2 | No Change | 46 | |
| 4.3 | Existence; Compliance with Law | 47 | |
| 4.4 | Power; Authorization; Enforceable Obligations | 47 | |
| 4.5 | No Legal Bar | 47 | |
| 4.6 | Litigation | 47 | |
| 4.7 | No Default | 47 | |
| 4.8 | Ownership of Property | 48 | |
| 4.9 | Intellectual Property | 48 | |
| 4.10 | Taxes | 48 | |
| 4.11 | Federal Regulations | 48 | |
| 4.12 | Labor Matters | 48 |
i
| 4.13 | ERISA | 49 |
|---|---|---|
| 4.14 | Investment Company Act; Other Regulations | 49 |
| 4.15 | Subsidiaries | 49 |
| 4.16 | Use of Proceeds | 49 |
| 4.17 | Environmental Matters | 49 |
| 4.18 | Accuracy of Information, etc. | 49 |
| 4.19 | Anti-Corruption Laws and Sanctions | 50 |
| 4.20 | Solvency | 50 |
| 4.21 | Service Agreement | 50 |
| 4.22 | Outbound Investment Rules | 50 |
| Section 5. | CONDITIONS PRECEDENT | 51 |
| 5.1 | Conditions to Effectiveness of this Agreement | 51 |
| 5.2 | Conditions to the Closing Date | 51 |
| 5.3 | Conditions to Each Extension of Credit After the Closing Date | 54 |
| 5.4 | Limitations on Actions of Administrative Agent and Lenders Between the Effective Date and the Closing Date | 54 |
| Section 6. | AFFIRMATIVE COVENANTS | 55 |
| 6.1 | Financial Statements | 55 |
| 6.2 | Certificates; Other Information | 56 |
| 6.3 | Payment of Obligations | 57 |
| 6.4 | Maintenance of Existence; Compliance | 57 |
| 6.5 | Maintenance of Property; Insurance | 57 |
| 6.6 | Inspection of Property; Books and Records; Discussions | 57 |
| 6.7 | Notices | 57 |
| 6.8 | Use of Proceeds | 58 |
| 6.9 | Accuracy of Information | 58 |
| 6.10 | Future Guarantors | 58 |
| Section 7. | NEGATIVE COVENANTS | 58 |
| 7.1 | Financial Condition Covenants | 59 |
| 7.2 | Indebtedness | 59 |
| 7.3 | Fundamental Changes | 59 |
| 7.4 | [Reserved] | 60 |
| 7.5 | Transactions with Affiliates | 60 |
| 7.6 | Changes in Fiscal Periods | 60 |
| 7.7 | Lines of Business | 60 |
| 7.8 | Outbound Investment Rules | 60 |
| Section 8. | EVENTS OF DEFAULT | 61 |
| Section 9. | THE AGENTS | 63 |
| 9.1 | Appointment | 63 |
| 9.2 | Delegation of Duties | 63 |
| 9.3 | Exculpatory Provisions | 63 |
| 9.4 | Reliance by Administrative Agent | 64 |
ii
| 9.5 | Notice of Default | 64 |
|---|---|---|
| 9.6 | Non-Reliance on Agents and Other Lenders | 64 |
| 9.7 | Indemnification | 65 |
| 9.8 | Agent in Its Individual Capacity | 65 |
| 9.9 | Successor Administrative Agent | 65 |
| 9.10 | Arrangers and Syndication Agents | 65 |
| 9.11 | Certain ERISA Matters | 66 |
| 9.12 | Acknowledgments with respect to Payments | 67 |
| Section 10. | MISCELLANEOUS | 68 |
| 10.1 | Amendments and Waivers | 68 |
| 10.2 | Notices | 69 |
| 10.3 | No Waiver; Cumulative Remedies | 70 |
| 10.4 | Survival of Representations and Warranties | 70 |
| 10.5 | Payment of Expenses and Taxes | 71 |
| 10.6 | Successors and Assigns; Participations and Assignments | 72 |
| 10.7 | Adjustments; Set-off | 75 |
| 10.8 | Counterparts; Integration; Effectiveness; Electronic Execution | 75 |
| 10.9 | Severability | 76 |
| 10.10 | Integration | 77 |
| 10.11 | GOVERNING LAW | 77 |
| 10.12 | Submission To Jurisdiction; Waivers | 77 |
| 10.13 | Acknowledgements | 78 |
| 10.14 | Releases | 78 |
| 10.15 | Confidentiality | 79 |
| 10.16 | WAIVERS OF JURY TRIAL | 80 |
| 10.17 | USA Patriot Act | 80 |
| 10.18 | Acknowledgement Regarding Any Supported QFCs | 80 |
| 10.19 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 81 |
| 10.20 | Sustainability | 82 |
| 10.21 | Consent to Disclosure | 82 |
iii
SCHEDULES:
| 1.1A | Commitments and Swingline |
|---|---|
| 1.1B | Target Indebtedness |
| 4.15 | Subsidiaries |
EXHIBITS:
| A | Form of Assignment and Assumption |
|---|---|
| B-1 | Form of Secretary’s Certificate |
| B-2 | Form of Solvency Certificate |
| C | Form of Legal Opinion of Davis Polk & Wardwell, LLP |
| D | Form of Compliance Certificate |
| E-1 - E-4 | Form of U.S. Tax Compliance Certificate |
| G | Form of Guaranty |
| H | Form of Extension Agreement |
iv
REVOLVING CREDIT AGREEMENT (this “Agreement”), dated as of November 14, 2025, ~~among SUMISHO AIR LEASE FINANCECORPORATION~~as amended by the First Amendment, dated as of March 25, 2026, among TAKEOFF MERGER SUB INC., a Delaware corporation (the “Borrower”) (which will merge with and into Air Lease Corporation, a Delaware corporation (“Air Lease”) pursuant to the Acquisition on the Closing Date, with Air Lease surviving the merger), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “Lenders”), SUMITOMO MITSUI BANKING CORPORATION, as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.
“ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus 1/2 of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1.0%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the ABR due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the ABR is being used as an alternate rate of interest pursuant to Section 2.12 hereof (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.12(b)), then the ABR shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the ABR as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.
“ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.
“Acquired Business”: as defined in the definition of “Acquisition”.
“Acquisition”: the acquisition by Sumisho Air Lease Corporation Designated Activity Company (the “Parent”) of, directly or indirectly, Air Lease ~~Corporation, a Delaware corporation (“Air Lease”)~~and/or one or more of its subsidiaries (Air Lease and its respective subsidiaries and businesses, collectively, the “Acquired Business”), through ~~Takeoff Merger Sub Inc.~~ ~~(“Merger Sub”),a wholly owned merger subsidiary of~~ the Borrower pursuant to the Agreement and Plan of Merger dated as of September 1, 2025 (the “Signing Date”), among the Parent, ~~Merger Sub~~the Borrower and Air Lease and certain other parties thereto (as amended, restated, amended and restated or otherwise modified from time to time, and together with the appendices, exhibits and schedules thereto, the “Acquisition Agreement”).
“Acquisition Agreement”: as defined in the definition of “Acquisition”.
“Acquisition Termination Date” means the earliest of (a) the termination of the Parent’s (and ~~MergerSub’s~~the Borrower’s) obligation to consummate the Acquisition pursuant to the Acquisition Agreement and (b) the date that is five Business Days after the End Date (as defined in the Acquisition Agreement as in effect on the Signing Date) as it may be extended in accordance with Section 8.01(b)(i) of the Acquisition Agreement as in effect on the Signing Date.
1
“Acquisition Transaction Representations”: the representations made by Air Lease with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Parent and ~~Merger Sub~~the Borrower have the right to terminate its and their respective obligations to consummate the Acquisition (or otherwise do not have an obligation to close) under the Acquisition Agreement as a result of a failure of such representations in the Acquisition Agreement to be accurate and without liability to the Parent or ~~Merger Sub~~the Borrower).
“Adjusted Daily Simple SOFR”: for any day, a rate equal to the Daily Simple SOFR, plus 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate”: for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent”: Sumitomo Mitsui Banking Corporation, together with its Affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan Documents, together with any of its successors.
“Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate”: as to any Person, any other Person that, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent Indemnitee”: as defined in Section 9.7.
“Agents”: the collective reference to the Administrative Agent and any other agent identified on the cover page of this Agreement.
“Aggregate Exposure Percentages”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Extensions of Credit at such time to the Total Extensions of Credit at such time.
“Agreement”: as defined in the preamble hereto.
“Aircraft Assets”: aircraft, airframes, engines (including spare engines), parts and pre-delivery payments relating to the foregoing.
“Air Lease”: as defined in the ~~definition of“Acquisition”~~preamble hereto.
“ALC Warehouse”: ALC Warehouse Borrower, LLC, a Delaware limited liability company.
2
“Ancillary Document”: as defined in Section 10.8(b).
“Anti-Corruption Laws”: (a) United States laws, rules and regulations applicable to the Borrower and its Subsidiaries concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977, and (b) the UK Bribery Act of 2010 to the extent applicable to the Borrower and its Subsidiaries.
“Apollo”: means Apollo Capital Management, L.P., a Delaware limited partnership, and any Affiliates thereof.
“Applicable Margin”: with respect to Loans of any Type at any time, the applicable rate per annum which is applicable at such time with respect to such Loans of such Type as set forth in the Pricing Grid.
“Approved Bank”: any commercial or investment bank whose long-term senior unsecured debt is rated at least Baa3 from Moody’s and at least BBB- from S&P.
“Arrangers”: the Lead Arrangers and Joint Bookrunners identified on the cover page of this Agreement.
“Assignee”: as defined in Section 10.6(b).
“Assignment and Assumption”: an Assignment and Assumption, substantially in the form of Exhibit A.
“Available Commitment”: as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Commitment then in effect over (b) such Lender’s Extensions of Credit then outstanding.
“Available Tenor”: as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.12.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
3
“Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, Irish law examiner, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Benchmark”: initially, with respect to any (i) Daily Simple SOFR Loan, the Daily Simple SOFR or (ii) Term Benchmark Loan, the Term SOFR Rate; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the Daily Simple SOFR or Term SOFR Rate, as applicable, or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.12.
“Benchmark Replacement”: for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent, in consultation with the Borrower, for the applicable Benchmark Replacement Date:
(1) the Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar-denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment; If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment”: with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such times.
4
“Benchmark Replacement Conforming Changes”: with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in its reasonable discretion, in consultation with Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date”: with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event”: with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
5
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period”: with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.12.
“Benefit Plan”: any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Part 4, Subpart B of Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, or (c) any Person whose assets include (for purposes of the Plan Asset Regulations) the assets of any such “employee benefit plan” or “plan”.
“Benefitted Lender”: as defined in Section 10.7(a).
“BHC Act Affiliate”: as defined in Section 10.18(b).
“Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor).
“Board of Directors”: (a) with respect to a corporation, the Board of Directors of the corporation or (other than for purposes of determining Change of Control) the executive committee of the Board of Directors; and (b) with respect to any other Person, the board or committee of such Person serving a similar function.
“Borrower”: as defined in the preamble hereto.
“Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York City, Chicago or Los Angeles are authorized or required by law to close, provided, that with respect to notices and determinations in connection with, and payments of principal and interest on, Daily Simple SOFR Loans, any such day that is only an U.S. Government Securities Business Day.
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“Brookfield”: means Brookfield Asset Management Credit and Insurance Solutions Advisor LLC, a Delaware limited liability company, and any Affiliates thereof.
“Business Hours”: the hours of any Business Day during the period running from (and including) 9:00 A.M., New York City Time to (and including) 6:00 P.M., New York City Time.
“Capital Lease”: at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability (and that is classified as a finance lease) in accordance with GAAP.
“Capital Stock”: with respect to any Person, all equity interests in such Person, including any Common Stock, Preferred Stock, limited liability or partnership interests (whether general or limited), and all warrants or options with respect to, or other rights to purchase, the foregoing, but excluding Convertible Notes and Indebtedness (other than Preferred Stock) convertible into equity.
“Cash and Cash Equivalents”: (a) cash and cash equivalents, as defined in accordance with GAAP, and (b) commercial paper, certificates of deposit, guaranteed investment contracts, repurchase agreements and similar securities where the obligor to the Borrower is rated A (or equivalent rating) or above by any Ratings Agency (or in the case of commercial paper, rated P-1 or higher by Moody’s or A-1 or higher by S&P).
“Change of Control”: means (a) prior to an IPO, the Permitted Holders shall cease to beneficially own or control, directly or indirectly through one or more holding company parents of the Borrower, more than fifty percent (50%) of the Voting Stock of the Borrower unless the Permitted Holders otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint 50% or more of the board of directors or equivalent governing body of the Borrower and (b) after an IPO, the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group, other than the Permitted Holders (directly or indirectly, including through one or more holding companies), of Capital Stock representing 50% or more of the Voting Stock in the IPO Entity, unless the Permitted Holders (directly or indirectly, including through one of more holding companies) otherwise have the right (pursuant to contract, proxy or otherwise), directly or indirectly, to designate, nominate or appoint 50% or more of the board of directors or equivalent governing body of the IPO Entity. For the avoidance of doubt, the consummation of the Acquisition shall be deemed to not be a Change of Control.
For purposes of this definition, (i) “beneficial ownership” shall be as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act, (ii) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding any employee benefit plan of such Person or “group” and its subsidiaries and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan, (iii) if any Person or “group” (other than a Permitted Holder) includes one or more Permitted Holders, the issued and outstanding Capital Stock of the Borrower or the IPO Entity, as applicable, directly or indirectly owned by the Permitted Holders that are part of such Person or “group” shall not be treated as being owned by such Person or “group” for purposes of determining whether this definition is triggered, (iv) a Person or “group” (other than a Permitted Holder) shall not be deemed to beneficially own Capital Stock (x) to be acquired by such Person or “group” pursuant to an equity or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Capital Stock in connection with the transactions contemplated by such agreement or (y) solely as a result of veto or approval rights in any joint venture agreement, shareholder agreement, investor rights agreement or other similar agreement (in each case, so long as such Person does not have the right to direct the voting of the Capital Stock subject to such right), (v) a Person or group (other than a Permitted Holder) will not be deemed to beneficially own Capital Stock of another Person as a result of its ownership of Capital Stock or other securities of such other Person’s parent (or related contractual rights) unless it owns more than 50% of the total voting power of the Capital Stock of such Person’s parent and (vi) the right to acquire Capital Stock (so long as such Person does not have the right to direct the voting of the Capital Stock subject to such right) or any veto power in connection with the acquisition or disposition of Capital Stock will not cause a party to be a beneficial owner.
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“Closing Date”: the date on which the conditions precedent set forth in Section 5.2 shall have been satisfied or waived in accordance with Section 10.1.
“CME Term SOFR Administrator”: CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator selected by the Administrative Agent in its reasonable discretion).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Commitment”: as to any Lender, the obligation of such Lender, if any, to make Loans and participate in Swingline Loans in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Commitment” opposite such Lender’s name on Schedule 1.1A, in the Assignment and Assumption pursuant to which such Lender became a party hereto or in any Extension Agreement, as the same may be changed from time to time pursuant to the terms hereof. The amount of the Total Commitments as of the Effective Date is $3,500,000,000.
“Commitment Period”: the period from and including the Closing Date to the earlier of the Termination Date and the date of termination of the Commitments.
“Common Stock”: any class of capital stock or share capital of any corporation now or hereafter authorized, the right of which to share in distributions of either earnings or assets of such corporation is without limit as to any amount or percentage.
“Compliance Certificate”: a certificate duly executed by a Responsible Officer substantially in the form of Exhibit D.
“Consolidated Adjusted EBITDA”: with reference to any period, Consolidated Net Income for such period plus, to the extent deducted in determining Consolidated Net Income, depreciation, amortization, interest expense, income taxes, stock based compensation expense and any other non-cash, non-recurring losses or charges of the Borrower and its consolidated Subsidiaries.
“Consolidated Interest Expense”: for any period, all interest expense in respect of Indebtedness of the Borrower and its consolidated Subsidiaries deducted in determining Consolidated Net Income together with all interest capitalized or deferred during such period and not deducted in determining Consolidated Net Income for such period, excluding all debt discount and expense amortized or required to be amortized in the determination of Consolidated Net Income for such period.
“Consolidated Net Income”: with reference to any period, the net income (or loss) of the Borrower and its consolidated Subsidiaries for such period, on a consolidated basis, provided that there shall be excluded any net income, gain or losses during such period from (a) any change in accounting principles in accordance with GAAP, (b) any prior period adjustment resulting from any change in accounting principles in accordance with GAAP, (c) any discontinued operations and (d) any extraordinary items.
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“Consolidated Shareholders’ Equity”: as of any date of determination, shareholders’ equity as reflected in the Borrower’s consolidated financial statements at such date.
“Consolidated Unencumbered Assets”: the assets of the Borrower and its Subsidiaries on a consolidated basis, consisting of (a) Cash and Cash Equivalents and Marketable Securities, in each case to the extent not subject to a Lien (other than customary bankers’ liens and rights of setoff and offset) and (b) non-pledged Aircraft Assets, valued at the net book value thereof.
“Consolidated Unsecured Indebtedness”: Unsecured Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis after eliminating intercompany items.
“Contractual Obligation”: as to any Person, any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Convertible Notes”: Indebtedness of the Borrower or any parent entity thereof that is optionally convertible into Common Stock of the Borrower or any parent entity thereof (and/or cash based on the value of such Common Stock) and/or Indebtedness of a Subsidiary of the Borrower that is optionally exchangeable for Common Stock of the Borrower or any parent entity thereof (and/or cash based on the value of such Common Stock).
“Corresponding Tenor”: with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity”: as defined in Section 10.18(b).
“Covered Party”: as defined in Section 10.18(a).
“Credit Party”: the Administrative Agent, each Swingline Lender or any other Lender.
“Daily Simple SOFR”: for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Daily Simple SOFR Loan”: a Loan that bears interest at a rate based on the Adjusted Daily Simple SOFR.
“Default”: any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
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“Defaulting Lender”: any Lender (a) that has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) [reserved] or (iii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) that has notified the Borrower or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) that has failed, within three Business Days after request by a Credit Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) that has, or whose Lender Parent has, become the subject of a (i) Bankruptcy Event or (ii) a Bail-In Action or (e) with respect to which any Swingline Lender has a good faith belief that such Lender has defaulted in fulfilling its obligations under one or more other agreements in which such Lender commits to extend credit.
“Default Right”: as defined in Section 10.18(b).
“Disposition”: with respect to any property, any sale, lease (other than in the ordinary course of business), sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Capital Stock”: with respect to any Person, any Capital Stock of such Person that by its terms is (1) required to be redeemed or redeemable at the option of the holder prior to the Termination Date in effect at the time of issuance for consideration other than Qualified Capital Stock; or (2) convertible at the option of the holder into Disqualified Capital Stock or exchangeable for Indebtedness.
