Allegiant Travel CO 8-K, filed Jun 29, 2026
Allegiant Travel CO (ALGT)
8-K
2026-06-29
For: 2026-06-23
View Original
Added on
June 30, 2026
About this 8-K
Allegiant Travel CO filed this 8-K on June 29, 2026, reporting on events of June 23, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
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
Securities Exchange Act of 1934
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (702 ) 851-7300
N/A
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as in Rule 405 of the Securities Act of 1933 (Section 230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (Section 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01. |
Entry into a Material Definitive Agreement.
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Issuance of Senior Secured Notes due 2031
On June 24, 2026, Allegiant Travel Company (the “Company”) issued $650.0 million in aggregate principal amount of its 7.125% Senior Secured Notes due 2031 (the
“Notes”) pursuant to an Indenture, dated as of June 24, 2026 (the “Indenture”), among the Company, the Guarantors (as defined below) and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”) and collateral agent (the
“Collateral Agent”). The Notes are guaranteed (the “Note Guarantees”) by certain subsidiaries of the Company party to the Indenture as guarantors (the “Guarantors”).
The Notes bear interest at a rate of 7.125% per annum, payable in cash on January 1 and July 1 of each year, beginning on January 1, 2027. The Notes will mature on
July 1, 2031.
The Notes and Note Guarantees are secured by first priority security interests in, subject to permitted liens, substantially all of the property and assets of the
Company and the Guarantors, excluding aircraft, aircraft engines, real property and certain other assets (the “Collateral”). The Collateral also secures the Company’s currently undrawn $150.0 million Revolving Credit and Guaranty Agreement dated as
of August 17, 2022, as amended (the “Credit Agreement”).
The Company used a portion of the net proceeds from the sale of the Notes to purchase $377,534,000 aggregate principal amount of the Company’s 7.25% Senior Secured
Notes due 2027 (the “Existing Notes”) that were tendered pursuant to the Company’s Tender Offer (as defined in Item 8.01 of this Current Report on Form 8-K), and all interest, costs, fees, expenses and other amounts due and payable in respect
thereof. $25,465,000 aggregate principal amount of the Existing Notes remain outstanding and the Company expects to redeem such remaining Existing Notes in third quarter 2026. The Company will use the balance of the net proceeds of the Notes for
general corporate purposes.
The Notes are the Company’s senior secured obligations, ranking equally in right of payment with all of its existing and future senior indebtedness and senior to its
existing and future subordinated indebtedness. The Notes will be effectively senior to the Company’s existing and future unsecured indebtedness to the extent of the Company’s property and assets securing the Notes. Each Note Guarantee is such
Guarantor’s senior secured obligations, ranking equally in right of payment with all of its existing and future senior indebtedness and senior to its existing and future subordinated indebtedness. Each Note Guarantee is effectively senior to the
applicable Guarantor’s existing and future unsecured indebtedness to the extent of the Guarantor’s property and assets securing the Guarantee. The Notes and the Note Guarantees will be structurally subordinated to the existing and future
indebtedness of the Company’s non-guarantor subsidiaries.
Prior to July 1, 2028, the Company may redeem some or all of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed plus a
“make-whole” premium (as defined in the Indenture), together with any accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date. Prior to July 1, 2028, the Company may on any one or more occasions
redeem up to 10% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of additional notes) per year at a redemption price equal to 103% of the principal amount of the Notes, plus any accrued and
unpaid interest thereon to, but excluding, the redemption date. In addition, prior to July 1, 2028, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of the Notes with the net cash proceeds of certain
equity offerings at a redemption price set forth in the Indenture, plus any accrued and unpaid interest thereon to, but excluding, the redemption date, provided that at least 60% of the original aggregate principal amount of the Notes (calculated
after giving effect to any issuance of additional notes) remains outstanding. On and after July 1, 2028, the Company may redeem all or part of the Notes at the redemption prices set forth in the Indenture, plus any accrued and unpaid interest
thereon to, but excluding, the redemption date.
Upon the occurrence of certain changes in control of the Company described in the Indenture, the Company will be required to offer to repurchase all of the Notes at a
purchase price in cash equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest thereon to the date of purchase.
In addition, upon the occurrence of certain asset sales or recovery events described in the Indenture, if the Company has not used the net proceeds therefrom to prepay
certain permitted debt or reinvest in assets as prescribed by the Indenture within the time periods set forth therein, the Company will be required to offer to repurchase the maximum aggregate principal amount of the Notes and other First Lien Debt
(as defined in the Indenture) that may be purchased with the excess proceeds of such asset sales or recovery events at a repurchase price in cash equal to 100% of the principal amount of the Notes and any such other First Lien Debt, plus accrued
and unpaid interest thereon to the date of purchase.
The Indenture contains certain covenants that limit the ability of the Company and the Guarantors to, among other things: (i) make restricted payments; (ii) incur
indebtedness or issue preferred stock; (iii) create or incur certain liens; (iv) dispose of loyalty programs or brand intellectual property collateral; (v) merge, consolidate or sell all or substantially all assets and (vi) enter into certain
transactions with affiliates.
The Indenture also requires the Company to comply with certain affirmative covenants, including to deliver a quarterly compliance certificate to the Trustee
demonstrating that the Company is in compliance with its covenant under the Indenture that, at the end of each calendar quarter, it will maintain a minimum aggregate amount of liquidity of $300.0 million. If the Company fails to deliver such
quarterly compliance certificate within the prescribed time period or the certificate demonstrates that such liquidity is less than $300.0 million, then the Company will be required to pay additional interest on all outstanding Notes in an amount
equal to 2.0% per annum of the principal amount of such Notes until the Company delivers to the Trustee an officer’s certificate demonstrating compliance with the aforementioned minimum aggregate liquidity requirement. In addition, the Company is
required to comply with certain specified financial reporting requirements and to maintain the Collateral.
Subject to certain materiality thresholds, qualifications, exceptions, “baskets” and grace and cure periods, the Indenture also includes certain customary events of
default, including payment defaults, covenant defaults, a cross default to indebtedness under the Credit Agreement and bankruptcy events. Upon the occurrence of an event of default other than bankruptcy events of default, the Trustee or the
holders of at least 25% in principal amount of the Notes then outstanding may declare the principal amount of and premium, if any, on the Notes and any accrued and unpaid interest on the Notes to be due and payable immediately. Upon the occurrence
of bankruptcy events of default, the principal amount of and premium, if any, on the Notes and any accrued and unpaid interest on the Notes will automatically be due and payable immediately.
If the Notes are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any event of default, the amount that shall then be due
and payable by the Company shall be equal to: (x) 100% of the principal amount of the Notes then outstanding plus a “make-whole” premium in effect on the date of such acceleration to be calculated as described in the Indenture, plus (y) accrued and
unpaid interest to the date of such acceleration.
The foregoing summary of the Indenture and the Notes is not complete and is qualified in its entirety by reference to the full and complete text of the Indenture and
the Notes, copies of which are attached as Exhibits 4.1 and 4.2 to this Current Report on Form 8-K and incorporated herein by reference. A copy of the press release announcing the issuance of the Notes is attached as Exhibit 99.2 to this Current
Report on Form 8-K and incorporated herein by reference.
Amendment to Existing Notes Indenture
After obtaining consent of holders of a majority of the outstanding Existing Notes, the Company, the subsidiary guarantors of the Company party thereto and Wilmington
Trust, National Association, as trustee, entered into a First Supplemental Indenture on June 24, 2026 (the “First Supplemental Indenture”) to amend the indenture that governs the Existing Notes (the “Existing Notes Indenture”).
The First Supplemental Indenture amends the Existing Notes Indenture by eliminating certain restrictive covenants and certain events of default applicable to the
Existing Notes, reducing the minimum notice period required for redemptions of the Existing Notes from 30 days to 3 business days and amending certain other provisions applicable to the Existing Notes.
The First Supplemental Indenture became effective upon its execution and delivery by the Company and the other parties thereto, and the amendments effected thereby
became operative upon the Company’s purchase of a majority of the aggregate principal amount outstanding of the Existing Notes as described under Item 8.01 of this Current Report on Form 8-K.
The First Supplemental Indenture is filed as Exhibit 4.3 to this Current Report on Form 8-K and is incorporated by reference herein.
Amendment to Credit Agreement
On June 25, 2026, the Company entered into an amendment to the Credit Agreement (“Amendment No. 2”). The amendment, among other things, amended certain covenants and
related provisions contained in the Credit Agreement to conform such provisions to the corresponding covenants and related provisions contained in the Indenture governing the Notes. The Credit Agreement remains undrawn at this time.
The foregoing summary of Amendment No. 2 is not complete and is qualified in its entirety by reference to the full and complete text of the Credit Agreement, as
amended. A copy of Amendment No. 2 is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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The information included in Item 1.01 of this Current Report on Form 8-K under the headings “Issuance of Senior Secured Notes due 2031” is incorporated by reference
into this Item 2.03.
| Item 8.01 |
Other Events.
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On June 23, 2026, the Company received for purchase $377,534,000 aggregate principal amount of its outstanding Existing Notes validly tendered (and not validly
withdrawn) by 5:00 p.m., New York City time, on June 23, 2026 (the “Early Tender Deadline”), and received consents from holders of a majority (93.68%) of the aggregate principal amount of the Existing Notes outstanding as of the Early Tender
Deadline pursuant to the Company’s tender offer (the “Tender Offer”) to purchase for cash any and all of its outstanding $403,009,000 remaining aggregate principal amount of Existing Notes and solicitation of consents to propose amendments to the
Existing Notes Indenture. A copy of the press release announcing the early tender results is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
On June 24, 2026, the Company purchased $377,534,000 aggregate principal amount of its outstanding Existing Notes validly tendered (and not validly withdrawn) by the
Early Tender Deadline, pursuant to the Tender Offer. $25,465,000 aggregate principal amount of the Existing Notes remain outstanding and the Company expects to redeem such remaining Existing Notes in third quarter 2026.
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities and shall not constitute an offer to sell or
solicitation of an offer to buy, or a sale of any securities in any jurisdiction in contravention of applicable law.
| Item 9.01 |
Financial Statements and Exhibits
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(d) Exhibits.
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Exhibit No.
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Description of Document
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Indenture, dated as of June 24, 2026, by and among Allegiant Travel Company, the guarantors party thereto and Wilmington Trust, National Association, as trustee and collateral
agent, governing the 7.125% Senior Secured Notes due 2031.
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Form of 7.125% Senior Secured Notes due 2031 (incorporated by reference to Exhibit A to Exhibit 4.1 filed herewith).
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First Supplemental Indenture, dated as of June 24, 2026, by and among Allegiant Travel Company, the guarantors party thereto and Wilmington Trust, National Association, as
trustee and collateral agent, governing the 7.250% Senior Secured Notes due 2027.
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Amendment No. 2 dated as of June 25, 2026 to Revolving Credit and Guaranty Agreement dated as of August 17, 2022, by and among Allegiant Travel Company, the guarantors party
thereto, Barclays Bank PLC and Deutsche Bank AG New York Branch, as lenders and Barclays Bank PLC, as administrative agent.
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Press Release of Allegiant Travel Company, issued on June 23, 2026.
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Press Release of Allegiant Travel Company, issued on June 24, 2026.
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURE
Pursuant to the requirements of the Exchange Act, the Company has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: June 26, 2026
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ALLEGIANT TRAVEL COMPANY
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By:
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/s/ Robert J. Neal
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Name: Robert J. Neal
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Title: President, Chief Financial Officer
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Exhibit 4.1
Allegiant Travel Company
as Issuer
and
the Guarantors party hereto
INDENTURE
Dated as of June 24, 2026
Wilmington Trust, National Association
as Trustee and Collateral Agent
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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Section 1.1.
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Definitions
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1
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Section 1.2.
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Other Definitions
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33
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Section 1.3.
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Rules of Construction
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ARTICLE II. THE NOTES
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34
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Section 2.1.
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Form and Dating
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34
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Section 2.2.
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Execution and Authentication
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34
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Section 2.3.
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Registrar and Paying Agent
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35
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Section 2.4.
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Paying Agent to Hold Money in Trust
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Section 2.5.
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Holder Lists
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Section 2.6.
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Transfer and Exchange
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Section 2.7.
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Replacement Notes
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Section 2.8.
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Outstanding Notes
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Section 2.9.
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Treasury Notes
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49
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Section 2.10.
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Temporary Notes
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50
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Section 2.11.
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Cancellation
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50
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Section 2.12.
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Defaulted Interest
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50
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Section 2.13.
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Further Issuances
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Section 2.14.
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No Reissuance of Notes
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ARTICLE III. REDEMPTION
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Section 3.1.
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Notice to Trustee
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Section 3.2.
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Selection of Notes to Be Redeemed or Purchased
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51
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Section 3.3.
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Notice of Redemption
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51
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Section 3.4.
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Effect of Notice of Redemption
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52
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Section 3.5.
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Deposit of Redemption or Purchase Price
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53
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Section 3.6.
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Notes Redeemed or Purchased in Part
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53
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Section 3.7.
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Optional Redemption.
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53
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Section 3.8.
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Mandatory Redemption.
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ARTICLE IV. COVENANTS
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54
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Section 4.1.
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Payment of Principal and Interest
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Section 4.2.
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SEC Reports
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54
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Section 4.3.
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Special Interest
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55
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Section 4.4.
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Stay, Extension and Usury Laws
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55
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Section 4.5.
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Corporate Existence
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55
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Section 4.6.
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Restricted Payments
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55
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Section 4.7.
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Incurrence of Indebtedness and Issuance of Preferred Stock
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60
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Section 4.8.
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Limitation on Liens
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Section 4.9.
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Additional Guarantors
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Section 4.10.
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Designation of Restricted and Unrestricted Subsidiaries
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Section 4.11.
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Transactions with Affiliates
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Section 4.12.
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Offer to Repurchase Notes Upon a Change of Control
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69
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Section 4.13.
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Offer to Repurchase Notes Upon an Asset Sale
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70
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Section 4.14.
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Dispositions of Loyalty Programs and Brand IP Assets
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72
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Section 4.15.
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Dispositions of Collateral to Unrestricted Subsidiaries for Replacement of First Lien Debt
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72
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ARTICLE V. SUCCESSORS
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72
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Section 5.1.
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When Company May Merge, Etc
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Section 5.2.
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Successor Corporation Substituted
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ARTICLE VI. DEFAULTS AND REMEDIES
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Section 6.1.
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Events of Default
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Section 6.2.
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Acceleration.
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Section 6.3.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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Section 6.4.
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Trustee May File Proofs of Claim
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Section 6.5.
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Trustee May Enforce Claims Without Possession of Notes
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Section 6.6.
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Application of Money Collected
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Section 6.7.
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Limitation on Suits
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Section 6.8.
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Unconditional Right of Holders to Receive Principal and Interest
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Section 6.9.
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Restoration of Rights and Remedies
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Section 6.10.
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Rights and Remedies Cumulative
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Section 6.11.
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Delay or Omission Not Waiver
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Section 6.12.
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Control by Holders
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Section 6.13.
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Waiver of Past Defaults
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Section 6.14.
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Undertaking for Costs
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ARTICLE VII. TRUSTEE
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81
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Section 7.1.
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Duties of Trustee.
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Section 7.2.
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Rights of Trustee
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Section 7.3.
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Individual Rights of Trustee
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Section 7.4.
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Trustee’s Disclaimer
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Section 7.5.
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Notice of Defaults
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Section 7.6.
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Compensation and Indemnity
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Section 7.7.
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Replacement of Trustee
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Section 7.8.
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Successor Trustee by Merger, etc.
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Section 7.9.
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Eligibility; Disqualification
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Section 7.10.
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Limitation on Duty of Trustee in Respect of Collateral
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ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE
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Section 8.1.
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Satisfaction and Discharge of Indenture
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Section 8.2.
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Application of Trust Funds; Indemnification.
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88
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Section 8.3.
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Legal Defeasance of Notes
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Section 8.4.
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Covenant Defeasance
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90
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Section 8.5.
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Repayment to Company
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91
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Section 8.6.
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Reinstatement
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91
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ARTICLE IX. AMENDMENTS AND WAIVERS
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91
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Section 9.1.
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Without Consent of Holders
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91
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Section 9.2.
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With Consent of Holders
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93
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Section 9.3.
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Limitations
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93
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Section 9.4.
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Revocation and Effect of Consents
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94
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Section 9.5.
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Notation on or Exchange of Notes
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95
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Section 9.6.
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Trustee Protected
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95
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ARTICLE X. NOTE GUARANTEES
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95
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Section 10.1.
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Guarantees
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96
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Section 10.2.
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Right of Contribution
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97
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Section 10.3.
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No Subrogation
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98
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Section 10.4.
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Limitation of Guarantor’s Liability
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98
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Section 10.5.
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Release of Guarantor
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98
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ARTICLE XI. COLLATERAL
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99
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Section 11.1.
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Security Interest
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100
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Section 11.2.
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Lien Sharing and Priority Confirmation
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100
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Section 11.3.
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Release of Collateral
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101
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Section 11.4.
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Amendment of Collateral Documents
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101
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Section 11.5.
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Limitation of Duty of Trustee in Respect of Collateral
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102
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Section 11.6.
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Maintenance of Collateral
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103
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Section 11.7.
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Additional Collateral; After-Acquired Property
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103
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Section 11.8.
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[Reserved]
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103
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Section 11.9.
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Further Assurances
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103
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ARTICLE XII. MISCELLANEOUS
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104
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Section 12.1.
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Notices
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104
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Section 12.2.
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Certificate and Opinion as to Conditions Precedent
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105
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Section 12.3.
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Statements Required in Certificate or Opinion
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105
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Section 12.4.
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Rules by Trustee and Agents
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105
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Section 12.5.
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Legal Holidays
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106
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Section 12.6.
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No Recourse Against Others
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106
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Section 12.7.
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Counterparts
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106
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Section 12.8.
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Governing Law; Jurisdiction; Jury Trial Waiver
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106
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Section 12.9.
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No Adverse Interpretation of Other Agreements
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107
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Section 12.10.
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Successors
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107
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Section 12.11.
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Severability
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107
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Section 12.12.
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Table of Contents, Headings, Etc
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107
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Section 12.13.
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Force Majeure
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107
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Section 12.14.
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U.S.A. Patriot Act
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107
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EXHIBITS
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Exhibit A
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FORM OF NOTE
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Exhibit B
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FORM OF CERTIFICATE OF TRANSFER
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Exhibit C
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FORM OF CERTIFICATE OF EXCHANGE
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Exhibit D
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FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
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Exhibit E
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FORM OF SUPPLEMENTAL INDENTURE
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i
Indenture dated as of June 24, 2026 between ALLEGIANT TRAVEL COMPANY, a company incorporated under the laws of Nevada (the “Company”), the Guarantors (as defined herein) party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (in such capacity, the “Trustee”) and collateral agent (in such capacity, the “Collateral Agent”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Company’s 7.125% Senior
Secured Notes due 2031 (the “Notes”).
“144A Global Note” means a Global Note substantially in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
“Account Control Agreement” shall mean each three-party security and
control agreement entered into by any grantor under the Collateral Documents, the Collateral Agent and a financial institution which maintains one or more deposit accounts or securities accounts that have been pledged to the Collateral Agent as
Collateral under this Indenture and the Collateral Documents or under any Loan Document, in each case giving the Collateral Agent control over the applicable account and in form and substance reasonably satisfactory to the Collateral Agent and as
the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Acquired Debt” means, with respect to any specified Person:
| (1) |
Indebtedness, Disqualified Stock or preferred stock of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into such specified Person, or became a
Subsidiary of such specified Person, to the extent such Indebtedness is incurred or such Disqualified Stock or preferred stock is issued in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating
with or into, or becoming a Subsidiary of, such specified Person; and
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| (2) |
Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
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“Additional Notes” means additional Notes (other than the Initial
Notes) issued under this Indenture in accordance with Section 2.2 and subject to Section 4.7 hereof, as part of the same series as the Initial Notes.
1
“Affiliate” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect
to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of
this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings. No Person (other than the Company or any Subsidiary of the Company) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified
Receivables Transaction will be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment. A specified Person shall not be deemed to control another Person solely because such specified Person has the
right to determine the aircraft flights operated by such other Person under a code sharing, capacity purchase or similar agreement.
“Agent” means any Registrar, co-registrar, Paying Agent or additional
paying agent.
“Aircraft Assets” means (x) aircraft, airframes, engines, spare engines,
propellers, parts (other than Spare Parts) and other operating assets (including all substitutions, replacements and renewals of the foregoing, and all property that becomes physically attached thereto and including all related (aa) technical data,
manuals, records, logs, all inspection, modification, repair and overhaul records and other materials, (bb) warranties, service contracts and product agreements of any manufacturer and all maintenance and overhaul agency agreements, (cc) bills of
sale and agreements for acquisition, purchase, conditional sale, and lease (specifically including but not limited to those certain agreements between the Company and The Boeing Company dated December 2021 and any amendments thereto), pre-delivery
payments and related cash deposits, and (dd) insurance policies and proceeds under insurance carried by the Borrower or any Restricted Subsidiary), and (y) leases or conditional sale agreements relating to any of the items in the foregoing clause
(x), in each case owned or leased by, or subject to conditional sale or future sale to, the Company or any Restricted Subsidiary.
“Aircraft Related Equipment” means aircraft (including engines,
airframes, propellers and appliances), engines, propellers, spare parts, aircraft parts, simulators and other training devices, quick engine change kits, passenger loading bridges or other flight or ground equipment and other operating assets,
including any modifications and improvements with respect to any such equipment.
“Aircraft Related Facilities” means (i) airport terminal facilities,
including, without limitation, baggage systems, loading bridges and related equipment, building, infrastructure and maintenance facilities, tooling facilities, club rooms, apron, fueling systems or facilities, signage/image systems, administrative
offices, information technology systems and security systems, (ii) airline support facilities, including, without limitation, cargo, catering, mail, ground service equipment, ramp control, deicing, hangars, aircraft parts/storage, training, office
and reservations facilities and (iii) all equipment and tooling used in connection with the foregoing.
“Allegiant Spare Parts Security Agreement” means the Spare Parts
Security Agreement, dated as of the Closing Date, between Allegiant Air, LLC, as grantor, and the Collateral Agent, as the same may be amended, restated, modified, supplemented,
extended or amended and restated from time to time.
2
“Applicable Premium” means, only to the extent positive, the excess of
(1) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (excluding accrued and unpaid interest to the redemption date) discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points, over (2) 100% of the principal amount of such Notes.
“Applicable Procedures” means, with respect to any notice, transfer,
exchange, or other transaction for or with respect to beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such notice, transfer, exchange or other transaction.
“Asset Sale” means any Disposition (excluding any Disposition of Cash
Equivalents), to the extent that the aggregate Net Proceeds of all such Dispositions, together with all Recovery Events, without giving effect to the dollar thresholds in the definition thereof, during any fiscal year exceed $10.0 million; provided, however, that the following items shall not be deemed to be Asset Sales:
| (1) |
the Disposition of obsolete or worn out property in the ordinary course of business;
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| (2) |
the Disposition of spare parts, used engine life limited parts, inventory, and Permitted Investments in the ordinary course of business;
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| (3) |
the Disposition of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such
Disposition are reasonably promptly applied to the purchase price of such replacement property;
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| (4) |
the Disposition of property by any Subsidiary to the Company or to any Guarantor;
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| (5) |
Dispositions permitted pursuant to ARTICLE V;
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| (6) |
leases, licenses, subleases or sublicenses granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Company
and its Subsidiaries;
|
| (7) |
Dispositions of intellectual property rights that are no longer used or useful in the business of the Company and its Subsidiaries;
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| (8) |
the discount, write-off or Disposition of accounts receivables overdue by more than 180 days, in each case in the ordinary course of business;
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| (9) |
Restricted Payments permitted by Section 4.6;
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| (10) |
Dispositions of Aircraft Assets; and
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| (11) |
Dispositions by the Company and its Subsidiaries not otherwise listed in clauses (1) through (10) above; provided that the
aggregate book value of all property Disposed of pursuant to this clause (11) shall not exceed $150.0 million.
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3
“Banking Product Obligations” means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person in respect of any treasury, depository and cash management services, netting services and automated clearing house transfers of funds services, including obligations for the
payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith. Treasury, depository and cash management services, netting services and automated clearing house transfers of funds services include, without
limitation: corporate purchasing, fleet and travel credit card and prepaid card programs, electronic check processing, electronic receipt services, lockbox services, cash consolidation, concentration, positioning and investing, fraud prevention
services, and disbursement services.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange
Act), such “person” will be deemed to have beneficial ownership of all securities that such “person”
has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time.
“Board of Directors” means:
| (1) |
with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board of directors;
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| (2) |
with respect to a partnership, the Board of Directors of the general partner of the partnership;
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| (3) |
with respect to a limited liability company, the managing member or members, manager or managers or any controlling committee of managing members or managers thereof; and
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| (4) |
with respect to any other Person, the board or committee of such Person serving a similar function.
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“Board Resolution” means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Brand IP” means the brand intellectual property assets of the Company
and its Restricted Subsidiaries.
“Business Day” means, unless otherwise provided by Board Resolution,
Officer’s Certificate or supplemental indenture hereto, any day except a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of payment) on which banking institutions or the Trustee
are authorized or required by law, regulation or executive order to close.
4
“Capital Lease Obligation” means, at the time any determination is to be
made, the amount of the liability in respect of a lease that would at that time be required to be capitalized and reflected as a liability on a balance sheet prepared in accordance with GAAP, and the Scheduled Maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without payment of a penalty. For the avoidance of doubt, Capital Lease Obligations shall not include
operating leases that, prior to January 1, 2019, would not be accounted for as a Capital Lease Obligation on the Company’s consolidated balance sheet.