“Disqualified Lender”: means, collectively, (i) any person that is identified in writing by the Borrower to the Arrangers prior to the Signing Date as a “Disqualified Lender”, (ii) such other persons identified in writing by the Borrower to the Arrangers prior to the date hereof, or, after the date hereof, identified in writing by the Borrower to the Administrative Agent, and that is a competitor of the Borrower and (iii) affiliates of the persons identified pursuant to clause (i) or (ii) that are either clearly identifiable as affiliates solely on the basis of their name or identified in writing by the Borrower to the Arrangers prior to the date hereof, or, after the date hereof, identified in writing by the Borrower to the Administrative Agent (it being understood that, notwithstanding anything herein to the contrary, in no event shall any such identification apply retroactively to disqualify any parties that have previously acquired or have agreed to acquire an assignment, participation interest or allocation of commitments under the Facility that is otherwise permitted hereunder, but upon the effectiveness of such designation, any such party may not acquire or agree to acquire any additional commitments (or allocations thereof), loans or participations).
“Dollars” and “$”: dollars in lawful currency of the United States.
“Early Commitment Termination Date”: as defined in Section 2.19(e).
“EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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“EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which all conditions precedent set forth in Section 5.1 are satisfied or waived by all Lenders.
“Electronic Signature”: an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee”: (a) any Lender and any Affiliate of any Lender, and (b) (i) a commercial bank organized under the laws of the United States or any state thereof, (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof, (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof, provided that, with respect to this clause (iii), (A) such bank is acting through a branch or agency located in the United States or (B) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country and (iv) a finance company, insurance company, mutual fund, leasing company or other financial institution or fund (whether a corporation, partnership or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business, and having total assets in excess of $250,000,000; provided that, in each case, except with the consent of the Borrower, no Disqualified Lender and, solely with respect to any assignments made prior to the Closing Date, no Person that is not an Approved Bank shall be an Eligible Assignee.
“Equityholding Vehicle”: means any direct or indirect parent company of the Borrower and any equityholder thereof through which Management Investors hold Capital Stock of such direct or indirect parent company.
“Environmental Laws”: any Requirements of Law concerning protection of the environment or exposure to toxic or deleterious materials.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate”: any trade or business (whether or not incorporated) that, together with any Group Member, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.
“ERISA Event”: (a) any Reportable Event; (b) the existence with respect to any Plan of a Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension Plan, whether or not waived; (d) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan, the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or the failure by any Group Member or any ERISA Affiliate to make any required contribution to a Multiemployer Plan; (e) the incurrence by any Group Member or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Pension Plan, including but not limited to the imposition of any Lien in favor of the PBGC or any Pension Plan; (f) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (g) the receipt by any Group Member or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by any Group Member or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; or (i) the receipt by any Group Member or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a Group Member or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, Insolvent, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or Section 305 of ERISA.
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“EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default”: any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“Exchange Act”: the Securities Exchange Act of 1934, as amended.
“Extension Agreement”: an Extension Agreement, substantially in the form of Exhibit H.
“Extensions of Credit”: as to any Lender at any time, an amount equal to the sum of the aggregate principal amount of all Loans held by such Lender then outstanding.
“Facility”: the Commitments and the extensions of credit thereunder.
“FATCA”: Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any regulations or official interpretations thereof.
“FCA”: as defined in Section 1.3.
“Federal Funds Effective Rate”: for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate.
“Federal Reserve Bank of New York’s Website”: the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Federal Reserve Board”: means the Board of Governors of the Federal Reserve System of the United States of America.
“Fee Letter”: as defined in Section 2.5(b).
“Fee Payment Date”: (a) the fifteenth day following the last day of each March, June, September and December and (b) the last day of the Commitment Period.
“First Amendment”: means that certain First Amendment dated as of the First Amendment Effective Date.
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“First Amendment Effective Date”: means March 25, 2026.
“Fitch”: Fitch Rating Service, Inc.
“Floor”: the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR Rate or the Adjusted Daily Simple SOFR shall be 0%.
“Funding Office”: the office of the Administrative Agent specified in Section 10.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
“GAAP”: generally accepted accounting principles in the United States as in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements referred to in Section 4.1. At any time after the Closing Date, the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP will thereafter be construed to mean IFRS (except as otherwise provided in this Agreement); provided, however, that any such election, once made, will be irrevocable; provided further that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS will remain as previously calculated or determined in accordance with GAAP. The Borrower will give prior written notice of any such election made in accordance with this definition to the Administrative Agent.
“Goldman Sachs”: Goldman Sachs Bank USA.
“Governmental Authority”: any nation or government of any jurisdiction, any state or other political subdivision thereof, whether provincial, state, or local, and any department, ministry, agency, authority, instrumentality, regulatory body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).
“Group Members”: the collective reference to the Borrower and its Subsidiaries.
“Guarantee Obligations”: with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any Indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person: (a) to purchase such Indebtedness or obligation or any property constituting security therefor; (b) to advance or supply funds (i) for the purchase or payment of such Indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such Indebtedness or obligation; (c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such Indebtedness or obligation of the ability of any other Person to make payment of the Indebtedness or obligation; or (d) otherwise to assure the owner of such Indebtedness or obligation against loss in respect thereof. In any computation of the Indebtedness or other liabilities of the obligor under any Guarantee Obligation, the Indebtedness or other obligations that are the subject of such Guarantee Obligation shall be assumed to be direct obligations of such obligor to the extent of such obligor’s liability with respect thereto.
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“Guarantor”: from and after the Closing Date, ~~Air Lease and~~ each Subsidiary that executes and delivers a Guaranty; provided that upon release or discharge of such Subsidiary from the Guaranty in accordance with this Agreement, such Subsidiary ceases to be a Guarantor.
“Guaranty”: collectively, one or more guaranties of the Obligations made by the Guarantors in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit G, including any supplements to an existing Guaranty in substantially the form that is a part of Exhibit G.
“IFRS” means international financial reporting standards and interpretations issued by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants or any successor to either such Board, or the SEC, as the case may be), as in effect from time to time.
“Indebtedness”: of any Person at any date, without duplication, (a) its liabilities for borrowed money and its redemption obligations in respect of Preferred Stock that is mandatorily redeemable at the option of the holder thereof prior to the Termination Date in effect at the time of the issuance of such Preferred Stock; (b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable and accrued expenses arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property); (c) (i) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect of Synthetic Leases assuming such Synthetic Leases were accounted for as Capital Leases; (d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities) (up to the fair market value of such property); (e) all its reimbursement obligations in respect of drawn letters of credit or instruments serving a similar function issued or accepted for its account by banks and other financial institutions (whether or not representing obligations for borrowed money); (f) the net aggregate Swap Termination Value of all Swap Agreements of such Person; and (g) any Guarantee Obligation of such Person with respect to liabilities of a type described in any of clauses (a) through (f) hereof.
“Indemnified Liabilities”: as defined in Section 10.5.
“Indemnitee”: as defined in Section 10.5.
“Index Debt”: senior, unsecured, long-term indebtedness for borrowed money of the Borrower (or, prior to the Closing Date, of Air Lease) that is not guaranteed by any other Person or subject to any other credit enhancement.
“Insolvent”: with respect to any Multiemployer Plan, the condition that such plan is insolvent within the meaning of Section 4245 of ERISA.
“Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
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“Interest Payment Date”: (a) as to any ABR Loan (other than a Swingline Loan), the last day of each March, June, September and December to occur while such Loan is outstanding and the Termination Date, (b) as to any Term Benchmark Loan having an Interest Period of three months or less, the last day of such Interest Period and the Termination Date, (c) as to any Term Benchmark Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and the Termination Date, (d) with respect to any Daily Simple SOFR Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Termination Date and (e) as to any Swingline Loan, the day that such Loan is required to be repaid hereunder and the Termination Date.
“Interest Period”: as to any Term Benchmark Loan, (i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Term Benchmark Loan, and ending one, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Term Benchmark Loan and ending one, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not later than 4:00 P.M., New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto,; provided that, all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period that would extend beyond the Termination Date; and
(iii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
“Investors”: means each of SMBC AC, Sumitomo, Apollo and Brookfield.
“IPO”: means (x) the initial underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8 or comparable filing in any other applicable jurisdiction) of common Capital Stock of the Borrower or a parent entity of the Borrower resulting in such common Capital Stock being publicly traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union, (y) the purchase or other acquisition, by merger, consolidation or otherwise, of a majority of the Capital Stock of the Borrower or a parent entity of the Borrower by any publicly traded special purpose acquisition company, targeted acquisition company or any entity similar to the foregoing (or any subsidiary thereof) that is listed on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union or (z) such other transaction that results in the common Capital Stock of the Borrower or a parent entity of the Borrower being publicly held or traded on any United States national securities exchange or over-the-counter market, or any analogous exchange or market in Canada, the United Kingdom or any country in the European Union, including pursuant to a direct listing of such Capital Stock.
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“IPO Entity”: means, at any time upon and after an IPO, either the Borrower or a parent entity of the Borrower, as the case may be, the Capital Stock of which were (x) issued or otherwise sold in a transaction described in clause (x) of the definition of “IPO”, (y) purchased or otherwise acquired, by merger, consolidated or otherwise, in a transaction described in clause (y) of the definition of “IPO” or (z) publicly listed in a transaction described in clause (z) of the definition of “IPO”; provided that, immediately following the IPO, unless the Borrower is the IPO Entity, the Borrower is a direct or indirect subsidiary of such IPO Entity and such IPO Entity owns, directly or through its subsidiaries, substantially all the businesses and assets owned or conducted, directly or indirectly, by the Borrower immediately prior to the IPO.
“IRS”: as defined in Section 2.15(e).
“ISDA Definitions”: the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Venture”: as to any Person, any other Person designated as a “joint venture” (1) that is not a Subsidiary of such Person and (2) in which such Person owns less than 100% of the equity or voting interests.
“Lender Parent”: with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a Subsidiary.
“Lenders”: as defined in the preamble hereto.
“Lien”: with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement and any Capital Lease, upon or with respect to any property or asset of such Person.
“Loans”: the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Loan Documents”: this Agreement, the First Amendment, the Notes, ~~the~~each Guaranty, any Extension Agreement and any amendment, waiver, supplement or other modification to any of the foregoing.
“Loan Parties”: each Group Member that is a party to a Loan Document.
“Management Investors”: means the current or former members of the board of directors or equivalent governing body, officers, managers, employees, other service providers, members or partners of the Borrower and/or its Subsidiaries who are, in each case, (i) natural persons and (ii) (directly or indirectly through one or more investment vehicles) investors in the Borrower (or any direct or indirect parent thereof), including such current or former members of the board of directors or equivalent governing body, officers, managers, employees, other service providers, members or partners owning through an Equityholding Vehicle.
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“Marketable Securities”: either (a) debt securities that are rated BBB- or above by Fitch, BBB- or above by S&P, or Baa3 or above by Moody’s or (b) senior debt securities of issuers that are rated BBB- or above by Fitch, BBB- or above by S&P, or Baa3 or above by Moody’s.
“Material Adverse Effect”: (i) a material adverse effect on the business, assets, property or financial condition of the Borrower and its Subsidiaries taken as a whole or (ii) a material impairment on the validity or enforceability of this Agreement or any of the other Loan Documents or the totality of the rights or remedies of the Lenders hereunder or thereunder.
“Materials of Environmental Concern”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
“Moody’s”: Moody’s Investors Service, Inc.
“Multiemployer Plan”: a plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA that is contributed to or required to be contributed to by any Group Company or any ERISA Affiliate.
“Non-Excluded Taxes”: as defined in Section 2.15(a).
“Non-Recourse Indebtedness”: with respect to any Person, any Indebtedness of such Person or its Subsidiaries that is, by its terms, recourse only to specific assets and non-recourse to the assets of such Person generally and that is neither guaranteed by any Affiliate (other than a Subsidiary) of such Person or would become the obligation of any Affiliate (other than a Subsidiary) of such Person upon a default thereunder; provided, however, that the existence of a guarantee that is not a guarantee of payment of Indebtedness shall not cause the related Indebtedness to fail to be Non-Recourse Indebtedness.
“Non-U.S. Lender”: as defined in Section 2.15(e).
“Notes”: the collective reference to any promissory note evidencing Loans.
“NYFRB”: the Federal Reserve Bank of New York.
“NYFRB Rate”: for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it.
“Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred or suffered to exist, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.
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“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Organizational Document”: as to any Person, the certificate of incorporation and by-laws, constitution or other organizational or governing documents of such Person.
“Other Connection Taxes”: with respect to any Credit Party, Taxes imposed as a result of a present or former connection between such Credit Party and the jurisdiction imposing such Tax (other than connections arising solely from such Credit Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”: any and all present or future stamp, court, documentary, intangible, recording, filing or similar taxes or any excise or property taxes arising from any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, including any interest, additions to tax or penalties applicable thereto, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment or sale of a participation (other than an assignment made pursuant to Section 2.18).
“Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 of August 9, 2023; as of the date of this Agreement, and as codified at 31 C.F.R. § 850.101 et seq.
“Overnight Bank Funding Rate”: for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the Federal Reserve Bank of New York’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Parent”: as defined in the definition of “Acquisition”.
“Parent Company” means any legal entity that, directly or indirectly, owns 100% of the Capital Stock of the Borrower.
“Participant”: as defined in Section 10.6(c).
“Participant Register”: as defined in Section 10.6(c).
“Patriot Act”: as defined in Section 10.17.
“Payment”: as defined in Section 9.12.
“Payment Notice”: as defined in Section 9.12.
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).
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“Permitted Holders”: means (a) the Investors, (b) the Management Investors (including, for the avoidance of doubt, any Equityholding Vehicle through which Management Investor holds Capital Stock), (c) any Person who is acting solely as an underwriter in connection with a public or private offering of Capital Stock of any parent entity of the Borrower or the Borrower, acting in such capacity, (d) any “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) of which any of the foregoing are members, so long as, in the case of this clause (d), the Permitted Holders under clause (a) or (b) above and any Permitted Parent directly or indirectly collectively beneficially own more than 50% of the relevant Voting Stock beneficially owned by the group in Borrower or the IPO Entity, as applicable, (e) any Permitted Parent and (f) any Permitted Plan; provided, that for the purpose of determining whether a Change of Control has occurred no Person or group shall be a “Permitted Holder” under clause (a), (b) or (d) above if and to the extent that it beneficially owns or controls, directly or indirectly, a greater percentage of the Voting Stock of the Borrower than Sumitomo beneficially owns or controls.
“Permitted Parent”: means any direct or indirect parent entity of the Borrower or an IPO Entity that at the time it became a parent entity of the Borrower or an IPO Entity had at least 50% of its Voting Stock owned or controlled by Permitted Holders.
“Permitted Plan”: means any employee benefit plan of the Borrower or any of its Affiliates and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan.
“Pension Plan”: any Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
“Plan Asset Regulations”: of 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Person”: an individual, company, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, government, state or agency of a state or any association, Governmental Authority or other entity of whatever nature.
“Plan”: any employee benefit plan as defined in Section 3(3) of ERISA, including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Group Member or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Preferred Stock”: any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Pricing Grid”: with respect to any Term Benchmark Loan, Daily Simple SOFR Loan, or ABR Loan, or with respect to the unused commitment fees payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Applicable Margin for Term Benchmark Loans and Daily Simple SOFR Loans”, “Applicable Margin for ABR Loans” or “Unused Commitment Fee Rate”, as the case may be, based upon the ratings by Moody’s, S&P and Fitch, respectively, applicable on such date to the Index Debt:
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| Rating for the Index Debt | Applicable Margin for<br>Term Benchmark Loans<br>and Daily Simple<br>SOFR Loans | Applicable Margin for<br>ABR Loans | Unused Commitment<br>Fee Rate | ||||||
|---|---|---|---|---|---|---|---|---|---|
| Level I<br><br><br>Rating for the Index Debt of at least BBB+ by S&P/BBB+ by Fitch/Baa1 by Moody’s | 1.125 | % | 0.125 | % | 0.15 | % | |||
| Level II<br><br><br>Rating for the Index Debt of at least BBB by S&P/BBB by Fitch/Baa2 by Moody’s and not Level I | 1.250 | % | 0.250 | % | 0.20 | % | |||
| Level III<br><br><br>Rating for the Index Debt of at least BBB- by S&P/BBB- by Fitch/Baa3 by Moody’s and not Level I or<br>II | 1.500 | % | 0.500 | % | 0.25 | % | |||
| Level IV<br><br><br>Rating for the Index Debt below Level III | 1.750 | % | 0.750 | % | 0.30 | % |
Applicable margins and unused commitment fee rate shall be based on the senior public unsecured rating of the Borrower (or, prior to the Closing Date, of Air Lease) from S&P, Fitch and Moody’s (each, a “Ratings Agency”). If there is only one senior public unsecured rating with respect to the Borrower (or, prior to the Closing Date, of Air Lease), the Applicable Margin and Unused Commitment Fee Rate shall be determined with reference to such rating. If the senior public unsecured ratings established by S&P, Fitch or Moody’s shall fall within different Levels, the Applicable Margin and Unused Commitment Fee rate shall be determined by either (a) the senior public unsecured rating which is the consensus majority of such ratings or (b) in the event of a different senior public unsecured rating from each Ratings Agency and the highest and lowest of such ratings are not more than two Levels apart, the senior public unsecured rating which is neither the highest nor lowest of such ratings but rather the senior public unsecured rating between the higher and lower of such ratings or (c) in the event of a different senior public unsecured rating from each Ratings Agency and the highest and lowest of such ratings are more than two Levels apart, the senior public unsecured rating which is one Level below the Level for the highest of such ratings. If the Borrower has a senior public unsecured rating by only two of the Ratings Agencies, the Applicable Margin and Unused Commitment Fee Rate shall be determined by either (i) the equivalent senior public unsecured rating of each of the two such Ratings Agencies, or (ii) in the event of split senior public unsecured ratings, (A) the higher of such senior public unsecured rating, provided, however, the lower of such senior public unsecured ratings shall be no greater than one Level below the higher of such senior public unsecured ratings or (B) in the event the lower of such senior public unsecured rating is greater than one Level below the higher of such senior public unsecured rating, the Applicable Margin and Unused Commitment Fee Rate shall be determined based on the senior public unsecured rating which is one Level below the higher of such senior public unsecured rating. If the senior public unsecured ratings established by S&P, Fitch or Moody’s shall be changed, such change shall be effective as of the date on which it is first announced by the applicable Ratings Agency and if none of S&P, Fitch or Moody’s shall have in effect a senior public unsecured rating, the Applicable Margin and Unused Commitment Fee Rate shall be based on Level IV. Each change in the Applicable Margin and Unused Commitment Fee Rate shall apply during the period commencing on the effective date of the applicable change in senior public unsecured rating and ending on the date immediately preceding the effective date of the next such change in senior public unsecured rating.
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“Prime Rate”: the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Prior Credit Agreement”: the Second Amended and Restated Credit Agreement, dated as of May 5, 2014, by and among Air Lease, certain financial institutions, and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, amended and restated or otherwise modified prior to the date hereof.
“Prohibited Transaction”: as defined in Section 406 of ERISA and Section 4975(c) of the Code.
“PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning specified in Section 10.18(b).
“QFC Credit Support” has the meaning specified in Section 10.18.
“Qualified Capital Stock”: all Capital Stock of a Person other than Disqualified Capital Stock.
“Ratings Agencies”: collectively, S&P, Fitch and Moody’s (as defined in the definition of “Pricing Grid”).
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting, (2) if such Benchmark is Daily Simple SOFR, then four Business Days prior to such setting or (3) if such Benchmark is none of the Term SOFR Rate or Daily Simple SOFR, the time determined by the Administrative Agent in its reasonable discretion.
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“Refunded Swingline Loans”: as defined in Section 2.3(e).
“Register”: as defined in Section 10.6(b)(vi).
“Regulation U”: Regulation U of the Board as in effect from time to time.
“Regulatory Authority” has the meaning assigned to it in Section 10.15.
“Relevant Governmental Body”: the Federal Reserve Board and/or the NYFRB, the CME Term SOFR Administrator, as applicable, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB, or, in each case, any successor thereto.
“Relevant Rate”: (i) with respect to any Term Benchmark Loan, the Adjusted Term SOFR Rate or (ii) with respect to any Daily Simple SOFR Loan, the Adjusted Daily Simple SOFR, as applicable.
“Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043, with respect to a Pension Plan.
“Required Lenders”: at any time, the holders of more than 50% of (a) the Total Commitments then in effect or, (b) if the Commitments have expired or been terminated, for purposes of declaring the Loans to be due and payable pursuant to Section 8, and for all purposes after the Loans become due and payable pursuant to Section 8, the Total Extensions of Credit then outstanding; provided that, in the case of clauses (a) and (b) above, (x) the Extensions of Credit of any Lender that is a Swingline Lender shall be deemed to exclude any amount of its Swingline Exposure in excess of its pro rata share of all outstanding Swingline Loans, adjusted to give effect to reallocation under Section 2.19 of the Swingline Exposures of Defaulting Lenders in effect at such time, and the unfunded portion of such Lender’s Commitment shall be determined on the basis of its Extensions of Credit excluding such excess amount and (y) for the purpose of determining the Required Lenders needed for any waiver, amendment, modification or consent of or under this Agreement or any other Loan Document, any Lender that is the Borrower or an Affiliate of the Borrower shall be disregarded.
“Requirement of Law”: as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Resolution Authority”: an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer”: the chief executive officer, president, chief financial officer or treasurer of the Borrower, but in any event, with respect to financial matters, the chief financial officer of the Borrower.
“Revolving Percentage”: as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the Total Commitments or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Loans then outstanding constitutes of the aggregate principal amount of the Loans then outstanding, provided, that, in the event that the Loans are paid in full prior to the reduction to zero of the Total Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other outstanding Extensions of Credit shall be held by the Lenders on a comparable basis. Notwithstanding the foregoing, Revolving Percentages shall be determined without regard to any Defaulting Lender’s Commitment.
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“S&P”: Standard & Poor’s Ratings Group, a division of S&P Global, Inc.
“Sanctions”: economic or financial sanctions laws, regulations, or trade embargoes imposed, enacted, administered, or enforced from time to time by any Sanctions Authority.
“Sanctions Authority” means the United States Government (including OFAC and the US Department of State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or the Government of Canada (and the related governmental institution Global Affairs Canada (and any other agency of the Canadian government)).
“Sanctioned Country”: at any time, a country or territory which is the subject or target of country-wide or territory-wide Sanctions (including currently, Cuba, Iran, North Korea, the Crimea, the so-called Luhansk People’s Republic, so-called Donetsk People’s Republic, and the non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine).
“Sanctioned Person”: at any time, any Person that is the subject or target of Sanctions, including, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, or the European Union, any EU member state or His Majesty’s Treasury of the United Kingdom or the Government of Canada (and the related governmental institution Global Affairs Canada (and any other agency of the Canadian government)), (b) any Person located, organized or resident in a Sanctioned Country or (c) any Person that is the subject or target of Sanctions by operation of a relationship of ownership or control by any such Person or Persons.
“SEC”: the Securities and Exchange Commission or any successor thereto.
“Secured Indebtedness”: any Indebtedness secured by a Lien.
“Significant Subsidiary”: any Subsidiary that would be a “Significant Subsidiary” of the Borrower within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Signing Date”: as defined in the definition of “Acquisition”.
“SMBC AC”: means SMBC Aviation Capital Limited, a limited company registered in Ireland under company number 270775 with its registered office at Fitzwilliam 28, Fitzwilliam Street Lower, Dublin 2, Ireland, D02 KF20 and any Affiliates thereof.
“SOFR”: a rate equal to the secured overnight financing rate as administered by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator”: the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website”: the Federal Reserve Bank of New York’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date”: has the meaning specified in the definition of “Daily Simple SOFR”.
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“SOFR Rate Day”: has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvent”: (a) the fair value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and (d) the Borrower and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.
“SPC Subsidiary”: a Special Aircraft Financing Entity that has acquired from a Person other than the Borrower or a Subsidiary a single Aircraft Asset and is prohibited by its organizational documents or loan documents or other related financing documents, without extension, replacement, modification or renewal thereof, from incurring Indebtedness, other than the Indebtedness incurred to finance such acquisition.
“Special Aircraft Financing Entity”: (a) any Subsidiary of the Borrower (i) that is a borrower under a lending facility for the purpose of purchasing or financing Aircraft Assets, (ii) that has no Indebtedness other than Indebtedness that is non-recourse to the Borrower and its Subsidiaries (other than (A) such Subsidiary and its Subsidiaries and (B) a limited recourse pledge of the equity of any such Subsidiary) and the payment of such Indebtedness is not guaranteed by or would become the obligation of the Borrower and its Subsidiaries (other than such Subsidiary and its Subsidiaries), and (iii) that engages in no business other than the purchase, finance, lease, sale and management of Aircraft Assets and the ownership of special purpose entities engaged in such purchase, finance, lease, sale and management, and business incidental thereto and (b) any such special purpose entity described in the foregoing clause (a)(iii) that is a Subsidiary of a Special Aircraft Financing Entity; provided that “Special Aircraft Financing Entity” shall include, without limitation, ALC Warehouse.
“Special Purpose Finance Subsidiary” means any Wholly-Owned Subsidiary of the Borrower (i) formed solely for the purpose of incurring Indebtedness the proceeds of which will be used to provide financing to the Borrower or other Subsidiaries of the Borrower that are Guarantors and (ii) which engages in no business or operations (other than activities directly related and limited to the incurrence and servicing of Indebtedness and its maintenance of existence, including without limitation the investment, advance, dividend, distribution or other transfer of such proceeds of such Indebtedness (including without limitation any right to receive repayment from the Borrower or any Guarantor), and the opening of deposit, securities or other accounts) and does not own any assets (including, for the avoidance of doubt, any Subsidiary) (other than proceeds of Indebtedness and any related repayment rights from the Borrower or any Guarantor, any rights it may have under the documents governing such Indebtedness directly related and limited to the incurrence or servicing of such Indebtedness (but, for the avoidance of doubt, not including any operating assets), any deposit, securities or other accounts, and any rights under any Swap Agreement and any proceeds thereof) or have any liabilities (other than the incurrence of Indebtedness, any obligations it may have under the documents governing such Indebtedness directly related and limited to the incurrence or servicing of such Indebtedness, any obligations with respect to any deposit, securities or other accounts, any obligations under any Swap Agreement, and any obligations arising from the maintenance of such Subsidiary’s existence).
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“Specified Indebtedness”: with respect to any Person, any Indebtedness of such Person the outstanding principal amount of which equals at least $100,000,000.
“Specified Representations” means the representations and warranties set forth in Section 4.3(a), Section 4.4 (other than the third sentence thereof), Section 4.5(b), Section 4.11, Section 4.14, Section 4.19(c) and Section 4.20.
“Subordinated Obligation”: any Indebtedness of the Borrower (whether outstanding on the Effective Date or thereafter incurred) that is expressly subordinated or junior in right of payment to the Loans pursuant to a written agreement.
“Subsidiary”: as to any Person, any other Person in which such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient equity or voting interests to enable it or them (as a group) ordinarily, in the absence of contingencies, to elect a majority of the directors (or Persons performing similar functions) of such second Person, and any partnership if more than a 50% interest in the profits or capital thereof is owned by such first Person or one or more of its Subsidiaries or such first Person and one or more of its Subsidiaries (unless such partnership can ordinarily take major business actions without the prior approval of such Person or one or more of its Subsidiaries). Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Sumitomo”: means Sumitomo Corporation, a company incorporated under the laws of Japan, and any affiliates thereof.
“Supported QFC”: as defined in Section 10.18.
“Swap Agreement”: (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including, but without limitation, any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement.
“Swap Termination Value”: in respect of any one or more Swap Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Agreements, (a) for any date on or after the date such Swap Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date of determination prior to the date referenced in clause (a), the amounts(s) determined as the mark to market values(s) for such Swap Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Agreements.
“Swingline Borrowing”: a borrowing of a Swingline Loan.
“Swingline Commitment”: as to any Lender (i) the amount set forth under the heading “Swingline” opposite such Lender’s name on Schedule 1.1A attached hereto or (ii) if such Lender has entered into an Assignment and Assumption or has otherwise assumed a Swingline Commitment after the Effective Date, the amount set forth for such Lender as its Swingline Commitment in the Register maintained by the Administrative Agent pursuant to Section 10.6(b)(vi); provided that the Swingline Commitment shall, at any one time outstanding, not exceed $150,000,000.
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“Swingline Exposure”: at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be the sum of (a) its pro rata share of the aggregate principal amount of all Swingline Loans outstanding at such time (excluding, in the case of any Lender that is a Swingline Lender, Swingline Loans made by it that are outstanding at such time to the extent that the other Lenders shall not have funded their participations in such Swingline Loans), adjusted to give effect to any reallocation under Section 2.19 of the Swingline Exposure of Defaulting Lenders in effect at such time, and (b) in the case of any Lender that is a Swingline Lender, the aggregate principal amount of all Swingline Loans made by such Lender outstanding at such time, less the amount of participations funded by the other Lenders in such Swingline Loans.
“Swingline Lenders”: Sumitomo Mitsui Banking Corporation (or in each case, any of its designated branch offices or affiliates), in its capacity as a lender of Swingline Loans, and any other Lender with a Swingline Commitment.
“Swingline Loan”: a Loan made pursuant to Section 2.3.
“Syndication Agents”: the Syndication Agents identified on the cover page of this Agreement.
“Synthetic Lease”: at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as a non-finance lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Target Indebtedness”: the existing indebtedness of the Acquired Business set forth on Schedule 1.1B hereto.
“Target Debt Consents”: obtaining consents under the Target Indebtedness in order to permit such existing indebtedness to remain outstanding following consummation of the Acquisition.
“Taxes”: all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date”: the third anniversary of the Closing Date, as such date may be extended from time to time with respect to some or all of the Lenders pursuant to Section 2.1(g).
“Term Benchmark”: when used in reference to any Loan or borrowing, refers to whether such Loan, or the Loans comprising such borrowing, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate, other than pursuant to clause (c) of the definition of ABR.
“Term SOFR Determination Day”: has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate”: with respect to any Term Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum equal to the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
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“Term SOFR Reference Rate”: for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five (5) Business Days prior to such Term SOFR Determination Day.
“Term Benchmark Tranche”: the collective reference to Term Benchmark Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“Total Commitments”: at any time, the aggregate amount of the Commitments then in effect.
“Total Extensions of Credit”: at any time, the aggregate amount of the Extensions of Credit of the Lenders outstanding at such time.
“Transferee”: any Assignee or Participant.
“Type”: as to any Loan, its nature as an ABR Loan, Term Benchmark Loan or Daily Simple SOFR Loan.
“UK Financial Institutions”: any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority”: the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement”: the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unused Commitment Fee Rate”: the percentage rate per annum which is applicable at such time as set forth in the Pricing Grid.
“U.S. Government Securities Business Day”: any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
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“U.S. Special Resolution Regimes”: as defined in Section 10.18.
“United States”: the United States of America.
“Unsecured Aircraft Financing Debt”: as defined in Section 7.2(c).
“Unsecured Indebtedness”: Indebtedness as to which the obligor thereunder has not granted a Lien in favor of the holder(s) thereof as collateral security for the repayment of such Indebtedness; provided that for the avoidance of doubt obligations with respect to Capital Leases and obligations with respect to Swap Agreements shall not constitute Unsecured Indebtedness.
“Voting Stock”: Capital Stock of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect the corporate directors (or Persons performing similar functions).
“Wholly-Owned Subsidiary”: at any time, any Subsidiary one hundred percent of all of the equity interests (except directors’ qualifying shares) and voting interests of which are owned by any one or more of the Borrower and the Borrower’s other Wholly-Owned Subsidiaries at such time.
“Withdrawal Liability”: any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV of ERISA.
“Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.
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(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP (provided that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein); provided that if the Borrower elects or is required to report under IFRS, the Borrower or the Required Lenders may request to amend the relevant affected provisions hereof (whether or not the request for such amendment is delivered before or after the relevant change or election) to eliminate the effect of such change or election, as the case may be, on the operation of such provisions and (x) the Borrower and the Administrative Agent shall negotiate in good faith to enter into an amendment of the relevant affected provisions (it being understood that no amendment or similar fee shall be payable to the Administrative Agent or any Lender in connection therewith) to preserve the original intent thereof in light of the applicable change or election, as the case may be and (y) the relevant affected provisions shall be interpreted on the basis of GAAP and the currency, in each case, as in effect and applied immediately prior to the applicable change or election, as the case may be, until the request for amendment has been withdrawn by the Borrower or the Required Lenders, as applicable, or this Agreement has been amended as contemplated hereby, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall, with respect to Indebtedness, be construed to mean incur, create, issue, assume or become liable in respect of (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.
(c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3 Interest Rates. The interest rate on a Loan denominated in Dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.12(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.4 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
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1.5 No Pre-Closing Obligations of Air Lease. Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that in no event shall Air Lease or any of its Subsidiaries be required to enter into, incur any liabilities or obligations under or provide any indemnities pursuant to this Agreement, the Guaranty or any other Loan Document prior to the Closing Date.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Commitments. (a) Subject to the terms and conditions hereof, each Lender severally agrees to make Loans (which, for the avoidance of doubt, shall be denominated in Dollars) to the Borrower from time to time during the Commitment Period in an aggregate principal amount that will not result in the Total Extensions of Credit exceeding the Total Commitments and no Lender will be required to make Extensions of Credit in excess of its Commitment . During the Commitment Period the Borrower may use the Commitments by borrowing, prepaying the Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Loans may from time to time be Term Benchmark Loans (or, in accordance with Section 2.12, Daily Simple SOFR Loans) or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.8. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) [reserved].
(c) [reserved].
(d) [reserved].
(e) [reserved].
(f) The Borrower shall repay all outstanding Loans on the Termination Date (or, in the case of any Swingline Loan, on the earlier of the Termination Date and the date which is the fifth Business Day after such Swingline Loan is made; provided that on each date that a Loan (other than a Swingline Loan) is made, the Borrower shall repay all Swingline Loans then outstanding and the proceeds of such Loan shall be applied by the Administrative Agent to repay any Swingline Loans then outstanding), it being understood and agreed that in the event that the Termination Date is extended pursuant to Section 2.1(g), the Borrower shall only be required to repay the outstanding Loans of each non-extending Lender on the then-scheduled Termination Date (determined without giving effect to such requested extension) (unless the Loans and Commitments of such non-extending Lender are purchased by a replacement financial institution pursuant to Section 2.18 or otherwise assigned hereunder to a Lender which agrees to so extend the Termination Date).
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(g) The Termination Date with respect to the Commitments and the Loans may be extended annually, up to two times after the Closing Date, in the manner set forth in this Section 2.1(g), in each case for a period of one year measured from the latest Termination Date then in effect. If the Borrower wishes to request an extension of the Termination Date, it shall give notice to that effect to the Administrative Agent at any time and from time to time after the first anniversary of the Closing Date and not less than 30 days prior to the latest Termination Date then in effect (provided that the Borrower may not make more than one such request in any one year). The Administrative Agent shall promptly notify each Lender of receipt of such request. Each Lender shall endeavor to respond to such request, whether affirmatively or negatively (such determination in the sole discretion of such Lender), by notice to the Borrower and the Administrative Agent within 10 days of receipt of such request. Subject to the execution by the Borrower, the Administrative Agent and such Lender of a duly completed Extension Agreement, the Termination Date applicable to the Commitment and the Loans of each Lender so affirmatively notifying the Borrower and the Administrative Agent shall be extended for a period of one year, from the latest Termination Date then in effect; provided that (x) no Termination Date of any Lender shall be extended unless Lenders having at least 50% in aggregate amount of the Commitments in effect at the time any such extension is requested shall have elected so to extend their Commitments, (y) on the date of any such extension of the Termination Date, each of the representations and warranties made by any Loan Party in the Loan Documents or any notice or certificate delivered in connection therewith shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality shall be true and correct in all respects) on and as of such date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (provided that any representation or warranty that is qualified by materiality shall be true and correct in all respects) as of such earlier date and (z) no Termination Date of any Lender shall be extended if a Default or Event of Default shall have occurred and be continuing. Any Lender which does not give such notice to the Borrower and the Administrative Agent shall be deemed to have elected not to extend as requested, and the Commitment of each non-extending Lender shall terminate on the then-scheduled Termination Date (determined without giving effect to such requested extension). The Borrower, at its discretion, will have the right at any time pursuant to Section 2.18 to seek a substitute Eligible Assignee for any Lender which does not elect to extend its Commitment.
(h) The provisions of Section 2.1(f) and Section 2.1(g) shall supersede any contrary provisions in Section 2.13, Section 10.1 and Section 10.7 of this Agreement.
2.2 Procedure for Borrowing. The Borrower may borrow under the Commitments during the Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent (and, in the case of a Swingline Loan, to the Swingline Lenders) irrevocable notice (which notice must be received by the Administrative Agent (a) prior to 1:00 P.M., New York City time, three Business Days prior to the requested Borrowing Date, in the case of Term Benchmark Loans or (b) prior to 11:00 A.M., New York City time, one Business Day prior to the requested Borrowing Date, in the case of ABR Loans or (c) at any time, in the case of Swingline Loans, it being understood that if such notice is not delivered at or prior to 3:00 P.M., New York City Time on a given Business Day, the Borrowing Date in respect of such notice shall be the immediately succeeding Business Day, specifying (i) the amount and Type of Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Term Benchmark Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Period therefor. Each borrowing under the Commitments shall be in an amount equal to (w) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Commitments are less than $1,000,000, such lesser amount), (x) in the case of Term Benchmark Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (y) in the case of Swingline Loans, $1,000,000 or a whole multiple in excess thereof. Upon receipt of any such notice delivered under clause (a) or (b) of the first proviso of this Section 2.2 from the Borrower, the Administrative Agent shall promptly notify each applicable Lender thereof, and each applicable Lender will make the amount of its pro rata share of each applicable borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to 3:00 P.M., New York City time, on the Borrowing Date requested by the Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent not later than 3:30 P.M., New York City time on such Borrowing Date crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. Upon receipt of any such notice delivered under clause (c) of the first proviso of this Section 2.2, the Administrative Agent will promptly advise the Swingline Lenders thereof, and each Swingline Lender shall make its ratable portion of the requested Swingline Loan (such ratable portion to be calculated based upon the ratio of such Swingline Lender’s Swingline Commitment to the total Swingline Commitments of all the Swingline Lenders) available to the Borrower by means of a credit to an account of the Borrower with the Administrative Agent designated for such purpose within three full Business Hours following delivery of such notice.
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2.3 Swingline Loans.