“Capital Stock” means:
| (1) |
in the case of a corporation, corporate stock;
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| (2) |
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
|
| (3) |
in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
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| (4) |
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of
the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
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“Cash Equivalents” means:
| (1) |
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
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| (2) |
direct obligations of state and local government entities, in each case maturing within one year from the date of acquisition thereof, which have a rating of at least A- (or the equivalent thereof)
from S&P or A3 (or the equivalent thereof) from Moody’s;
|
| (3) |
obligations of domestic or foreign companies and their subsidiaries (including, without limitation, agencies, sponsored enterprises or instrumentalities chartered by an Act of Congress, which are
not backed by the full faith and credit of the United States), including, without limitation, bills, notes, bonds, debentures, and mortgage-backed securities, in each case maturing within one year from the date of acquisition thereof;
|
| (4) |
Investments in commercial paper maturing within 365 days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-2 (or the equivalent thereof) from
S&P or P-2 (or the equivalent thereof) from Moody’s;
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5
| (5) |
Investments in certificates of deposit (including Investments made through an intermediary, such as the certificated deposit account registry service), banker’s acceptances, time deposits,
eurodollar time deposits and overnight bank deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any
other commercial bank of recognized standing organized under the laws of the United States or any State thereof that has a combined capital and surplus and undivided profits of not less than $100.0 million;
|
| (6) |
fully collateralized repurchase agreements with a term of not more than six months for underlying securities that would otherwise be eligible for investment;
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| (7) |
Investments in an investment company registered under the Investment Company Act of 1940, as amended, or in pooled accounts or funds offered through mutual funds, investment advisors, banks and
brokerage houses which invest its assets in obligations of the type described in clauses (1) through (6) above. This could include, but not be limited to, money market funds or short‑term and intermediate bonds funds;
|
| (8) |
money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (B) are rated AAA (or the equivalent thereof) by S&P and
Aaa (or the equivalent thereof) by Moody’s and (C) have portfolio assets of at least $5.0 billion;
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| (9) |
deposits available for withdrawal on demand with commercial banks organized in the United States, or any U.S. branch of a bank organized in an OECD country, having capital and surplus in excess of
$100.0 million;
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| (10) |
securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated
at least A- by S&P or A3 by Moody’s; and
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| (11) |
any other securities or pools of securities that are classified under GAAP as cash equivalents or short-term investments on a balance sheet.
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“Change of Control” means the occurrence of any of the following:
| (1) |
the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties
or assets of the Company and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)); or
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6
| (2) |
the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including any “person” (as defined above)) becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company (measured by voting power rather than number of shares), other than (A) any such transaction where the Voting Stock of the Company (measured by
voting power rather than number of shares) outstanding immediately prior to such transaction constitutes or is converted into or exchanged for a majority of the outstanding shares of the Voting Stock of such Person or Beneficial Owner
(measured by voting power rather than number of shares) or (B) any sale, transfer, conveyance or other disposition to, or any merger or consolidation of the Company with or into, any Person (including any “person” (as defined above)) which
owns or operates (directly or indirectly through a contractual arrangement) a Permitted Business (a “Permitted Person”) or a Subsidiary of a Permitted Person, in each
case under this subclause (B), if immediately after such transaction no Person (including any “person” (as defined above)) is the Beneficial Owner, directly or indirectly, of more than 50% of the total Voting Stock of such Permitted Person
(measured by voting power rather than number of shares).
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“Clearstream” means Clearstream Banking, S.A.
“Closing Date” means the date of original issuance of the Notes.
“Collateral Agent” means Wilmington Trust, National Association, in its
capacity as collateral agent for the benefit of the Noteholders under the Collateral Documents, or any successor thereto.
“Collateral” means all assets that secure obligations under the Credit
Agreement and that are subject or purported to be subject, from time to time, to a Lien under any Collateral Documents.
“Collateral Documents” means, collectively, the Security Agreement, the
Allegiant Spare Parts Security Agreement, the Sun Country Spare Parts Security Agreement, the Trademark Security Agreement, the account control agreements and all other security agreements, pledge agreements, collateral assignments, mortgages,
instruments or documents that create or purport to create a Lien in favor of the Collateral Agent for the benefit of the Noteholders, in each case, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or
otherwise modified from time to time, so long as such agreement, instrument or document shall not have been terminated in accordance with its terms.
“Company” means Allegiant Travel Company.
“Company Order” means a written order signed in the name of the Company
by an Officer.
“Consolidated EBITDA” means, with respect to any specified Person for
any period, Consolidated EBITDAR of such Person for such period, less the aggregate amount of aircraft rent expense described in clause (5) of “Fixed Charges” for such period.
“Consolidated EBITDAR” means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus, without duplication:
7
| (1) |
an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries
in connection with any Disposition of assets, to the extent such losses were deducted in computing such Consolidated Net Income; plus
|
| (2) |
provision for taxes based on income or profits of such Person and its Restricted Subsidiaries, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
|
| (3) |
the Fixed Charges and expense for subservice arrangements contracted with third parties to service scheduled flights of such Person and its Restricted Subsidiaries, to the extent that such Fixed
Charges were deducted in computing such Consolidated Net Income; plus
|
| (4) |
any foreign currency translation losses (including losses related to currency remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such period, to the extent that such
losses were deducted in computing such Consolidated Net Income; plus
|
| (5) |
depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash charges and expenses
(excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period)
of such Person and its Restricted Subsidiaries to the extent that such depreciation, amortization and other non-cash charges or expenses were deducted in computing such Consolidated Net Income; plus
|
| (6) |
the amortization of debt discount to the extent that such amortization was deducted in computing such Consolidated Net Income; plus
|
| (7) |
stock compensation expense for grants to any employee of the Company or its Restricted Subsidiaries of any Equity Interests during such period to the extent deducted in computing such Consolidated
Net Income; plus
|
| (8) |
any net loss arising from the sale, exchange or other disposition of capital assets by the Company or its Restricted Subsidiaries (including any fixed assets, whether tangible or intangible, all
inventory sold in conjunction with the disposition of fixed assets and all securities) to the extent such loss was deducted in computing such Consolidated Net Income; plus
|
| (9) |
any losses actually realized arising under fuel hedging arrangements entered into prior to February 5, 2019 and any losses actually realized under fuel hedging arrangements entered into after
February 5, 2019, in each case to the extent deducted in computing such Consolidated Net Income; plus
|
| (10) |
proceeds from business interruption insurance for such period, to the extent not already included in computing such Consolidated Net Income; plus
|
8
| (11) |
any expenses and charges that are covered by indemnification or reimbursement provisions in connection with any permitted acquisition, merger, disposition, incurrence of Indebtedness, issuance of
Equity Interests or any investment to the extent (a) actually indemnified or reimbursed and (b) deducted in computing such Consolidated Net Income; minus
|
| (12) |
non-cash items, other than the accrual of revenue in the ordinary course of business, to the extent such amount increased such Consolidated Net Income; minus
|
| (13) |
the sum of (i) income tax credits and (ii) Consolidated Interest Income included in computing such Consolidated Net Income;
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in each case of clauses (1) through (13), determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Income” means, as of any date of determination,
the sum of the amounts that would appear on a consolidated income statement of the Company and its consolidated Restricted Subsidiaries as the interest income of the Company and its Restricted Subsidiaries, determined in accordance with GAAP.
“Consolidated Net Income” means, with respect to any specified Person
for any period, the aggregate of the net income (or loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated basis (excluding the net income (or loss) of any Unrestricted Subsidiary of such Person), determined in
accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
| (1) |
all (a) extraordinary, nonrecurring, special or unusual gains and losses or income or expenses, including, without limitation, any expenses related to a facilities closing and any reconstruction,
recommissioning or reconfiguration of fixed assets for alternate uses; any severance or relocation expenses; executive recruiting costs; restructuring or reorganization costs; curtailments or modifications to pension and post-retirement
employee benefit plans; (b) any expenses (including, without limitation, transaction costs, integration or transition costs, financial advisory fees, accounting fees, legal fees and other similar advisory and consulting fees and related
out-of-pocket expenses), cost-savings, costs or charges incurred in connection with any issuance of securities (including the Notes), Permitted Investment, acquisition, disposition, recapitalization or incurrence or repayment of
Indebtedness permitted under this Indenture, including a refinancing thereof (in each case whether or not successful); and (c) gains and losses realized in connection with any sale of assets, the disposition of securities, the early
extinguishment of Indebtedness or associated with Hedging Obligations, together with any related provision for taxes on any such gain, will be excluded;
|
| (2) |
the net income (but not loss) of any Person that is not the specified Person or a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included for such period
only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the specified Person;
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9
| (3) |
the net income (but not loss) of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that
net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;
|
| (4) |
the cumulative effect of a change in accounting principles on such Person will be excluded;
|
| (5) |
the effect of non-cash gains and losses of such Person resulting from Hedging Obligations, including attributable to movement in the mark-to-market valuation of Hedging Obligations pursuant to
Financial Accounting Standards Board Accounting Standards Codification 815 — Derivatives and Hedging will be excluded;
|
| (6) |
any non-cash compensation expense recorded from grants by such Person of stock appreciation or similar rights, restricted stock units, restricted stock grants, stock options or other rights to
officers, directors or employees, will be excluded;
|
| (7) |
the effect on such Person of any non-cash items resulting from any write-up, write-down or write‑off of assets (including intangible assets, goodwill and deferred financing costs) in connection
with any acquisition, disposition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to February 5, 2019 resulting from the application of Financial Accounting Standards Board
Accounting Standards Codifications 205—Presentation of Financial Statements, 350—Intangibles — Goodwill and Other, 360—Property, Plant and Equipment and 805—Business Combinations (excluding any such non-cash item to the extent that it
represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed), will be excluded; and
|
| (8) |
any provision for income tax reflected on such Person’s financial statements for such period will be excluded to the extent such provision exceeds the actual amount of taxes paid in cash during
such period by such Person and its consolidated Subsidiaries.
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“Consolidated Total Leverage Ratio” means, as of any date of
determination, the ratio of (x) the outstanding amount of Indebtedness of the Company and its Restricted Subsidiaries as of such date (after giving effect to any incurrence or discharge of Indebtedness on such date) to (y) Consolidated EBITDA of
the Company and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Company have been or are required to be
delivered; provided that any arrangements which could have been accounted for by the Company or any of its Restricted Subsidiaries as operating leases prior to the adoption by
the Company of the new lease accounting rules (FASB Accounting Standards Update No. 2016-02, Leases (Topic 842)) shall not be considered Indebtedness for purposes of calculating the Consolidated Total Leverage Ratio.
10
“continuing” means, with respect to any Default or Event of Default,
that such Default or Event of Default has not been cured or waived.
“Corporate Trust Office” means the office of the Trustee at which at any
particular time its corporate trust business related to this Indenture shall be principally administered, which at the date hereof is set forth in Section 12.1, or such other address as to which the Trustee may give notice to the Company.
“Credit Agreement” means the Credit and Guaranty Agreement, dated as of
August 17, 2022, among the Company, as borrower, the subsidiaries of the borrower party thereto, as guarantors, the lender party thereto, and Barclays Bank PLC, as administrative agent, collateral agent and arranger, and as may be further amended,
restated, supplemented, modified, renewed, refunded, replaced or refinanced from time to time.
“Credit Card” means obligations incurred in connection with any
agreement or plan relating to a credit card, debit card, charge card, purchasing card or other similar system.
“Custodian” means the Trustee, as custodian with respect to the Notes in
global form, or any successor entity thereto.
“Default” means any event which, unless cured or waived, is, or after
notice or passage of time or both would be, an Event of Default.
“Definitive Note” means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.6 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global
Note” attached thereto.
“Depositary” means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.
“Disposition” means, with respect to any property, any sale, lease, sale
and leaseback, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
11
“Disqualified Stock” means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise (other than as a result of a change of control or asset sale), is convertible or exchangeable for Indebtedness or Disqualified Stock, or is redeemable at the option of the holder of the Capital Stock, in whole
or in part (other than as a result of a change of control or asset sale), on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified
Stock solely because the holders of the Capital Stock have the right to require the Company or any Restricted Subsidiary to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified
Stock if the terms of such Capital Stock provide that the Company or such Restricted Subsidiary may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.6. The
amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Indenture will be the maximum amount that the Company and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any
mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
“Dollars” and “$” means the currency of The United States of America.
“Equity Interests” means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means a public offering for cash by the Company of its
common stock, or options, warrants or rights with respect to its common stock, other than (1) public offerings with respect to the Company’s common stock, or options, warrants or rights, registered on Form S-4 or S-8, (2) an issuance to any
Subsidiary or (3) any offering of common stock issued in connection with a transaction that constitutes a Change of Control.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Property” has the meaning given to such term in the Security
Agreement.
“Excluded Contributions” means net cash proceeds received by the Company
after February 5, 2019 from:
| (1) |
contributions to its common equity capital (other than from any Subsidiary); or
|
| (2) |
the sale (other than to a Subsidiary or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Company or any Subsidiary) of
Qualifying Equity Interests,
|
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed on or around the date such capital contributions are made or the date
such Equity Interests are sold, as the case may be. Excluded Contributions will not be considered to be net proceeds of Qualifying Equity Interests for purposes of Section 4.6(a).
“Existing Indebtedness” means all Indebtedness of the Company and its
Subsidiaries (other than Indebtedness incurred under clauses (1), (2) or (5) of the definition of “Permitted Debt”) in existence on the Closing Date until such amounts are repaid.
12
“Fair Market Value” means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by an officer of the Company; provided
that any such officer shall be permitted to consider the circumstances existing at such time (including, without limitation, economic or other conditions affecting the United States airline industry generally and any relevant legal compulsion,
judicial proceeding or administrative order or the possibility thereof) in determining such Fair Market Value in connection with such transaction.
“First Lien Debt” means any Pari Passu Debt of the Company or any of its
Restricted Subsidiaries that is or will be secured by a Lien on the Collateral on a pari passu basis with the Senior Secured Obligations pursuant to an intercreditor
agreement.
“First Lien Leverage Ratio” means, as of any date of determination, the
ratio of (x) the outstanding amount of the Senior Secured Obligations together with any other First Lien Debt to (y) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters ending
prior to the date of such determination for which internal consolidated financial statements of the Company have been or are required to be delivered; provided, that:
| (1) |
if, since the beginning of such period, the Company or any of its Restricted Subsidiaries shall have made any sales, transfers or other dispositions of any assets (other than Aircraft Assets) where
the Fair Market Value of such assets exceeds $10.0 million (a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
|
| (2) |
if, since the beginning of such period, the Company or any of its Restricted Subsidiaries (by merger, consolidation or otherwise) shall have made any acquisition or purchase of any assets (other
than Aircraft Assets) where the Fair Market Value of any such assets exceeds $10.0 million (a “Purchase”) or any Permitted Investment (including any Permitted
Investment occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase or Permitted Investment
occurred on the first day of such period; and
|
| (3) |
if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of
such period such Person shall have made any Sale, Purchase or Permitted Investment that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary of the Company since the
beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale, Purchase or Permitted Investment occurred on the first day of such period.
|
13
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase, Permitted Investment or other transaction, or
the amount of income or earnings relating thereto, the pro forma calculations in respect thereof shall be as determined in good faith by a responsible financial or accounting officer of the Company.
“Fixed Charge Coverage Ratio” means the ratio of (x) the Consolidated
EBITDAR of the Company and its Restricted Subsidiaries plus the Consolidated Interest Income for the most recent four consecutive fiscal quarters ending prior to the date of such
determination for which internal consolidated financial statements of the Company have been or are required to be delivered to (y) the sum of all Fixed Charges of the Company and its Restricted Subsidiaries for such period. If the Company
or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems Disqualified Stock
or preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect (as determined in good faith by a responsible financial or accounting officer
of the Company) to such incurrence, assumption, guarantee, repayment, repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock, and the use of the
proceeds therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
| (1) |
acquisitions that have been made by the Company or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by
the Company or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date, or that are to be made on the Calculation Date, will be given pro forma effect (as determined in good faith by a responsible financial or accounting officer of the Company and including any
operating expense reductions for such period resulting from such acquisition that have been realized or for which all of the material steps necessary for realization have been taken) as if they had occurred on the first day of the
four-quarter reference period;
|
| (2) |
the Consolidated EBITDAR attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the
Calculation Date, will be excluded;
|
| (3) |
the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the Company or any of its Restricted Subsidiaries following the Calculation Date;
|
14
| (4) |
any Person that is a Restricted Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period;
|
| (5) |
any Person that is not a Restricted Subsidiary on the Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period; and
|
| (6) |
if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for
the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months).
|
“Fixed Charges” means, with respect to any specified Person for any
period, the sum, without duplication, of
| (1) |
the consolidated interest expense (net of interest income) of such Person and its Restricted Subsidiaries for such period to the extent that such interest expense is payable in cash (and such
interest income is receivable in cash); plus
|
| (2) |
the interest component of Capital Lease Obligations of such Person and its Restricted Subsidiaries for such period to the extent that such interest component is related to lease payments payable in
cash; plus
|
| (3) |
any interest expense actually paid in cash for such period by such specified Person on Indebtedness of another Person that is guaranteed by such specified Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such specified Person or one of its Restricted Subsidiaries; plus
|
| (4) |
the product of (a) all cash dividends accrued on any series of preferred stock of such Person or any of its Restricted Subsidiaries for such period, other than to the Company or a Restricted
Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each
case, determined on a consolidated basis in accordance with GAAP; plus
|
| (5) |
the aircraft rent expense of such Person and its Restricted Subsidiaries for such period to the extent that such aircraft rent expense is payable in cash,
|
all as determined on a consolidated basis in accordance with GAAP.
15
“GAAP” means generally accepted accounting principles in the United
States of America, which are in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, statements and pronouncements of
the Financial Accounting Standards Board, such other statements by such other entity as have been approved by a significant segment of the accounting profession and the rules and regulations of the SEC governing the inclusion of financial
statements in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC; provided that GAAP shall be construed as not to give effect to changes to lease accounting rules effective January 1, 2019.
“Global Note Legend” means the legend set forth in Section 2.6(f)(2)
hereof, which is required to be placed on all Global Notes issued under this Indenture.
“Global Notes” means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has
the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.1, 2.6(a), 2.6(b)(3), 2.6(b)(4), 2.6(d)(1), 2.6(d)(2) or 2.6(d)(3) hereof.
“Government Securities” means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit and which are not callable or redeemable at the issuer’s option.
“Grantor” means (i) the Company and (ii) any Guarantor that may from time to time provide a security interest in Collateral pursuant to the Collateral Documents.
“Guarantee” means a guarantee (other than (i) by endorsement of
negotiable instruments for collection or (ii) customary contractual indemnities, in each case in the ordinary course of business), direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of
credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness of another Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial statement conditions).
“Guarantor” means any Restricted Subsidiary of the Company that
guarantees the Notes in accordance with the provisions of this Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of this Indenture.
“Guarantor Obligations” means the due and punctual payment, of the
principal of (and premium, if any) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the
terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any holder or otherwise, according to the terms
thereof and of this Indenture and all other obligations of the Company with respect to the Notes to the holder or the Trustee thereunder.
16
“Hedging Obligations” means, with respect to any Person, all obligations
and liabilities of such Person under:
| (1) |
interest rate swap agreements, interest rate cap agreements and interest rate collar agreements;
|
| (2) |
other agreements or arrangements designed to manage interest rates or interest rate risk; and
|
| (3) |
other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates, fuel prices or other commodity prices, but excluding (x) clauses in purchase agreements and maintenance agreements pertaining to future prices and (y) fuel purchase agreements and fuel sales that are for physical delivery of the relevant commodity.
|
“Holder” or “Noteholder” means a Person in whose name a Note is registered.
“Immaterial Subsidiaries” shall mean one or more Subsidiaries, for which
(a) the assets of all such Subsidiaries constitute, in the aggregate, no more than 5.0% of the total assets of the Company and its Subsidiaries on a consolidated basis (determined as of the last day of the most recent fiscal quarter of the Company
for which financial statements are available pursuant to Section 4.2), and (b) the revenues of all such Subsidiaries account for, in the aggregate, no more than 5.0% of the total revenues of the Company and its Subsidiaries on a consolidated basis
for the twelve-month period ending on the last day of the most recent fiscal quarter of the Company for which financial statements are available pursuant to Section 4.2; provided that
a Subsidiary will not be considered to be an Immaterial Subsidiary if it directly or indirectly guarantees, or pledges any property or assets to secure, any Senior Secured Obligations, any other First Lien Debt or any Junior Lien Debt.
“Indebtedness” means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
| (1) |
in respect of borrowed money;
|
| (2) |
evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof but excluding letters of credit that have been fully cash
collateralized);
|
| (3) |
in respect of banker’s acceptances;
|
| (4) |
representing Capital Lease Obligations;
|
| (5) |
representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, but excluding
in any event trade payables arising in the ordinary course of business; or
|
| (6) |
representing any Hedging Obligations,
|
17
if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board
Accounting Standards Codification 815—Derivatives and Hedging and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Indenture as a result of accounting for
any embedded derivatives created by the terms of such Indebtedness.
Notwithstanding the foregoing, none of the following will constitute Indebtedness: (a) Banking Product Obligations, (b) obligations in respect
of the pre-purchase of frequent flyer miles, (c) maintenance deferral agreements, (d) an amount recorded as indebtedness in the Company’s financial statements solely by operation of Financial Accounting Standards Board Accounting Standards
Codification 840-40-55 or any successor provision of GAAP but which does not otherwise constitute Indebtedness as defined hereinabove, (e) a deferral of pre-delivery payments relating to the purchases of Aircraft Assets, (f) obligations under flyer
miles participation agreements and (g) air traffic liability.
“Indenture” means this Indenture as amended or supplemented from time to
time.
“Indirect Participant” means a Person who holds a beneficial interest in
a Global Note through a Participant.
“Initial Notes” means the first $650.0 million aggregate principal
amount of Notes issued under this Indenture on the date hereof.
“Initial Purchasers” means Barclays Capital Inc., Deutsche Bank
Securities Inc. and Credit Agricole Securities (USA) Inc.
“Institutional Accredited Investor” means an institution that is an
“accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.
“Interest Payment Date” has the meaning set forth in Exhibit A attached
hereto.
“Intercreditor Agreement” means (i) the intercreditor agreement among
Barclays Bank PLC, as authorized representative for the Credit Agreement Secured Parties (as defined therein), and Wilmington Trust, National Association, as collateral agent for the First Lien Notes (as defined therein) and authorized
representative for the First Lien Notes Secured Parties (as defined therein) and the other parties from time to time party thereto, dated as of October 7, 2020, as it may be amended, restated, supplemented or otherwise modified from time to time in
accordance with this Indenture or (ii) any replacement or other intercreditor agreement that contains terms not materially less favorable to Holders of the Notes than the intercreditor agreement referred to in clause (i).
18
“Investments” means, with respect to any Person, all direct or indirect
investments made from and after the Closing Date by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), capital contributions or advances (but excluding advance and pre-delivery payments and deposits
for goods and services and similar advances to officers, employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities of other Persons,
together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that a Completion Guarantee will not
constitute an “Investment”. If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company after the Closing Date such that, after giving
effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the
Company’s Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in Section 4.6(c). Notwithstanding the foregoing, any Equity Interests retained by the Company or any of its Subsidiaries after a
disposition or dividend of assets or Capital Stock of any Person in connection with any partial “spin-off” of a Subsidiary or similar transactions shall not be deemed to be an Investment. The acquisition by the Company or any Restricted Subsidiary
of the Company after the Closing Date of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the
Investments held by the acquired Person in such third Person in an amount determined as provided in Section 4.6(c). Except as otherwise provided above or in this Indenture, the amount of an Investment will be determined at the time the Investment
is made and without giving effect to subsequent changes in value.
“Junior Lien Debt” means any Indebtedness of the Company or any of its
Restricted Subsidiaries that is or will be secured by a Lien on the Collateral on a basis that is junior to the Notes and the Note Guarantees pursuant to an intercreditor agreement.
“Lien” means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any option or
other agreement to sell or give a security interest in and, except in connection with any Qualified Receivables Transaction, any agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
“Liquidity” means the sum of (i) all unrestricted cash and Cash
Equivalents of the Company and its Restricted Subsidiaries (including, for the avoidance of doubt, any cash or Cash Equivalents held in accounts subject to Account Control Agreements), (ii) the aggregate principal amount committed and available to
be drawn by the Company and its Restricted Subsidiaries (taking into account all borrowing base limitations or other restrictions) under all revolving credit facilities of the Company and its Restricted Subsidiaries and (iii) the scheduled net
proceeds (after giving effect to any expected repayment of existing Indebtedness using such proceeds) of any securities offering of the Company or any of its Restricted Subsidiaries that has priced but has not yet closed (until the earliest of the
closing thereof, the termination thereof without closing or the date that falls five (5) Business Days after the initial scheduled closing date thereof).
19
“Loan Documents” means the Credit Agreement, the collateral documents in
connection with the Credit Agreement, any intercreditor agreement in connection with the Credit Agreement and any other instrument or agreement (which is designated as a Loan Document therein) executed and delivered by the Company or a Guarantor to
the administrative agent or any lender under the Credit Agreement, in each case, as the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Loyalty Programs” means the assets of the Company’s non-card loyalty
program Allways RewardsTM and the Company’s co-branded credit card loyalty program, the assets of the loyalty program of Sun Country Airlines Holdings, Inc., or any similar program.
“Material Adverse Effect” means a material adverse effect on (a) the consolidated business, operations or financial condition of the Company and its Restricted Subsidiaries, taken as a whole, (b) the validity or enforceability of any of this
Indenture and the Collateral Documents or the rights or remedies of the Collateral Agent or the Noteholders thereunder or (c) the ability of the Company and the Guarantors, collectively, to pay the Senior Secured Obligations.
“Maturity,” when used with respect to any Note, means the date on which
the principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
“Moody’s” means Moody’s Investors Service, Inc.