(a) Subject to the terms and conditions set forth herein, from time to time during prior to the Termination Date, each Swingline Lender severally agrees to make Swingline Loans to the Borrower in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans made by such Swingline Lender exceeding such Swingline Lender’s Swingline Commitment or (ii) any Lender’s Extensions of Credit exceeding its Commitment; provided that a Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall submit a written notice in accordance with Section 2.2.
(c) The failure of any Swingline Lender to make its ratable portion of a Swingline Loan shall not relieve any other Swingline Lender of its obligation hereunder to make its ratable portion of such Swingline Loan on the date of such Swingline Loan, but no Swingline Lender shall be responsible for the failure of any other Swingline Lender to make the ratable portion of a Swingline Loan to be made by such other Swingline Lender on the date of any Swingline Loan.
(d) Any Swingline Lender may by written notice given to the Administrative Agent require the Lenders to acquire participations in all or a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such notice such Lender’s pro rata share of such Swingline Loans. Each Lender hereby absolutely and unconditionally agrees, promptly upon receipt of such notice from the Administrative Agent (and in any event, if such notice is received by 12:00 noon, New York City time, on a Business Day no later than 5:00 p.m. New York City time on such Business Day and if received after 12:00 noon, New York City time, on a Business Day shall mean no later than 10:00 a.m. New York City time on the immediately succeeding Business Day), to pay to the Administrative Agent, for the account of such Swingline Lenders, such Lender’s pro rata share of such Swingline Loans. Each Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.2 with respect to Loans made by such Lender (and Section 2.2 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to such Swingline Lenders the amounts so received by it from the Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to such Swingline Lenders. Any amounts received by a Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made their payments pursuant to this paragraph and to such Swingline Lenders, as their interests may appear; provided that any such payment so remitted shall be repaid to such Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.
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(e) The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), on one (1) Business Day’s notice given by the Swingline Lender to the Administrative Agent no later than 12:00 Noon, New York City time, request each Lender to make, and each Lender hereby agrees to make, irrespective of the satisfaction of conditions to such Loan specified in Section 5.3, a Loan, in an amount equal to such Lender’s Revolving Percentage of the aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date of such notice, to repay the Swingline Lender. Each Lender shall make the amount of such Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 10:00 A.M., New York City time, one (1) Business Day after the date of such notice. The proceeds of such Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Refunded Swingline Loans.
(f) Any Swingline Lender may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Swingline Lender and the successor Swingline Lender. The Administrative Agent shall notify the Lenders of any such replacement of a Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to Section 2.10(b). From and after the effective date of any such replacement, (x) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to Swingline Loans made thereafter and (y) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as the context shall require. After the replacement of a Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not be required to make additional Swingline Loans.
(g) Subject to the appointment and acceptance of a successor Swingline Lender acceptable to the Borrower, any Swingline Lender may resign as a Swingline Lender at any time upon thirty days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Swingline Lender shall be replaced in accordance with Section 2.3(f) above.
2.4 [Reserved].
2.5 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender (other than with respect to any Defaulting Lender) an unused commitment fee for the period from and after the earlier of the Closing Date and November 30, 2025 to the last day of the Commitment Period (or termination in full of the Commitments), computed at the Unused Commitment Fee Rate on the actual daily amount by which the Commitment of such Lender during the preceding calendar quarter exceeds the actual daily balance of the outstanding principal amount of Loans of such Lender during the preceding calendar quarter of the Borrower, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the date hereof.
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(b) The Borrower agrees to pay to the Administrative Agent and the Arrangers the fees in the amounts and on the dates as set forth in any fee agreements ~~with~~between the Parent and the Administrative Agent and/or the Arrangers (collectively, the “Fee Letter”) and to perform any other obligations contained therein.
2.6 Termination or Reduction of Commitments.
(a) The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, to reduce the amount of the Commitments; provided that no such termination or reduction of Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Loans made on the effective date thereof, the sum of the Total Extensions of Credit would exceed the Total Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall ratably reduce permanently the Commitments then in effect.
(b) If the Closing Date has not occurred on or prior to the Acquisition Termination Date, unless previously terminated, the Commitments shall automatically terminate immediately after the Acquisition Termination Date.
2.7 Optional Prepayments. The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later than 1:00 P.M., New York City time, three Business Days prior thereto, in the case of Term Benchmark Loans, no later than 4:00 P.M., New York City time, one Business Day prior thereto, in the case of ABR Loans (other than Swingline Loans) and no later than 12:00 noon, New York City time, on the date of prepayment, in the case of Swingline Loans; in each case which notice shall specify the date and amount of prepayment and whether the prepayment is of Term Benchmark Loans or ABR Loans (and if of ABR Loans, whether such ABR Loans are Swingline Loans); provided, that if a Term Benchmark Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.16. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Loans that are ABR Loans), accrued interest to such date on the amount prepaid. Partial prepayments of Loans shall be in an aggregate principal amount of $1,000,000 or a whole multiple thereof.
2.8 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Term Benchmark Loans to ABR Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the Business Day preceding the proposed conversion date, provided that any such conversion of Term Benchmark Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Term Benchmark Loans by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M., New York City time, on the third Business Day preceding the proposed conversion date (which notice shall specify the length of the initial Interest Period therefor), provided that no ABR Loan may be converted into a Term Benchmark Loan when any Event of Default has occurred and is continuing and the Administrative Agent or the Required Lenders has determined in its or their sole discretion not to permit such conversions. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
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(b) Any Term Benchmark Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Term Benchmark Loan may be continued as such (A) when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined in its or their sole discretion not to permit such continuations or (B) if an Event of Default specified in clause (i) or (ii) of Section 8(f) with respect to the Borrower is in existence; provided, further, that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.
(c) This Section 2.8(b) shall not apply to Swingline Borrowings, which may not be converted or continued.
2.9 Limitations on Term Benchmark Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and continuations of Term Benchmark Loans and all selections of Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate principal amount of the Term Benchmark Loans comprising each Term Benchmark Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen (15) Benchmark Tranches shall be outstanding at any one time.
2.10 Interest Rates and Payment Dates. (a) Each Term Benchmark Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Adjusted Term SOFR Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan (including each Swingline Loan) shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2% (ii) if all or a portion of any interest payable on any Loan or any unused commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to ABR Loans plus 2%, in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on demand by the Administrative Agent.
2.11 Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Term SOFR Rate and/or Daily Simple SOFR. Any change in the interest rate on a Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate.
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(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.10(a).
2.12 Inability to Determine Interest Rate. (a) Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.12, if:
(i) the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Term SOFR Rate, as applicable (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period or (B) at any time (to the extent then applicable), that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple SOFR or Daily Simple SOFR; or
(ii) the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Loan, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period or (B) at any time (to the extent then applicable), Adjusted Daily Simple SOFR will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new interest election request in accordance with the terms of Section 2.8 or a new borrowing request in accordance with the terms of Section 2.2, (1) any interest election request that requests the conversion of any borrowing to, or continuation of any borrowing as, a Term Benchmark borrowing and any borrowing request that requests a Term Benchmark borrowing shall instead be deemed to be an interest election request or borrowing request, as applicable, for (x) an Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR borrowing if the Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above and (2) if applicable, any borrowing request that requests a Daily Simple SOFR Loan shall instead be deemed to be a borrowing request, as applicable, for an ABR borrowing; provided that if the circumstances giving rise to such notice affect only one Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or Daily Simple SOFR Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.12(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or Daily Simple SOFR Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new interest election request in accordance with the terms of Section 2.8 or a new borrowing request in accordance with the terms of Section 2.2, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not also the subject of Section 2.12(a)(i) or (ii) above or (y) an ABR Loan if the Adjusted Daily Simple SOFR also is the subject of Section 2.12(a)(i) or (ii) above, on such day, and (2) if applicable, any Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
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(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent, in consultation with Borrower, will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.12, including the definitions referenced in this Section 2.12.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Term Benchmark borrowing or if applicable, Daily Simple SOFR Loan of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request for a Term Benchmark borrowing into a request for a borrowing of or conversion to (A) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan or if applicable, Daily Simple SOFR Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or Daily Simple SOFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.12, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, (x) a Daily Simple SOFR Loan so long as the Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR Loan if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (2) if applicable, any Daily Simple SOFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan.
2.13 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder and, except as provided in Section 2.1(f), Section 2.1(g) or Section 2.19, each payment by the Borrower on account of any unused commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Lenders.
(b) Except as otherwise provided in Section 2.1(f), Section 2.1(g) or Section 2.19, each payment (including each prepayment) by the Borrower on account of principal of and interest on the Loans shall be made pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders.
(c) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 4:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders (or solely for the benefit of the non-extending Lenders in the case of non pro-rata payments made pursuant to Section 2.1(f) or Section 2.1(g)), at the Funding Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
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(d) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to 12:00 Noon, New York City time on the date of any payment due to be made by the Borrower hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing in this Section 2.13(e) shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.
(f) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.3(d), 2.3(e), 2.13(d), 2.13(e), 2.15(e)) or 9.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or the Swingline Lenders to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
2.14 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by any Governmental Authority charged with administration thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any such Governmental Authority made subsequent to the date hereof:
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(i) shall subject any Credit Party to any tax of any kind whatsoever (other than (A) Non-Excluded Taxes or Other Taxes covered by Section 2.15 and (B) Taxes described in the first sentence of Section 2.15(a) immediately before the proviso and clauses (w) through (y) of Section 2.15(a)) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit (or, subject to Section 10.6(c), participations therein) by, or any other acquisition of funds by, any office of such Lender that is not otherwise included in the determination of the Term SOFR Rate or Daily Simple SOFR Rate; or
(iii) shall impose on such Lender any other condition affecting its Term Benchmark Loans or Daily Simple SOFR Loans or its obligation to make or maintain Term Benchmark Loans or Daily Simple SOFR Loans;
and the result of any of the foregoing is to increase the cost to such Lender or such other Credit Party, by an amount that such Lender or other Credit Party deems to be material, of making, converting into, continuing or maintaining Term Benchmark Loans or Daily Simple SOFR Loans, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender or such other Credit Party, upon its demand, any additional amounts necessary to compensate such Lender or such other Credit Party for such increased cost or reduced amount receivable. If any Lender or such other Credit Party becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital or liquidity requirements or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital or liquidity requirements (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction.
(c) Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof, shall in each case be deemed to be a change in law, regardless of the date enacted, adopted, issued or implemented.
(d) A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to compensate a Lender pursuant to this Section for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such six-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower pursuant to this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
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2.15 Taxes. (a) All payments made by or on behalf of any Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income (however denominated) Taxes and franchise Taxes (imposed in lieu of net income Taxes) and branch profits Taxes imposed on the Administrative Agent or any Lender by any Governmental Authority in a jurisdiction (or political subdivision thereof) in which the Administrative Agent or Lender is organized, in which its applicable lending office is located, or that are Other Connection Taxes; provided that, if any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender as determined in good faith by the applicable withholding agent, (i) such amounts shall be paid to the relevant Government Authority in accordance with applicable law and (ii) the amounts so payable by the applicable Loan Party to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such withholding or deduction had not been made; provided further, however, that notwithstanding anything in this Agreement to the contrary, the Borrower shall not be required to increase any such amounts payable to any Lender or other recipient with respect to any Non-Excluded Taxes (w) that are attributable to such Lender’s or other recipient’s failure to comply with the requirements of paragraph (e) or (f) of this Section, (x) that are United States withholding Taxes (including United States federal, state and local backup withholding taxes) resulting from any Requirement of Law in effect on the date such Lender becomes a party to this Agreement (or designates a new lending office), except in each case to the extent that, pursuant to this paragraph, additional amounts with respect to such Non-Excluded Taxes were payable either to such Lender’s assignor (if any) at the time of assignment or to such Lender at the time it designated a new lending office or (y) that are imposed by reason of FATCA. The payment of Taxes described in clauses (w) through (y) of this Section 2.15(a) shall not result in any indemnity payment under Section 2.15(c).
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by any Loan Party, as promptly as possible thereafter such Loan Party shall send to the Administrative Agent for its own account or for the account of the relevant Lender, as the case may be, a certified copy of an original official receipt received by such Loan Party showing payment thereof or other evidence of such payment reasonably satisfactory to the Administrative Agent. Subject to Section 2.15(a), if (i) any Loan Party fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or (ii) any Non-Excluded Taxes or Other Taxes are imposed directly upon the Administrative Agent or any Lender (including, in the case of a Lender that is classified as a partnership for U.S. federal income tax purposes, a person treated as a beneficial owner thereof for U.S. federal tax purposes), such Loan Party shall indemnify the Administrative Agent and the Lenders within 10 days after demand therefor, for the full amount of any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure (including Non-Excluded Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) in the case of (i), or any such direct imposition in the case of (ii). In the case of any Lender making a claim under this Section 2.15(c) on behalf of any of its beneficial owners, an indemnity payment under this Section 2.15(c) shall be due only to the extent that such Lender is able to establish that such beneficial owners supplied to the applicable Persons such properly completed and executed documentation necessary to claim any applicable exemption from, or reduction of, such Non-Excluded Taxes or Other Taxes.
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(d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Loan Parties to do so) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.6(c) relating to the maintenance of a Participant Register, in either case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e) Each Lender that is a “United States Person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of U.S. Internal Revenue Service (“IRS”) Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal withholding tax. Each Lender (or Transferee) that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) and that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) (i) two copies of either IRS Form W-8BEN or W-8BEN-E, as applicable, Form W-8IMY (together with any applicable underlying IRS Forms) or Form W-8ECI, as applicable, (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a statement substantially in the form of Exhibit E and the applicable IRS Form W-8BEN or W-8BEN-E, as applicable, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments under this Agreement and the other Loan Documents or (iii) any other form prescribed by the applicable requirements of U.S. federal income tax law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable requirements of law to permit the Borrower and the Administrative Agent to determine the withholding or deduction required to be made. Such forms shall be delivered by each Lender on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation) and from time to time thereafter upon the request of the Borrower or the Administrative Agent. In addition, each Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Lender. Each Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower or the Administrative Agent (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this Section, a Lender shall not be required to deliver any form pursuant to this paragraph that such Lender is not legally able to deliver.
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(f) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s judgment such completion, execution or submission would not materially prejudice the legal or commercial position of such Lender.
(g) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(h) If the Administrative Agent or any Lender determines, in its sole discretion, exercised in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.15, it shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.15 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Lender attributable to such refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that such Loan Party, upon the request of such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender in the event such Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) to any Loan Party or any other Person.
(i) The agreements in this Section 2.15 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
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2.16 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Term Benchmark Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Term Benchmark Loan after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Term Benchmark Loans on a day that is not the last day of an Interest Period with respect thereto. In the case of a Term Benchmark Loan, such indemnification shall be such Lender’s actual losses, but shall not exceed the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, converted or continued, at the Adjusted Term SOFR Rate that would have been applicable for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
2.17 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of Section 2.14 or 2.15 with respect to such Lender, it will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of such event; provided, that such designation is made on terms that, in the sole judgment of such Lender, cause such Lender and its lending offices to suffer no economic, legal or regulatory disadvantage, and provided, further, that nothing in this Section shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.14 or 2.15(a). Each Lender may at its option make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided, for the avoidance of doubt, the Lender shall cause such branch or Affiliate to provide any forms required to be provided pursuant to Section 2.15(e)-(g) as if such branch or Affiliate were the Lender.
2.18 Replacement of Lenders. The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to Section 2.14 or 2.15(a), (b) becomes a Defaulting Lender, (c) does not agree to extend the Termination Date for its Commitments and Loans under Section 2.1(g) and Lenders having at least 50% in aggregate amount of the Commitments in effect at the time any such extension is requested shall have elected so to extend their Commitments or (d) does not consent to any proposed amendment, supplement, modification, consent or waiver of any provision of this Agreement or any other Loan Document that requires the consent of each of the Lenders or each of the Lenders affected thereby (so long as the consent of the Required Lenders has been obtained), with a replacement financial institution; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) if applicable, prior to any such replacement, such Lender shall have taken no action under Section 2.17 so as to eliminate the continued need for payment of amounts owing pursuant to Section 2.14 or 2.15(a), (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 2.16 if any Term Benchmark Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of Section 10.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to Section 2.14 or 2.15(a), as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment need not be a party thereto. Notwithstanding the foregoing, replaced Lenders will not be obliged to take any steps to find a replacement other than to cooperate with the relevant assignment process described above.
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2.19 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.5(a);
(b) the Commitment and Extensions of Credit of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.1); provided that this clause (b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of all Lenders or all affected Lenders;
(c) if any Swingline Exposure exists at the time such Lender becomes a Defaulting Lender then:
(i) all or any part of the Swingline Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Revolving Percentages but only to the extent the sum of all non-Defaulting Lenders’ Extensions of Credit plus such Defaulting Lender’s Swingline Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, within two Business Days following notice by the Administrative Agent prepay such Swingline Exposure; and
(d) so long as such Lender is a Defaulting Lender, no Swingline Lender shall be required to fund any Swingline Loan, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders (and such Defaulting Lender shall not participate therein).
(e) Termination of Defaulting Lenders. The Borrower shall have the right, in its sole discretion, to terminate the Commitment of any Defaulting Lender by giving the Administrative Agent and such Defaulting Lender a written notice setting forth its election and a termination date (an “Early Commitment Termination Date”), which date shall not be earlier than three (3) Business Days after the date on which such notice has been given, except as otherwise agreed by the Administrative Agent and such Defaulting Lender. On the Early Commitment Termination Date, such Defaulting Lender’s Commitment shall terminate and, so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall (i) prepay all of such Defaulting Lender’s outstanding Loans together with interest thereon accrued to such Early Commitment Termination Date, (ii) pay all unused commitment fees accrued to such Early Commitment Termination Date, except as otherwise provided in Section 2.19(a)and (iii) pay all amounts then owing to such Defaulting Lender pursuant to Sections 2.14, 2.15, 2.16 and 10.5 for which demand has been made to the Borrower prior to such Early Commitment Termination Date. Upon termination of such Defaulting Lender’s Commitment in accordance with this Section 2.19(e), such Defaulting Lender shall cease to be a party hereto.
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In the event that the Administrative Agent, the Borrower and the Swingline Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swingline Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Revolving Percentage.
2.20 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent) (an “Illegality Notice”), (a) any obligation of the affected Lenders to make Term Benchmark Loans, and any right of the Borrower to continue SOFR Loans or to convert ABR Loans to Term Benchmark Loans, shall be suspended, and (b) the interest rate on which ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “ABR”, in each case until each affected Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of an Illegality Notice, the Borrower shall, if necessary to avoid such illegality, upon demand from any affected Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Term Benchmark Loans to ABR Loans (the interest rate on which ABR Loans shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to clause (c) of the definition of “ABR”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such Term Benchmark Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such Term Benchmark Loans to such day. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.14.
SECTION 3. [RESERVED].
SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender (i) on the Effective Date (other than with respect to Section 4.1), (ii) on the Closing Date after giving effect to the Acquisition on the Closing Date and (iii) following the Closing Date, at the time of each subsequent extension of credit (solely to the extent required to be true and correct for such extension of credit pursuant to Section 5.3) that:
4.1 Financial Condition. On and after the Closing Date, when delivered, the financial statements described in Section 5.2(c) and the most recent audited financial statements described in Section 6.1(a) delivered pursuant to this Agreement after the Closing Date, fairly present in all material respects the financial condition of the Persons covered thereby on a consolidated basis as of the dates thereof and their results of operations for the periods covered thereby in accordance with GAAP, subject, in the case of the unaudited financial statements, to normal year-end adjustments and the absence of footnotes.
4.2 No Change. Since December 31, 2024 (or, in the event that the representation and warranty contained in this Section 4.2 is made pursuant to Section 2.1(g), since the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), there has been no development or event that has had or could reasonably be expected to have a Material Adverse Effect.
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4.3 Existence; Compliance with Law. Each Loan Party and, to the extent any Subsidiary directly or indirectly owns Aircraft Assets, such Subsidiary (a) is duly organized or duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation (if applicable), (b) has the power and authority to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other organization and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification and the failure to so qualify would reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate (or limited liability or other entity, as appropriate) power and authority to execute, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party has taken all necessary organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of this Agreement. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required by or on behalf of the Borrower or any other Loan Party in connection with the extensions of credit hereunder or with the execution, delivery, or performance by any Loan Party or enforceability against any Loan Party of this Agreement or any of the Loan Documents. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents by the Loan Parties, the borrowings hereunder and the use of the proceeds thereof (a) will not violate any material Requirement of Law applicable to any Group Member, (b) will not violate any Organizational Document of any Group Member or (as of the Effective Date and the Closing Date) any Contractual Obligation of any Group Member with respect to any Indebtedness of any Group Member with an aggregate principal or committed amount in excess of $200,000,000, (c) will not violate, except as could not reasonably be expected to have a Material Adverse Effect, any Contractual Obligation of any Group Member and (d) will not result in, or require, the creation or imposition of any Lien on any Group Member’s properties or revenues. No Requirement of Law, Organizational Document or Contractual Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
4.6 Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against any Group Member or against any of their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. No Group Member is in default under or with respect to any of its Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
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4.8 Ownership of Property. Except as could not reasonably be expected to have a Material Adverse Effect, each Group Member has title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its Aircraft Assets and its other property.
4.9 Intellectual Property. Except as could not reasonably be expected to have a Material Adverse Effect, (i) each Group Member owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted, (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does the Borrower know of any valid basis for any such claim and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
4.10 Taxes. Each Group Member has filed or caused to be filed all federal, state and other material tax returns that, to the knowledge of the Borrower, are required to be filed and has paid or made provision for the payment of all taxes shown to be due and payable on said returns or on any material assessments made against it or any of its property and all other material taxes, fees or other charges imposed on it or any of its property by any Governmental Authority other than (a) any tax the amount or validity of which is currently being contested in good faith by appropriate actions and with respect to which reserves in conformity with generally accepted accounting principles in the United States have been provided on the books of the relevant Group Member, and (b) any tax returns or taxes to the extent that the failure to file such tax returns or pay such taxes could not reasonably be expected to result in a Material Adverse Effect; no material tax Lien has been filed, and, to the knowledge of the Borrower, no material claim is being asserted, with respect to any such material tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock” within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect for any purpose that violates the provisions of the Regulations of the Board or (b) for any purpose that violates the provisions of the Regulations of the Board. No more than 25% of the assets of the Group Members consist of “margin stock” as so defined. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of each Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of the relevant Group Member.
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4.13 ERISA. Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: (i) each Group Member and each of their respective ERISA Affiliates is in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder; (ii) no ERISA Event has occurred or is reasonably expected to occur; and (iii) all amounts required by applicable law with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by any Group Member or any ERISA Affiliate or to which any Group Member or any ERISA Affiliate has an obligation to contribute have been accrued in accordance with Statement of Financial Accounting Standards No. 106. The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic No. 715: Compensation Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of such Pension Plan allocable to such accrued benefits, and the present value of all accumulated benefit obligations under each underfunded Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification Topic No. 715: Compensation Retirement Benefits) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than a material amount the fair market value of the assets of all such underfunded Pension Plans.
4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the Board) that limits its ability to incur or suffer to exist Indebtedness.
4.15 Subsidiaries. As of the Effective Date and the Closing Date, Schedule 4.15 sets forth the name and jurisdiction of incorporation or formation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of Capital Stock owned by any Loan Party; provided that Schedule 4.15 may be updated by written notice from the Borrower to the Administrative Agent after the Effective Date and prior to the Closing Date.
4.16 Use of Proceeds. The proceeds of the Loans shall be used to finance the Acquisition, the working capital needs of the Borrower and its Subsidiaries in the ordinary course of business and for general corporate purposes.
4.17 Environmental Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse Effect: no Group Member has released or disposed of Materials of Environmental Concern at any property or facility owned or operated by any Group Member in a manner that would reasonably be expected to give rise to liability under any applicable Environmental Law, nor to the knowledge of the Borrower are Materials of Environmental Concern present at any property or facility owned or operated by any Group Member or at any other location in conditions that would reasonably be expected to give rise to liability under any applicable Environmental Law.
4.18 Accuracy of Information, etc. No statement or information contained in this Agreement, any other Loan Document, the Confidential Information Memorandum or any other document, certificate or written or formally presented information (other than the financial projections and forward-looking information referred to in the immediately succeeding sentence below and information of a general economic or industry specific nature) furnished by any Loan Party or any of its agents to the Administrative Agent, the Lenders or any of their respective Affiliates, or any of them, for use in connection with the transactions contemplated by this Agreement or the other Loan Documents, when taken as a whole, as of the date such statement or information was so furnished, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained herein or therein not materially misleading in light of the circumstances under which such statements were made (giving effect to all supplements thereto). The financial projections and other forward-looking information contained in the materials referenced above have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time furnished by or on behalf of the Borrower, any Loan Party or any of their respective agents, as the case may be, to the Administrative Agent, the Lenders or any of their respective Affiliates, it being recognized by the Administrative Agent, the Lenders and their respective Affiliates that such projections and forward-looking information are not to be viewed as facts and that actual results during the period or periods covered by any such projections or forward-looking information may differ from the projected results set forth therein, and such differences may be material. As of the Effective Date and the Closing Date, there is no fact known to any Loan Party that could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein, in the other Loan Documents, in the Confidential Information Memorandum or in any other documents, certificates and statements furnished to the Administrative Agent and the Lenders for use in connection with the transactions contemplated hereby and by the other Loan Documents.
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4.19 Anti-Corruption Laws and Sanctions.
(a) Within 120 days of the Closing Date, the Borrower will implement and maintain in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees, and to the knowledge of the Borrower its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects.
(b) None of the Borrower, any Subsidiary thereof, or any of their respective directors, officers, employees, or, to the knowledge of the Borrower, agents, is a Sanctioned Person.
(c) No Loan or use of proceeds will violate the Patriot Act, any Anti-Corruption Laws or applicable Sanctions.
Section 4.19(a)-(c) shall apply other than to the extent that such representation/warranty would result in a violation of Council Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of the European Union) as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, or any similar applicable blocking or anti-boycott law or regulation in the United Kingdom.
4.20 Solvency. As of the Closing Date, after giving effect to the Acquisition and the other transactions contemplated hereby to occur on the Closing Date, the Borrower and its Subsidiaries are, on a consolidated basis, Solvent.
4.21 Service Agreement. As of the Closing Date, SMBC Aviation Capital Limited, as Servicer, and the ~~Borrower~~Parent, Air Lease and certain of their respective subsidiaries, as Service Recipients, has executed and delivered the Servicing Agreement, which is in full force and in effect and is on terms substantially consistent in all material respects with the “Servicing Agreement Term Sheet” provided by the Borrower to the Administrative Agent and the Lenders prior to the date hereof.
4.22 Outbound Investment Rules. Neither the Borrower nor any of its Subsidiaries is a ‘covered foreign person’ as that term is defined in the Outbound Investment Rules as of the date hereof. Neither the Borrower nor any of its Subsidiaries currently engages, or has any present intention to engage in the future, directly or indirectly, in any activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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SECTION 5. CONDITIONS PRECEDENT.
5.1 Conditions to Effectiveness of this Agreement. The effectiveness of this Agreement is subject to the conditions precedent that the Administrative Agent shall have received all of the following, each duly executed, dated a date satisfactory to the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent, each (except for any Note, of which only the original shall be signed) in sufficient number of counterparts to provide one for each Lender:
(a) Credit Agreement. The Administrative Agent shall have received this Agreement executed and delivered by the Administrative Agent, the Borrower and each Person listed on Schedule 1.1A.
(b) Fees. The Lenders and the Administrative Agent shall have received all fees required to be paid, and all reasonable expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel) at least two Business Days prior to the Effective Date.
(c) Organizational Documents; Officer’s Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received (i) certificates of the Borrower, dated the Effective Date, substantially in the form of Exhibit B-1, with appropriate insertions and attachments, including the certificate of incorporation or formation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower, (ii) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (iii) a good standing certificate for the Borrower from its jurisdiction of organization.
(d) Legal Opinions. The Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to the Borrower, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C.
(e) [Reserved].
(f) Patriot Act Information. The Administrative Agent and the Lenders shall have received all documentation and other information about the Loan Parties as is reasonably requested in writing at least ten Business Days prior to the Effective Date by the Administrative Agent or the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act and if the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230, the Borrower shall have delivered to each requesting Lender at least three business days prior to the Effective Date (to the extent request by such Lender at least ten business days prior to the Effective Date) a beneficial ownership certification in relation to the Borrower.
For the purpose of determining compliance with the conditions specified in this Section 5.1, each Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 5.1 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
5.2 Conditions to the Closing Date. The occurrence of the Closing Date and the agreement of each Lender to make any extension of credit to the Borrower requested to be made by it on the Closing Date is subject to the Effective Date having occurred and the satisfaction of the following conditions precedent prior to the Acquisition Termination Date:
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(a) Acquisition. All of the conditions precedent to the consummation of the Acquisition as set forth in the Acquisition Agreement shall have been satisfied or waived in accordance with the terms thereof and hereof, without giving effect to any amendments, modifications, supplements or waivers by the Parent or the Borrower (or any of their respective affiliates) thereto or consents by the Parent or the Borrower (or any of their respective affiliates) thereunder that are materially adverse to the Arrangers or the Lenders in their capacities as such without each Arranger’s prior written consent (not to be unreasonably withheld, conditioned or delayed), provided that the Arrangers shall be deemed to have consented to any amendment, modification, supplement or waiver if they do not object in writing 5 business days after the receipt of notice thereof by the respective personnel of each Arranger that have been designated by each Arranger to the Company for the purpose of receiving such notice (it being understood and agreed that, (a) without prejudice to any of the other conditions set forth in this Section 5.2, any modification, amendment or express waiver or consents by the Parent or the Borrower (or any of their respective affiliates) that results in (i) an increase to the purchase price shall be deemed not to be materially adverse to the Arrangers and the Lenders to the extent (x) such increase to the purchase price does not exceed 10% in the aggregate or (y) such increase to the purchase price is financed with equity issued by the Borrower or (ii) a decrease to the purchase price shall be deemed not to be materially adverse to the Arrangers and the Lenders if such purchase price decrease does not exceed 10% in the aggregate and such decrease shall reduce dollar-for-dollar the commitments under the Bridge Facility) and (b) any adverse modification, amendment or waiver of the provisions of Section 5.01(i) of the Acquisition Agreement or any term as used therein (which, for the avoidance of doubt, shall not include any exercise of Permitted Discretion (as defined in the Acquisition Agreement), the provision (or withholding) of any consent or the making of any determination expressly contemplated therein) shall be deemed to be materially adverse to the Arrangers and the Lenders).
(b) No Company Material Adverse Effect. Since the Signing Date, there shall not have occurred any circumstance, occurrence, effect, change, event or development that has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Signing Date).
(c) Financial Statements. The Arrangers shall have received (a)(i) the audited statements of operations and other comprehensive income/loss of Air Lease for the years ended December 31, 2023 and December 31, 2024, the audited balance sheets of Air Lease as of December 31, 2023 and December 31, 2024 and the audited statements of shareholders’ equity and cash flows of Air Lease for the years ended December 31, 2023 and December 31, 2024 and (ii) such financial statements as of and for any subsequent fiscal year ended at least 60 days before the Closing Date and (b) unaudited balance sheets of Air Lease and the related unaudited statements of operations and other comprehensive income/loss and shareholders’ equity and cash flows of Air Lease as of and for (i) the fiscal quarters ended March 31, 2025 and June 30, 2025 and (ii) each subsequent fiscal quarter (other than the fourth fiscal quarter of any year) ended after the date of Air Lease’s most recent audited financial statements (and the corresponding periods of the prior fiscal year) and at least 40 days before the Closing Date. The Arrangers hereby acknowledge that (x) the public filing by Air Lease with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any of the foregoing financial statements will satisfy the requirements of this paragraph and (y) as of the date hereof, the Arrangers have received the financial statements of Air Lease for the fiscal years ended December 31, 2023 and December 31, 2024 and for the fiscal quarters ended March 31, 2025 and June 30, 2025 (it being understood and agreed that each of the conditions set forth in clauses (a)(i) and (b)(i) of this Section 5.2 (c) has been satisfied as of the date hereof).
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(d) Pro Forma Financial Statements. The Arrangers shall have received unaudited pro forma consolidated balance sheets and the related unaudited pro forma consolidated income statements of the Borrower and its subsidiaries (after giving effect to the Acquisition and the Transactions) for each of (i) the most recent fiscal year of the Borrower for which audited consolidated financial statements are provided pursuant to Section 5.2(c)(a) and (ii) the year-to-date interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited consolidated financial statements of the Borrower provided pursuant to Section 5.2(c)(b) above.
(e) Payment of Fees and Expenses. All costs, fees, expenses (including, without limitation, legal fees and expenses) to the extent invoiced at least two Business Days prior to the Closing Date and the fees contemplated by the Fee Letter payable to each Arranger, the Administrative Agent and the Lenders shall have been paid on or prior to the Closing Date, in each case, to the extent required by the Fee Letter or the Loan Documents to be paid on or prior to the Closing Date.
(f) Organizational Documents; Officer’s Certificates; Certified Certificate of Incorporation; Good Standing Certificates. The Administrative Agent shall have received (i) a certificate of the Borrower, dated the Closing Date, confirming satisfaction of the conditions set forth in Section 5.2(a) and Section 5.2(i), (ii) a solvency certificate of the Borrower dated the Closing Date, substantially in the form of Exhibit B-2 and (iii) with respect to any Guarantor on the Closing Date, (A) certificates of such Guarantor, dated the Closing Date, substantially in the form of Exhibit B-1, with appropriate insertions and attachments, including the certificate of incorporation or formation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party, (B) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of the approving and authorizing the execution, delivery and performance of the Guaranty and the other Loan Documents to which it is a party and the consummation of the Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) a good standing certificate for each such Guarantor from its jurisdiction of organization.
(g) Legal Opinions. ~~The~~If applicable, the Administrative Agent shall have received the executed legal opinion of Davis Polk & Wardwell LLP, counsel to each Guarantor (if any) on the Closing Date, addressed to the Administrative Agent and the Lenders, substantially in the form of Exhibit C.
(h) Borrowing Notice. The Administrative Agent shall have received notice, pursuant to Section 2.2, of the Loans to be drawn on the Closing Date.
(i) Accuracy of Representations/No Default. At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Transaction Representation shall be true and correct (but only to the extent that Parent and ~~MergerSub~~the Borrower have the right to terminate its and their respective obligations to consummate the Acquisition (or otherwise do not have an obligation to close) under the Acquisition Agreement as a result of a failure of such representations in the Acquisition Agreement to be accurate and without liability to them), (ii) the Specified Representations shall be true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect) and (iii) there shall not exist any Event of Default, solely with respect to the Borrower, under Section 8(a) or 8(f) of this Agreement.
(j) Refinancing. (a) the Prior Credit Agreement shall have been repaid in full and all commitments thereunder shall have been terminated and (b) any Target Indebtedness for which Target Debt Consents have not been obtained shall have been repaid in full and all commitments thereunder shall have been terminated.
(k) Guaranty. The Administrative Agent shall have received a Guaranty executed and delivered by ~~(x) Air Lease and (y)~~each Subsidiary (if any) of the Borrower which is required by Section 6.10 to become a Guarantor.
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For the purpose of determining compliance with the conditions specified in this Section 5.2, each Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 5.2 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
5.3 Conditions to Each Extension of Credit After the Closing Date. The agreement of each Lender to make any extension of credit to the Borrower requested to be made by it on any date after the Closing Date is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and warranties made by any Loan Party in the Loan Documents or any notice or certificate delivered in connection therewith (other than the representation and warranty contained in Section 4.2) shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality shall be true and correct in all respects) on and as of such date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (provided that any representation or warranty that is qualified by materiality shall be true and correct in all respects) as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit to the Borrower requested to be made on such date.
(c) Borrowing Notice. Administrative Agent shall have received notice pursuant to Section 2.2 of the Loans to be drawn on any date after the Closing Date, including certification as to compliance with the conditions set forth in clauses (a) and (b) of this Section 5.3.
Each borrowing by the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date of such extension of credit that the conditions contained in this Section 5.3 have been satisfied.
5.4 Limitations on Actions of Administrative Agent and Lenders Between the Effective Date and the Closing Date. During the period from and including the Effective Date and to and including the earlier of the date of termination of the Commitments and the Closing Date, and notwithstanding (a) any failure by the Borrower or any of its Subsidiaries to comply with any of the covenants or other provisions of the Loan Documents, (b) the occurrence of any Default or Event of Default or (c) any provision to the contrary in any Loan Document, neither the Administrative Agent nor any Lender shall be entitled to (i) rescind, terminate or cancel the Loan Documents or any of its Commitments thereunder or exercise any right or remedy under the Loan Documents, to the extent to do so would prevent, limit or delay the making of its Loans under this Agreement, (ii) refuse to participate in making its Loans under this Agreement or (iii) exercise any right of set-off or counterclaim in respect of its Loans under this Agreement to the extent to do so would prevent, limit or delay the making of its Loans under this Agreement; provided that, for the avoidance of doubt, (1) the Closing Date and any extension of credit on the Closing Date shall be subject to the satisfaction of the conditions precedent in Section 5.2 and (2) any extension of credit after the Closing Date shall be subject to the satisfaction of the conditions precedent set forth in Section 5.3. For the avoidance of doubt, (x) the rights and remedies of the Lenders and the Administrative Agent with respect to any condition precedent set forth in Section 5.2 and 5.3 shall not be limited in the event that any such condition precedent is not satisfied and (b) subject to the occurrence of the Closing Date, all of the rights, remedies and entitlements of the Administrative Agent and the Lenders under the Loan Documents shall be available notwithstanding that such rights, remedies or entitlements were not available prior to such time as a result of the foregoing.
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SECTION 6. AFFIRMATIVE COVENANTS.
The Borrower hereby agrees that, so long as the Commitments remain in effect or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, subject to Section 10.14(b), the Borrower shall and shall cause each of its Subsidiaries (only, in the case of Sections 6.1 and 6.2, after the Closing Date) to:
6.1 Financial Statements. Furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, a copy of the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the related audited consolidated statements of income and of cash flows for such year, setting forth in each case in comparative form, the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit by KPMG LLP or other independent certified public accountants of nationally recognized standing;
(b) not later than 60 days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, a copy of the unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited consolidated statements of (x) income for such quarter and for the period from the beginning of such fiscal year to the close of such quarter, and (y) cash flows for the period from the beginning of such fiscal year to the close of such quarter setting forth in each case in comparative form, the figures for the previous year (other than for the first year occurring after the Closing Date), certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments and the absence of footnotes).