“Net Proceeds” means the aggregate cash and Cash Equivalents received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash or Cash Equivalents received in respect of or upon the sale or other disposition of any non-cash consideration received in any
Asset Sale) or Recovery Event, net of: (a) the direct costs and expenses relating to such Asset Sale and incurred by the Company or a Restricted Subsidiary (including the sale or disposition of such non-cash consideration) or any such Recovery
Event, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale or Recovery Event, taxes paid or payable as a result of the Asset Sale or
Recovery Event, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements; (b) any reserve for adjustment or indemnification obligations in respect of the sale price of such asset or assets
established in accordance with GAAP; and (c) any portion of the purchase price from an Asset Sale placed in escrow pursuant to the terms of such Asset Sale (either as a reserve for adjustment of the purchase price, or for satisfaction of
indemnities in respect of such Asset Sale) until the termination of such escrow.
“Non-Recourse Debt” means Indebtedness:
| (1) |
as to which neither the Company nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute
Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise; and
|
| (2) |
as to which the holders of such Indebtedness do not otherwise have recourse to the stock or assets of the Company or any of its Restricted Subsidiaries (other than the Equity Interests of an
Unrestricted Subsidiary).
|
20
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Notes” has the meaning assigned to it in the preamble to this Indenture.
The Initial Notes and any Additional Notes shall be treated as a single class for all purposes under this Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.
“Note Guarantee” means any Guarantee of the Notes by a Guarantor.
“OECD” means the Organization for Economic Cooperation and Development.
“Officer” means the Chief Executive Officer, President, the Chief
Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company.
“Officer’s Certificate” means a certificate signed on behalf of the
Company by the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer or any Senior Vice President of the Company.
“Opinion of Counsel” means a written opinion of legal counsel, who may
be counsel to or an employee of the Company, or other counsel reasonably acceptable to the Trustee, that meets the requirements of this Indenture.
“Pari Passu Debt” means Indebtedness that ranks equally in right of
payment to the Notes, in the case of the Company, or the Note Guarantees, in the case of the Guarantors (without giving effect to collateral arrangements).
“Participant” means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Permitted Business” means any business that is similar, or reasonably
related, ancillary, supportive or complementary to, or any reasonable extension of the business in which the Company and its Subsidiaries are engaged on the Closing Date.
“Permitted Investments” means:
| (1) |
any Investment in the Company or in a Restricted Subsidiary of the Company;
|
| (2) |
any Investment in cash, Cash Equivalents and any foreign equivalents;
|
| (3) |
any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment:
|
| (a) |
such Person becomes a Restricted Subsidiary of the Company; or
|
| (b) |
such Person, in one transaction or a series of related and substantially concurrent transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company;
|
21
| (4) |
any Investment made as a result of the receipt of non-cash consideration from a Disposition of assets;
|
| (5) |
any acquisition of assets or Capital Stock in exchange for the issuance of Qualifying Equity Interests;
|
| (6) |
any Investments received in compromise or resolution of (a) obligations of trade creditors or customers that were incurred in the ordinary course of business, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (b) litigation, arbitration or other disputes;
|
| (7) |
Investments represented by Hedging Obligations;
|
| (8) |
loans or advances to officers, directors or employees made in the ordinary course of business in an aggregate principal amount not to exceed $10.0 million;
|
| (9) |
redemption or purchase of the Notes in accordance with the terms of this Indenture;
|
| (10) |
any Guarantee of Indebtedness permitted by Section 4.7 other than a Guarantee of Indebtedness of an Affiliate of the Company that is not a Restricted Subsidiary of the Company;
|
| (11) |
any Investment of the Company and its Restricted Subsidiaries existing on, or made pursuant to binding commitments existing on, the Closing Date and any Investment consisting of an extension,
modification or renewal of any such Investment existing on, or made pursuant to a binding commitment existing on, the Closing Date; provided that the amount of any
such Investment may be increased (a) as required by the terms of such Investment as in existence on the Closing Date, or (b) as otherwise permitted under this Indenture;
|
| (12) |
Investments or commitments to make Investments acquired after the Closing Date as a result of the acquisition by the Company or any Restricted Subsidiary of the Company of another Person, including
by way of a merger, amalgamation or consolidation with or into the Company or any of its Restricted Subsidiaries in a transaction that is not prohibited by ARTICLE V after the Closing Date to the extent that such Investments were not made
in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
|
| (13) |
the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Equity Interests of a trust or other Person established by such Receivables Subsidiary to
effect such Qualified Receivables Transaction; and any other Investment by the Company or a Subsidiary of the Company in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a
Qualified Receivables Transaction;
|
22
| (14) |
accounts receivable arising in the ordinary course of business;
|
| (15) |
Investments consisting of reimbursable extensions of credit; provided that any such Investment made pursuant to this
clause (15) shall not be permitted if unreimbursed within 90 days of any such extension of credit;
|
| (16) |
Investments in connection with making or financing any pre-delivery, progress or other similar payments relating to the acquisition of Aircraft Related Equipment;
|
| (17) |
Investments consisting of payroll advances and advances for business and travel expenses in the ordinary course of business;
|
| (18) |
Investments made by way of any endorsement of negotiable instruments received in the ordinary course of business and presented to any bank for collection or deposit;
|
| (19) |
Investments consisting of stock, obligations or securities received in settlement of amounts owing to the Company or any Restricted Subsidiary in the ordinary course of business or in a
distribution received in respect of an Investment permitted hereunder;
|
| (20) |
Investments in fuel and credit card consortia and in connection with agreements with respect to fuel consortia, credit card consortia and fuel supply, in each case, in the ordinary course of
business;
|
| (21) |
Investments in connection with outsourcing initiatives in the ordinary course of business;
|
| (22) |
Investments in the nature of security deposits or maintenance reserves in connection with the financing of any Aircraft Asset; and
|
| (23) |
guarantees incurred in the ordinary course of business of obligations that do not constitute Indebtedness of any regional air carrier doing business with the Company or any of its Restricted
Subsidiaries in connection with the regional air carrier’s business with the Company or such Restricted Subsidiary; advances to airport operators of landing fees and other customary airport charges for carriers on behalf of which the
Company or any of its Restricted Subsidiaries provides ground handling services.
|
“Permitted Liens” means:
| (1) |
Liens existing on the Closing Date and any Liens created pursuant to the Loan Documents;
|
23
| (2) |
Liens securing Indebtedness permitted to be incurred pursuant to clauses (4), (6) and (14) of Section 4.7(b); provided
that, with respect to clause (4), such Liens attach only to the assets being financed thereby, with respect to clause (6) of Section 4.7(b), such Liens are junior to the Liens of the Collateral Documents and holders of such Indebtedness (or
their representatives or agents) are party to the Intercreditor Agreement and have agreed to be bound by the terms thereof and, with respect to clause (14), such Liens attach only to the assets being financed thereby or to Excluded
Property;
|
| (3) |
Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings and the Company shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP;
|
| (4) |
carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business and securing obligations that are not due and payable or which are
being contested in good faith by appropriate proceedings and the Company shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien;
|
| (5) |
pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;
|
| (6) |
deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of business;
|
| (7) |
Liens attaching solely to cash earnest money deposits in connection with any letter of intent or purchase agreement in connection with an acquisition permitted under the terms of this Indenture;
|
| (8) |
any encumbrance or restriction (including, but not limited to, put and call agreements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or
similar agreement;
|
| (9) |
Liens created by landlords over leasehold property and zoning restrictions, easements, rights‑of‑way, restrictions on use of real property and other similar encumbrances incurred in the ordinary
course of business which do not interfere with the intended use by the Company or any of its Restricted Subsidiaries of such property;
|
| (10) |
Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds
thereof;
|
24
| (11) |
Liens on insurance proceeds or unearned premiums incurred in the ordinary course of business in connection with the financing of insurance premiums;
|
| (12) |
judgment Liens so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally terminated or
the period within which such proceedings may be initiated has not expired;
|
| (13) |
Liens securing First Lien Debt permitted to be incurred pursuant to Section 4.7(b)(5)(C)(i) provided that holders of such
First Lien Debt (or their representatives or agents) are party to the Intercreditor Agreement and have agreed to be bound by the terms thereof;
|
| (14) |
Liens securing Junior Lien Debt permitted to be incurred pursuant to Section 4.7(b)(5)(C)(ii) provided that holders of such
Junior Lien Debt (or their representatives or agents) are party to an intercreditor agreement and have agreed to be bound by the terms thereof;
|
| (15) |
Liens securing Indebtedness permitted to be incurred pursuant to Section 4.7(b)(15); provided that such Liens securing such
Indebtedness are on assets that would constitute Excluded Property;
|
| (16) |
Liens on Aircraft Assets in favor of airport authorities; and
|
| (17) |
Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Permitted Lien referred to in clauses (1) through (16) above, inclusive of
any Lien existing at the date of the issuance of the Notes; provided, however, that (i) the
obligation secured by such new Lien shall not extend beyond the property subject to the existing Lien and is not greater in amount than the obligations secured by the Lien extended, renewed or replaced (plus an amount in respect of any
applicable premium and reasonable financing fees and related transaction costs).
|
For purposes of determining compliance with this definition, a Lien need not be incurred solely by reference to one category of Permitted Liens
described in this definition but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category).
“Permitted Refinancing Indebtedness” means any Indebtedness (or
commitments in respect thereof) of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund, extend, refinance, replace, defease or discharge other Indebtedness of the Company
or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
25
| (1) |
the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the original principal amount (or accreted value, if applicable) when initially
incurred by the Company or its Restricted Subsidiaries of the Indebtedness renewed, refunded, extended, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness (whether or not capitalized or accreted or
payable on a current basis) and the amount of all fees and expenses, including premiums, incurred in connection therewith (such original principal amount plus such amounts described above, collectively, for purposes of this clause (1), the
“preceding amount”)); provided that with respect to any such Permitted Refinancing Indebtedness that is refinancing secured Indebtedness and is secured by all or a
portion of the same collateral, the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness shall not exceed the greater of the preceding amount and the Fair Market Value of the assets securing such
Permitted Refinancing Indebtedness (which Fair Market Value may, at the time of an advance commitment, be determined to be the Fair Market Value at the time of such commitment or (at the option of the issuer of such Indebtedness) the Fair
Market Value projected for the time of incurrence of such Indebtedness);
|
| (2) |
if such Permitted Refinancing Indebtedness has a maturity date that is after the maturity date of the Notes (with any amortization payment comprising such Permitted Refinancing Indebtedness being
treated as maturing on its amortization date), such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity that is (a) equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed,
refunded, extended, refinanced, replaced, defeased or discharged or (b) more than 60 days after the final maturity date of the Notes;
|
| (3) |
if the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the Notes on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged;
|
| (4) |
to the extent such Permitted Refinancing Indebtedness is secured, the Liens securing such Permitted Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the
Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged;
|
| (5) |
no Restricted Subsidiary that is not a Guarantor shall be an obligor with respect to such Permitted Refinancing Indebtedness unless such non-guarantor Restricted Subsidiary was an obligor with
respect to the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged; and
|
| (6) |
notwithstanding that the Indebtedness being renewed, refunded, refinanced, extended, replaced, defeased or discharged may have been repaid or discharged by the Company or any of its Restricted
Subsidiaries prior to the date on which the new Indebtedness is incurred, Indebtedness that otherwise satisfies the requirements of this definition may be designated as Permitted Refinancing Indebtedness so long as such renewal, refunding,
refinancing, extension, replacement, defeasance or discharge occurred not more than 36 months prior to the date of such incurrence of Permitted Refinancing Indebtedness.
|
26
“Person” means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Private Placement Legend” means the legend set forth in Section
2.6(f)(1) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Receivables Transaction” means any transaction or series of
transactions entered into by the Company or any of its Subsidiaries pursuant to which the Company or any of its Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Subsidiary or any other Person (in the case of a transfer by the
Company or any of its Subsidiaries) and (2) any other Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any accounts receivable (whether now existing or arising in the future) of the Company or any of
its Subsidiaries, and any assets related thereto including, without limitation, all Equity Interests and other Investments in the Receivables Subsidiary, all collateral securing such accounts receivable, all contracts and all Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization
transactions involving accounts receivable; provided that the financing terms, covenants, termination events and other provisions (including collateralization levels) thereof
shall be on customary market terms for securitization transactions involving assets such as, or similar to, the assets subject thereto (as determined in good faith by a responsible financial officer of the Company).
“Qualifying Equity Interests” means Equity Interests of the Company
other than Disqualified Stock.
“Receivables Subsidiary” means a Subsidiary of the Company which engages
in no activities other than in connection with the financing or securitization of accounts receivable and which is designated by the Board of Directors of the Company (as provided below) as a Receivables Subsidiary (a) no portion of the
Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Company or any Restricted Subsidiary of the Company (other than comprising a pledge of the Capital Stock or other interests in such Receivables
Subsidiary (an “incidental pledge”), and excluding any Guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction), (ii) is recourse to or obligates the Company or any Restricted Subsidiary of the Company in any way other
than through an incidental pledge or pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction or (iii) subjects any property or asset
of the Company or any Subsidiary of the Company (other than accounts receivable and related assets as provided in the definition of “Qualified Receivables Transaction”), directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction, (b) with which neither the Company nor any Subsidiary of
the Company has any material contract, agreement, arrangement or understanding (other than pursuant to the Qualified Receivables Transaction) other than (i) on terms no less favorable to the Company or such Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Company, and (ii) fees payable in the ordinary course of business in connection with servicing accounts receivable and (c) with which neither the Company nor any Subsidiary of the
Company has any obligation to maintain or preserve such Subsidiary’s financial condition, other than a minimum capitalization in customary amounts, or to cause such Subsidiary to achieve certain levels of operating results. Any such designation by
the Board of Directors of the Company will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the foregoing conditions.
27
“Recovery Event” means any event that gives rise to the receipt by the
Company or any of its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real
property; provided, however, for purposes of determining whether an Asset Sale Offer would be
required, a Recovery Event shall be deemed to have occurred only to the extent that the aggregate net cash proceeds of all such events, together with all Dispositions that constitute Asset Sales without giving effect to the dollar thresholds in the
definition thereof, during any fiscal year exceed $1.0 million.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Global Note substantially in the form
of Exhibit A hereto bearing the Global Note Legend and the Regulation S Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes sold in reliance on Rule 903 of Regulation S.
“Regulation S Global Note Legend” means the legend set forth in Section
2.6(f)(3) hereof to be placed on all Regulation S Global Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom
any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“Restricted Definitive Note” means a Definitive Note bearing the Private
Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private
Placement Legend.
“Restricted Investment” means an Investment other than a Permitted
Investment.
“Restricted Period” means the 40-day distribution compliance period as
defined in Regulation S.
28
“Restricted Subsidiary” of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“S&P” means Standard
& Poor’s Ratings Services.
“Scheduled Maturity” means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the Closing Date, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
“Security Agreement” means the Security Agreement, dated as of the
Closing Date, among the Company and certain subsidiaries of the Company, as grantors, and the Collateral Agent, as the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Secured Leverage Ratio” means, as of any date of determination, the
ratio of (x) the outstanding amount of the Senior Secured Obligations together with any other Indebtedness of the Company and its Restricted Subsidiaries secured by the
Collateral on a pari passu or a junior basis to (y) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters
ending prior to the date of such determination for which internal consolidated financial statements of the Company have been or are required to be delivered; provided, that:
| (1) |
if, since the beginning of such period, the Company or any of its Restricted Subsidiaries shall have made any sales, transfers or other dispositions of any assets (other than Aircraft Assets) where
the Fair Market Value of such assets exceeds $10.0 million (a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
|
29
| (2) |
if, since the beginning of such period, the Company or any of its Restricted Subsidiaries (by merger, consolidation or otherwise) shall have made any acquisition or purchase of any assets (other
than Aircraft Assets) where the Fair Market Value of any such assets exceeds $10.0 million (a “Purchase”) or any Permitted Investment (including any Permitted
Investment occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase or Permitted Investment
occurred on the first day of such period; and
|
| (3) |
if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Company or any Restricted Subsidiary, and since the beginning of
such period such Person shall have made any Sale, Purchase or Permitted Investment that would have required an adjustment pursuant to clause (1) or (2) above if made by the Company or a Restricted Subsidiary of the Company since the
beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale, Purchase or Permitted Investment occurred on the first day of such period.
|
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase, Permitted Investment or other transaction, or
the amount of income or earnings relating thereto, the pro forma calculations in respect thereof shall be as determined in good faith by a responsible financial or accounting officer of the Company.
“Senior Priority Representative” has the meaning ascribed to it in the Security Agreement.
“Senior Secured Obligations” means the obligations under the Credit
Agreement, the Loan Documents, this Indenture, the Collateral Documents, the Notes, the Note Guarantees and the Intercreditor Agreement.
“Senior Unsecured Pari Passu Debt” means Pari Passu Debt that is
unsecured.
“Significant Guarantors” means Allegiant Air, LLC, Sunrise Asset
Management LLC and Allegiant Vacations, LLC, and each of their successors and permitted assigns.
“Significant Subsidiary” means any Restricted Subsidiary of the Company
that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such Regulation is in effect on the Closing Date.
“Spare Parts” has the meaning ascribed to it in the Allegiant Spare
Parts Security Agreement and the Sun Country Spare Parts Security Agreement.
“Standard Securitization Undertakings” means all representations,
warranties, covenants, indemnities, performance Guarantees and servicing obligations entered into by the Company or any Subsidiary (other than a Receivables Subsidiary), which are customary in connection with any Qualified Receivables Transaction.
30
“Stated Maturity” means the date specified in the Notes as the fixed
date on which an amount equal to the principal amount of the Notes is due and payable.
“Subordinated Debt” means any Indebtedness of the Company or the
Guarantors that is contractually subordinated in right of payment to the Notes or to the Note Guarantees (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries)
“Subsidiary” means, with respect to any Person:
| (1) |
any corporation, association or other business entity (other than a partnership, joint venture or limited liability company) of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination
thereof); and
|
| (2) |
any partnership, joint venture or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited
partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, whether in the form of membership, general, special or
limited partnership interests or otherwise and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
|
“Sun Country Spare Parts Security Agreement” means the Spare Parts
Security Agreement, dated as of the Closing Date, between Sun Country, Inc., as grantor, and the Collateral Agent, as the same may be amended, restated, modified, supplemented,
extended or amended and restated from time to time.
“Trademark Security Agreement” means the Trademark Security Agreement,
dated as of the Closing Date, by and among the Company and Sunrise Asset Management, LLC, as grantors, and the Collateral Agent, as the same may be amended, restated, modified,
supplemented, extended or amended and restated from time to time.
“Treasury Rate” means, with respect to any redemption date for the
Notes, the yield to maturity at the time of computation of U.S. Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least
two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source or similar market data)) most nearly equal to the period from the redemption date to July 1, 2028; provided, however, that if the period from the redemption date to July 1, 2028 is not equal to the
constant maturity of a U.S. Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one‑twelfth of a year) from the weekly average yields of U.S. Treasury
securities for which such yields are given, except that if the period from the redemption date to July 1, 2028 is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year
will be used.
31
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended,
and the rules and regulations thereunder as in effect on the date of this Indenture.
“Trustee” means Wilmington Trust, National Association in its capacity
as such, until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“UCC” means the Uniform Commercial Code as in effect from time to time
in any applicable jurisdiction.
“Unrestricted Definitive Note” means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is
not required to bear the Private Placement Legend.
“Unrestricted Subsidiary” means (i) Sunseeker Resorts, Inc. and each of its direct and indirect Subsidiaries so long as such Person meets the requirements set forth in clauses (2) through (5) below, or (ii) any other Subsidiary of the
Company that is designated by the Board of Directors of the Company as an Unrestricted Subsidiary in compliance with Section 4.10 pursuant to a resolution of the Board of Directors, but only if such Subsidiary:
| (1) |
has no Indebtedness other than Non-Recourse Debt;
|
| (2) |
is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company;
|
| (3) |
is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results (other than a Completion Guarantee);
|
| (4) |
has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries; and
|
| (5) |
does not own any assets or properties that constitute Collateral.
|
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
32
“Voting Stock” of any specified Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
| (1) |
the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final
maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
|
| (2) |
the then outstanding principal amount of such Indebtedness.
|
|
TERM
|
DEFINED IN SECTION
|
||
|
“Acceleration Event”
|
6.2
|
||
|
“Asset Sale Offer”
|
4.13(a)
|
||
|
“Asset Sale Offer Period”
|
4.13(c)
|
||
|
“Asset Sale Purchase Date”
|
4.13(c)
|
||
|
“Change of Control Offer”
|
4.12(a)
|
||
|
“Change of Control Payment”
|
4.12(a)
|
||
|
“Change of Control Payment Date”
|
4.12(a)
|
||
|
“Completion Guarantee”
|
4.11(b)(13)
|
||
|
“DTC”
|
2.3
|
||
|
“Event of Default”
|
6.1
|
||
|
“Excess Proceeds”
|
4.13(b)
|
||
|
“Paying Agent”
|
2.3
|
||
|
“Permitted Debt”
|
4.7
|
||
|
“Registrar”
|
2.3
|
||
|
“Special Interest”
|
4.3(b)
|
Unless the context otherwise requires:
(a) a term has the
meaning assigned to it;
(b) an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the
singular include the plural, and in the plural include the singular; and
33
(e) provisions apply
to successive events and transactions.
(a) General. The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Indenture and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Global Notes and Definitive Notes. Notes issued in global form will be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in
the Global Note” attached thereto). Each Global Note will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents 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 or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby will be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.6 hereof. Notes issued in definitive form will be substantially in the form of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note”
attached thereto).
(c) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and
Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation S Global Note that are held by Participants through Euroclear or Clearstream.
At least one Officer must sign the Notes for the Company by manual, facsimile or other electronic signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid.
34
A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate Notes for original issue that may be validly issued under this Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the
aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company.
The Company will maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar will keep a
register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company (“DTC”) to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes.
The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of principal of, premium on, if any, or interest, if any, on, the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) will have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of the Holders all money held by it
as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.
35
The Trustee will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all
Holders. If the Trustee is not the Registrar, the Company will furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of Holders.
(a) Transfer and Exchange of Global Notes. A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if:
(1) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 90 days after the date of such notice from the Depositary; or
(2) the Company
executes and delivers an Officer’s Certificate to such effect to the Trustee; or
(3) there has occurred
and is continuing a Default or Event of Default with respect to the Notes and owners of beneficial interests in the Global Note in an amount not less than a majority of the aggregate outstanding principal amount of such Global Note have
delivered to the Company and the Trustee a notice indicating that the continuation of the book-entry system through the Depositary is no longer in the best interests of the holders of such beneficial interests; or
(4) as otherwise
agreed by the Company and a holder of a beneficial interest in a Global Note.
Upon the occurrence of any of the preceding events in subparagraph (1), (2) or (3) above, Definitive Notes shall be issued in such names as the
Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this
Section 2.6(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
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(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the
form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the
account or benefit of a U.S. Person (other than the Initial Purchasers). Beneficial interests in any 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 shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.6(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to
Section 2.6(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures 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
(ii) instructions
given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B) both:
(i) a written order
from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged; and
(ii) instructions
given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (i) above.
Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.6(g) hereof.
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(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.6(b)(2) above and the Registrar receives the following:
(A) if the
transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee
will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any 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 thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.6(b)(2) above and the Registrar receives the following:
(A) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(B) if the holder of
such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest 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 of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so requests or if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the Company and the 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 Private Placement
Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to this Section 2.6(b)(4) at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of
beneficial interests transferred pursuant to this Section 2.6(b)(4).
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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 Restricted Global Note.
(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial
interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such beneficial
interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial
interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial
interest is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable; or
(F) if such beneficial
interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.6(g) hereof,
and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.6(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from
the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.6(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
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(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Registrar receives the following:
(A) if the holder of
such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b)
thereof; or
(B) if the holder of
such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so requests or if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the Company and the 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 Private Placement
Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.6(b)(2) hereof, the
Trustee will cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 2.6(g) hereof, and the Company will execute and the Trustee will authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3) will be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive
Notes to the Persons in whose names the Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
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(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of
such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted
Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted
Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted
Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to
the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable; or
(F) if such Restricted
Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof;
the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global Note, in the case of subparagraph (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following:
41
(A) if the Holder of
such Definitive Notes proposes to exchange the Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or
(B) if the Holder of
such Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so requests or if the Applicable Procedures so require, an Opinion
of Counsel in form reasonably acceptable to the Company and the 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 Private Placement
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 Section 2.6(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to
be increased the aggregate principal amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer,
the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraph (2)(B) or (3) above at a time
when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.6(e), the Registrar will
register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section 2.6(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:
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(A) if the transfer
will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer
will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transfer
will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of
such Restricted Definitive Notes proposes to exchange the Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or
(B) if the Holder of
such Restricted Definitive Notes proposes to transfer the Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to
the Company and the 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 Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer the Notes to a Person who takes delivery thereof in the
form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
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(A) Except as
permitted by subparagraph (B) below and except with respect to a Regulation S Global Note, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the
following form:
“THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, 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 NOTE, 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 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 NOTE (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (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 OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS IN COMPLIANCE WITH RULE 903 OR RULE 904 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 (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 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).”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2) or (e)(3) of this Section 2.6 (and all Notes issued in exchange therefor or substitution thereof) will not bear the
Private Placement Legend.
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY
FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.6 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), 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 MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”
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(3) Regulation S Global Note Legend. Each Regulation S Global Note will bear a legend in substantially the following form:
“THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, 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 NOTE, 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 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST
OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (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 OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS IN
COMPLIANCE WITH RULE 903 OR RULE 904 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 (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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BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
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).”
(g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a 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 will be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. 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 in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee 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 Global Note will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(1) To permit
registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.2 hereof or at the Registrar’s request.
47
(2) No service charge
will be made to a Holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 2.10, 3.6, 3.7, 4.13, and 9.5 hereof).
(3) The Registrar will
not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and
Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(5) Neither the
Registrar nor the Company will be required:
(A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.2 hereof and ending at the close of business on the day of
selection;
(B) to register the
transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or
(C) to register the
transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date.
(6) Prior to due
presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of
principal of, premium, if any, and interest on, the Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee will
authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.2 hereof.
(8) All
certifications, certificates and Opinions of Counsel required to be submitted to the Company and the Registrar pursuant to this Section 2.6 to effect a registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything to the contrary herein, neither the Trustee nor the Registrar shall be responsible for ascertaining whether any transfer
complies with the registration provisions of or exemptions from the Securities Act or applicable state securities laws.
48
If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company will issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and will be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a protected purchaser.
If the principal amount of any Note is considered paid under Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date the Notes will be deemed to be no longer outstanding and will cease to accrue interest.
In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any Guarantor, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any Guarantor, will be considered as though not outstanding, except that for the purposes
of determining whether the Trustee will be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.
49
Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, will
authenticate temporary Notes. Temporary Notes will be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without
unreasonable delay, the Company will prepare and the Trustee will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will be entitled to all of the benefits of this Indenture.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent will forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled Notes
(subject to the record retention requirements of the Exchange Act and the customary procedures of the Trustee). Certification of the cancellation of all canceled Notes will be delivered to the Company. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
If the Company defaults in a payment of interest on the Notes, it will pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.1 hereof. The Company will notify the Trustee in writing of the amount
of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company will fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the
Company, the Trustee in the name and at the expense of the Company) will mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
The Company may, from time to time, without notice to or the consent of the Holders, increase the principal amount of the Notes under this Indenture
and issue such increased principal amount (or any portion thereof), in which case any Additional Notes so issued shall have the same form and terms (other than the date of issuance and, under certain circumstances, the date from which interest
thereon shall begin to accrue), and shall carry the same right to receive accrued and unpaid interest, as the Notes previously issued, and such Additional Notes shall form a single series with the Notes. Any Additional Notes that are not fungible
with the Notes for U.S. Federal income tax purposes must be issued under a separate CUSIP number.
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The Company may not reissue a Note that has matured, been redeemed, been purchased by the Company at the Holder’s option upon a Change of Control or
otherwise been canceled, except for registration of transfer, exchange or replacement of such Note.
If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.7 hereof, it must furnish to the Trustee, at least
30 days but not more than 60 days before a redemption date, an Officer’s Certificate setting forth:
(a) the clause of this
Indenture pursuant to which the redemption shall occur;
(b) the redemption
date;
(c) the principal
amount of Notes to be redeemed; and
(d) the redemption
price.
If the redemption price is not known at the time such notice is to be given, the actual redemption price, calculated as described in the terms of
the Notes to be redeemed, shall be set forth in an Officer’s Certificate of the Company delivered to the Trustee no later than two Business Days prior to the redemption date.
If less than all the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed subject to DTC’s Applicable Procedures for Global
Notes in any manner that the Trustee deems fair and appropriate, including by lot, pro rata or other method. The Trustee shall make the selection at least 30 days but no more than 60 days before the redemption date from Notes outstanding not
previously called for redemption. The Trustee will select the Notes to be redeemed in principal amounts of $2,000 or integral multiples of $1,000 in excess thereof. If less than all outstanding Notes are to be redeemed, any selection of Notes to be
redeemed shall be subject to the Applicable Procedures in the case of any Global Note. The Trustee will make the selection at least 30 days but no more than 60 days before the redemption date from outstanding Notes not previously called for
redemption. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption.
At least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each
Holder whose Notes are to be redeemed, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture
pursuant to ARTICLE VIII hereof.
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The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying
Agent;
(d) if any Notes are being redeemed in
part, the portion of the principal amount of the Notes to be redeemed and that, after the redemption date and upon surrender of the Notes, new Notes in principal amount equal to the unredeemed portion of the original Notes shall be issued in
the name of the Holder thereof upon cancellation of the original Notes;
(e) that Notes called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on the Notes called for
redemption ceases to accrue on and after the redemption date unless the Company defaults in the deposit of the redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be
required by the terms of the Notes being redeemed.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the Trustee, at least 30 days (unless a shorter time shall be acceptable
to the Trustee) prior to the notice date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
Any such redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including the consummation of a Change of
Control. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such
conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date so
delayed.
Once notice of redemption is mailed as provided in Section 3.3, Notes called for redemption become due and payable on the redemption date and at the
redemption price. Upon surrender to the Paying Agent, the Notes shall be paid at the redemption price plus accrued interest, including Special Interest, if any, to the redemption date. If the redemption notice is given and funds deposited as
required by Section 3.5, then interest will cease to accrue on and after the redemption date on the Notes or portions of such Notes called for redemption.
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On or before 11:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest, including Special Interest if any, on all Notes to be redeemed on that date. In the event that any redemption date is not a Business Day, the Company will pay the redemption price on the next Business Day
without any interest or other payment due to the delay.
Upon surrender of Notes that are redeemed in part, the Trustee shall authenticate for the Holder a new Note of the same maturity equal in principal
amount to the unredeemed portion of the Note surrendered.
(a) On and after July 1, 2028, the
Company, at its option, may redeem the Notes, in whole or in part at any time and from time to time, at the redemption prices (expressed in percentages of the principal amount of the Notes to be redeemed) listed below, plus any accrued and
unpaid interest thereon to, but excluding, the redemption date, if redeemed during the twelve-month period beginning on July 1 of the years indicated below.
|
Percentage
|
|
|
2028
|
103.563%
|
|
2029
|
101.781%
|
|
2030 and thereafter
|
100.000%
|
(b) Prior to July 1, 2028, the Company
may on any one or more occasions redeem up to 40% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) with the net cash proceeds of one or more Equity Offerings, upon not
less than 30 nor more than 60 days’ notice mailed or otherwise delivered to each Holder in accordance with the Applicable Procedures of DTC, at a redemption price equal to 107.125% of the principal amount of the Notes, plus any accrued and
unpaid interest thereon to, but excluding, the applicable redemption date; provided that at least 60% of the original aggregate principal amount of the Notes (calculated
after giving effect to any issuance of Additional Notes) remains outstanding after each such redemption and such redemption occurs within 90 days after the closing of such Equity Offering.
(c) Prior to July 1, 2028, the Company
may on any one or more occasions redeem up to 10% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) per year, upon not less than 30 nor more than 60 days’ notice mailed
or otherwise delivered to each holder in accordance with the applicable procedures of DTC, at a redemption price equal to 103% of the principal amount of the Notes, plus any accrued and unpaid interest thereon to, but excluding, the applicable
redemption date.
(d) Prior to July 1, 2028, 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 Notes to be redeemed plus the Applicable Premium, plus any accrued and unpaid interest on the
principal amount being redeemed to, but excluding, the redemption date. The Company will notify the Trustee of the calculation of the redemption price and the Trustee will not be responsible for such calculation.
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(e) Any redemption pursuant to this
Section 3.7 shall be made pursuant to the provisions of Section 3.1 through 3.6 hereof.
The Company is not required to make mandatory redemption, sinking fund or other scheduled payments of principal with respect to the Notes.
The Company covenants and agrees for the benefit of the Holders that it will duly and punctually pay the principal of and interest, if any, on the
on the Notes in accordance with the terms of the Notes and this Indenture. On or before 11:00 a.m., New York City time, on the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and
interest, if any, on the Notes in accordance with the terms of the Notes and this Indenture. All references to “interest” in this Indenture shall be deemed to include Special Interest, if any, that is then due.
Whether or not required by the SEC’s rules and regulations, so long as any Notes are outstanding, the Company will furnish to the Trustee,
within 15 days after the time periods (including any extensions thereof) specified in the SEC’s rules and regulations:
(1) all quarterly and
annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and
(2) all current
reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
Reports, information and documents filed by the Company with the SEC via the EDGAR system will be deemed to have been furnished to the Trustee as of
the time such documents are filed via EDGAR. The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) have occurred.
In addition, for so long as any Notes remain outstanding, at any time the Company is not required to file the reports required by the preceding
paragraphs with the SEC, the Company will furnish to the Holders and to prospective investors, upon their written request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
54
Delivery of any reports, information and documents to the Trustee will be for informational purposes only, and the Trustee’s receipt thereof 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 under this Indenture or documents related thereto.
(a) The Company shall deliver to the
Trustee, within the time periods the Company is required to furnish quarterly and annual reports pursuant to Section 4.2, an Officer’s Certificate demonstrating in reasonable detail the aggregate amount of Liquidity as of the end of the
preceding fiscal quarter.
(b) If such Officer’s Certificate
demonstrates that Liquidity is less than $300.0 million at the time, then the Company will pay additional interest on all outstanding Notes (“Special Interest”) in an
amount equal to 2.0% per annum of the principal amount of such Notes, commencing on the earlier of (x) the date on which the Company was required to deliver such Officer’s Certificate in accordance with this Section 4.3 and (y) the date the
Company delivers an Officer’s Certificate demonstrating such Liquidity is less than $300.0 million, and continuing until the Company delivers to the Trustee an Officer’s Certificate demonstrating in reasonable detail Liquidity of at least
$300.0 million. Special Interest payable pursuant to the provisions of this Section 4.3 will be calculated and paid in the same manner as regular interest is calculated and paid under this Indenture.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Notes; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, 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 has been enacted.
Subject to ARTICLE V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence and rights (charter and statutory); provided, however, that the Company shall not be
required to preserve any such right if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not
adverse in any material respect to the Holders.
(a) The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:
55
(1) declare or pay any
dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (x) dividends, distributions or payments payable
in Qualifying Equity Interests or in the case of preferred stock of the Company, an increase in the liquidation value thereof, and (y) dividends, distributions or payments payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem
or otherwise acquire or retire for value any Equity Interests of the Company;
(3) make any voluntary
payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (collectively, for purposes of this clause (3), a “purchase”) any
Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries); or
(4) make any
Restricted Investment,
(all such payments and other actions set forth in these clauses (1) through (4) being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment: (a) no Default of Event of Default has occurred and is continuing, (b) the Company would,
at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.7(a); and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments (other than Restricted Investments) made by the Company
and its Restricted Subsidiaries after February 5, 2019, and together with Restricted Investments outstanding at the time of giving effect to such Restricted Payment (excluding, in each case, Restricted Payments permitted by clauses (2) through (18)
of Section 4.6(b)), is less than the sum, without duplication, of:
(A) 50% of the
Consolidated Net Income of the Company for the period (taken as one accounting period) from October 1, 2018 to the end of the Company’s most recently ended fiscal quarter for which financial statements are available at the time of such
Restricted Payment; provided that, solely for purposes of this clause, Consolidated Net Income shall be determined without giving effect to any losses relating to Sunseeker Resorts, Inc. and each of its direct and indirect Subsidiaries; plus
(B) 100% of the
aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Company after February 5, 2019, in each case, as a contribution to its common equity capital or from the issue or sale of Qualifying Equity Interests
(other than Qualifying Equity Interests sold to a Subsidiary of the Company, and excluding Excluded Contributions); plus
56
(C) 100% of the
aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Company or a Restricted Subsidiary of the Company from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or a
Restricted Subsidiary of the Company or convertible or exchangeable debt securities of the Company or a Restricted Subsidiary of the Company (regardless of when issued or sold) or in connection with the conversion or exchange thereof, in each
case that have been converted into or exchanged after February 5, 2019 for Qualifying Equity Interests (other than Qualifying Equity Interests and convertible or exchangeable Disqualified Stock or debt securities sold to a Subsidiary of the
Company); plus
(D) to the extent that
any Restricted Investment that was made after February 5, 2019 is (a) sold for cash or otherwise cancelled, liquidated or repaid for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of the Company, the initial
amount of such Restricted Investment (or, if less, the amount of cash received upon repayment or sale); plus
(E) to the extent
that any Unrestricted Subsidiary of the Company designated as such on or after February 5, 2019 is redesignated as a Restricted Subsidiary after February 5, 2019, the greater of (i) the Fair Market Value of the Company’s Restricted Investment
in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after February 5, 2019; plus
(F) 100% of any
dividends received in cash by the Company or a Restricted Subsidiary of the Company after February 5, 2019 from an Unrestricted Subsidiary (other than any Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary
constituted a Permitted Investment) of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period.
(1) so long as no
Event of Default has occurred and is continuing as of such time, the declaration and payment of any regularly scheduled dividend payable to the holders of the Company’s common stock; provided that the aggregate amount of such dividends for any four consecutive fiscal quarters shall not exceed the greater of (A) $100.0 million and (B) 15% of the Company’s Consolidated EBITDAR for the most recent four
consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Company have been or are required to be delivered pursuant to this Indenture;
57
(2) the payment of any
dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or
notice, the dividend or distribution or redemption payment would have complied with the provisions of this Indenture;
(3) the making of any
Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Qualifying Equity Interests or from the substantially concurrent contribution of
common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not be considered to
be net proceeds of Qualifying Equity Interests for purposes of Section 4.6(a)(4)(B) and will not be considered to be Excluded Contributions;
(4) the payment of any
dividend (or, in the case of any partnership or limited liability company, any similar distribution), distribution or payment by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(5) the repurchase,
redemption, defeasance or other acquisition or retirement for value of Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(6) the repurchase,
redemption, acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director, consultant or employee (or their estates or beneficiaries of
their estates) of the Company or any of its Restricted Subsidiaries pursuant to any management equity plan or equity subscription agreement, stock option agreement, shareholders’ agreement or other agreement to compensate such persons; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $30.0 million in any twelve-month period; provided further that the Company or any of its Restricted Subsidiaries may carry over and make in subsequent twelve-month periods, in addition to the amounts permitted for
such twelve‑month period, up to $10.0 million of unutilized capacity under this clause (6) attributable to the immediately preceding twelve-month period;
(7) the repurchase of
Equity Interests or other securities deemed to occur upon (a) the exercise of stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities, to the extent such Equity Interests or other
securities represent a portion of the exercise price of those stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities or (b) the withholding of a portion of Equity Interests issued
to employees and other participants under an equity compensation program of the Company or its Subsidiaries to cover withholding tax obligations of such persons in respect of such issuance or upon the vesting of such Equity Interests;
(8) so long as no
Default or Event of Default has occurred and is continuing, the declaration and payment of regularly scheduled or accrued dividends, distributions or payments to holders of any class or series of Disqualified Stock or Subordinated Debt of the
Company or any preferred stock of any Restricted Subsidiary of the Company in each case either outstanding on the Closing Date or issued on or after the Closing Date in accordance with Section 4.7 and not to exceed the greater of (A) $100.0
million and (B) 15% of the Company’s Consolidated EBITDAR for the preceding four fiscal quarters of the Company in aggregate;
58
(9) payments of cash,
dividends, distributions, advances, common stock or other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of options or
warrants, (ii) the conversion or exchange of Capital Stock of any such Person, (iii) a distribution or split or (iv) the conversion or exchange of Indebtedness or hybrid securities into Capital Stock of any such Person;
(10) the declaration and
payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Disqualified Stock or preferred stock of any Restricted Subsidiary of the Company to the extent such dividends are included in the definition of
“Fixed Charges” for such Person;
(11) in the event of a
Change of Control, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of any Junior Lien Debt, Senior Unsecured Pari Passu Debt and
Subordinated Debt, in each case, at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company or the Guarantors (or a third party to the extent
permitted by this Indenture) have made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all notes validly tendered and not withdrawn in connection with such Change of Control Offer
(it being agreed that the Company or the Guarantors may pay, purchase, redeem, defease or otherwise acquire or retire such Indebtedness even if the purchase price exceeds 101% of the principal amount of such Indebtedness; provided that the amount paid in excess of 101% of such principal amount is otherwise permitted under the Restricted Payments covenant);
(12) Restricted Payments
made with Excluded Contributions;
(13) the distribution, as
a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Company or any of its Restricted Subsidiaries by, any Unrestricted Subsidiary;
(14) so long as no Event
of Default has occurred and is continuing, Restricted Payments in an aggregate amount not to exceed $200.0 million, such aggregate amount to be calculated from and after the Closing Date;
(15) any Restricted
Payment if, after giving pro forma effect thereto and to the incurrence of any Indebtedness the net proceeds of which are used to finance such Restricted Payment, the Consolidated Total Leverage Ratio would be no greater than 2.50:1.00;
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(16) the payment of any
amounts in respect of any restricted stock units or other instruments or rights whose value is based in whole or in part on the value of any Equity Interests issued to any directors, officers or employees of the Company or any Restricted
Subsidiary of the Company;
(17) so long as no Event
of Default has occurred and is continuing, Restricted Payments (A) made to purchase or redeem Equity Interests of the Company or (B) consisting of payments in respect of any Indebtedness (whether for purchase or prepayment thereof or
otherwise); and
(18) Restricted
Investments in an aggregate amount that does not exceed the greater of (A) $325.0 million and (B) 50% of the Company’s Consolidated EBITDAR for the preceding four fiscal quarters of the Company.
(c) In the case of any Restricted Payment
that is not cash, the amount of such non-cash Restricted Payment will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary
of the Company, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this Section 4.6 will be determined by an officer of the Company and, if greater than
$20.0 million, set forth in an Officer’s Certificate delivered to the Trustee.
(d) For purposes of determining
compliance with this Section 4.6, if a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments set forth in clauses (1) through (18) of Section 4.6(b) hereof, or is entitled
to be made pursuant to Section 4.6(a) hereof, the Company shall be entitled to classify on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any manner that
complies with this Section 4.6.
(e) Notwithstanding anything in this
Indenture to the contrary, if a Restricted Payment is made (or any other action is taken or omitted under this Indenture) at a time when a Default or Event of Default has occurred and is continuing and such Default or Event of Default is
subsequently cured, any Default or Event of Default arising from the making of such Restricted Payment (or the taking or omission of such other action) during the existence of such Default or Event of Default shall simultaneously be deemed
cured.
(a) The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company may incur unsecured Indebtedness (including Acquired
Debt) or issue Disqualified Stock and the Company’s Restricted Subsidiaries may incur unsecured Indebtedness (including Acquired Debt) or issue preferred stock, if the Fixed Charge Coverage Ratio immediately preceding the date on which such
additional unsecured Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom) as if the additional unsecured Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of the four-quarter period used to calculate the Fixed Charge
Coverage Ratio.
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(b) The provisions of Section 4.7(a)
hereof shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Company and the Guarantors of Indebtedness under the Credit Agreement in an aggregate principal amount outstanding at any time not to exceed the original aggregate
amount of total revolving commitments specified in the Credit Agreement as of the Closing Date (for the avoidance of doubt, such amount does not include any incremental commitments or other commitments);
(2) the incurrence by
the Company and the Guarantors of the Notes and Note Guarantees in the aggregate principal amount to be issued on the Closing Date;
(3) the incurrence by
the Company or any of its Restricted Subsidiaries of the Existing Indebtedness and any Permitted Refinancing Indebtedness that is incurred pursuant to or in lieu of a commitment in existence as of the Closing Date;
(4) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness (including Capital Lease Obligations, mortgage financings, purchase money obligations and government bond financings) incurred to finance (or to reimburse the Company or any of
its Restricted Subsidiaries for) all or any part of the purchase price or installation or improvement of any Aircraft Asset used in the business of the Company or any of its Restricted Subsidiaries or leased to any third party;
(5) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount up to the sum of:
(A) the greater of (x)
$650.0 million and (y) 100% of the Company’s Consolidated EBITDAR for the most recent four consecutive fiscal quarters ending prior to the date of such determination (as calculated on a pro forma basis); plus
(B) all voluntary
prepayments, debt buybacks (up to the actual amount of the resulting reduction in Indebtedness), and payments utilizing the yank a bank provisions, as applicable, of the Indebtedness permitted to be incurred under the Credit Agreement and the
other Loan Documents consisting of the issuance or incurrence of any senior or subordinated Indebtedness, to the extent accompanied by a permanent reduction of revolving commitments and to the extent not made with the proceeds of long term
Indebtedness (other than revolving indebtedness); plus
(C) an additional
amount such that, after giving effect to the incurrence of such additional amount (but without giving effect to any amount incurred simultaneously under subclauses (a) and (b) above), and after giving pro forma effect to any acquisition or
Investment consummated in connection therewith or any other appropriate pro forma adjustments:
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(i) in the case of
First Lien Debt, the First Lien Leverage Ratio would not exceed 3.00:1.00; and
(6) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed $350.0 million at any time outstanding;
(7) the incurrence by
the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, extend, defease or discharge any Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.7(a) or any of clauses (1) through (25) of this Section 4.7(b);
(8) the incurrence by
the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and/or any of its Restricted Subsidiaries; provided that any
such intercompany Indebtedness owed to a Restricted Subsidiary shall be subordinated to the obligations under the Notes and the Note Guarantees;
(9) the issuance by
any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock;
(10) the incurrence by
the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;
(11) the Guarantee
(including by way of co-obligation or assumption) by the Company or any Restricted Subsidiary of the Company of Indebtedness of the Company or a Restricted Subsidiary of the Company (including in connection with or in contemplation of a
spin-off of the original obligor of the guaranteed or assumed Indebtedness) to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.7; provided that if the Indebtedness being guaranteed is Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt, then the Guarantee must be Junior Lien Debt, Senior Unsecured Pari Passu Debt or
Subordinated Debt, as applicable, to the same extent as the Indebtedness guaranteed or assumed;
(12) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness or reimbursement obligations in respect of workers’ compensation claims, self-insurance obligations (including reinsurance), bankers’ acceptances, performance bonds and surety
bonds in the ordinary course of business (including without limitation in respect of customs obligations, landing fees, taxes, airport charges, overfly rights and any other obligations to airport and governmental authorities);
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(13) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers
of funds;
(14) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness (a) constituting credit support or financing from aircraft or engine manufacturers or their affiliates or (b) incurred to finance or refinance Aircraft Assets (including, without
limitation, to reimburse the Company or any of its Restricted Subsidiaries for the acquisition cost of any of the foregoing, to finance any pre-delivery, progress or similar payment or pursuant to a sale and lease-back) (whether in advance of
or at any time following any acquisition of items being financed, and whether such indebtedness is unsecured in whole or in part or is secured by such items or by other items or by any combination); provided that the principal amount of such Indebtedness incurred in reliance on subsection (b) of this clause (14), at the time of incurrence of such Indebtedness, may exceed the aggregate incurred and anticipated
costs to finance acquisition of the item or items being financed by such Indebtedness (calculated at the time of incurrence of such Indebtedness and determined in good faith by an officer of the Company or Restricted Subsidiary, as applicable
(including reasonable estimates of anticipated costs) and calculated to include, without limitation, purchase price, fees, expenses, repayment of any pre-delivery financing and related interest expense (whether or not capitalized) and premium
(if any), delivery and late charges and other costs associated with such acquisition (as so calculated, for purposes of this proviso, the “financing costs”)) but, if such principal amount exceeds such financing costs, it may not exceed the
aggregate Fair Market Value of the item or items securing such Indebtedness (which Fair Market Value may, at the time of an advance commitment, be determined to be the Fair Market Value at the time of such commitment or (at the option of the
issuer or such Indebtedness) the Fair Market Value projected for the time of incurrence of such Indebtedness) or (c) constituting letters of credit in lieu of security deposits and maintenance reserves in connection with any Indebtedness in
operating lease associated with an Aircraft Asset;
(15) the incurrence by the
Company or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or preferred stock (including Acquired Debt) (A) as part of, or to finance, the acquisition (including by way of merger) of any Permitted Business, (B) incurred in
connection with, or as a result of, the merger, consolidation or amalgamation of any Person (including the Company or any of its Restricted Subsidiaries) that owns a Permitted Business with or into the Company or any of its Restricted
Subsidiaries, or into which the Company or any of its Restricted Subsidiaries is merged, consolidated or amalgamated, or (C) that is an outstanding obligation or commitment to enter into an obligation of a Person that owns a Permitted Business at
the time that such Person is acquired by the Company or any of its Restricted Subsidiaries and becomes a Restricted Subsidiary of the Company; provided that, in each case,
after giving pro forma effect to such acquisition, merger, consolidation or amalgamation, either (x) the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of this covenant or (y) the Fixed Charge Coverage Ratio would be no less than the Fixed Charge Coverage Ratio immediately prior to giving effect to such incurrence of Indebtedness or issuance of Disqualified Stock or
preferred stock;
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(16) Indebtedness issued
to current or former directors, consultants, managers, officers and employees and their spouses or estates (a) to purchase or redeem Capital Stock of the Company issued to such director, consultant, manager, officer or employee in an aggregate
principal amount not to exceed $5.0 million in any twelve-month period or (b) pursuant to any deferred compensation plan approved by the Board of Directors of the Company;
(17) reimbursement
obligations in respect of standby or documentary letters of credit or banker’s acceptances;
(18) surety and appeal
bonds that do not secure judgments that constitute an Event of Default;
(19) Indebtedness of the
Company or any of its Restricted Subsidiaries to Credit Card, travel charge or clearing house processors in connection with Credit Card processing, travel charge or clearing house services incurred in the ordinary course of business, whether in
the form of hold-backs or otherwise;
(20) the incurrence of
Indebtedness of the Company or any of its Restricted Subsidiaries owed to one or more Persons in connection with the financing of insurance premiums in the ordinary course of business;
(21) Credit Card
purchases of fuel;
(22) Indebtedness arising
from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any
business, assets or a Subsidiary; provided that, in the case of a disposition, the maximum assumable liability in respect of all such Indebtedness shall at no time exceed
the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company or any of its
Restricted Subsidiaries in connection with such disposition;
(23) Indebtedness of the
Company or any of its Restricted Subsidiaries consisting of take-or-pay or like obligations contained in supply, maintenance, repair, power-by-the-hour, overhaul or like agreements entered into in the ordinary course of business;
(24) the incurrence by a
Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction that is without recourse to the Company or to any other Restricted Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its assets
and, as to the Company or any other Restricted Subsidiary of the Company, other than Standard Securitization Undertakings) and is not guaranteed by any such Person; and
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(25) the incurrence by
the Company or any of its Restricted Subsidiaries of Indebtedness in respect of or in connection with tax-exempt or tax-advantaged municipal bond and similar financings related to Aircraft Related Facilities.