All such financial statements shall be prepared in reasonable detail and in accordance with generally accepted accounting principles in the United States applied (except as approved by such accountants or officer, as the case may be, and disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods.
No financial statement required to be delivered pursuant to 6.1(a) or (b) shall be required to include acquisition or purchase accounting adjustments relating to the Acquisition or any acquisition or investment to the extent it is not practicable to include any such adjustments in such financial statement.
Any financial statements furnished pursuant to the foregoing may (i) exclude any comparative or prior period financial statement that the Borrower determines is not comparable, whether by virtue of purchase accounting adjustments made in connection with the Acquisition or otherwise and (ii) in the case of any period that would otherwise straddle the Closing Date, be limited to a period that commences on the Closing Date.
Notwithstanding the foregoing, the obligations referred to in Section 6.1 and 6.2(b) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the applicable financial statements of any Parent Company; provided that to the extent such information relates to a parent of the Borrower, if and so long as such Parent Company (or any subsidiary thereof, other than the Borrower and its Subsidiaries) will have independent assets or operations, such information is accompanied by unaudited summary consolidating information that explains the differences between the information relating to such Parent Company (or any subsidiary thereof, other than the Borrower and its Subsidiaries) and its independent assets or operations, on the one hand, and the information relating to the Borrower and its Subsidiaries on a stand-alone basis, on the other hand.
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In lieu of furnishing the Administrative Agent and each Lender with the items referred to in Sections 6.1(a) and 6.1(b), the Borrower may make available such items on the Borrower’s website www.airleasecorp.com, at www.sec.gov or at such other website as notified to the Administrative Agent and the Lenders, which shall be deemed to have satisfied the requirements of delivery of such items in accordance with this Section 6.1.
6.2 Certificates; Other Information
Furnish to the Administrative Agent and each Lender (or, in the case of clause (e), to the relevant Lender):
(a) concurrently with the delivery of the annual and quarterly financial statements pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) a Compliance Certificate containing all information and calculations necessary for determining compliance by the Borrower with Sections 7.1(a), (b), and (c) as of the last day of the fiscal quarter or fiscal year of the Borrower, as the case may be;
(b) concurrently with the delivery of the annual and quarterly financial statements pursuant to Section 6.1, a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the comparable periods of the previous year;
(c) promptly following receipt thereof, copies of (i) any documents described in Section 101(k) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the relevant Group Member or ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, such Group Member or the ERISA Affiliate shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices promptly after receipt thereof;
(d) within a reasonable period of time, such additional financial and other information (not including reports and other materials to the extent filed with the SEC) as any Lender may from time to time reasonably request; and
(e) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (to the extent applicable).
Nothing in the foregoing or in Section 6.6 will require the Borrower to disclose or permit the inspection of any document or information if the same would (i) contravene applicable law or a binding confidentiality obligation not entered into in contemplation of this paragraph or (ii) compromise attorney-client or any other legal privilege, so long as the Borrower uses commercially reasonable efforts to disclose such information to the maximum extent possible without contravening such law or obligation or without compromising such privilege.
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6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations (including Taxes) of whatever nature, except (a) where the amount or validity thereof is currently being contested in good faith by appropriate actions and reserves in conformity with generally accepted accounting principles in the United States with respect thereto have been provided on the books of the relevant Group Member, or (b) where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.4 Maintenance of Existence; Compliance. (a) Preserve, renew and keep in full force and effect its organizational existence, except as otherwise permitted by Section 7.3, (b) comply with all Requirements of Law except to the extent that failure to comply therewith could not reasonably be expected to have a Material Adverse Effect and (c) within 120 days of the Closing Date, maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
6.5 Maintenance of Property; Insurance. (a) Keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted and (b) maintain with financially sound and reputable insurance companies insurance to the extent and against such risks as is commonly maintained by companies engaged in the same or similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and account in which full, true and correct entries in conformity with generally accepted accounting principles in the United States and all material Requirements of Law shall be made of all dealings and transactions in relation to its business and activities and (b) permit, upon five Business Days’ notice, representatives of the Administrative Agent or any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time but not more than two times per fiscal year.
6.7 Notices. Promptly give notice to the Administrative Agent and each Lender as soon as practicable, but in no event later than five Business Days after the Borrower obtains knowledge of the occurrence of:
(a) any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of any Group Member or (ii) litigation, investigation or proceeding that may exist at any time between any Group Member and any Governmental Authority, that in either case, if not cured or if adversely determined, as the case may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) which could reasonably be expected to have a Material Adverse Effect or (ii) which relates to any Loan Document;
(d) an ERISA Event that could reasonably be expected to have a Material Adverse Effect, as soon as possible and in any event within 30 days after the Borrower knows or has reason to know thereof;
(e) promptly after any Ratings Agency shall have announced a change in the rating established or deemed to have been established for the Index Debt after the Closing Date, written notice of such rating change; and
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(f) any development or event that has had or could reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the relevant Group Member proposes to take with respect thereto.
6.8 Use of Proceeds. The proceeds of the Loans will be used only for the purposes set forth in Section 4.16. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. The Borrower and its Subsidiaries shall not use, and the respective directors, officers, employees and agents of the Borrower and its Subsidiaries shall not, directly or knowingly indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is the target or subject of Sanctions, in each case, in violation of Sanctions, or (C) in any manner that would result in the violation of any Sanctions by any Person (including any Person participating in the Loans, whether as administrative agent, arranger, issuing bank, lender, underwriter, advisor, investor or otherwise).
Section 6.8 shall apply other than to the extent that such covenant would result in a violation of Council Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of the European Union) as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, or any similar applicable blocking or anti-boycott law or regulation in the United Kingdom.
6.9 Accuracy of Information. The Borrower will ensure that all written or formally presented information furnished to the Administrative Agent or the Lenders in connection with this Agreement or any amendment or modification hereof or waiver hereunder, taken as a whole, when furnished, (and, with respect to information presented or furnished regarding Air Lease by the Borrower before the occurrence of the Closing Date, to the knowledge of the Borrower) complies with the representation made in Section 4.18.
6.10 Future Guarantors. The Borrower shall cause each Subsidiary that, on the Closing Date or any time thereafter, guarantees any Specified Indebtedness of the Borrower ~~or Air Lease~~, to execute and deliver to the Administrative Agent a Guaranty; provided that such Subsidiary ~~(other than Air Lease)~~ may be released from its Guaranty at such time as it no longer guarantees any Specified Indebtedness of the Borrower ~~or Air Lease~~.
SECTION 7. NEGATIVE COVENANTS.
The Borrower hereby agrees that so long as the Commitments remain in effect or any Loan or other amount is owing to any Lender or the Administrative Agent hereunder, subject to Section 10.14(b), the Borrower shall not, and shall not permit any of its Subsidiaries (only, in the case of Sections 7.1 and 7.7, after the Closing Date) to, directly or indirectly:
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7.1 Financial Condition Covenants.
(a) Consolidated Shareholders’ Equity. Permit the Consolidated Shareholders’ Equity as at the last day of any fiscal quarter of the Borrower ending after the Closing Date to be less than $2,500,000,000.
(b) Consolidated Unencumbered Assets. Permit the Consolidated Unencumbered Assets as at the last day of any fiscal quarter of the Borrower ending after the Closing Date to be less than 125% of the Consolidated Unsecured Indebtedness as at the last day of such fiscal quarter.
(c) Consolidated Interest Coverage Ratio. As of the end of any fiscal quarter ending after the Closing Date, permit the ratio of (i) Consolidated Adjusted EBITDA for such fiscal quarter together with the three fiscal quarters which immediately precede such fiscal quarter to (ii) Consolidated Interest Expense during such period to be less than 1.50 to 1.00.
7.2 Indebtedness. Permit any Subsidiary to create, issue, incur, assume or become liable in respect of any Unsecured Indebtedness, except:
(a) Indebtedness of any Guarantor;
(b) Indebtedness of a Subsidiary owed to the Borrower or to a Wholly-Owned Subsidiary;
(c) Indebtedness of an SPC Subsidiary incurred to finance the acquisition of a single Aircraft Asset on an unsecured basis (“Unsecured Aircraft Financing Debt”); provided that such Unsecured Aircraft Financing Debt becomes Secured Indebtedness within 90 days of incurrence; provided, further, that, at any one time, no more than three (3) SPC Subsidiaries may have Unsecured Aircraft Financing Debt outstanding;
(d) other Indebtedness in the aggregate for all Subsidiaries of the Borrower under this clause (d) not exceeding $250,000,000 at any time outstanding;
(e) Indebtedness of a Special Purpose Finance Subsidiary, provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(f) Indebtedness under the Loan Documents.
7.3 Fundamental Changes. (a) Other than the Acquisition, enter into any merger or consolidation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or, in a single transaction or in a related series of transactions Dispose of all or substantially all of the property or business of the Borrower and its Subsidiaries, taken as a whole.
(b) Notwithstanding Section 7.3(a), any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Guarantor; (ii) any Guarantor may be merged or consolidated with or into any Subsidiary if after giving effect to such merger or consolidation, the surviving Person is a Guarantor; (iii) any Subsidiary that is not a Guarantor may be merged or consolidated with or into any other Subsidiary; and (iv) any Subsidiary may be merged or consolidated with or into any Person so long as any such transaction referred to in this clause (iv) would not result in the Disposition of all or substantially all of the property or business of the Borrower and its Subsidiaries, taken as a whole; (v) any Subsidiary may Dispose of any or all of its assets to the Borrower or any other Subsidiary (upon voluntary dissolution, winding up or liquidation or otherwise); provided that, if the Subsidiary making such Disposition is a Guarantor, the recipient shall be the Borrower or a Guarantor; and (vi) any Subsidiary that is not a Guarantor may liquidate, wind up or dissolve itself if it has no assets.
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7.4 [Reserved].
7.5 Transactions with Affiliates. Enter into any transaction or group of related transactions that are material in relation to the business, operations, financial condition or properties of the Borrower and its Subsidiaries taken as a whole (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than the Borrower or another Subsidiary or a Joint Venture), except upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary than could reasonably be obtainable in a comparable arm’s length transaction with a Person who is not an Affiliate. The restrictions in this Section shall not apply to (1) any leasing transaction, including, without limitation, a transaction in which an Aircraft Asset is subleased to a customer of the Borrower or any Subsidiary, involving one or more Subsidiaries for the purposes of effecting aircraft registration or tax planning; (2) any amendment to, or replacement of, any agreement with an Affiliate that is in effect on the Closing Date so long as any such amendment or replacement agreement is not more disadvantageous to Lenders, as determined in good faith by the Board of Directors of the Borrower, in any material respect than the original agreement as in effect on the Closing Date; (3) dividends, stock repurchases and investments, so long as no Event of Default would result as a consequence thereof; (4) the issuance of Common Stock or Preferred Stock by the Borrower including in connection with the exercise or conversion of options, warrants, convertible securities or similar rights to acquire or purchase Common Stock or Preferred Stock; (5) [reserved], (6) any directors’ fees, indemnification and similar arrangements, consulting fees, employee salaries, bonuses or employment agreements, compensation or employee benefit arrangements and incentive arrangements with any officer, director or employee of the Borrower or a Subsidiary thereof that are (x) approved in good faith by the Borrower’s Board of Directors, the independent members of the Borrower’s Board of Directors, or the Compensation Committee of the Borrower’s Board of Directors, as applicable, or (y) otherwise customary and reasonable and (7) the Acquisition and the transactions to be entered into in connection therewith.
7.6 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day other than December 31 or change the Borrower’s method of determining fiscal quarters.
7.7 Lines of Business. Engage in any business if, as a result, the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Borrower and its Subsidiaries, taken as a whole, are engaged on the date of this Agreement.
7.8 Outbound Investment Rules. The Borrower will not, and will not permit any of their Subsidiaries to, (a) be or become a “covered foreign person”, as that term is defined in the Outbound Investment Rules as of the date hereof, or (b) engage, directly or indirectly, in any activity that would cause the Administrative Agent or any Lender to be in violation of the Outbound Investment Rules or cause the Administrative Agent or any Lender to be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
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SECTION 8. EVENTS OF DEFAULT.
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest becomes due in accordance with the terms hereof or within five Business Days after demand for any other amount in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other written statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect (or, in the case of any such representation or warranty under this Agreement or any other Loan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) on or as of the date made or deemed made and, if capable of remedy, such default shall continue unremedied for a period of 30 days after notice to the Borrower from the Administrative Agent or the Required Lenders; or
(c) any Loan Party shall default in the observance or performance of any agreement contained in Section 6.4(a) (with respect to the Borrower only), Section 6.7(a), or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and such default shall continue unremedied for a period of 30 days after notice to the Borrower from the Administrative Agent or the Required Lenders; or
(e) any Group Member shall default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness by such Person (or the payment of which is a Guarantee Obligation of such Person), other than Indebtedness owed to any Group Member, Non-Recourse Indebtedness of any Group Member, whether such Indebtedness or Guarantee Obligation now exists, or is created after the Effective Date, which default (i) is caused by a failure to pay principal of, interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such mortgage, indenture or instrument (a “payment default”) or (ii) results in the acceleration of such Indebtedness prior to its stated maturity; and, in each case the outstanding principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $200,000,000 or more; provided further that in connection with any series of Convertible Notes, (x) any conversion of such Indebtedness by a holder thereof into shares of Common Stock, cash or a combination of cash and shares of Common Stock, (y) the rights of holders of such Convertible Notes to convert into shares of Common Stock, cash or a combination of cash and shares of Common Stock and (z) the rights of holders of such Convertible Notes to require any repurchase by the Borrower of such Convertible Notes in cash upon a fundamental change shall not, in itself, constitute an Event of Default under this paragraph (e); or
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(f) (i) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment (that, in the case of such appointments, is not discharged within 60 days) or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall consent to, approve of, or acquiesce in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall generally not, or shall admit in writing its inability to, pay its debts as they become due; or (vi) or the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary shall make a general assignment for the benefit of its creditors; or
(g) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a United States district court to administer any Pension Plan, (iii) the PBGC shall institute proceedings to terminate any Pension Plan(s), or (iv) any Loan Party or any of their respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; and in each case in clauses (i) through (iv) above, such event or condition, together with all other such events or conditions, if any, could, in the judgment of the Required Lenders, reasonably be expected to result in a Material Adverse Effect; or
(h) one or more final judgments or decrees shall be entered against the Borrower or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Borrower and its Subsidiaries), would constitute a Significant Subsidiary involving in the aggregate a liability (excluding amounts covered by indemnities, the terms of which are reasonably satisfactory to the Required Lenders, or covered by insurance as to which the relevant insurance company has not denied coverage) of $200,000,000 or more, which judgments or decrees shall not have been vacated, discharged, stayed or bonded within 60 days after such judgment becomes final; or
(i) any subordination agreement with respect to a Subordinated Obligation shall cease, for any reason, to be in full force and effect, or any Loan Party or any Affiliate of any Loan Party shall so assert in writing; or
(j) except as permitted hereunder or thereunder, this Agreement or the guarantee contained in the Guaranty shall cease, for any reason, to be in full force and effect or any Loan Party or any Affiliate of any Loan Party shall so assert in writing; or
(k) a Change of Control shall occur;
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then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable.
SECTION 9. THE AGENTS.
9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party. The motivations of the Administrative Agent are commercial in nature and not to invest in the general performance or operations of the Borrower.
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9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy or email message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates.
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9.7 Indemnification. The Lenders agree to indemnify each Agent and its officers, directors, employees, Affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements as determined by a court of competent jurisdiction in a final and non-appealable judgment to have resulted from such Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans (including, for the avoidance of doubt, Swingline Loans) made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. Additionally, if the Lender then acting as Administrative Agent is a Defaulting Lender by virtue of clause (d) or (e) of the definition thereof, then Administrative Agent may be removed by the Required Lenders or the Borrower. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respect to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above. After any removed Administrative Agent’s removal or retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 9 and of Section 10.5 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.
9.10 Arrangers and Syndication Agents. Neither the Arrangers nor the Syndication Agents shall have any duties or responsibilities hereunder in their respective capacities as such.
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9.11 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or the Arranger or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender in connection with the Loans, the Commitments or this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
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(c) The Administrative Agent hereby informs the Lenders that it is not undertaking to provide investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that it has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, or the Commitments for an amount less than the amount being paid for an interest in the Loans, or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, unused commitment fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
9.12 Acknowledgments with respect to Payments.
(a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands in writing the return of such Payment (or a portion thereof) within 90 days of transfer, such Lender shall promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 9.12 shall be conclusive, absent manifest error.
(b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon written demand from the Administrative Agent, it shall promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
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(c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment on the Obligations as determined by the Borrower.
(d) Each party’s obligations under this Section 9.12 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
SECTION 10. MISCELLANEOUS.
10.1 Amendments and Waivers. Subject to Section 2.12(b), neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (i) reduce or forgive the principal amount or extend the final scheduled date of maturity of any Loan, or reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or increase the Commitment of any Lender or extend the scheduled date of any payment thereof or extend the expiration date of any Lender’s Commitment, in each case without the written consent of each Lender directly affected thereby; provided, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Commitments shall not be deemed to constitute an increase of the Commitment of any Lender, and that an increase in the available portion of any Commitment of any Lender shall not be deemed to constitute an increase of the Commitment of such Lender; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders or consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents or release all or substantially all of the Guarantors from their obligations under the Guaranty, in each case without the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.13 without the written consent of all Lenders; (v) amend, modify or waive any provision of any Section hereof that expressly requires the consent of all the Lenders without the written consent of all Lenders; (vi) amend, modify or waive any provision of Section 9 or any other provision of any Loan Document that affects the Administrative Agent without the written consent of the Administrative Agent; (vii) [reserved]; and (viii) amend, modify or waive any provision of Section 2.3 or any other provision of any Loan Document that expressly affects the Swingline Lenders without the consent of the Swingline Lenders. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
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Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Extensions of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
10.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered, or three Business Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties hereto:
| Borrower: | ~~Sumisho Air Lease Finance Corporation~~Takeoff Merger Sub Inc. |
|---|---|
| c/o The Corporation Trust Company | |
| Corporation Trust Center | |
| 1209 Orange St | |
| Wilmington, New Castle, Delaware 19801 | |
| Attention: Ichiro Tatara, Makoto Saito and Tomo Maedomari | |
| Email: ichiro.tatara@sumitomocorp.com, makoto-c.saito@sumitomocorp.com and tomo.maedomari@sumitomocorp.com | |
| Telephone: +81 (70) 3887-9939, +81 (70) 8816-5411 and | |
| +81 (80) 9872-7065 | |
| With a copy to, which shall not constitute notice: | |
| Davis Polk & Wardwell LLP | |
| 450 Lexington Avenue | |
| New York, NY 10017 | |
| Attention: Jack Orford | |
| Telephone: (212) 450-3529 | |
| E-mail: jack.orford@davispolk.com | |
| Administrative Agent | |
| (on behalf of the Borrower): | As separately provided to the Borrower. |
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| Administrative Agent | ||
|---|---|---|
| (on behalf of the Lenders): | Sumitomo Mitsui Banking Corporation | |
| Address: 277 Park Avenue | ||
| New York, NY 10172 | ||
| United States | ||
| Attention: Jonathan Malek and Taoheed Agbabiaka | ||
| Email: | SpecializedLoanOpsServicing@smbcgroup.com; | |
| jonathan.malek@smbcgroup.com; | ||
| taoheed.agbabiaka@smbcgroup.com | ||
| Swingline Lenders: | As separately provided to the Borrower. |
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders shall not be effective until received.
Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans and other extensions of credit hereunder.
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10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent, the Arrangers and the Syndication Agents for all their reasonable and documented out of pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including the reasonable and documented fees and disbursements of one firm of counsel to the Administrative Agent and filing and recording fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower prior to the Closing Date (in the case of amounts to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall reasonably deem appropriate (or, prior to the Closing Date, in the manner separately agreed), (b) to pay or reimburse each Lender, each Swingline Lender and the Administrative Agent for all its documented out of pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including the reasonable and documented fees and disbursements of one firm of counsel to all such Persons, one local counsel, as necessary, in each appropriate jurisdiction and, in the case of an actual or perceived conflict of interest where the Person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Person, (c) to pay, indemnify, and hold each Lender, each Swingline Lender and the Administrative Agent harmless from, any and all recording and filing fees that may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, and (d) to pay, indemnify, and hold each Lender, each Swingline Lender, the Administrative Agent, the Arrangers and the Syndication Agents, their respective Affiliates, and their respective officers, directors, employees, agents, and advisors (each, an “Indemnitee”) harmless from and against any and all other liabilities, losses, damages, penalties, claims or expenses incurred with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including any claim, litigation, investigation or proceeding regardless of whether any Indemnitee is a party thereto and whether or not the same are brought by the Borrower, its equity holders, Affiliates or creditors or any other Person, including any of the foregoing relating to the use of proceeds of the Loans and the reasonable and documented fees and disbursements of one firm of counsel to all Indemnities, one local counsel, as necessary, in each appropriate jurisdiction and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for each such affected Indemnitee (all the foregoing in this clause (d), collectively, the “Indemnified Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the extent such Indemnified Liabilities have resulted from (x) the gross negligence, willful misconduct or bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment, (y) the material breach of such Indemnitee’s obligations hereunder or under any other Loan Document as determined by a court of competent jurisdiction in a final and non-appealable judgment or (z) any dispute solely among such Indemnitees (other than any actions (I) against an Indemnitee solely in its capacity in or fulfilling its role as Administrative Agent, Arranger or Syndication Agent or any similar role under this Agreement, unless such actions arise from gross negligence, willful misconduct or bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment or (II) arising out of any act of omission of the Borrower). Without limiting the foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of recovery with respect to all liabilities, losses, damages, claims or expenses incurred under or related to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee, except to the extent resulting from the conduct referred to in clauses (x) or (y) of the preceding sentence. No Indemnitee shall be liable for any damages arising from the unauthorized use by others of information or other materials obtained through electronic, telecommunications or other information transmission systems, except to the extent any such damages arise from the gross negligence or willful misconduct or material breach in bad faith of such Indemnitee as determined by a court of competent jurisdiction in a final and non-appealable judgment. No Indemnitee and none of the Borrower or any of the Borrower’s Affiliates or directors, officers, employees, advisors or agents shall be liable for any indirect, special, exemplary, punitive or consequential damages in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby; provided, this shall in no way relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. All amounts due under this Section 10.5 shall be payable not later than 20 Business Days after written demand therefor. The Borrower shall not be liable for the settlement of any action or proceeding effected without its written consent (which consent shall not be unreasonably withheld or delayed). If any settlement of any action is consummated with the written consent of the Borrower, the Borrower agrees to indemnify and hold harmless each Indemnitee from and against any and all liabilities, losses, damages, claims or expenses by reason of such settlement in accordance with the provisions of this Section 10.5. The Borrower shall not, without the prior written consent of an Indemnitee (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened proceedings in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (a) includes an unconditional release of such Indemnitee in form and substance reasonably satisfactory to such Indemnitee from all liability on claims that are the subject matter of such proceedings and (b) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnitee. Statements payable by the Borrower pursuant to this Section 10.5 shall be submitted to the chief financial officer (Telephone No. (310) 553-0555) (Telecopy No. (310) 553-0999), at the address of the Borrower set forth in Section 10.2, or to such other Person or address as may be hereafter designated by the Borrower in a written notice to the Administrative Agent. The agreements in this Section 10.5 shall survive the termination of this Agreement and the repayment of the Loans and all other amounts payable hereunder. Notwithstanding the foregoing, indemnification for Non-Excluded Taxes and Other Taxes shall be governed by, and be subject to the qualifications and requirements set forth in, Section 2.15.
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10.6 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Swingline Lender that funds Swingline Loans), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).
(b) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons that are Eligible Assignees (each, an “Assignee”), other than a natural person, the Borrower or any Affiliate of the Borrower, all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent of:
(i) the Borrower (such consent not to be unreasonably withheld or delayed), provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender or, if an Event of Default with respect to the Borrower under Section 8(a) or (f) has occurred and is continuing, any other Person; and provided, further, that the Borrower shall be deemed to have consented to any such assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within twenty Business Days after having received notice thereof;
(ii) the Administrative Agent (such consent not to be unreasonably withheld or delayed), provided that no consent of the Administrative Agent shall be required for an assignment to a Lender or an Affiliate of a Lender;
(iii) any Swingline Lender, as applicable (such consent not to be unreasonably withheld or delayed), provided that no consent of any Swingline Lender shall be required for an assignment to a Lender or an Affiliate of a Lender;
Notwithstanding the foregoing or anything to the contrary otherwise contained herein, assignments of the Loans and Commitments among Goldman Sachs, Goldman Sachs Lending Partners LLC, Goldman Sachs International Bank and Goldman Sachs Bank Europe SE shall be permitted without consent of any party hereto.
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(iv) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default with respect to the Borrower under Section 8(a) or (f) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates, if any;
(B) (1) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 (payable by the assigning Lender) and (2) the assigning Lender shall have paid in full any amounts owing by it to the Administrative Agent; and
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate- level information (which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws.
(v) Subject to acceptance and recording thereof pursuant to paragraph (b)(vi) below, from and after the effective date specified in each Assignment and Assumption, the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section; provided, that if such assignment or transfer by a Lender is treated as a sale of a participation, such Lender shall be subject to the requirements of paragraph (c) relating to the Participant Register.
(vi) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall, absent manifest error, be conclusive and the Borrower, the Administrative Agent, the Swingline Lenders and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
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(vii) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Any Lender may, without the consent of the Borrower or the Administrative Agent or the Swingline Lenders, sell participations to one or more banks or other entities other than to a Disqualified Lender (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Swingline Lenders and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject to paragraph (d) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of, and subject to the limitations of, Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender and, to the extent disclosed to them, each Loan Party, shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement notwithstanding notice to the contrary; provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d) A Participant shall not be entitled to receive any greater payment under Section 2.14 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Sections 2.14 or 2.15 unless such Participant agrees, for the benefit of Borrower, to be subject to the provisions of Sections 2.14 and 2.15 as if it were a Lender (it being understood that the documentation required under Sections 2.15(e), (f) and (g) shall, subject to applicable law, be delivered to the participating Lender).
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(e) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto.
(f) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (d) above.
10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement or a court order expressly provides for payments to be allocated to a particular Lender or to the Lenders, if any Lender (a “Benefitted Lender”) shall receive any payment of all or part of the Obligations owing to it (other than in connection with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of the Obligations owing to such other Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the Obligations owing to each such other Lender, or shall provide such other Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without notice to the Borrower, any such notice being expressly waived by the Borrower, to the extent permitted by applicable law, upon any Obligations becoming due and payable by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender, any Affiliate thereof or any of their respective branches or agencies to or for the credit or the account of the Borrower; provided that if any Defaulting Lender shall exercise any such right of setoff, (i) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of this Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Swingline Lenders and the Lenders and (ii) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of set-off. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such application made by such Lender, provided that the failure to give such notice shall not affect the validity of such application.
10.8 Counterparts; Integration; Effectiveness; Electronic Execution. (a) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
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(b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 10.2), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “executed”, “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each Loan Party hereby agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and the Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, agrees that the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and waives any claim against the Administrative Agent or any Lender for any liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any liabilities arising as a result of the failure of the Borrower and/or any Loan Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
10.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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10.10 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER AND ANY CLAIM OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, THAT (I) THE INTERPRETATION OF THE DEFINITION OF “COMPANY MATERIAL ADVERSE EFFECT” (AS DEFINED IN THE ACQUISITION AGREEMENT) AND WHETHER OR NOT A COMPANY MATERIAL ADVERSE EFFECT (AS DEFINED IN THE ACQUISITION AGREEMENT) HAS OCCURRED, (II) THE DETERMINATION OF THE ACCURACY OF ANY ACQUISITION TRANSACTION REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF, THE PARENT AND/OR ~~MERGER SUB~~THE BORROWER HAVE THE RIGHT TO TERMINATE ITS OR THEIR RESPECTIVE OBLIGATION TO CONSUMMATE THE ACQUISITION UNDER THE ACQUISITION AGREEMENT WITHOUT LIABILITY TO THEM AND (III) THE DETERMINATION OF WHETHER THE CONDITIONS TO THE CONSUMMATION OF THE ACQUISITION SET FORTH IN THE ACQUISITION AGREEMENT HAVE BEEN SATISFIED OR WAIVED, IN EACH CASE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS DEFINED IN THE ACQUISITION AGREEMENT) OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY LAW OR RULE THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the courts of the State of New York sitting in the county of New York, the courts of the United States for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and appellate courts from any thereof; provided, that nothing contained herein or in any other Loan Document will prevent any Lender or the Administrative Agent from bringing any action to enforce any award or judgment or exercise any right in any other forum in which jurisdiction can be established;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower at its address set forth in Section 10.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto;
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(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any indirect, special, exemplary, punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby acknowledges and agrees that:
(a) no fiduciary, advisory or agency relationship between the Loan Parties and the Credit Parties is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Credit Parties have advised or are advising the Loan Parties on other matters, and the relationship between the Credit Parties, on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is solely that of creditor and debtor;
(b) the Credit Parties, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their Affiliates on the part of the Credit Parties in respect of the transactions contemplated by this Agreement and the other Loan Documents;
(c) the Loan Parties are capable of evaluating and understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents;
(d) the Loan Parties have been advised that the Credit Parties are engaged in a broad range of transactions that may involve interests that differ from the Loan Parties’ interests and that the Credit Parties have no obligation to disclose such interests and transactions to the Loan Parties;
(e) the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(f) each Credit Party has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their Affiliates or any other Person in respect of the transactions contemplated by this Agreement and the other Loan Documents;
(g) none of the Credit Parties has any obligation to the Loan Parties or their Affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express writing executed and delivered by such Credit Party and the Loan Parties or any such Affiliate; and
(h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Credit Parties or among the Loan Parties and the Credit Parties.
10.14 Releases. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to take any action requested by the Borrower having the effect of releasing any guarantee obligations to the extent necessary to permit consummation of any transaction not prohibited by any Loan Document, that has been consented to in accordance with Section 10.1 or permitted by Section 6.10.
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(b) At such time as the Loans and the other obligations (other than contingent indemnification obligations for which no claim has been made) under the Loan Documents shall have been paid in full, the Commitments have been terminated, all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party under the Loan Documents shall terminate.
10.15 Confidentiality. Each of the Administrative Agent, each Swingline Lender and each Lender agrees to keep confidential all Information (as defined below); provided that nothing herein shall prevent the Administrative Agent, any Swingline Lender or any Lender from disclosing any such information (a) to the Administrative Agent, any other Swingline Lender or any other Lender or any Affiliate thereof, (b) subject to an agreement to comply with the provisions of this Section, to any actual or prospective Transferee, (c) to its employees, directors, agents, attorneys, accountants and other professional advisors or those of any of its Affiliates, (d) upon the request or demand of any Governmental Authority, (e) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in connection with any litigation or similar proceeding, (g) that has been publicly disclosed other than by reason of disclosure by such Administrative Agent or Lender, as applicable, in breach of this Section 10.15, (h) to the National Association of Insurance Commissioners or any similar organization, to the extent required by such organization, or to any nationally recognized rating agency that requires access to information about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender, (i) in the case of the Administrative Agent or any Arranger hereunder, information routinely provided by arrangers to any data service provider, including league table providers, that serve the lending industry, (j) in connection with the exercise of any remedy hereunder or under any other Loan Document, (k) any direct, indirect, actual or prospective counterparty (and its advisor) to any Swap Agreement or other substantially similar transaction related to the Obligations under this Agreement or other transaction under which payments are to be made by reference to the Borrower and its Obligations, this Agreement or payments hereunder, (l) to the extent required by a potential or actual insurer, reinsurer or insurance broker in connection with providing insurance, reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement or (m) if agreed by the Borrower in its sole discretion, to any other Person. “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent, any Swingline Lender or any Lender on a non-confidential basis prior to disclosure by the Borrower; provided that in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 10.15 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents or any Issuing Bank or Lender in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For the avoidance of doubt, nothing in this Section 10.15 shall prohibit any Person from voluntarily disclosing or providing any Information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this Section 10.15 shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
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Each Lender acknowledges that information furnished to it pursuant to this Agreement or the other Loan Documents may include material non-public information concerning the Borrower and its Affiliates and their related parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws.
All information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the other Loan Documents will be syndicate-level information, which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its administrative questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law, including Federal and state securities laws.
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING (WHETHER IN CONTRACT, TORT OR OTHERWISE AND WHETHER AT LAW OR IN EQUITY) RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
10.17 USA Patriot Act. Each Lender hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the names and addresses of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act.
10.18 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
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(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 15.23, the following terms have the following meanings:
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
10.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Solely to the extent that any Lender that is an Affected Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
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(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
10.20 Sustainability. In order for Lenders to comply with their regulatory reporting obligations in relation to sustainability, Lenders may request from the Borrower information on aspects related to sustainability issues related to this Agreement and/or its activity that are necessary to comply with these obligations.
10.21 Consent to Disclosure. The Borrower may provide personal data to DBS Bank (including without limitation personal data of its office holders, employees, shareholders and beneficial owners) in connection with the Borrower establishing and maintaining its relationship with DBS Bank. When providing any personal data to DBS Bank, the Borrower confirms that it is lawfully providing the data for DBS Bank to use and disclose for the purposes of: (aa) providing products or services to the Borrower; (bb) meeting the operational, administrative and risk management requirements of DBS Group; and (cc) complying with any requirement, as DBS Group reasonably deems necessary, under any law or of any court, government authority or regulator.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
~~SUMISHO AIR LEASE FINANCECORPORATION~~TAKEOFF MERGER SUB INC.,
| as the Borrower | |
|---|---|
| By: | |
| Name: | |
| Title: |
[Signature Page toCredit Agreement]
SUMITOMO MITSUI BANKING CORPORATION., as Administrative
| Agent and a Lender | |
|---|---|
| By: | |
| Name: | |
| Title: |
[Signature Page toCredit Agreement]
| [ ] as a Lender | |
|---|---|
| By: | |
| Name: | |
| Title: |
Exhibit B: Increasing Commitment Lenders
Exhibit C-1: New Lenders
Exhibit C-2: New Lender Notice Detail
Schedule 1: Schedule 1.1A — Commitment and Swingline
Schedule 1: Schedule 1.1B — Target Indebtedness
EX-10.5
Exhibit 10.5
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this “Agreement”), made and entered into as of the 8^th^ day of April, 2026, by and between Sumisho Air Lease Corporation Designated Activity Company, an Irish private limited company (Company number 795494) having its registered office at 32 Molesworth Street, Dublin 2, Ireland (the “Company”) and _________ (“Indemnitee”).
W I T N E S S E T H:
WHEREAS, highly competent persons have become more reluctant to serve companies as directors or officers unless they are provided with adequate protection through insurance and/or adequate indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the company.
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will purchase and maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities.
WHEREAS, the Constitution of the Company provides that the Company shall indemnify every director or officer of the Company against all losses or liabilities (including any costs and expenses) which such person may sustain or incur in or about the execution of the duties of his or her office or otherwise in relation thereto, including any liability incurred by the officer in defending any proceedings, whether civil or criminal, in which judgment is given in his or her favor or in which the officer is acquitted or in connection with any application under sections 233 or 234 of the Companies Act 2014 (the “Act”) in which relief is granted to him or her by a court of competent jurisdiction, and no director or officer shall be liable for any loss, damage or misfortune (including any costs and expenses) which may happen to or be incurred by the Company in the execution of the duties of his or her office or in relation thereto. Such indemnification rights set forth therein are not exclusive, and therefore contracts may be entered into between the Company and any director or officer of the Company with respect to indemnification upon substantially similar terms to those contained herein.
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s members and that the Company should act to assure such persons that there will be increased certainty of such protection in the future.
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WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified.
WHEREAS, this Agreement is a supplement to and in furtherance of the Constitution of the Company and any resolutions adopted pursuant thereto and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
WHEREAS, Indemnitee does not regard the protection available under the Company’s Constitution and insurance as adequate in the present circumstances, and may not be willing to serve as a director or officer of the Company and its subsidiaries without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that she or he be so indemnified.
WHEREAS, Indemnitee may have certain rights to indemnification, advancement, and/or insurance provided by one or more direct or indirect equity holders of the Company or their respective affiliates, which Indemnitee and the Company intend to be secondary to the primary obligation of the Company to indemnify Indemnitee, advance Expenses, and pay Liabilities to Indemnitee as provided herein, with the Company’s acknowledgement and agreement to the foregoing being a material condition to Indemnitee’s willingness to serve on the Board.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
(a) As used in this Agreement:
“Change of Control” means any one of the following circumstances occurring after the date hereof: (i) there occurs a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 51% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; (ii) all or substantially all the assets of the Company are sold or disposed of in a transaction or series of related transactions; (iii) the approval by the members of the Company of a complete liquidation of the Company; or (iv) the Continuing Directors cease for any reason to constitute at least a majority of the members of the Board.
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“Continuing Director” means (i) each director on the Board on the date hereof or (ii) any new director whose election or nomination for election by the Company’s members was approved pursuant to the Investors Agreement.
“Corporate Status” means the status of a person who is or was a director, officer, fiduciary or board of directors’ committee member of the Company or of any other Enterprise.
“Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
“Enterprise” means the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, fiduciary or board of directors’ committee member.
“Expenses” means all direct and indirect costs (including attorneys’ fees, retainers, court costs, transcripts, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses) reasonably incurred in connection with (i) prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding or (ii) establishing or enforcing a right to indemnification under this Agreement, the Company’s Constitution, applicable law or otherwise. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. For the avoidance of doubt, Expenses, however, shall not include any Liabilities.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the five years previous to its selection or appointment has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under similar indemnification agreements) or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
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“Investors Agreement” means that certain Sumisho Air Lease Corporation Designated Activity Company Investors Agreement, dated as of April 8, 2026, by and among (i) the Company, (ii) SCIVIRL Capital Designated Activity Company, an Irish private company limited by shares, (iii) SMBC Aviation Capital Limited, a company incorporated with limited liability in Ireland, and (iv) any other person who shall thereafter become a party thereto as an “Investor” as set forth therein.