(c) None of the following shall constitute
an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this Section 4.7:
(1) the accrual of
interest or preferred stock dividends,
(2) the accretion or
amortization of original issue discount,
(3) the payment of
interest on any Indebtedness in the form of additional Indebtedness with the same terms,
(4) the
reclassification of preferred stock or of operating leases or any other instrument or transaction as Indebtedness due to a change in accounting principles or in GAAP or due to a modification of such operating leases, and
(5) the payment of
dividends on preferred stock or Disqualified Stock in the form of additional shares of the same class of preferred stock or Disqualified Stock.
(d) For purposes of determining
compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant
currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding any other provision of this Section 4.7, the maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant
to this Section 4.7 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness
outstanding as of any date shall be:
(1) the accreted value
of the Indebtedness as of such date, in the case of any Indebtedness issued with original issue discount;
(2) the principal
amount of the Indebtedness as of such date, in the case of any other Indebtedness; and
(3) in respect of
Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(A) the Fair Market
Value of such assets as of such date; and
(B) the amount of
the Indebtedness of the other Person as of such date.
The Company and each Guarantor shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien upon any of its property or assets (including Capital Stock of the Company or Subsidiaries), or income or profits therefrom, or assign or convey any right to receive income therefrom, whether owned on the
Closing Date or acquired after that date, that secures any Indebtedness or any obligations related thereto except:
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(a) in the case of any property or asset
that does not constitute Collateral, Permitted Liens, unless contemporaneously with the incurrence of such Liens, the Notes and the Note Guarantees are equally and ratably secured or are secured by a Lien on such property, assets or proceeds
that is senior in priority to such Liens; and
(b) in the case of any property or asset
that constitutes Collateral, Permitted Liens.
(a) If the Company or any of its
Restricted Subsidiaries acquires or creates another wholly owned domestic Subsidiary after the date of this Indenture, such newly acquired or created Subsidiary will become a Guarantor and execute a supplemental indenture effectuating such
Guarantor’s Note Guarantee and deliver an Opinion of Counsel satisfactory to the Trustee within 30 Business Days of the date on which it was acquired or created; provided
that any Subsidiary (whether designated as such on or after the Closing Date) that constitutes a Receivables Subsidiary or an Unrestricted Subsidiary need not become a Guarantor until such time as it ceases to be a Receivables Subsidiary or an
Unrestricted Subsidiary; provided, further, that any Subsidiary that constitutes an Immaterial
Subsidiary need not become a Guarantor unless and until 30 Business Days after such time as it ceases to be an Immaterial Subsidiary or such time as it guarantees, or pledges any property or assets to secure, any other Senior Secured
Obligations.
(b) Each Person that becomes a Guarantor
after the Closing Date shall also become a party to the applicable Collateral Documents and shall as promptly as practicable execute and deliver such security instruments, financing statements, mortgages, deeds of trust (in substantially the
same form as those first executed and delivered with respect to the Collateral) and certificates and opinions of counsel as may be necessary to vest in the Collateral Agent a perfected first priority security interest (subject to Permitted
Liens) in properties and assets that constitute Collateral as security for such Guarantor’s Note Guarantee and as may be necessary to have such property or asset added to the Collateral as required under the Collateral Documents and this
Indenture. Thereupon, all provisions of this Indenture relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.
(a) The Board of Directors may designate
any Restricted Subsidiary (other than the Significant Guarantors) to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market
Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation. That designation
will be permitted only if the Investment would be permitted at that time under Section 4.6 and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.”
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(b) Any designation of a Subsidiary of
the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officer’s Certificate certifying that such
designation complied with the preceding conditions. The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided
that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will be permitted only if (1) such
Indebtedness is permitted under Section 4.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; and (2) no Default would be in existence following such designation.
(c) As of the Closing Date, each of
Sunseeker Resorts, Inc., Sunseeker Florida, Inc., Sunseeker Florida North, Inc., SFI Equity Holdco, Inc., Point Charlotte Development, LLC and Point Charlotte, LLC will
be an Unrestricted Subsidiary.
(a) The Company will not, and will not
permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an “Affiliate Transaction”) involving aggregate payments or consideration in excess of $10.0 million, unless:
(1) the Affiliate
Transaction is on terms that are not materially less favorable to the Company or the relevant Restricted Subsidiary (taking into account all effects the Company or such Restricted Subsidiary expects to result from such transaction whether
tangible or intangible) than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
(2) the Company
delivers to the Trustee:
(A) with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an Officer’s Certificate certifying that such Affiliate Transaction complies with clause (1) of this Section
4.11(a) above; and
(B) with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an opinion as to the fairness to the Company or such Restricted Subsidiary of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will not be
deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 4.11(a):
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(1) any employment
agreement, confidentiality agreement, non-competition agreement, incentive plan, employee stock option agreement, long-term incentive plan, profit sharing plan, employee benefit plan, officer or director indemnification agreement or any similar
arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
(2) transactions between
or among the Company and/or its Restricted Subsidiaries (including without limitation in connection with any full or partial “spin-off” or similar transactions);
(3) transactions with a
Person (other than an Unrestricted Subsidiary of the Company) that is an Affiliate of the Company solely because the Company owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;
(4) payment of fees,
compensation, reimbursements of expenses (pursuant to indemnity arrangements or otherwise) and reasonable and customary indemnities provided to or on behalf of officers, directors, employees or consultants of the Company or any of its
Restricted Subsidiaries;
(5) any issuance of
Qualifying Equity Interests to Affiliates of the Company or any increase in the liquidation preference of preferred stock of the Company;
(6) transactions with
customers, clients, suppliers or purchasers or sellers of goods or services in the ordinary course of business or transactions with joint ventures, alliances, alliance members or Unrestricted Subsidiaries entered into in the ordinary course of
business;
(7) loans or advances
to employees, directors and contractors in the ordinary course of business not to exceed $5.0 million in the aggregate at any one time outstanding;
(8) transactions
pursuant to agreements or arrangements in effect on the Closing Date or any amendment, modification or supplement thereto or replacement thereof and any payments made or performance under any agreement as in effect on the Closing Date or any
amendment, replacement, extension or renewal thereof (so long as such agreement as so amended, replaced, extended or renewed is not materially less advantageous, taken as a whole, to the Holders than the original agreement as in effect on the
Closing Date);
(9) transactions
between or among the Company and/or its Subsidiaries;
(10) any purchase by the
Company’s Affiliates of Indebtedness of the Company or any of its Restricted Subsidiaries, the majority of which Indebtedness is offered to Persons who are not Affiliates of the Company;
(11) transactions between
the Company or any of its Restricted Subsidiaries and any employee labor union or other employee group of the Company or such Restricted Subsidiary provided such transactions are not otherwise prohibited by this Indenture; and
(12) transactions with
captive insurance companies of the Company or any of its Restricted Subsidiaries.
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(a) If a Change of Control occurs, unless
the Company has exercised its rights to redeem all of the Notes pursuant to Section 3.7, the Company will make an offer to purchase all of the outstanding Notes (the “Change of
Control Offer”) at a purchase price in cash equal to 101% of the aggregate principal amount of notes repurchased, plus any accrued and unpaid interest on the Notes repurchased to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the right of Holders of record on the applicable record date to receive any interest due on the Change of Control Payment Date (as
defined below). Within 30 days following any Change of Control, the Company will deliver a notice to each holder (with a copy to the Trustee) describing the transaction or transactions that constitute the Change of Control and offering to
repurchase notes on the date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the
date such notice is delivered, pursuant to the procedures required by this Indenture and described in such notice.
(b) On the Change of Control Payment
Date, the Company will, to the extent lawful:
(1) accept for
payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer; provided that if, following the repurchase of a portion of a note, the
remaining principal amount of such note outstanding immediately after such repurchase would be less than $2,000, then the portion of such note so repurchased shall be reduced so that the remaining principal amount of such note outstanding
immediately after such repurchase is $2,000;
(2) deposit with the
paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and
(3) deliver or cause
to be delivered to the Trustee for cancellation the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of notes or portions of notes being purchased by the Company.
(c) The paying agent will promptly
deliver to each holder of notes properly tendered the Change of Control Payment for such notes, and the Company will issue and the Trustee will promptly authenticate and deliver (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 such new note will be in a principal amount of $2,000 or an
integral multiple of $1,000 in excess thereof. 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.
(d) However, the Company shall not be
required to make a Change of Control Offer upon a Change of Control if (1) 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 (2) notice of redemption with respect to all notes has been given pursuant to Section 3.7, unless and
until there is a default in payment of the applicable redemption price; and a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the consummation of such Change of Control, if a definitive agreement is in
place for the Change of Control at the time the Change of Control Offer is made.
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(e) If a Change of Control occurs at a
time when the Company is prohibited, by the terms of any of its indebtedness, from purchasing the Notes, the Company may seek the consent of its lenders to the purchase of the Notes or may attempt to refinance the borrowings that contain such
prohibition. If the Company does not obtain such a consent or repay such borrowings, the Company would remain prohibited from purchasing the Notes. In such case, the Company’s failure to offer to purchase the Notes would constitute a Default
(as defined below) under this Indenture. For the avoidance of doubt, the Company’s failure to offer to purchase the Notes would constitute a Default under clause (3) and not clause (1) under Section 6.1, but the failure of the Company to pay
the Change of Control Payment when due shall constitute a Default under clause (1) under Section 6.1.
(a) Subject to this Section 4.13, on the
366th day after the Company or any of its Subsidiaries receives any Net Proceeds as a result of an Asset Sale or a Recovery Event, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders and, to the extent required by the terms of any other outstanding First Lien Debt, to all holders of such other First Lien Debt, to purchase the maximum aggregate principal amount
of notes and any such other First Lien Debt (on a pro rata basis, if applicable) that may be purchased out of Excess Proceeds (as defined below), at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and any
such other First Lien Debt, plus any accrued and unpaid interest thereon to, but excluding, the date of purchase, subject to the right of Holders of record on the applicable record date to receive any interest due on the Asset Sale Purchase
Date (as defined below), in accordance with the procedures set forth in this Indenture or the agreements governing such other First Lien Debt, as applicable.
(b) The Company will not be required to
make an Asset Sale Offer in respect of Net Proceeds from an Asset Sale or a Recovery Event to the extent that such Net Proceeds are (unless such Net Proceeds constitute collateral for any Permitted Debt) deposited into an account subject to an
Account Control Agreement until applied as set forth in clause (1) or (2) below and:
(1) such Net Proceeds
are used to prepay Permitted Debt that is secured by a first priority lien over property from which such Net Proceeds are derived within 365 days from the receipt of such Net Proceeds; or
(2) only if no Event
of Default has occurred and is continuing at the time of such proposed reinvestment, such Net Proceeds are reinvested, in the case of Net Proceeds of assets that do not constitute Collateral, in assets of a kind then used or usable in the
business of the Company and its Restricted Subsidiaries or, in the case of Net Proceeds of assets that constitute Collateral, in additional assets that constitute Collateral and that are substantially simultaneously pledged under the Collateral
Documents with a Lien of the same priority as the Collateral that was subject of the Asset Sale or Recovery Event, in each case, within 365 days from the receipt of such Net Proceeds (or, if within such 365 day period the Company or any of its
Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Proceeds, such Net Proceeds are so reinvested within 180 days after such binding commitment is so entered into).
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Any Net Proceeds not applied as provided in clause (1) or (2) of this Section 4.13(b) will be deemed to constitute “Excess Proceeds.”
(c) The Asset Sale Offer will remain open
for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Sale Offer Period”). No
later than five (5) Business Days after the termination of the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company will apply all Excess Proceeds to the
purchase of the aggregate principal amount of notes and, if applicable, any other First Lien Debt (on a pro rata basis, if applicable) required to be offered for purchase pursuant to this Section 4.13 and validly tendered or otherwise
surrendered and not validly withdrawn in response to the Asset Sale Offer.
(d) On the Asset Sale Purchase Date, the
Company will, to the extent lawful:
(1) accept for
payment all notes or portions of notes and any other First Lien Debt properly tendered pursuant to the Asset Sale Offer that can be purchased with the Excess Proceeds from such Asset Sale or Recovery Event; provided that if, following repurchase of a portion of a note, the remaining principal amount of such note outstanding immediately after such repurchase would be less than $2,000, then the portion of such
note so repurchased shall be reduced so that the remaining principal amount of such note outstanding immediately after such repurchase is $2,000;
(2) deposit with the
paying agent an amount equal to the payment in respect of all notes or portions of notes and any other First Lien Debt properly tendered pursuant to the Asset Sale Offer; and
(3) deliver or cause
to be delivered to the Trustee for cancellation the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of notes or portions of notes being purchased by the Company.
The paying agent will promptly deliver to each holder of notes properly tendered the payment for such notes, and the Company will issue and the
Trustee will promptly authenticate and deliver (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 such new note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
To the extent that the aggregate principal amount of notes and, if applicable, other First Lien Debt validly tendered or otherwise surrendered and
not validly withdrawn in connection with an Asset Sale Offer is less than the Excess Proceeds, the Company may, after purchasing all such notes and, if applicable, other First Lien Debt, use the remaining Excess Proceeds for any purpose not
otherwise prohibited this Indenture. To the extent that the aggregate principal amount of notes and, if applicable, other First Lien Debt validly tendered or otherwise surrendered and not validly withdrawn in connection with an Asset Sale Offer
exceeds the Excess Proceeds, the amount of notes and such other First Lien Debt to be purchased will be determined on a pro rata basis based on the aggregate principal amount of tendered notes and other First Lien Debt (provided that the selection of such other First Lien Debt shall be made pursuant to the terms of such other First Lien Debt).
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The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Dispose of any or all of the Loyalty
Programs or the Brand IP (including by way of spin-off or Investment in an entity that is not a Guarantor), other than to the Company or a Guarantor.
Section 4.15. Dispositions of Collateral to Unrestricted Subsidiaries for Replacement of First Lien
Debt. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, Dispose of assets that constitute or constituted Collateral to any Unrestricted Subsidiary or any other Affiliate of
the Company if such assets will be used to secure Indebtedness issued in exchange for, in place of or to repurchase First Lien Debt and will not permit an Unrestricted Subsidiary to use any such assets to conduct an exchange, replacement or
repurchase of First Lien Debt. For the avoidance of doubt, this Section 4.15 will not prohibit the use of any such assets to secure Indebtedness issued primarily for cash and not in exchange, replacement or repurchase of First Lien Debt.
(a) The Company and
the Significant Guarantors may consolidate with or merge with or into, or convey, transfer or lease all or substantially all of the Company’s or such Significant Guarantor’s properties and assets to, any Person (a “successor person”), provided that:
(1) the resulting,
surviving or transferee Person is a Person organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, and expressly assumes (a) by a supplemental indenture or other document or
instrument in form reasonably satisfactory to the Trustee, all the obligations under the Notes and this Indenture (in the case of the Company) or the obligations under the Note Guarantees (in the case of the Significant Guarantors) and (b) by
written agreement in form reasonably satisfactory to the Collateral Agent, all the obligations of the Company or such Significant Guarantor, as applicable, under the Collateral Documents, and such Person shall cause such amendments, supplements
or other instruments to be executed, filed and recorded in such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to such Person, together with such financing
statements or comparable documents as may be required to perfect any security interests in such Collateral that may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar
statute or regulation of the relevant states or jurisdictions;
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(2) except in
connection with a merger of the Company with a Significant Guarantor or a Significant Guarantor with another Significant Guarantor, immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing;
and
(3) the Company shall
have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that such consolidation, merger or transfer, and such supplemental indenture, if any, comply with this Indenture.
Any such successor will succeed to and be substituted for, and may exercise every right and power of, the Company or the Significant Guarantor,
whichever is party to such transaction, under this Indenture and the Collateral Documents, but the predecessor issuer, in the case of a lease of all or substantially all of its assets, shall not be released from the obligation to pay the principal
of and interest on the Notes.
(b) A Guarantor that is not a Significant
Guarantor may consolidate with or merge into, or convey, transfer or lease all or substantially all of its properties and assets to, any Person; provided that:
(1) except in the case
of such a Guarantor that has been disposed of in its entirety to another Person (other than to the Company or a Subsidiary of the Company) or otherwise ceases to be a Guarantor in accordance with this Indenture as a result of such transaction
or series of transactions, whether through a merger, consolidation or sale of Capital Stock or assets, the resulting, surviving or transferee Person is a Person organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia, and expressly assumes (a) by a supplemental indenture or other document or instrument in form reasonably satisfactory to the Trustee, all its obligations under such Guarantor’s Note Guarantee and (b) by
written agreement in form reasonably satisfactory to the Collateral Agent, all its obligations under the Collateral Documents, and such Person shall cause such amendments, supplements or other instruments to be executed, filed and recorded in
such jurisdictions as may be required by applicable law to preserve and protect the Lien on the Collateral owned by or transferred to such Person, together with such financing statements or comparable documents as may be required to perfect any
security interests in such Collateral that may be perfected by the filing of a financing statement or a similar document under the Uniform Commercial Code or other similar statute or regulation of the relevant states or jurisdictions;
(2) except in
connection with a merger of such Guarantor with the Company, a Significant Guarantor or another Guarantor, immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
(3) the Company shall
have delivered to the Trustee an Officer’s Certificate and Opinion of Counsel, each stating that such consolidation, merger or transfer, and such supplemental indenture, if any, comply with this Indenture.
Any such successor Guarantor will succeed to and be substituted for, and may exercise every right and power of, a Guarantor under this Indenture and
the Collateral Documents.
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The Company shall not be required to preserve the corporate, partnership or other existence of any Subsidiary that is an Immaterial Subsidiary if
its Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole, and that the loss thereof would not, individually or in the aggregate,
have a Material Adverse Effect.
For the avoidance of doubt, this Section 5.1 will not restrict mergers, conveyances, transfers or leases by a Restricted Subsidiary of the Company
with the Company or another Restricted Subsidiary. Neither an Officer’s Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under this
Indenture and the Notes.
An “Event of Default” occurs with respect to the Notes if any of the
following occurs:
(1) default in any
payment of the principal amount or premium, if any, on any of the Notes when such amount becomes due and payable at Stated Maturity, upon acceleration, redemption or otherwise;
(2) failure to pay
interest on the Notes when such interest becomes due and payable and such failure continues for a period of 30 days;
(3) failure by the
Company or any of its Restricted Subsidiaries to comply with any other covenants or agreements applicable to the Notes and the Note Guarantees under this Indenture or the Collateral Documents, as the case may be, and such failure continues
for 60 days after the notice specified below;
(4) default on any
Indebtedness under the Credit Agreement, which default (a) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the applicable grace period provided in the Credit Agreement
or (b) results in the acceleration of such Indebtedness prior to its maturity;
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(5) except as permitted
by this Indenture, a Note Guarantee of any Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary is held in any judicial proceeding to be unenforceable or invalid or ceases for any
reason to be in full force and effect, or a Guarantor denies or disaffirms in writing its obligations under its Note Guarantee and such default continues for 10 days;
(6) except as permitted
by this Indenture or the Collateral Documents, (a) any material provision of this Indenture or any Collateral Document ceases to be a valid and binding obligation of the Company or any Guarantor and such default continues for 10 days, (b) the Lien on any material portion of the Collateral intended to be created by this Indenture and the Collateral Documents ceases to be or is not a valid and perfected Lien having the
priorities contemplated thereby (subject to Permitted Liens and except as permitted by the terms of this Indenture or the Collateral Documents) and such default continues for 30 days, or (c) the Company or any Guarantor denies or
disaffirms in writing its obligations under any Collateral Document and such default continues for 10 days; or
(7) certain events of
bankruptcy or insolvency described in this Indenture with respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary.
A Default under clause (3) above will not constitute an Event of Default until the Trustee notifies the Company or the Holders of at least 25% in
principal amount of the outstanding Notes notify the Company and the Trustee of the Default and the Company does not cure such Default within 60 days after receipt of such notice.
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization with respect to the
Company or its Restricted Subsidiaries that are Significant Subsidiaries) occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the Notes then outstanding may, by written notice to us (and to the Trustee, if
such notice is given by the Holders), declare the principal amount of and premium, if any, on the Notes and any accrued and unpaid interest on the Notes to be due and payable. Upon such a declaration, such amounts shall be due and payable
immediately. In the case of certain events of bankruptcy, insolvency or reorganization with respect to the Company or its Restricted Subsidiaries that are Significant Subsidiaries, the principal amount of and premium, if any, and accrued and unpaid
interest on the Notes shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Noteholder.
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If the Notes are accelerated or otherwise become due prior to their Stated Maturity, in each case, in respect of any Event of Default (including an
event of default relating to certain events of bankruptcy, insolvency or reorganization (including the acceleration of claim by operation of law)) (each an “Acceleration Event”),
the amount that shall then be due and payable shall be equal to: (x) 100% of the principal amount of the Notes then outstanding plus the Applicable Premium in effect on the date of such acceleration, plus (y) accrued and unpaid interest to, but excluding, the date of such acceleration, in each case as if such acceleration were an optional redemption of the Notes so accelerated. Without limiting the generality of
the foregoing, it is understood and agreed that, upon an Acceleration Event, the Applicable Premium with respect to an optional redemption of the Notes shall also be due and payable as though the Notes had been optionally redeemed in full at the
time of such Acceleration Event and shall constitute part of the obligations payable to Holders in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable
calculation of each holder’s loss as a result thereof. If the Applicable Premium becomes due and payable, it shall be deemed to be principal of the Notes and interest shall accrue on the full principal amount of the Notes (including the Applicable
Premium) from and after the applicable triggering event, including in connection with certain events of bankruptcy, insolvency or reorganization. Any premium payable pursuant to this Section 6.2 shall be presumed to be the liquidated damages
sustained by each holder of the Notes as the result of the acceleration of the Notes and each of the Company and the Guarantors agrees that it is reasonable under the circumstances currently existing. The premium shall also be payable in the event
the Notes and/or this Indenture are satisfied, released or discharged by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other similar means. EACH OF THE COMPANY AND THE GUARANTORS EXPRESSLY
WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. Each of the Company and the
Guarantors expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the premium
shall be payable notwithstanding the then prevailing market rates at the time acceleration occurs; (C) there has been a course of conduct between the Holders and the Company giving specific consideration in this transaction for such agreement to
pay the premium; and (D) the Company and each Guarantor shall be estopped hereafter from claiming differently than as agreed to in this Section 6.2. Each of the Company and the Guarantors expressly acknowledges that its agreement to pay the premium
to the Holders as herein described is a material inducement to the holders to purchase the Notes.
The Company covenants that if
(a) default is made in
the payment of any interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in
the payment of principal of any Note at the Maturity thereof,
then, the Company 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 and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any
overdue principal and 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.
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If the Company fails 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 or any other obligor upon such Notes and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Notes, wherever situated.
If an Event of Default with respect to any Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders 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.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes (if the occurrence of such event to such other obligor would constitute a Default under the Notes) or the property of the Company 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 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 interest 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 7.6. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.6 hereof out of the estate in any such proceeding, shall be unpaid for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. The Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar committee.
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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.
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, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been recovered.
Any money or property collected by the Trustee pursuant to this Article, and after an Event of Default any money or other property distributable in
respect of the Company’s obligations under this Indenture, 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 or property on account of principal 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 and any predecessor under Section 7.6; and
Second: To the payment of the amounts then due and unpaid for principal of 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 interest, respectively; and
Third: To the Company.
No Holder of any Note 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;
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(b) the Holders of not
less than 25% in principal amount of the outstanding Notes 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 or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request;
(d) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity or security 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; it being understood, intended and expressly covenanted by the Holder of
every Note with every other Holder and the Trustee 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, 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
such Holders.
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 interest, if any, on such Note on the Maturity of such Note, including the Stated Maturity expressed in such Note (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of such Holder.
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, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.7, 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. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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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.
The Holders of a majority in principal amount of the outstanding Notes 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, provided that
(a) such direction
shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee has not
in good faith determined that such direction may be unduly prejudicial to the rights of other Holders not taking part in such direction (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such
directions are unduly prejudicial to such Holders),
(c) the Trustee may,
but shall be under no obligation to, take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(d) subject to the
provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee
in personal liability, and
(e) prior to taking any
action as directed under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
By notice to the Trustee, the Holders of a majority in aggregate principal amount of the Notes then outstanding may waive an existing Default and
its consequences except (i) a Default in the payment of the principal amount of, premium, if any, and accrued and unpaid interest on the Notes, (ii) a Default arising from the failure to redeem or purchase any Note when required pursuant to the
terms of this Indenture or (iii) a Default in respect of a provision that under this Indenture cannot be amended without the consent of each Holder of the Notes affected. Further, the Holders of a majority in principal amount of the Notes by notice
to the Trustee may rescind an acceleration of the Notes and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default with respect to the Notes have been cured or waived, except
nonpayment of the principal amount of, and accrued and unpaid interest on, the Notes that have become due solely because of acceleration. The Company shall pay any amounts owing to the Trustee pursuant to Section 7.6 upon any such rescission or
annulment of a declaration of acceleration.
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All parties to this Indenture agree, and each Holder of any Note by his 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 Company, 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, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Note on or after the Maturity of such Note, including the
Stated Maturity expressed in such Note (or, in the case of redemption, on the redemption date).
(a) If an Event of Default has occurred
and is continuing, the Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs.
(b) Except during the continuance of an
Event of Default:
(1) The Trustee need
perform only those duties that are expressly set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of
gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the
Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee
shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or not they conform to the form requirements of this Indenture.
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(c) The Trustee may not be relieved from
liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph
(c) does not limit the effect of paragraph (b) of this Section 7.1;
(2) the Trustee will
not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall
not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to the Notes in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Notes 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 in accordance with Section 6.12.
(d) Whether or not therein expressly so
provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.1.
(e) The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. The Trustee shall have no
responsibility or liability for any loss which may result from the investment of Collateral and, in the absence of written instruction, the Trustee shall hold any such Collateral uninvested.
(g) No provision of this Indenture shall
require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the
Trustee in its satisfaction.
(h) The Paying Agent, the Registrar and
any authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section 7.1 and in Section 7.2, each with respect to the Trustee.
(a) The Trustee may rely on 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
(whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
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(b) Before the Trustee acts or refrains
from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through agents
and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not
constitute willful misconduct or gross negligence.
(e) The Trustee may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or gross negligence, and in reliance
thereon.
(f) 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 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.
(g) 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.
(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) In no event shall the Trustee be
liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The permissive right of the Trustee
to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
(k) The Trustee shall not be liable for
any amount in excess of the value of the Collateral.
(l) The Trustee shall have no
responsibilities as to the validity, sufficiency, value, genuineness, ownership or transferability of the Collateral, written instructions or other documents in connection therewith and will not be regarded as making nor be required to make any
representations with respect thereto.
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(m) The Trustee shall have no obligation
to give, execute, deliver, file, record, authorize or obtain any financing statements, notices, instruments, documents, agreements, consents or other papers as shall be necessary to (i) create, preserve, perfect or validate the security
interest granted to the Collateral Agent pursuant to the Security Agreement or (ii) enable the Collateral Agent to exercise and enforce its rights under the Security Agreement with respect to such pledge and security interest. In addition, the
Trustee shall have no responsibility or liability (i) in connection with the acts or omissions of the Company or the Parent in respect of the foregoing or (ii) for or with respect to the legality, validity and enforceability of any security
interest created in the Collateral or the perfection and priority of such security interest.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or an Affiliate
of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Section 7.9.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use
of the proceeds from the Notes, and it shall not be responsible for any statement in the Notes other than its authentication.
If a Default or Event of Default occurs and is continuing with respect to the Notes and if it is actually known to a Responsible Officer of the
Trustee, the Trustee shall deliver to each Holder notice of the Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of, premium, if any, or accrued and unpaid interest on the Notes, the Trustee may withhold the notice if and so long a Responsible Officer in good faith determines that withholding the
notice is in the interests of Holders.
The Company shall pay to each of the Trustee and the Collateral Agent from time to time compensation for its services, as applicable, as the Company
and the Trustee or the Collateral Agent, as applicable, shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse each of
the Trustee and the Collateral Agent upon request for all reasonable out of pocket expenses (including the fees and expenses of its legal counsel and any accounting or other professional service providers retained by it) incurred by it. Such
expenses shall include the reasonable compensation and expenses of the agents and counsel of the Trustee and the Collateral Agent.
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The Company shall indemnify each of the Trustee, the Collateral Agent and any predecessor Trustee or predecessor Collateral Agent (including the
cost of enforcement or defending itself) and hold it harmless against any cost, expense (including the fees and expenses of its legal counsel and any accounting or other professional service providers retained by it) or liability, including taxes
(other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Collateral Agent. Each of the Trustee
and the Collateral Agent shall notify the Company promptly of any third party claim for which it may seek indemnity. Failure by the Trustee or the Collateral Agent, as applicable, to so notify the Company shall not relieve the Company of its
obligations hereunder, unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the third party claim and the Trustee or the Collateral Agent, as applicable, shall cooperate in the defense. Each of the
Trustee and the Collateral Agent, as applicable, may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent will not
be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of each of the Trustee and the Collateral Agent.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or the Collateral Agent or by any
officer, director, employee, shareholder or agent of the Trustee or the Collateral Agent through willful misconduct or gross negligence.
To secure the Company’s payment obligations in this Section, each of the Trustee and the Collateral Agent shall have a lien prior to the Notes on
all money or property held or collected by the Trustee or the Collateral Agent, except money or property held in trust to pay principal of and interest on the Notes.
The provisions of this Section shall survive the termination of this Indenture and resignation or removal of the Trustee or the Collateral Agent, as
applicable.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance
of appointment as provided in this Section.
The Trustee may resign with respect to the Notes by so notifying the Company at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the Notes may remove the Trustee with respect to those Notes by so notifying the Trustee and the Company at least 30 days prior to the date of the proposed removal. The Company may remove the Trustee
with respect to the Notes if:
(a) the Trustee fails to comply with
Section 7.9;
(b) the Trustee is adjudged a bankrupt or
an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes
charge of the Trustee or its property; or
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(d) the Trustee becomes incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Notes does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee (at the Company’s expense), the Company or the Holders of at least a majority in principal amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.6, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee with respect to the Notes for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Holder of the Notes. Notwithstanding
replacement of the Trustee pursuant to this Section 7.7, the Company’s obligations under Section 7.6 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted
to be taken in accordance with its rights, powers and duties under this Indenture prior to such replacement.
If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the successor Trustee, subject to Section 7.9.
There will at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100.0 million as set
forth in its most recent published annual report of condition.
(a) Beyond the exercise of reasonable
care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or
any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal
to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee
selected by the Trustee in good faith.
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(b) The Trustee shall not be responsible
for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
The Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture, the Collateral Documents or any other security documents by the Company, the Guarantors, or the Collateral Agent.
This Indenture shall cease to be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the
Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(1) all Notes
theretofore authenticated and delivered (other than Notes that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(2) all the Notes not
theretofore delivered to the Trustee for cancellation
(A) have become due
and payable, or
(B) will become due
and payable at their Stated Maturity within one year, or
(C) have been called
for redemption or are to be 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, and at the expense, of the Company, or
(D) are deemed paid
and discharged pursuant to Section 8.3, as applicable;
and the Company, in the case of (1) or (2) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or
Government Securities sufficient for the purpose of paying and discharging the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest to the date of such deposit
(in the case of Notes which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
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(b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the
Trustee an Officer’s 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 under Section 7.6, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.3, 2.6, 2.7, 8.2 and 8.5 shall survive.
(a) Subject to the provisions of Section
8.5, all money or Government Securities deposited with the Trustee pursuant to Section 8.1, all money and Government Securities deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of
Government Securities deposited with the Trustee pursuant to Section 8.3 or 8.4, 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 interest for whose payment such money has been deposited with or received by the Trustee.
(b) The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against Government Securities deposited pursuant to Section 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the
Company from time to time upon the Company’s request any Government Securities or money held by it as provided in Section 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such Government Securities or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any Government Securities held under this Indenture.
The Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Notes on the 91st day after the date of the
deposit referred to in subparagraph (c)(1) hereof, and the provisions of this Indenture, as it relates to the Notes, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of direction from the Company,
execute instruments acknowledging the same), except as to:
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(a) the rights of Holders to receive,
from the trust funds described in subparagraph (c)(1) hereof, payment of the principal of and interest on the outstanding Notes on the Stated Maturity of such principal or interest;
(b) the provisions of Sections 2.3, 2.6,
2.7, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and
immunities of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall
have been satisfied:
(1) the Company shall
have irrevocably deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee 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, cash in U.S. dollars and/or Government Securities, which through the payment of interest and principal in respect thereof in accordance with their terms will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized independent registered accounting firm
expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of, premium, if any, and interest, if any, on the Notes on the dates such installments of interest or principal are due;
(2) the Company shall
have delivered an Opinion of Counsel to the Trustee to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution 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 of Counsel shall confirm that, the Holders will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(3) no Event of
Default shall have occurred and be continuing either: (x) on the date of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit); or (y) with respect to Events of Default described in
Section 6.1(5) and Section 6.1(7) or other bankruptcy, insolvency or reorganization-related Events of Default, at any time in the period ending on the 91st day after the date of deposit;
(4) such defeasance
will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
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(5) the Company shall
have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company or others; and
(6) the Company shall
have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.
The Company may omit to comply with respect to the Notes with any term, provision or condition set forth under Sections 4.2, 4.3, 4.6, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 as well as any additional covenants specified in a supplemental indenture for the Notes (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to
the Notes under Section 6.1) and the occurrence of any event specified in a supplemental indenture for the Notes and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Notes, provided that the following conditions shall have been satisfied:
(a) With reference to this Section 8.4,
the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee 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, cash in U.S. dollars and/or Government Securities, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized independent registered
public accounting firm expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of, premium, if any, and interest, if any, on the Notes on the dates such installments of interest
or principal are due;
(b) The Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that Holders will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and 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 deposit and covenant defeasance had not occurred;
(c) No Event of Default shall have
occurred and be continuing either: (x) on the date of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit); or (y) with respect to Events of Default described in Section 6.1(5) and
Section 6.1(7) or other bankruptcy, insolvency or reorganization-related Events of Default, at any time in the period ending on the 91st day after the date of deposit;
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(d) Such covenant defeasance will not
result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(e) The Company shall have delivered to
the Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(f) The Company shall have delivered to
the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section 8.4 have been complied with.
Upon a satisfaction and discharge or defeasance pursuant to ARTICLE VIII of this Indenture, the Collateral Agent will cease to be a party to the Collateral Documents
on behalf of the Holders and the Collateral will no longer secure the Notes.
Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the
payment of principal, premium, if any, and interest that remains unclaimed for two years. After that, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates
another person.
If the Trustee or the Paying Agent is unable to apply any money deposited with respect to Holders in accordance with Section 8.1 by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to Holders and under
the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if the Company has made any payment of principal of, premium, if any, or interest on the Notes
because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the money or Government Securities held by the Trustee or Paying Agent after payment in full to the Holders.
The Company, the Guarantors, the Trustee or the Collateral Agent may amend or supplement this Indenture, the Collateral Documents or the
Intercreditor Agreement without the consent of any Noteholder:
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(a) to provide for the
issuance of Additional Notes;
(b) to evidence the
succession of another Person to us or a Guarantor pursuant to a consolidation, merger or conveyance, transfer or lease of assets permitted under this Indenture;
(c) to surrender any
right or power conferred upon the Company or the Guarantors;
(d) to add to the
covenants such further covenants, restrictions, conditions or provisions for the protection of the Holders, and to add any additional Events of Default for the Notes, subject to certain limitations;
(e) to cure any
ambiguity or correct or supplement any provision contained in this Indenture, in any supplemental indenture, board resolution, Officer’s Certificate, in the Notes or in the Collateral Documents or the Intercreditor Agreement that may be
defective or inconsistent with any other provision contained therein;
(f) to convey,
transfer, assign, mortgage or pledge any property to or with the Trustee or the Collateral Agent, or to make such other provisions in regard to matters or questions arising under this Indenture, the Collateral Documents and the Intercreditor
Agreement as shall not adversely affect the interests of any Holders;
(g) to conform the
text of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement to the “Description of the Notes” set forth in this offering memorandum to the extent that such provision in the Description of the Notes was intended to
be a verbatim, or substantially verbatim, recitation of a provision of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreement as evidenced by an Officer’s Certificate;
(h) to add to or
change any provisions of this Indenture relating to the transfer and legending of the Notes or to such extent as necessary to permit or facilitate the issuance of the Notes in bearer or uncertificated form; provided that (A) any such action shall not adversely affect the interests of the Holders in any material respect and (B) compliance with this Indenture as so amended would not result in the Notes being
transferred in violation of the Securities Act or any applicable securities law;
(i) to provide
additional security for the Notes or grant any Lien in favor of the Collateral Agent or the Trustee to secure the Notes and the Note Guarantees;
(j) to provide
additional guarantees for the Notes or guarantees;
(k) to make any change
that does not adversely affect the rights of any holder of notes; or
(l) to evidence and
provide for the acceptance of appointment of a separate or successor trustee or collateral agent, and to add to or change any of the provisions of this Indenture, the Collateral Documents or the Intercreditor Agreement as shall be necessary to
provide for or facilitate the administration of this Indenture by more than one trustee.
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Except as provided in Section 9.1 and Section 9.3, the consent of the Holders of at least a majority in aggregate principal amount of the
outstanding Notes (including at least two Holders that are not Affiliates of each other) is generally required to amend this Indenture, the Collateral Documents or the Intercreditor Agreement.
The Company, the Trustee and the Collateral Agent, as applicable, may enter into a supplemental indenture with the written consent of the Holders of
at least a majority in aggregate principal amount of the outstanding Notes affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Notes), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Noteholders. Except as provided in Section 6.13 and Section 9.3, the
Holders of at least a majority in aggregate principal amount of the outstanding Notes by notice to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Notes) may waive compliance by the Company with
any provision of this Indenture or the Notes.
It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed supplemental
indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail or send to the Holders affected thereby, a notice
briefly describing the supplemental indenture or waiver. Any failure by the Company to send or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Without the consent of each Noteholder affected, an amendment or waiver may not:
(a) reduce the
principal amount of notes whose Holders must consent to an amendment, supplement or waiver or the number of Holders that are not Affiliates of each other who must consent to an amendment, supplement or waiver;
(b) reduce the
stated rate of interest or extend the stated time for payment of interest (including default interest) on the Notes;
(c) reduce the
principal or premium, if any, on the Notes or change the Stated Maturity of the Notes or alter the provisions with respect to the redemption of the Notes (except any provisions related to the number of days of notice to be given in the event of
a redemption of the Notes which may be amended with the consent of the Holders of at least a majority in principal amount of the outstanding Notes);
(d) waive a Default or
Event of Default in the payment of the principal of or interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in principal amount of the outstanding notes and a waiver of the
payment default that resulted from such acceleration);
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(e) make the principal
of or interest, if any, on the Notes payable in any currency other than U.S. dollars;
(f) waive a redemption
payment with respect to the Notes;
(g) impair the right
of such holder to institute suit for the enforcement of any payment with respect to the Notes;
(h) except as permitted
under ARTICLE VIII or in connection with a consolidation, merger or conveyance, transfer or lease of assets pursuant to this Indenture, release a Guarantor from its obligations under its Note Guarantee or make any change in the Note Guarantee
that would adversely affect such holder;
(i) change certain
requirements relating to waiving an existing Default or to the right to receive payment of, or bring suit to enforce payments of, the principal amount of, premium, if any, or interest on the Notes;
(j) modify any of
the foregoing provisions of this sentence;
(k) modify any of the
provisions of this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the Collateral Documents that has the effect of releasing all or substantially all of the Collateral from the Liens securing the Notes;
(l) subordinate the
Liens on the Collateral to any other liens;
(m) subordinate the
Notes in right of payment to other Indebtedness;
(n) modify any of the
provisions in the Intercreditor Agreement in connection with recovery and distributions in respect of any Collateral;
(o) modify any of the
provisions of this Indenture, the Notes, the Note Guarantees, the Intercreditor Agreement or the Collateral Documents in any way that materially adversely affects the rights of the Holders with respect to the Collateral, including any
provisions with respect to pro rata sharing;
(p) modify Section
4.12 or Section 4.13 in any way that materially adversely affects the rights of the Holders; or
(q) modify Section
4.14 or Section 4.15.
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Note is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to its Note or portion of a Note if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
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Any amendment or waiver once effective shall bind every Noteholder affected by such amendment or waiver unless it is of the type described in any of
clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting
Holder’s Security.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 120 days after such record date.
The Company or the Trustee may place an appropriate notation about an amendment or waiver on any Note thereafter authenticated. The Company in
exchange for Notes may issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3 new Notes that reflect the amendment or waiver.
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 7.1) shall be fully protected in relying upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4 and will be
the valid and legally binding obligation of the Company, subject to customary exceptions. The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need
not sign any supplemental indenture that adversely affects its rights.
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Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety, on a joint and several senior secured basis, to each Holder of the Notes, and the Trustee the due and punctual payment, of the principal of (and premium, if any) and interest (including, in case of default, interest on principal
and, to the extent permitted by applicable law, on overdue interest and including any additional interest required to be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall become due and payable, whether at
Stated Maturity, upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and of this Indenture and all other obligations of the Company with respect to the Notes to any
Holder or the Trustee hereunder or thereunder. Each Note Guarantee will be secured by first priority security interests (subject to Permitted Liens) in the Collateral owned by such Guarantor. Each Guarantor agrees that the Guarantor Obligations
shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees
shall rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of
payment to such claims.
To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or a supplement thereto) shall be
executed on behalf of such Guarantor by an Officer of such Guarantor.
Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the
absence of the endorsement of any notation of such Note Guarantee on the Notes.
If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds that office at the time the Trustee authenticates the
Note, the Note Guarantee shall be valid nevertheless.
Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it, and that it shall remain bound under this Section 10.1 notwithstanding any extension or renewal of any Guarantor Obligation.
Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice
of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.
Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and
waives any right to require that any resort be had by any Holder to any security held for payment of the Guarantor Obligations.
Except as set forth in Section 10.4, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the Guarantor Obligations of each Guarantor herein shall not be
discharged or impaired or otherwise affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or
otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder
for the Guarantor Obligations; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in the performance of
the Guarantor Obligations; or (h) any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such Guarantor
as a matter of law or equity.
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Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect until payment in full of all the Guarantor Obligations or
such Guarantor is released from its Note Guarantee in compliance with Sections 5.1, 8.1 or 10.5. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guarantor Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Company to pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and (ii) accrued and unpaid interest on such Guarantor
Obligations then due and owing (but only to the extent not prohibited by law) (including interest accruing after the filing of any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the
Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding).
Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the
Guarantor Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the
Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor
for the purposes of this Note Guarantee.
Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’ fees and expenses) incurred by the Trustee or the
Holders in enforcing any rights under this Section 10.1.
Section 10.2. Right of Contribution. Each
Guarantor hereby agrees that to the extent that any Guarantor shall have paid more than its proportionate share of any payment made on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive contribution
from and against the Company or any other Guarantor who has not paid its proportionate share of such payment. The provisions of this Section 10.2 shall in no respect limit the obligations and liabilities of each Guarantor to the Trustee and the
Holders and each Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor hereunder.
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Section 10.3. No Subrogation. Notwithstanding any payment or payments made by any Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights of the
Trustee or any Holder against the Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Company or any other Guarantor in respect of payments made by such Guarantor hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of the
Guarantor Obligations are paid in full. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time when all of the Guarantor Obligations shall not have been paid in full, such amount shall be held by such
Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Trustee in the exact form received by such Guarantor (duly indorsed by
such Guarantor to the Trustee, if required), to be applied against the Guarantor Obligations.
Section 10.4. Limitation of Guarantor’s Liability. Each
Guarantor and, by its acceptance of a Note, each Holder of a Note hereby confirms that it is the intention of all such parties that in no event shall any Guarantor Obligations under the Note Guarantees constitute or result in a fraudulent
transfer or conveyance for purposes of, or result in a violation of, any United States federal, or applicable United States state, fraudulent transfer or conveyance or similar law. To effectuate the foregoing intention, in the event that the
Guarantor Obligations, if any, in respect of the Notes would, but for this sentence, constitute or result in such a fraudulent transfer or conveyance or violation, then the liability of the applicable Guarantor under its Note Guarantees in
respect of the Notes shall be reduced to the extent necessary to eliminate such fraudulent transfer or conveyance or violation under the applicable fraudulent transfer or conveyance or similar law.
(1) if the obligation
of such Guarantor to guarantee the Notes after the date of this Indenture arose pursuant to Section 4.9 if such Guarantor would not then otherwise be required to Guarantee the Notes pursuant to Section 4.9 (but only if the Liens on the
Collateral of such Guarantor securing the Notes are also released at such time);
(2) in connection with
any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger, amalgamation, combination, consolidation, liquidation or otherwise) to a Person that is not (either before or after giving
effect to such transaction) us or any of our Restricted Subsidiaries;
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(3) in connection with
any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) us or any of our Restricted Subsidiaries, if the Guarantor ceases to be a Subsidiary of us as a
result of the sale or other disposition;
(4) if we designate
that Guarantor to be an Unrestricted Subsidiary in accordance with the applicable provisions of this Indenture;
(5) upon delivery by
the Company of an Officer’s Certificate to the Trustee certifying (a) the release and discharge of such Guarantor from its guarantee of Indebtedness under the Credit Agreement and (b) such Guarantor is not a guarantor under any other First Lien
Debt or any Junior Lien Debt; or
(6) upon delivery by
the Company of an Officer’s Certificate to the Trustee certifying that such Guarantor is an Immaterial Subsidiary; provided that no Event of Default shall have occurred
and be continuing or shall result therefrom; provided further that a Subsidiary that is
considered not to be an Immaterial Subsidiary solely pursuant to the proviso of the definition of “Immaterial Subsidiary” shall, solely for this purpose, be considered an Immaterial Subsidiary so long as any applicable guarantee, pledge or
other obligation of such Subsidiary with respect to any other First Lien Debt or any Junior Lien Debt shall be irrevocably released and discharged substantially simultaneously with the release of such guarantee under this Indenture.
If the Note Guarantee of any Guarantor is deemed to be released or is automatically
released, the Company shall deliver to the Trustee an Officer’s Certificate stating the identity of the released Guarantor, the basis for release in reasonable detail, and that such release complies with this Indenture. At the request of the
Company, and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel that a Guarantor has been released and that execution by the Trustee of an appropriate instrument acknowledging the release of such Guarantor from its
Note Guarantee complies with this Indenture, the Trustee shall execute and deliver an appropriate instrument acknowledging the automatic release of such Guarantor from its Note Guarantee (it being understood that the failure to obtain any such
instrument shall not impair any automatic release pursuant to Section 10.5(a)). Any Guarantor not released from its obligations under its Subsidiary Guarantee as provided above shall remain liable for the full amount of the Guarantor Obligations.
In the event that any released Guarantor thereafter borrows money or guarantees Indebtedness under the Credit Agreement, such former Guarantor will again provide a note guarantee and assume by written agreement all of the obligations of a Guarantor
under the applicable Collateral Documents.
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The due and punctual payment of the principal of, premium, if any, and interest, if any, on the Notes when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law) and any and all payments made pursuant to the second
paragraph of Section 6.2, if any, on the Notes and performance of all other obligations of the Issuer and the Guarantors to the Holders or the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, are secured
as provided in the Collateral Documents. Each Holder, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of the Collateral) as
the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Collateral Agent and the Trustee, as applicable, to enter into the Collateral Documents and to perform its obligations and
exercise its rights thereunder in accordance therewith. Upon the request of the Trustee, the Issuer and the Guarantors will deliver to the Trustee copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents, and
will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Collateral Documents, to assure and confirm to the Trustee and the Collateral Agent the security interest in the
Collateral contemplated hereby, by the Collateral Documents 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 Notes secured hereby, according to the
intent and purposes herein expressed. The Issuer will take, and will cause its Subsidiaries to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the obligations of the Issuer
hereunder, a valid and enforceable perfected first priority Lien in and on all the Collateral, in favor of the Collateral Agent for the benefit of the Holders, superior to and prior to the rights of all third Persons, except for Permitted Liens.
Section 11.2. Lien Sharing and Priority Confirmation. Each Holder, by accepting a Note, and the Trustee hereby agrees that:
| (a) |
all Senior Secured Obligations will be and are secured equally and ratably by all First Liens at any time granted by the Issuer or any other Grantor to the Collateral Agent to secure any Senior
Secured Obligations in respect of this Indenture, whether or not upon property otherwise constituting collateral for such Senior Secured Obligations, and that all such First Liens will be enforceable by the Collateral Agent for the benefit
of all First Lien Secured Parties (as defined in the Intercreditor Agreement) equally and ratably;
|
| (b) |
the Trustee and each of the Holders are bound by the provisions of the Intercreditor Agreement, including without limitation the provisions relating to the ranking of Liens granted by the Issuer or
any other Grantor to the Collateral Agent to secure any Senior Secured Obligations and the order of application of proceeds from enforcement of such Liens; and
|
| (c) |
that the Trustee and each of the Holders consent to and direct the Collateral Agent to perform the Collateral Agent’s obligations under the Intercreditor Agreement and the other Collateral
Documents.
|
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The foregoing provisions of this Section 11.2 are intended for the enforceable benefit of, and will be enforceable as a third party beneficiary by,
all holders of existing and future First Lien Debt and the Collateral Agent.
Section 11.3. Release of Collateral. In addition to and subject to the terms of the Intercreditor Agreement, the Collateral Agent’s Liens upon the Collateral
will no longer secure the Notes outstanding or any Note Guarantees under this Indenture, and the right of the Holders to the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be discharged:
| (a) |
in whole, upon payment in full of the principal of, together with accrued and unpaid interest and premium, if any, on, the Notes;
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| (b) |
in whole, upon satisfaction and discharge of this Indenture or upon a legal or covenant defeasance pursuant to ARTICLE VIII hereof;
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| (c) |
in whole, in respect of the Collateral of a Guarantor, upon the designation of such Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.6 and the definition of “Unrestricted
Subsidiary”;
|
| (d) |
in part, as to any property constituting Collateral that is sold, transferred or otherwise disposed of by the Company or any of the Guarantors (other than to the Company or another Guarantor) in a
transaction permitted by Section 4.13 and by the Collateral Documents (to the extent of the interest sold or disposed of), or otherwise in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreement; and
|
| (e) |
in whole or in part, with the consent of holders of the requisite percentage of notes in accordance with Sections 9.2 and 9.3.
|
provided that, in the case of any release in
whole pursuant to clauses (a) and (b) above, all amounts owing to the Trustee and the Collateral Agent under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreement have been paid or otherwise
provided for to the reasonable satisfaction of the Trustee and the Collateral Agent.