“Liabilities” means any losses or liabilities, including any judgments, fines, excise taxes and penalties, penalties and amounts paid in settlement, arising out of or in connection with any Proceeding (including all interest, assessments and other charges paid or payable in connection with or in respect of any such judgments, fines, excise taxes and penalties, penalties or amounts paid in settlement).
“Proceeding” means any threatened, pending, commenced, continuing or completed action, derivative action, suit, claim, counterclaim, cross claim, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened, continuing or completed proceeding, whether civil (including intentional and unintentional tort claims), criminal, administrative or investigative, by or before any court, arbitrator, governmental, regulatory or other similar authority, including any appeal therefrom, in any jurisdiction and whether instituted by or on behalf of the Company or any other party, or any inquiry or investigation that Indemnitee in good faith believes might lead to the institution of any such action, suit or other proceeding hereinabove listed in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of any Corporate Status of Indemnitee, or by reason of any action taken (or failure to act) by him or her or of any action (or failure to act) on his or her part while serving in any Corporate Status.
(b) For the purposes of this Agreement:
References to “to the fullest extent permitted by applicable law” shall include, but not be limited to: (i) to the fullest extent permitted by any provision of the Act, or the corresponding provision of any successor statute, and (ii) to the fullest extent authorized or permitted by any amendments to or replacements of the Act adopted after the date of this Agreement that increase the extent to which a company may indemnify its officers and directors.
References to “Company” shall include, in addition to the resulting or surviving company, any constituent company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, or officers, so that if Indemnitee is or was a director or officer of such constituent company or is or was serving at the request of such constituent company as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, then Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving company as Indemnitee would have with respect to such constituent company if its separate existence had continued.
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Reference to “other enterprise” shall include employee benefit plans; references to “fines” shall include any excise tax assessed with respect to any employee benefit plan; references to “serving at the request of the Company” shall include any service as a director or officer of the Company which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner she or he reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
Reference to “including” shall mean “including, without limitation,” regardless of whether the words “without limitation” actually appear.
ARTICLE 2
SERVICES BY INDEMNITEE
Section 2.01*. Services By Indemnitee.* Indemnitee hereby agrees to serve or continue to serve as a director or officer of the Company, pursuant to the terms of the Investors Agreement.
ARTICLE 3
INDEMNIFICATION
Section 3.01*.* (a) Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3.01(a) if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3.01(a), the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses and Liabilities, in each case, actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue, or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
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(b) Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3.01(b) if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3.01(b), the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses and Liabilities, in each case, actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue, or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company will not indemnify Indemnitee for Expenses or Liabilities under this Section 3.01(b) related to any claim, issue, or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, a court of competent jurisdiction in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification. ****
(c) Witness Expenses. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, she or he shall be indemnified against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection therewith.
(d) Expenses as a Party Where Wholly or Partly Successful. Notwithstanding any other provisions of this Agreement, to the fullest extent permitted by applicable law, to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding, but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on his or her behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
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Section 3.02*. Exclusions.* Notwithstanding any provision of this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid, provided, that the foregoing shall not affect the rights of Indemnitee or the Fund Indemnitors set forth in Section 8.02 of this Agreement;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company;
(c) for any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities;
(d) for any Proceeding initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees, agents or other indemnitees, unless (w) the Board authorized the Proceeding (or the relevant part of the Proceeding) prior to its initiation, (x) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law, (y) such payment arises in connection with any mandatory counterclaim or cross claim brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (z) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 6.01(e) of this Agreement; or
(e) if prohibited by applicable law.
ARTICLE 4
ADVANCEMENT OF EXPENSES; DEFENSE OF CLAIMS
Section 4.01*. Advances.* Notwithstanding any provision of this Agreement to the contrary, the Company shall advance to Indemnitee any Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding within thirty (30) days after the receipt by the Company of each statement requesting such advance from time to time, whether prior to or after final disposition of any Proceeding. Advances shall be unsecured and interest free. Advances shall be made without regard to Indemnitee’s ability to repay such amounts and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed.
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Section 4.02*. Repayment of Advances or Other Expenses.* Indemnitee agrees that Indemnitee shall reimburse the Company for all Expenses advanced by the Company pursuant to Section 4.01, in the event and only to the extent that it shall be determined by final judgment or other final adjudication under the provisions of any applicable law (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee is not entitled to be indemnified by the Company for such Expenses. Indemnitee agrees that Indemnitee shall reimburse the Company for such Expenses advanced by the Company pursuant to Section 4.01 that Indemnitee has actually received payment of under any insurance policy or other indemnity provision or from any other third party source to the extent that such payment relates to the same Expenses for which the Company advanced payment.
Section 4.03*. Defense of Claims.* The Company shall be entitled to assume the defense of any Proceeding with counsel consented to by Indemnitee (such consent not to be unreasonably withheld) upon the delivery by the Company to Indemnitee of written notice of the Company’s election to do so. After delivery of such notice, consent to such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees or expenses of counsel subsequently incurred by Indemnitee with respect to such Proceeding; provided that (i) Indemnitee shall have the right to employ separate counsel in respect of any Proceeding at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized in writing by the Company, (B) Indemnitee shall have reasonably concluded upon the advice of counsel that there is a conflict of interest between the Company and Indemnitee in the conduct of the defense of such Proceeding, (C) the Company shall not continue to retain such counsel to defend such Proceeding, or (D) a Change in Control shall have occurred, then in each such case the fees and expenses of Indemnitee’s counsel shall be at the Company’s expense. If the Company assumes the defense of any Proceeding and Indemnitee retains separate counsel, Indemnitee and the Company shall reasonably cooperate with each other and their respective counsel in the investigation related to, and defense of, such Proceeding and shall make available to each other all relevant books, records, documents, files and other information reasonably requested in connection therewith (other than those which are privileged or otherwise protected from disclosure). The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, Liability or limitation on Indemnitee without Indemnitee’s prior written consent, such consent not to be unreasonably withheld. Indemnitee shall not settle any action, claim or Proceeding (in whole or in part) without the Company’s prior written consent, such consent not to be unreasonably withheld. The Company shall not be liable to indemnify Indemnitee for any settlement of any Proceeding (or any part thereof) without the Company’s prior written consent.
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ARTICLE 5
PROCEDURES FOR NOTIFICATION OF AND DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
Section 5.01*. Notification; RequestFor Indemnification.* (a) As soon as reasonably practicable after receipt by Indemnitee of written notice that she or he is a party to or a participant (as a witness or otherwise) in any Proceeding or of any other matter in respect of which Indemnitee intends to seek indemnification for Liabilities or advancement of Expenses hereunder, Indemnitee shall provide to the Company written notice thereof, including, to the extent known, the nature of and the facts underlying the Proceeding. The omission by Indemnitee to so notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise.
(b) To obtain indemnification under this Agreement, Indemnitee shall deliver to the Company a written request for indemnification, including therewith such information as is reasonably available to Indemnitee and reasonably necessary to determine Indemnitee’s entitlement to indemnification hereunder, including all documents received by the Indemnitee in respect of the Proceedings (save for those which are privileged or otherwise protected from disclosure). Such request(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Indemnitee’s entitlement to indemnification shall be determined according to Section 5.02 of this Agreement and applicable law.
Section 5.02*.Determination of Entitlement.* (a) Where there has been a written request by Indemnitee for indemnification pursuant to Section 5.01(b), then as soon as is reasonably practicable (but in any event not later than 60 days) after final disposition of the relevant Proceeding, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case: (i) if a Change of Control shall not have occurred, (A) by a majority vote of the Disinterested Directors, even though this would represent less than a quorum of the Board, (B) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though this would represent less than a quorum of the Board, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall have occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within thirty (30) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to make such determination. Any costs or expenses (including attorneys’ fees and disbursements) actually and reasonably incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification).
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(b) If entitlement to indemnification is to be determined by Independent Counsel pursuant to Section 5.02(a)(ii), such Independent Counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. If entitlement to indemnification is to be determined by Independent Counsel pursuant to Section 5.02(a)(i)(C) (or if Indemnitee requests that such selection be made by the Board), such Independent Counsel shall be selected by the Company in which case the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within 10 days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 1 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within 20 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 5.01(b) hereof and the final disposition of the Proceeding, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 5.02(a) hereof. Upon the due commencement of any judicial proceeding pursuant to Section 6.01(a) of this Agreement, the Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(c) The Company agrees to pay the reasonable fees and expenses of any Independent Counsel serving under this Agreement.
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Section 5.03*. Presumptions and Burdens of Proof; Effect of Certain Proceedings.*(a) In making any determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 5.01(b) of this Agreement, and the Company shall, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of any person, persons or entity to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by any person, persons or entity that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under Section 5.02 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within the sixty (60) day period referred to in Section 5.02(a), the requisite determination of entitlement to indemnification shall, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which she or he reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is in good faith reliance on the records or books of account of any Enterprise, including financial statements, or on information supplied to Indemnitee by the officers of such Enterprise in the course of their duties, or on the advice of legal counsel for such Enterprise or on information or records given or reports made to such Enterprise by an independent certified public accountant or by an appraiser or other expert selected by such Enterprise. The provisions of this Section 5.03(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
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(e) The knowledge and/or actions, or failure to act, of any other director, fiduciary or officer of any Enterprise shall not be imputed to Indemnitee for purposes of determining any right to indemnification under this Agreement.
ARTICLE 6
REMEDIES OF INDEMNITEE
Section 6.01. Adjudication. (a) In the event of any dispute between Indemnitee and the Company hereunder as to entitlement to indemnification or advancement of Expenses (including where (i) a determination is made pursuant to Section 5.02 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 4.01 of this Agreement, (iii) payment of indemnification pursuant to Section 3.01 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, (iv) no determination as to entitlement to indemnification is timely made pursuant to Section 5.02 of this Agreement and no payment of indemnification is made within ten (10) days after entitlement is deemed to have been determined pursuant to Section 5.03(b)) or (v) a contribution payment is not made in a timely manner pursuant to Section 8.04 of this Agreement, then Indemnitee shall be entitled to an adjudication by a court of his or her entitlement to such indemnification, contribution or advancement. Indemnitee shall commence such proceeding seeking an adjudication within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 6.01(a). The Company shall not oppose Indemnitee’s right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 5.02(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 6.01 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding commenced pursuant to this Section 6.01 the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 5.02(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding pursuant to this Section 6.01, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 4.02 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).
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(c) If a determination shall have been made pursuant to Section 5.02(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 6.01, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 6.01 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within thirty (30) days after the Company’s receipt of such written request) advance such Expenses to Indemnitee, which are reasonably incurred by Indemnitee in connection with any judicial proceeding brought by Indemnitee for (i) indemnification or advances of Expenses by the Company (or otherwise for the enforcement, interpretation or defense of his or her rights) under this Agreement or any other agreement, including any other indemnification, contribution or advancement agreement, or any provision of the Company’s Constitution now or hereafter in effect or (ii) recovery or advances under any directors’ and officers’ liability insurance policy maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, contribution, advancement or insurance recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding, including any appeal therein.
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ARTICLE 7
DIRECTORS’ AND OFFICERS’ LIABILITY INSURANCE
Section 7.01*. D&O Liability Insurance.* The Company shall obtain and maintain a policy or policies of insurance (“D&O Liability Insurance”) with reputable insurance companies providing liability insurance for directors and officers of the Company in their capacities as such (and for any capacity in which any director or officer of the Company serves any other Enterprise at the request of the Company), in respect of acts or omissions occurring while serving in such capacity, in such amounts and with such limits as reasonably determined by the Board. The Company shall use reasonable best efforts to (i) not take any action, or fail to take any action, that would reasonably be expected to result in the cancellation or material impairment of the coverage provided by such D&O Liability Insurance and (ii) promptly notify the applicable insurer of any claim or circumstances that may give rise to a claim under such D&O Liability Insurance. Nothing in this Agreement modifies or limits any obligation on the Indemnitee under the terms of any applicable D&O Liability Insurance maintained by the Company from time to time. Furthermore, the terms of this Agreement shall not negate any obligation that the Indemnitee might have to assist the Company in complying with any obligations it may have under the terms of the D&O Liability Insurance and the Indemnitee shall not take, or fail to take, any action which may prejudice the ability of the Company to recover under any D&O Liability Insurance.
Section 7.02*. Evidence of Coverage.* The Company shall provide copies of all policies of D&O Liability Insurance obtained and maintained in accordance with Section 7.01 of this Agreement. The Company shall promptly notify Indemnitee of any cancellation, non-renewal, reduction or other changes in such insurance coverage.
Section *7.*03. Taxable Benefit. If any payment made pursuant to this Agreement, including the payment of insurance premiums or any payment made by an insurer under any D&O Liability Insurance, is deemed to constitute a taxable benefit to, or otherwise be subject to any federal, state, local or other tax imposed on, Indemnitee, the Company shall pay any additional amount as may be necessary to ensure that the net amount received by or on behalf of Indemnitee, after the payment of or withholding for such taxes, equals the amount that Indemnitee would have received had no such tax been imposed.
ARTICLE 8
MISCELLANEOUS
Section 8.01*.* Nonexclusivity of Rights. The rights of indemnification, contribution and advancement of Expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled to under applicable law, the Company’s Constitution, any agreement, a vote of members or a resolution of directors, or otherwise. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
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Section 8.02*. Indemnitor of First Resort*. The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses, and/or insurance provided by one or more direct or indirect equity holders of the Company (or any affiliate thereof, other than the Company) (collectively, the “Fund Indemnitors”). To the extent Indemnitee has such rights, the Company hereby agrees (i) that it is the indemnitor of first resort (i.e., its obligations to Indemnitee are primary) for Expenses or Liabilities incurred by Indemnitee hereunder and any obligation of the Fund Indemnitors or their insurers to provide indemnification, advancement, or insurance coverage for the same Expenses or Liabilities incurred by Indemnitee hereunder is secondary, (ii) the Company shall be required to advance the full amount of Expenses incurred by Indemnitee hereunder and shall be liable for the full amount of such Expenses and Liabilities to the extent legally permitted and as required by the terms of this Agreement, without regard to any rights Indemnitee may have against the Fund Indemnitors, and (iii) the Company irrevocably waives, relinquishes and releases the Fund Indemnitors from any and all claims against such Fund Indemnitors for contribution, subrogation or any other recovery of any kind in respect of any such payments made by the Company hereunder. To the extent that any Fund Indemnitor or its insurer pays or causes to be paid any amounts otherwise indemnifiable hereunder, then (A) such Fund Indemnitor shall be fully subrogated to all rights of Indemnitee with respect to such payment, and (B) the Company shall fully indemnify, reimburse, and hold harmless such Fund Indemnitor for all such amounts actually made by such Fund Indemnitor. The Company and Indemnitee agree that the Fund Indemnitors are express third-party beneficiaries of this Section 8.02.
Section 8.03 Insurance and Subrogation. (a) Indemnitee shall be covered by the Company’s D&O Liability Insurance in accordance with its or their terms to the maximum extent of the coverage available for any director or officer under such policy or policies. If, at the time the Company receives notice of a claim hereunder, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. The failure or refusal of any such insurer to pay any such amount shall not affect or impair the obligations of the Company under this Agreement.
(b) Except as provided in Section 8.02, in the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee (other than against the Fund Indemnitors), who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
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(c) Except as provided in Section 8.02, the Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has actually received such payment under any insurance policy or other indemnity provision or any other third party source. In the event that such payment has been made by the Company, and Indemnitee receives payment from any such source with respect to the same amounts, Indemnitee shall reimburse the Company to the extent of such payment.
Section 8.04. Other Indemnification. The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, fiduciary or board of directors’ committee member of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise.
Section 8.05*. Contribution.* To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such Proceeding; and/or (ii) the relative fault of the Company (and its directors and officers) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 8.06*.Amendment.* (a) This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the parties hereto. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit, restrict or reduce any right of Indemnitee under this Agreement in respect of any act or omission, or any event occurring, prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision permits greater indemnification, contribution or advancement of Expenses than would be afforded currently under the Company’s Constitution and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change.
(b) Notwithstanding any other term of this Agreement, the terms of this Agreement shall have effect to the fullest extent permitted by Irish law, but shall not extend to any matter which would render them void pursuant to Irish law (including, without limitation, the provisions of section 235 of the Companies Act 2014 of Ireland, as amended), provided however, that, to the extent Irish law changes after the date of this Agreement so that the Company may, under such law, at the applicable time, indemnify the Indemnitee to an extent greater than provided under current Irish law, this Agreement should have effect to the fullest extent permitted by Irish law at the applicable time.
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Section 8.07*. Waivers.* The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term only in writing signed by the party against which such waiver is to be asserted. Unless otherwise expressly provided herein, no delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Section 8.08*. Entire Agreement.* This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto with respect to the matters covered hereby, and any other prior or contemporaneous oral or written understandings or agreements with respect to the matters covered hereby are superseded by this Agreement, provided that this Agreement is a supplement to and in furtherance of the Constitution of the Company and applicable law, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 8.09*. Severability.* If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
Section 8.10*. Notices.* All notices, requests, demands and other communications under this Agreement shall be in writing (which may be email or other electronic transmission including PDFs). All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. The address for notice to a party is as shown on the signature page of this Agreement, or such other address as any party shall have given by written notice to the other party as provided above.
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Section 8.11*. Binding Effect.* (a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company and its subsidiaries, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director or officer of the Company and its subsidiaries.
(b) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and executors, administrators, personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all or substantially all, or a substantial part of the business or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the manner and to the same extent that the Company would be required to perform if no such succession had taken place.
(c) The indemnification, contribution and advancement of Expenses provided by, or granted pursuant to this Agreement shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors, administrators, legatees and assigns of such a person.
Section 8.12*. Governing Law.* This Agreement, any non-contractual disputes arising from this Agreement, and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of Ireland, without regard to its conflict of laws rules.
Section 8.13*. Consent To Jurisdiction.* The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the courts of Ireland, and not in any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the courts of Ireland for purposes of any action or proceeding, or the settlement of any disputes or claims (including non-contractual disputes or claims), arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the courts of Ireland, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the courts of Ireland has been brought in an improper or inconvenient forum.
Section 8.14*. Headings.* The Article and Section headings in this Agreement are for convenience of reference only, and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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Section 8.15*. Counterparts.* This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form.
Section 8.16*. Use of Certain Terms.* As used in this Agreement, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular paragraph, subparagraph, section, subsection, or other subdivision. Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered to be effective as of the date first above written.
| SUMISHO AIR LEASE CORPORATION DESIGNATED ACTIVITY COMPANY | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| Address: | |
| --- | |
| E-Mail: | |
| Attention: | |
| With a copy to: | |
| Address: | |
| E-Mail: | |
| Attention: | |
| [NAME OF INDEMNITEE] | |
| --- | |
| Address: | |
| E-Mail: | |
| With a copy to: | |
| Address: | |
| E-Mail: | |
| Attention: |
[Signature Page to theIndemnification Agreement – Parent]