Section 11.4. Amendment of Collateral Documents. If the Trustee or the Collateral Agent is requested to vote or otherwise take action with respect to the Collateral Documents, the Trustee or the
Collateral Agent, as applicable, will vote or otherwise act as directed by the Holders of a majority in aggregate principal amount of all Notes then outstanding, except that:
(1) any amendment or supplement to any Collateral Document that has the effect solely of adding or maintaining Collateral or preserving, perfecting
or establishing the priority of the Liens thereon or the rights of the Collateral Agent therein will not require a direction from the Holders and will become effective when executed and delivered by the Issuer or any Guarantor party thereto and the
Collateral Agent;
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(2) any amendment or supplement to any Collateral Document that has the effect solely of curing any ambiguity, defect or inconsistency or making any
change that would provide any additional rights or benefits to Holders or the Collateral Agent or that does not adversely affect the legal rights under this Indenture or any other Collateral Document of any Holder or the Collateral Agent in any
material respect, will not require a direction from the Holders and will, in each case, become effective when executed and delivered by the Issuer and any Guarantor party thereto and the Collateral Agent;
(3) any amendment to, or waiver of, the provisions of this Indenture or any Collateral Document that has the effect of releasing all or
substantially all of the Collateral from the Liens securing the Notes will require the consent of Holders specified in Section 9.2 with respect to such release;
(4) no amendment or supplement to any
Collateral Document that impairs the right of any Holder:
(A) to vote its outstanding Notes as to any matter described as subject to direction by the Holders of a majority in aggregate principal amount of
all Notes then outstanding,
(B) to share in the order of application under the Intercreditor Agreement in the proceeds of enforcement of or realization on any Collateral, or
(C) to require that Liens securing the Notes be released only as set forth in Section 11.3,
will become effective without the consent of the requisite percentage or number of Holders so affected under this Indenture and the Collateral Documents and such
additional consents as required pursuant to the Intercreditor Agreement;
(5) no amendment or supplement that imposes any obligation upon the Collateral Agent or adversely affects the rights of the Collateral Agent in its
individual capacity as such will become effective without the consent of the Collateral Agent; and
(6) notwithstanding anything in this ARTICLE XII to the contrary, any amendment or supplement to the Collateral Documents that has the effect solely
of implementing any action permitted by ARTICLE IX will not require a direction from the Holders (except to the extent specified in ARTICLE IX) and will become effective when executed and delivered by the Issuer or any Guarantor party thereto and
the Collateral Agent.
(a) Each of the Trustee and the
Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any
security interest in the Collateral. Each of the Trustee and the Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal
to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee
selected by the Trustee or the Collateral Agent, as applicable, in good faith.
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(b) Each of the Trustee and the
Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law
or by reason of any of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes gross negligence or willful misconduct on the part of the Trustee or the Collateral Agent, for the validity or
sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuer to the Collateral, for insuring the Collateral or for the payment of taxes, insurance premiums or other related
payments, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
Section 11.6. Maintenance of Collateral. The Company and the Guarantors as Grantors shall keep and maintain the Collateral in good operating condition sufficient for the continuation of the business
conducted by them on a basis consistent with past practices (ordinary wear and tear excepted); provided that no Grantor shall be restricted from discontinuing the
maintenance of any such Collateral if such discontinuance is, in the good faith judgment of such grantor, desirable in the conduct of the business of such Grantor and would not reasonably be expected to have a Material Adverse Effect.
Section 11.7. Additional Collateral; After-Acquired Property. If the Company or any Restricted Subsidiary of the Company pledges any additional property or assets as collateral under the Loan Documents or
acquires any property or assets (other than Excluded Property) after the Closing Date, the Company shall, in each case at its own expense, promptly execute and deliver (or cause such Restricted Subsidiary to execute and deliver) to the Collateral
Agent such documents and take such actions to create, grant, establish, preserve and perfect the first priority Liens (subject to Permitted Liens) in favor of the Collateral Agent for the benefit of the Holders on such assets of the Company or
such Restricted Subsidiary, as applicable, to secure the Notes to the extent required under the applicable Collateral Documents or reasonably requested by the Collateral Agent, and to ensure that such Collateral shall be subject to no other Liens
other than Permitted Liens, in each case within the earlier of (x) one (1) Business Day after the creation of the first priority Liens on such additional collateral under the Loan Documents and (y) twenty (20) Business Days after the addition of
such after-acquired property and, in each case, in form and substance reasonably satisfactory to the Collateral Agent. Thereupon, all provisions of this Indenture, the Collateral Documents and the Intercreditor Agreement relating to the
Collateral shall be deemed to relate to such additional collateral under the Loan Documents or such after-acquired property to the same extent and with the same force and effect.
Section 11.9. Further Assurances. To the extent required under this Indenture or any of the Collateral Documents, the Company and the Guarantors shall execute any and all further documents,
financing statements, agreements and instruments, and take all further actions that may be required under applicable law, or that the Collateral Agent or the Trustee may reasonably request, in order to grant, preserve, protect and perfect the
validity and priority of the security interests and Liens created or intended to be created by the Collateral Documents in the Collateral.
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In addition, to the extent required under this Indenture or any of the Collateral Documents, from time to time, the Company and the Guarantors
shall reasonably promptly secure the obligations under this Indenture and the Collateral Documents by pledging or creating, or causing to be pledged or created, perfected security interests and Liens with respect to the Collateral, under other
security agreements, instruments and documents in form and substance reasonably satisfactory to the Collateral Agent.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing
and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), facsimile transmission, email or send by overnight air courier guaranteeing next Business Day delivery addressed as follows:
if to the Company:
Allegiant Travel Company
1201 North Town Center Drive
Las Vegas, NV 89144
Attention: Robert J. Neal, President and Chief Financial Officer // Robert Goldberg, Senior Vice President and Senior Counsel, e-mail: robert.goldberg@allegiantair.com
1201 North Town Center Drive
Las Vegas, NV 89144
Attention: Robert J. Neal, President and Chief Financial Officer // Robert Goldberg, Senior Vice President and Senior Counsel, e-mail: robert.goldberg@allegiantair.com
with a copy to:
Vedder Price P.C.
1633 Broadway, 31st Floor
New York, NY 10019
Attention: Kevin A. MacLeod, Esq., email: kmacleod@vedder.com
1633 Broadway, 31st Floor
New York, NY 10019
Attention: Kevin A. MacLeod, Esq., email: kmacleod@vedder.com
if to the Trustee:
Wilmington, DE 19890-1605
Attention: Corporate Trust Admin/Aaron Smith
Attention: Corporate Trust Admin/Aaron Smith
Email: Asmith29@WilmingtonTrust.com
Facsimile: 302-636-4140
Facsimile: 302-636-4140
Telephone: 972-383-3167
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Notice
to the Trustee by facsimile shall be effective only if such receipt is acknowledged.
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Any notice or communication to a Noteholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the
Noteholder receives it.
If the Company mails a notice or communication to Noteholders, it shall mail a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture or any Note, where this Indenture or any Note provides for notice of any event (including any
notice of redemption) to a Holder of a Global Note (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Note (or its designee) pursuant to the customary procedures of such Depositary.
Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s
Certificate stating that, in the opinion of the signer, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that
the person making such certificate or opinion has read such covenant or condition;
(b) a brief statement
as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that,
in the opinion of such person, he has made such examination or investigation as is necessary to enable him 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 or not, in the opinion of such person, such condition or covenant has been complied with.
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The Trustee may make reasonable rules for action by or a meeting of Noteholders. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
A director, officer, employee or stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Noteholder by accepting a Note waives and releases all such liability. The waiver and release are part of
the consideration for the issue of the Notes.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 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.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be
instituted in the federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent
allowed under any applicable statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by
their acceptance of the Notes) each hereby irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead
or claim any such suit, action or other proceeding has been brought in an inconvenient forum.
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The Company, the Trustee and the Holders (by their acceptance of the Notes) each hereby irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the transactions contemplated hereby or thereby.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
All agreements of the Company in this Indenture and the Notes shall bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
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.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
The Company acknowledges that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this
Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
[Signature Pages Follow]
107
IN WITNESS WHEREOF, the undersigned being duly authorized, have executed this Indenture on behalf of the respective parties hereto as of the date
first above written.
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ALLEGIANT TRAVEL COMPANY
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|||
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By:
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/s/ Robert J. Neal
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||
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Name:
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Robert J. Neal
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||
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Title:
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President, Chief Financial Officer
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ALLEGIANT AIR, LLC
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
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Title:
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President, Chief Financial Officer
|
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ALLEGIANT VACATIONS, LLC
|
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
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Title:
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Executive Vice President, Chief Financial Officer
|
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G4 PROPERTIES, LLC
|
|||
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
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Title:
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President, Chief Financial Officer
|
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G4 WORKS, LLC
|
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
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Title:
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President, Chief Financial Officer
|
||
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AFH, INC.
|
|||
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
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Title:
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Chief Financial Officer
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SUNRISE ASSET MANAGEMENT, LLC
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|||
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
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Title:
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President, Chief Financial Officer
|
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SUN COUNTRY AIRLINES HOLDINGS, LLC
|
|||
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
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Title:
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President
|
||
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SUN COUNTRY, INC.
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
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Title:
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Chief Executive Officer
|
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SCA ACQUISITION INTERMEDIATE, LLC
|
|||
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By:
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/s/ Robert J. Neal
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Name:
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Robert J. Neal
|
||
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Title:
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President
|
||
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SCA ACQUISITION, LLC
|
|||
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By:
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/s/ Robert J. Neal
|
||
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Name:
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Robert J. Neal
|
||
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Title:
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President
|
||
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WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Trustee
|
||
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By:
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/s/ Anna Churchill
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Name: Anna Churchill
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Title: Vice President
|
||
Exhibit A
[Face of Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Regulation S Global Note Legend, if applicable pursuant to the provisions of the Indenture]
CUSIP/ISIN _________1
7.125% Senior Secured Notes due 2031
| No. ___ | $_______* |
promises to pay to CEDE & CO. or registered assigns,
| the principal sum of |
DOLLARS* on July 1, 2031.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
1 144A CUSIP: 01748X AE2
144A ISIN: US01748XAE22
Reg. S ISIN: USU0177PAD07
* This Global Note represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon, the initial
amount of which is specified on the “Schedule of Exchanges of Interests in the Global Notes” attached hereto, which may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.
A - 1
Exhibit A
| Dated: June 24, 2026 | ||
|
ALLEGIANT TRAVEL COMPANY
|
||
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By:
|
|
|
|
Name:
|
||
|
Title:
|
||
A - 2
Exhibit A
This is one of the Notes referred to
in the within-mentioned Indenture:
in the within-mentioned Indenture:
Wilmington Trust, National Association,
as Trustee
as Trustee
|
By:
|
||
|
Authorized Signatory
|
||
|
Dated: June 24, 2026
|
||
A - 3
Exhibit A
[Back of Note]
7.125% Senior Secured Notes due 2031
7.125% Senior Secured Notes due 2031
Interest. Allegiant Travel Company, a Nevada corporation (the “Company”), promises to pay or cause to be paid interest on the principal amount of this Note at 7.125% per
annum from June 24, 2026 until maturity and shall pay the Special Interest, if any, payable pursuant to Section 4.3 of the Indenture. The Company will pay interest, if any, semi-annually in arrears on January 1 and July 1 of each year, or if any
such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of issuance; provided that the first Interest Payment Date shall be January 1, 2027. The Company will
pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at a rate that is 1% higher than the then applicable interest rate on the Notes to the extent lawful; it will pay interest (including
post‑petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without regard to any applicable grace period), at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. All references to interest in this Note shall be deemed
to include Special Interest, if any, that is then due.
Method of Payment. The Company will pay interest on the Notes (except defaulted interest), if any, to the Persons who are registered Holders at the close of business on the December 15 and June 15 next preceding the Interest Payment Date,
even if the Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any,
and interest, if any, at the office or agency of the Paying Agent and Registrar, or, at the option of the Company, payment of interest, if any, may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds will be required with respect to principal of, premium on, if any, and interest, if any, on, all Global
Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Paying Agent and Registrar. Initially, Wilmington Trust, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
Indenture. The Company issued the Notes under an Indenture dated as of June 24, 2026 (the “Indenture”) among the Company, the Guarantors party thereto from time to time and
the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued
thereunder.
A - 4
Optional Redemption.
On and after July 1, 2028, the Company, at its option, may redeem the Notes, in whole or in part at any time and from time to time, at the
redemption prices (expressed in percentages of the principal amount of the Notes to be redeemed) listed below, plus any accrued and unpaid interest thereon to, but excluding, the redemption date, if redeemed during the twelve-month period beginning
on July 1 of the years indicated below.
|
Year
|
Percentage
|
|
2028
|
103.563%
|
|
2029
|
101.781%
|
|
2030 and thereafter
|
100.000%
|
Prior to July 1, 2028, the Company may on any one or more occasions redeem up to 40% of the original aggregate principal amount of the Notes
(calculated after giving effect to any issuance of Additional Notes) with the net cash proceeds of one or more Equity Offerings, upon not less than 30 nor more than 60 days’ notice mailed or otherwise delivered to each Holder in accordance with the
Applicable Procedures of DTC, at a redemption price equal to 107.125% of the principal amount of the Notes, plus any accrued and unpaid interest thereon to, but excluding, the applicable redemption date; provided that at least 60% of the original aggregate principal amount of the Notes (calculated after giving effect to any issuance of Additional Notes) remains outstanding after each such redemption and such
redemption occurs within 90 days after the closing of such Equity Offering.
Prior to July 1, 2028, the Company may on any one or more occasions redeem up to 10% of the original aggregate principal amount of the Notes
(calculated after giving effect to any issuance of Additional Notes) per year, upon not less than 30 nor more than 60 days’ notice mailed or otherwise delivered to each holder in accordance with the applicable procedures of DTC, at a redemption
price equal to 103% of the principal amount of the Notes, plus any accrued and unpaid interest thereon to, but excluding, the applicable redemption date.
Prior to July 1, 2028, 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 Notes to be redeemed plus the Applicable Premium, plus any accrued and unpaid interest on the principal amount being redeemed to, but excluding, the redemption date. The Company will notify the Trustee of the
calculation of the redemption price and the Trustee will not be responsible for such calculation.
Change of Control Repurchase. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to a minimum denomination of $2,000 or an integral multiple of $1,000 in
excess thereof) of that Holder’s Notes pursuant to a Change of Control Offer at a purchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest on the Notes repurchased to (but
not including) the date of purchase.
A - 5
Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
Notice of Redemption. At least 30 days but not more than 60 days before a redemption date, the Company will mail or cause to be mailed, by first-class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its
registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to
ARTICLE VIII thereof. Notes and portions of Notes selected will be in principal amounts of $2,000 or integral multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire
outstanding amount of Notes held by such Holder shall be redeemed or purchased.
Any such redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including the consummation of a Change of
Control. In addition, if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such
conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or waived by the redemption date, or by the redemption date so
delayed.
Denominations, Transfer, Exchange. The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The
Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
Persons Deemed Owners. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.
Amendment, Supplement and Waiver. The provisions governing amendment, supplement and waiver of any provision of the Indenture, the Notes or the Note Guarantees are set forth in ARTICLE IX of the Indenture.
Defaults and Remedies. The Events of Default relating to the Notes and related remedies and other provisions are included in Section 6.1 of the Indenture.
Security. The Notes shall be secured by Liens and security interests, subject to Permitted Liens, in the Collateral. The Collateral Agent holds the
Collateral in trust for the benefit of the Trustee and the Holders, in each case pursuant to the Collateral Documents.
A - 6
Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not the Trustee.
No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or any Guarantor under the Notes, the Indenture, the Note
Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
Authentication. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
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 right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
Cusip Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices
of redemption as a convenience to Holders. 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.
Governing Law; Jurisdiction; Waiver of
Jury Trial. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Any legal suit, action or proceeding arising out of or based upon this Indenture or the transactions contemplated hereby may be instituted in the
federal courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth
above shall be effective service of process for any suit, action or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Notes) each hereby irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in an inconvenient
forum.
A - 7
The Company, the Trustee and the Holders (by their acceptance of the Notes) each hereby irrevocably waive, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the transactions contemplated hereby or thereby.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Allegiant Travel Company
1201 North Town Center Drive
Las Vegas, Nevada 89144
A - 8
Assignment Form
To assign this Note, fill in the form below:
| (I) or (we) assign and transfer this Note to: | |
| (Insert assignee’s legal name) | |
| (Insert assignee’s soc. sec. or tax I.D. no.) | |
| (Print or type assignee’s name, address and zip code) | |
| and irrevocably appoint |
|
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 face of
this Note)
|
||||
| Signature Guarantee*: |
* Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor acceptable to the Trustee).
A - 9
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to Section 4.12 or Section 4.13 of the Indenture, check the box below:
☐ Section 4.13
If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.12 or Section 4.13 the Indenture, state the amount
you elect to have purchased:
| $_________ | ||||
| Date: | ||||
| Your Signature | ||||
| (Sign exactly as your name appears on the face of this Note) | ||||
| Tax Identification No.: |
| Signature Guarantee*: |
* Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor acceptable to the Trustee).
A - 10
Schedule of Exchanges of Interests in the Global Note
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have been made:
|
Date of Exchange
|
Amount of
decrease in Principal Amount of this Global Note |
Amount of
increase in Principal Amount of this Global Note |
Principal Amount
of this Global Note following such decrease (or increase) |
Signature of
authorized officer of Trustee or Custodian |
A - 11
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Allegiant Travel Company
1201 North Town Center Drive
Las Vegas, Nevada 89144
Las Vegas, Nevada 89144
Wilmington Trust, National Association
1100 North Market Street
1100 North Market Street
Wilmington, DE 19890-1605
Re: 7.125% Senior Secured Notes due 2031
Reference is hereby made to the Indenture, dated as of June 24, 2026 (the “Indenture”),
among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party thereto and Wilmington Trust, National Association, as trustee and collateral agent.
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
________________ (the “Transferor”) owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or interests (the “Transfer”), to
___________________________ (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. ☐ Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such
Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.
B - 1
EXHIBIT B
2. ☐ Check if Transferee will take delivery of a beneficial interest in the
Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than the Initial Purchasers). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note or the
Restricted Definitive Note and in the Indenture and the Securities Act.
3. ☐ Check and complete if Transferee will take delivery of a beneficial interest in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) ☐ such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
or
(c) ☐ such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the
effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture and the Securities Act.
B - 2
EXHIBIT B
4. ☐ Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) ☐ Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and
the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) ☐ Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) ☐ Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an
exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
B - 3
EXHIBIT B
|
[Insert Name of Transferor]
|
||||
|
By:
|
|
|||
|
|
Name: | |||
|
Title:
|
||||
|
Dated:
|
||||
B - 4
ANNEX A TO EXHIBIT B
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the
following:
[CHECK ONE OF (a) OR (b)]
(a) ☐ a beneficial interest in the:
(i) ☐ 144A Global Note (CUSIP _________), or
(ii) ☐ Regulation S Global Note (CUSIP _________), or
(iii) ☐
IAI Global Note (CUSIP ___________), or
(b) ☐ a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) ☐ a beneficial interest in the:
(i) ☐ 144A Global Note (CUSIP _________), or
(ii) ☐ Regulation S Global Note (CUSIP _________), or
(iii) ☐ IAI Global Note (CUSIP ___________), or
(iv) ☐ Unrestricted Global Note (CUSIP _________); or
(b) ☐ a Restricted Definitive Note; or
(c) ☐ an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B - 5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Allegiant Travel Company
1201 North Town Center Drive
Las Vegas, Nevada 89144
1201 North Town Center Drive
Las Vegas, Nevada 89144
Wilmington Trust, National Association
1100 North Market Street
1100 North Market Street
Wilmington, DE 19890-1605
Re: 7.125% Senior Secured Notes due 2031
(CUSIP [ ])
Reference is hereby made to the Indenture, dated as of June 24, 2026 (the “Indenture”),
among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party thereto and Wilmington Trust, National Association, as trustee and collateral agent.
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_______________________ (the “Owner”) owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of $ ________ in such Note[s] or interests (the “Exchange”). In connection with the Exchange, the
Owner hereby certifies that:
1. Exchange of
Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted
Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the
Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
(b) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
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EXHIBIT C
(c) ☐ Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note. In connection with the
Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) ☐ Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note. In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.
2. Exchange of
Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) ☐ Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own
account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) ☐ Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note. In connection with the
Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, IAI Global Note, Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
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EXHIBIT C
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[Insert Name of Transferor]
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Wilmington Trust, National Association
1100 North Market Street
1100 North Market Street
Wilmington, DE 19890-1605
Re: 7.125% Senior Secured Notes due 2031
Reference is hereby made to the Indenture, dated as of June 24, 2026 (the “Indenture”),
among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party thereto and Wilmington Trust, National Association, as trustee and collateral agent.
Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $_________ aggregate principal amount of:
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☐ a beneficial interest in a Global Note, or
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☐ a Definitive Note,
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we confirm that:
1. We understand that any subsequent
transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest
therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the offer and sale
of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule 144A under the Securities Act to a “qualified
institutional buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a signed
letter substantially in the form of this letter and, if such transfer is in respect of a principal amount of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant
to an effective registration statement under the Securities Act, and we further agree to provide to any Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales thereof are restricted as stated herein.
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EXHIBIT D
3. We understand
that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional “accredited
investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in
the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
5. We are acquiring the Notes or
beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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Dated:
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EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture
(this “Supplemental Indenture”), dated as of ____________, among _____________ (the “Guaranteeing
Subsidiary”), a subsidiary of Allegiant Travel Company (or its permitted successor), a Delaware corporation (the “Company”), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”) and Collateral Agent under the
Indenture referred to below.
W I T N E S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of June 24, 2026 providing for the issuance of 7.125% Senior Secured Notes due 2031 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is 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
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture
including but not limited to ARTICLE X thereof.
3. No Recourse Against Others. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the
Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW YORK LAW TO GOVERN. THE INTERNAL
LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
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EXHIBIT E
5. 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 agreement.
6. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above
written.
Dated: __________________
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[GUARANTEEING SUBSIDIARY]
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By:
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Name:
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Title:
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ALLEGIANT TRAVEL COMPANY
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By:
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Name:
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Title:
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ALLEGIANT AIR, LLC
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By:
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Name:
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Title:
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ALLEGIANT VACATIONS, LLC
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Name:
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Title:
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EXHIBIT E
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SUNRISE ASSET MANAGEMENT, LLC
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Name:
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Title:
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AFH, INC.
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Name:
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G4 PROPERTIES, LLC
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ALLEGIANT COMMERCIAL PROPERTIES, INC.
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Name:
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Title:
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G4 WORKS, LLC
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Name:
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Title:
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EXHIBIT E
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee and as Collateral Agent
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Name:
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E - 4
Exhibit 4.3
ALLEGIANT TRAVEL COMPANY,
as Issuer
and
THE SUBSIDIARY GUARANTORS PARTY HERETO,
as Guarantors
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 24, 2026
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee and Collateral Agent
First Supplemental Indenture dated as of June 24, 2026 (the “First Supplemental Indenture”) among Allegiant Travel Company, a Nevada corporation (the “Company”), the
Guarantors party to the Indenture (as defined below), and Wilmington Trust, National Association, as trustee (in such capacity, the “Trustee”) and collateral agent (in such
capacity, the “Collateral Agent”), to the Indenture, dated as of August 17, 2022, between the Company, the Guarantors and the Trustee and Collateral Agent (the “Indenture”).
WHEREAS, each of the Company and the Guarantors (as defined in the Indenture) has heretofore executed and delivered to the Trustee the Indenture
among the Company, the Guarantors and the Trustee and Collateral Agent, providing for the issuance in aggregate of $550,000,000 7.250% Senior Secured Notes due 2027 (the “Notes”);
WHEREAS, pursuant to Section 9.2 of the Indenture, the Company, the Guarantors and the Trustee and Collateral Agent, as applicable, may amend the
Indenture as it applies to the Notes with the written consent of the Holders of at least a majority in principal amount of the Notes then outstanding;
WHEREAS, the Company desires to amend certain provisions of the Indenture, as set forth in Article I hereof;
WHEREAS, upon the terms and subject to the conditions set forth in the Consent Solicitation Statement (as defined herein), the Company has been
soliciting consents from the Holders of the Notes to the Proposed Amendments (as defined in the Consent Solicitation Statement) to the Indenture, and the Holders of at least a majority in principal amount of the Notes outstanding, excluding any
Notes owned by the Company or its affiliates, have consented to the Proposed Amendments to the Indenture effected by this First Supplemental Indenture, which consents have not been validly withdrawn, and reasonably satisfactory evidence of which
has been furnished to the Trustee by the Company;
WHEREAS, the Company has provided to the Trustee an Officer’s Certificate and Opinion of Counsel each stating that the execution and delivery of
this First Supplemental Indenture is authorized or permitted by the Indenture and that the Company and the Guarantors have complied with all conditions precedent provided for in the Indenture relating to the execution and delivery of this First
Supplemental Indenture, has requested the Trustee to join with it and the Guarantors in the execution and delivery of this First Supplemental Indenture, and pursuant to Section 9.2 of the Indenture, the Company, the Guarantors and the Trustee are
authorized to execute and deliver this First Supplemental Indenture; and
WHEREAS, all other actions necessary to make this First Supplemental Indenture a legal, valid and binding agreement of the Company, the Guarantors
and the Trustee and Collateral Agent, in accordance with its terms, and a valid amendment and supplement to the Indenture have been performed.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties mutually covenant and agree for the benefit of each other and the equal and ratable benefit of the Holders as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
Section 1.1. Amendments to the Indenture.
Upon the furnishing of reasonably satisfactory evidence of the requisite consents and written notification to the Trustee by the Company that this
First Supplemental Indenture has become operative and that the Company has purchased all of the Notes validly tendered and not validly withdrawn prior to 5:00 p.m., New York City time, on June 23, 2026, pursuant to the Offer to Purchase and Consent
Solicitation Statement (the “Consent Solicitation Statement”), and any amendments, modifications, or supplements thereto, then automatically (without further act by any
person), with respect to the Notes:
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the following Sections of the Indenture and all references thereto shall be deleted from the Indenture in their entirety: Section 4.6 (Restricted Payments), Section 4.7 (Incurrence of Indebtedness
and Issuance of Preferred Stock), Section 4.8 (Limitations on Liens), Section 4.9 (Additional Guarantors), Section 4.10 (Designation of Restricted and Unrestricted Subsidiaries), Section 4.11 (Transactions with Affiliates), Section 4.12
(Offer to Repurchase Notes Upon a Change of Control) and Section 4.13 (Offer to Repurchase Notes Upon an Asset Sale);
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the following Sections of the Indenture and all references thereto shall be deleted from the Indenture in their entirety and the occurrence of the events described in such Sections of the Indenture
shall no longer constitute Events of Default under the Indenture: Section 6.1(3), Section 6.1(4) and Section 6.1(5); and
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in the current first sentence of Sections 3.1 and 3.3 of the Indenture, the phrase “at least 30 days but not more than 60 days” shall be amended and restated to read “at least three business days
but not more than 60 days.”
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ARTICLE II
MISCELLANEOUS
Section 2.1. Capitalized Terms.
Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
Section 2.2. Indenture in Full Force and Effect.
Except as expressly provided herein, all of the terms, provisions and conditions of the Indenture and the Notes shall remain in full force and
effect.
Section 2.3. Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 2.4. Waiver of Jury Trial.
EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 2.5. Counterparts.
The parties hereto may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or portable document format (“PDF”)
transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental 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.
Section 2.6. Headings.
The headings of the Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a
part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 2.7. Conflicts with Trust Indenture Act.
If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this
First Supplemental Indenture or the Indenture by the Trust Indenture Act, the required provision shall control.
Section 2.8. Effectiveness.
The provisions of this First Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with
the provisions of Section 9.2 of the Indenture; provided that the amendments to the Indenture set forth in Section 1.1 of this First Supplemental Indenture shall become operative as specified in Section 1.1 hereof. The Company shall provide prompt
notice to the Trustee if for any reason the purchase of the Notes by the Company pursuant to Section 1.1 of this First Supplemental Indenture will not occur and the provisions of this First Supplemental Indenture will not become operative.
Section 2.9. The Trustee.
The Trustee accepts the amendments to the Indenture effected by this First Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture. The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of
this First Supplemental Indenture, the consents from the Holders of the Notes to the Proposed Amendments to the Indenture, the Consent Solicitation Statement, or for or in respect of the recitals contained herein, all of which recitals are made
solely by the Company and the Guarantors. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of this First Supplemental Indenture as
fully and with like force and effect as though fully set forth in full herein. The Company hereby confirms to the Trustee that this First Supplemental Indenture has not resulted in a material modification of the Notes for Foreign Account Tax
Compliance Act (“FATCA”) purposes.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the date first above written.
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ALLEGIANT TRAVEL COMPANY
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President and Chief Financial Officer
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ALLEGIANT AIR, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President and Chief Financial Officer
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ALLEGIANT VACATIONS, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, Executive Vice President and Chief Financial Officer
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G4 PROPERTIES, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President and Chief Financial Officer
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G4 WORKS LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President and Chief Financial Officer
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AFH, INC.
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By:
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/s/ Robert J. Neal
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Robert J. Neal, Chief Financial Officer
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SUNRISE ASSET MANAGEMENT, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President and Chief Financial Officer
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SUN COUNTRY AIRLINES HOLDINGS, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President
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SUN COUNTRY, INC.
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By:
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/s/ Robert J. Neal
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Robert J. Neal, Chief Executive Officer
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SCA ACQUISITION INTERMEDIATE, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President
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SCA ACQUISITION, LLC
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By:
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/s/ Robert J. Neal
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Robert J. Neal, President
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WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee and Collateral Agent
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By:
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/s/ Anna Churchill
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Anna Churchill, Vice President
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Exhibit 10.1
AMENDMENT NO. 2 TO REVOLVING CREDIT AND GUARANTY AGREEMENT
This AMENDMENT NO. 2 (this “Amendment”), dated as of June 25, 2026 by and among Allegiant Travel Company, a Nevada corporation (the “Borrower”), the guarantors party thereto (the “Guarantors”),
Barclays Bank PLC and Deutsche Bank AG New York Branch (each a “Lender” and collectively, the “Lenders”) and Barclays Bank PLC, in its capacity as Administrative Agent (the “Administrative Agent”) amends the Revolving Credit and
Guaranty Agreement, dated as of August 17, 2022 (as amended by that Amendment No. 1 to Revolving Credit and Guaranty Agreement, dated as of December 5, 2025 by and among, inter alios, the Borrower, the Lenders
and the Administrative Agent and as otherwise restated, supplemented, waived, or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Guarantors, the Lenders and the Administrative Agent. Capitalized terms
used but not defined herein shall have the meanings given to such terms in the Credit Agreement.
WHEREAS, the Borrower has requested that the terms of the Credit Agreement be amended as set forth herein; and
WHEREAS, the Lenders have consented to the Administrative Agent entering into this Amendment and to the amendment of the terms of the Credit Agreement in accordance with Section 1 below.
NOW THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. As of the Effective Date, the Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the
following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double underlined text) as so marked, as set forth in the conformed Credit Agreement, including the Exhibits thereto, attached as Exhibit A to this Amendment.
SECTION 2. Conditions. This Amendment shall become effective on the date (the “Effective Date”) of the satisfaction of the following conditions precedent:
(a) this Amendment shall have been duly authorized, executed and delivered by the party or parties thereto and shall be in full force and effect and executed counterparts shall have been
delivered to the Administrative Agent and its counsel;
(b) the representations and warranties of the parties hereto as set forth in the Credit Agreement shall be true and correct as of the date of this Amendment; provided, to the extent that such
representations and warranties specifically refer to an earlier date, they shall be true and correct as of such earlier date;
(c) no Default or Event of Default shall have occurred and be continuing or would result from giving effect to the amendments contemplated by this Amendment;
(d) the Administrative Agent shall have received an Officer's Certificate, dated the date of this Amendment, of the Borrower confirming compliance with the conditions set forth in clause (a)
through (c) above; and
(e) the Administrative Agent shall have received a written opinion addressed to the Administrative Agent and the Lenders and dated the date of this Amendment of (i) Robert Goldberg, Senior
Counsel, Senior Vice President and Secretary of the Borrower, as to certain matters of Nevada law and (ii) Vedder Price P.C., special New York counsel to the Borrower and the Guarantors, in each case in form and substance reasonably satisfactory to
the Administrative Agent and the Lenders.
SECTION 3. Additional Guarantors. Each additional Guarantor identified on its signature page hereto (each an “Additional Guarantor”) hereby expressly assumes all of the
obligations of a “Guarantor” under and pursuant to the terms the Credit Agreement and other Loan Documents, as amended hereby.
SECTION 4. Amendment Limited. This Amendment is limited as specified herein and shall not, other than as expressly set forth herein, constitute a modification, acceptance or waiver of
any other provision of the Credit Agreement. The terms and conditions of the Credit Agreement, as amended by this Amendment, constitute the entire agreement and understanding of the parties hereto with respect to its subject matter and supersede all
oral communications and prior writings with respect thereto. The Credit Agreement and the other Loan Documents, as specifically amended by this Agreement, shall continue to be in full force and effect. This Agreement shall not constitute an amendment
or waiver of any other provision of the Credit Agreement or the other Loan Documents not expressly referred to herein. Each Guarantor hereby acknowledges and consents to the amendment of the Credit Agreement to be effected pursuant to this Amendment
and irrevocably and unconditionally confirms and agrees as of the date hereof that, notwithstanding the amendment of the Credit Agreement, the obligations of each Guarantor pursuant to Section 9 of the Credit Agreement shall continue in full force
and effect and extend to the Guaranteed Obligations (as defined in the Credit Agreement) as the same shall be amended by virtue of the amendment of the Credit Agreement as contemplated under Section 1 hereof.
SECTION 5. Loan Document. This Amendment shall be a Loan Document.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall constitute an original for all purposes, but
all such counterparts taken together shall constitute but one and the same instrument. Any signature delivered by a party by facsimile or .pdf electronic transmission shall be deemed to be an original signature hereto.
SECTION 8. Effectiveness. This Amendment shall become effective when signed by each Lender, each Guarantor, the Borrower and the Administrative Agent.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed and delivered by its duly authorized officer as of the date first above written.
|
ALLEGIANT TRAVEL COMPANY, as Borrower
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President & Chief Financial Officer
|
||
2
|
ALLEGIANT AIR, LLC, as a Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President & Chief Financial Officer
|
||
|
ALLEGIANT VACATIONS, LLC, as a Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: Executive Vice President and Chief Financial Officer
|
||
|
G4 PROPERTIES, LLC, as a Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President & Chief Financial Officer
|
||
|
G4 WORKS, LLC, as a Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President & Chief Financial Officer
|
||
|
AFH, INC., as a Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: Chief Financial Officer
|
||
|
By:
|
/s/ Robert J. Neal
|
|
| Name: Robert J. Neal | ||
| Title: President & Chief Financial Officer | ||
|
SUN COUNTRY AIRLINES HOLDINGS, LLC, as an Additional Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President
|
||
2
|
SUN COUNTRY, INC., as an Additional Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: Chief Executive Officer
|
||
|
SCA ACQUISITION INTERMEDIATE, LLC, as an Additional Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President
|
||
|
SCA ACQUISITION, LLC, as an Additional Guarantor
|
||
|
By:
|
/s/ Robert J. Neal
|
|
|
Name: Robert J. Neal
|
||
|
Title: President
|
||
|
BARCLAYS BANK PLC, as a Lender
|
||
|
By:
|
/s/ Charlene Saldanha
|
|
|
Name: Charlene Saldanha
|
||
|
Title: Director
|
||
2
|
BARCLAYS BANK PLC, as Administrative Agent
|
||
|
By:
|
/s/ Charlene Saldanha
|
|
|
Name: Charlene Saldanha
|
||
|
Title: Director
|
||
EXHIBIT A
Execution Version
REVOLVING CREDIT AND GUARANTY AGREEMENT
dated as of August 17, 2022
among
ALLEGIANT TRAVEL COMPANY,
as Borrower,
THE SUBSIDIARIES OF THE BORROWER PARTY HERETO,
as Guarantors,
THE LENDERS PARTY HERETO,
BARCLAYS BANK PLC,
as Administrative Agent,
BARCLAYS BANK PLC,
as Lead Arranger
Table of Contents
| Page | |||
|
SECTION 1. DEFINITIONS
|
1
|
||
|
Section 1.01.
|
Defined Terms
|
1
|
|
|
Section 1.02.
|
Terms Generally
|
46
|
|
|
Section 1.03.
|
Accounting Terms; GAAP
|
47
|
|
|
Section 1.04.
|
Divisions
|
47
|
|
|
Section 1.05.
|
Rates
|
47
|
|
|
SECTION 2. AMOUNT AND TERMS OF CREDIT
|
48
|
||
|
Section 2.01.
|
Commitments of the Lenders; Loans
|
48
|
|
|
Section 2.02.
|
Requests for Loans
|
49
|
|
|
Section 2.03.
|
Funding of Loans
|
49
|
|
|
Section 2.04.
|
Interest Elections
|
50
|
|
|
Section 2.05.
|
Limitation on SOFR Tranches
|
51
|
|
|
Section 2.06.
|
Interest on Loans
|
51
|
|
|
Section 2.07.
|
Default Interest
|
52
|
|
|
Section 2.08.
|
Alternate Rate of Interest
|
52
|
|
|
Section 2.09.
|
Repayment of Loans; Evidence of Debt
|
53
|
|
|
Section 2.10.
|
Commitment Termination
|
53
|
|
|
Section 2.11.
|
Optional Prepayment of Loans; Optional Termination or Reduction of Commitments
|
53
|
|
|
Section 2.12.
|
Increased Costs
|
54
|
|
|
Section 2.13.
|
Break Funding Payments
|
56
|
|
|
Section 2.14.
|
Taxes
|
56
|
|
|
Section 2.15.
|
Payments Generally; Pro Rata Treatment
|
59
|
|
|
Section 2.16.
|
Mitigation Obligations; Replacement of Lenders
|
61
|
|
|
Section 2.17.
|
Certain Fees
|
61
|
|
|
Section 2.18.
|
Commitment Fee
|
62
|
|
|
Section 2.19.
|
Nature of Fees
|
62
|
|
|
Section 2.20.
|
Right of Set-Off
|
62
|
|
|
Section 2.21.
|
Payment of Obligations
|
62
|
|
|
Section 2.22.
|
Increase in Commitment
|
62
|
|
|
Section 2.23.
|
Extension of Loans
|
64
|
|
|
Section 2.24.
|
Benchmark Replacement Setting
|
66
|
|
|
Section 2.25.
|
Defaulting Lenders
|
68
|
|
|
SECTION 3. REPRESENTATIONS AND WARRANTIES
|
69
|
||
|
Section 3.01.
|
Organization and Authority
|
69
|
|
|
Section 3.02.
|
Air Carrier Status
|
69
|
|
|
Section 3.03.
|
Due Execution
|
69
|
|
|
Section 3.04.
|
Statements Made
|
70
|
|
|
Section 3.05.
|
Financial Statements; Material Adverse Change
|
70
|
|
|
Section 3.06.
|
Ownership of Subsidiaries
|
70
|
|
|
Section 3.07.
|
Title to Properties
|
71
|
|
i
|
Section 3.08.
|
Use of Proceeds
|
71
|
|
|
Section 3.09.
|
Litigation and Compliance with Laws
|
71
|
|
|
Section 3.10.
|
Margin Regulations; Investment Company Act
|
71
|
|
|
Section 3.11.
|
Perfected Security Interests
|
72
|
|
|
Section 3.12.
|
Payment of Taxes
|
72
|
|
|
Section 3.13.
|
Anti-Corruption Laws and Sanctions
|
72
|
|
|
Section 3.14.
|
Beneficial Ownership Certifications
|
72
|
|
|
Section 3.15.
|
Solvency
|
72
|
|
|
SECTION 4. CONDITIONS OF LENDING
|
73
|
||
|
Section 4.01.
|
Conditions Precedent to Closing
|
73
|
|
|
Section 4.02.
|
Conditions Precedent to Each Loan
|
75
|
|
|
Section 4.03.
|
Conditions Subsequent to Closing
|
76
|
|
|
Section 4.04.
|
Conditions Subsequent to Amendment No. 2 Effective Date
|
76
|
|
|
SECTION 5. AFFIRMATIVE COVENANTS
|
76
|
||
|
Section 5.01.
|
Financial Statements, Reports, etc.
|
76
|
|
|
Section 5.02.
|
Taxes
|
78
|
|
|
Section 5.03.
|
Stay, Extension and Usury Laws
|
78
|
|
|
Section 5.04.
|
Corporate Existence
|
78
|
|
|
Section 5.05.
|
Compliance with Laws
|
79
|
|
|
Section 5.06.
|
Designation of Restricted and Unrestricted Subsidiaries
|
79
|
|
|
Section 5.07.
|
Regulatory Cooperation
|
79
|
|
|
Section 5.08.
|
Regulatory Matters; Citizenship; Utilization; Collateral Requirements
|
80
|
|
|
Section 5.09.
|
Insurance
|
80
|
|
|
Section 5.10.
|
Additional Guarantors; Grantors; Collateral
|
80
|
|
|
Section 5.11.
|
Access to Books and Records
|
81
|
|
|
Section 5.12.
|
Further Assurances
|
82
|
|
|
Section 5.13.
|
Ownership of Property
|
84
|
|
|
SECTION 6. NEGATIVE COVENANTS
|
84
|
||
|
Section 6.01.
|
Restricted Payments
|
84
|
|
|
Section 6.02.
|
Incurrence of Indebtedness and Issuance of Preferred Stock
|
89
|
|
|
Section 6.03.
|
Fundamental Changes
|
93
|
|
|
Section 6.04.
|
Dispositions
|
94
|
|
|
Section 6.05.
|
Transactions with Affiliates
|
95
|
|
|
Section 6.06.
|
Liens
|
96
|
|
|
Section 6.07.
|
Business Activities
|
97
|
|
|
Section 6.08.
|
Consolidated Total Leverage Ratio; Liquidity
|
97
|
|
|
Section 6.09.
|
Use of Proceeds
|
97
|
|
|
SECTION 7. EVENTS OF DEFAULT
|
97
|
||
|
Section 7.01.
|
Events of Default
|
97
|
|
|
SECTION 8. THE AGENTS
|
100
|
||
|
Section 8.01.
|
Administration by Agents
|
100
|
|
ii
|
Section 8.02.
|
Rights of Administrative Agent
|
101
|
|
|
Section 8.03.
|
Liability of Agents
|
101
|
|
|
Section 8.04.
|
Reimbursement and Indemnification
|
102
|
|
|
Section 8.05.
|
Successor Agents
|
103
|
|
|
Section 8.06.
|
Independent Lenders
|
103
|
|
|
Section 8.07.
|
Advances and Payments
|
103
|
|
|
Section 8.08.
|
Sharing of Setoffs
|
104
|
|
|
Section 8.09.
|
Withholding Taxes
|
104
|
|
|
Section 8.10.
|
Appointment by Secured Parties
|
104
|
|
|
Section 8.11.
|
Erroneous Payments
|
105
|
|
|
SECTION 9. GUARANTY
|
106
|
||
|
Section 9.01.
|
Guaranty
|
106
|
|
|
Section 9.02.
|
No Impairment of Guaranty
|
107
|
|
|
Section 9.03.
|
Continuation and Reinstatement, etc.
|
107
|
|
|
Section 9.04.
|
Subrogation
|
107
|
|
|
Section 9.05.
|
Discharge of Guaranty
|
108
|
|
|
SECTION 10. MISCELLANEOUS
|
108
|
||
|
Section 10.01.
|
Notices
|
108
|
|
|
Section 10.02.
|
Successors and Assigns
|
111 | |
|
Section 10.03.
|
Confidentiality
|
114 | |
|
Section 10.04.
|
Expenses; Indemnity; Damage Waiver
|
115 | |
|
Section 10.05.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
116 | |
|
Section 10.06.
|
No Waiver
|
117 |
|
|
Section 10.07.
|
Extension of Maturity
|
117 |
|
|
Section 10.08.
|
Amendments, etc.
|
117 |
|
|
Section 10.09.
|
Severability
|
120 | |
|
Section 10.10.
|
Headings
|
120 | |
|
Section 10.11.
|
Survival
|
120 | |
|
Section 10.12.
|
Execution in Counterparts; Integration; Effectiveness
|
120 | |
|
Section 10.13.
|
USA Patriot Act
|
120 | |
|
Section 10.14.
|
New Value
|
121 | |
|
Section 10.15.
|
WAIVER OF JURY TRIAL
|
121 | |
|
Section 10.16.
|
No Fiduciary Duty
|
121 | |
|
Section 10.17.
|
Intercreditor Agreements
|
122 | |
|
Section 10.18.
|
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
|
122 | |
|
Section 10.19.
|
Certain ERISA Matters
|
122 | |
iii
INDEX OF APPENDICES
|
ANNEX A
|
–
|
Lenders and Commitments
|
|
EXHIBIT A
|
–
|
Guarantors
|
|
EXHIBIT B
|
–
|
Form of Instrument of Assumption and Joinder
|
|
EXHIBIT C
|
–
|
Form of Assignment and Acceptance
|
|
EXHIBIT D
|
–
|
Form of Loan Request/Interest Election Request
|
|
EXHIBIT E
|
–
|
Form of Prepayment Notice
|
|
SCHEDULE 3.06
|
–
|
Subsidiaries
|
|
SCHEDULE 6.02
|
–
|
Existing Indebtedness
|
iv
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of August 17, 2022 (as amended by Amendment No. 1 on the Amendment No. 1 Effective Date and by Amendment No. 2 on the Amendment No. 2 Effective Date and as otherwise
amended, supplemented or modified from time to time), among ALLEGIANT TRAVEL COMPANY, a Nevada corporation (the “Borrower”), the direct and indirect Subsidiaries of the Borrower from time to time party hereto, each of the several banks and
other financial institutions or entities from time to time party hereto as a lender (the “Lenders”), BARCLAYS BANK PLC (“Barclays”), as administrative agent for the Lenders (together with its permitted successors in such capacity, the “Administrative
Agent”), and Barclays, as lead arranger (in such capacity, the “Lead Arranger”).
INTRODUCTORY STATEMENT
The Borrower has applied to the Lenders for a revolving credit facility in an initial aggregate principal amount not to exceed $75,000,000 as set forth herein (subject to any Incremental Commitments).
The proceeds of the Loans will be used for general corporate purposes of the Borrower and its Subsidiaries.
To provide guarantees and security for the repayment of the Loans and the payment of the other obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents, the Borrower and the Guarantors
will, among other things, provide to the Administrative Agent and the Lenders the following (each as more fully described herein):
(a) a guaranty from each Guarantor of the due and punctual payment and performance of the Obligations of the Borrower pursuant to Section 9 hereof; and
(b) a security interest in the Collateral from the Borrower and each other Grantor (if any) pursuant to the Collateral Documents.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.
“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, is bearing interest at a rate determined by reference to the Alternate Base Rate.
“Account” shall mean all “accounts” as defined in the UCC.
1
“Account Control Agreement” shall mean each three-party security and control agreement entered into by any Grantor, the Administrative Agent and a financial institution which maintains one or more deposit accounts
or securities accounts that have been pledged to the Administrative Agent as Collateral hereunder or under any other Loan Document, in each case giving the Administrative Agent control over the applicable account and in form and substance reasonably
satisfactory to the Administrative Agent and as the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Acquired Debt” means, with respect to any specified Person:
(1) Indebtedness, Disqualified Stock or preferred stock of any other Person existing at the time such other Person is merged, consolidated or amalgamated with or into such specified Person, or became a
Subsidiary of such specified Person, to the extent such Indebtedness is incurred or such Disqualified Stock or preferred stock is issued in connection with, or in contemplation of, such other Person merging, consolidating or amalgamating with or
into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to Term SOFR for such calculation; provided that if Adjusted Term SOFR as so determined shall ever be less than the
Floor, then Adjusted Term SOFR shall be deemed to be the Floor.
“Administrative Agent” shall have the meaning set forth in the first paragraph of this Agreement.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, a
Person (a “Controlled Person”) shall be deemed to be “controlled by” another Person (a “Controlling Person”) if the Controlling Person possesses, directly or indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
“Affiliate Transaction” shall have the meaning given such term in Section 6.05(a).
“Aggregate Exposure” shall mean, with respect to any Lender at any time, an amount equal to the sum of (a) the aggregate amount of such Lender’s unused and outstanding Commitments at such time and (b) the
aggregate then outstanding principal amount of such Lender’s Loans.
“Aggregate Exposure Percentage” shall mean, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders
at such time.
2
“Agreement” shall mean this Revolving Credit and Guaranty Agreement, as the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Aircraft Assets” shall mean (x) aircraft, airframes, engines, spare engines, propellers, parts (other than Spare Parts) and other operating assets (including all substitutions, replacements and renewals of the
foregoing, and all property that becomes physically attached thereto and including all related (a) technical data, manuals, records, logs, all inspection, modification, repair and overhaul records and other materials, (b) warranties, service
contracts and product agreements of any manufacturer and all maintenance and overhaul agency agreements, (c) bills of sale and agreements for acquisition, purchase, conditional sale, and lease (specifically including but not limited to those certain
agreements with The Boeing Company dated December 2021 and any amendments thereto), pre-delivery payments and related cash deposits, and (d) insurance policies and proceeds under insurance carried by the Borrower or any Restricted Subsidiary), and
(y) leases or conditional sale agreements relating to any of the items in the foregoing clause (x) owned or leased by, or subject to conditional sale or future sale to, the Borrower or any Restricted Subsidiary.
“Aircraft Related Equipment” means aircraft (including engines, airframes, propellers and appliances), engines, propellers, spare parts, aircraft parts, simulators and other training devices, quick engine change
kits, passenger loading bridges or other flight or ground equipment and other operating assets, including any modifications and improvements with respect to any such equipment.
“Aircraft Related Facilities” means (i) airport terminal facilities, including, without limitation, baggage systems, loading bridges and related equipment, building, infrastructure and maintenance facilities,
tooling facilities, club rooms, apron, fueling systems or facilities, signage/image systems, administrative offices, information technology systems and security systems, (ii) airline support facilities, including, without limitation, cargo, catering,
mail, ground service equipment, ramp control, deicing, hangars, aircraft parts/storage, training, office and reservations facilities and (iii) all equipment and tooling used in connection with the foregoing.
“Airport Authority” shall mean any city or any public or private board or other body or organization chartered or otherwise established for the purpose of administering, operating or managing airports or related
facilities, which in each case is an owner, administrator, operator or manager of one or more airports or related facilities.
“Allegiant Air” means Allegiant Air, LLC, a Nevada limited liability company.
“Allegiant Spare Parts Security Agreement” shall mean the Spare Parts Security Agreement, dated the Amendment No. 2 Effective Date, between Allegiant Air and the Administrative Agent, as the same may be amended,
restated, modified, supplemented, extended or amended and restated from time to time.
3
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the sum of the Federal Funds Effective Rate in effect on such day plus ½ of 1%
and (c) the sum of the Adjusted Term SOFR (including the Floor) for a one-month tenor in effect on such day plus 1.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal
Funds Effective Rate or the Adjusted Term SOFR for a one-month tenor shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR for a one-month tenor,
respectively.
“Amendment No. 1” means the Amendment No. 1 to Revolving Credit and Guaranty Agreement, dated as of December 5, 2025 by and among the Borrower, the Administrative Agent, the Lenders party thereto and the
Guarantors party thereto.
“Amendment No. 2” means the Amendment No. 2 to Revolving Credit and Guaranty Agreement, dated as of June 25, 2026 by and among the Borrower, the Administrative Agent, the Lenders party thereto and the Guarantors
party thereto.
“Amendment No. 1 Effective Date” means December 5, 2025.
“Amendment No. 2 Effective Date” means June 25, 2026.
“Anti-Corruption Laws” means all laws, rules and regulations of the United States applicable to the Borrower or its Subsidiaries from time to time intended to prevent or restrict bribery or corruption.
“Anti-Money Laundering Laws” means all applicable financial recordkeeping and reporting requirements pertaining to money laundering, including those of the Bank Secrecy Act (31 U.S.C. sections 5311 et seq.), as
amended by the Patriot Act, and the applicable anti-money laundering statutes of jurisdictions where the Borrower, any Guarantor and their respective subsidiaries conduct business, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency.
“Applicable Margin” shall mean the rate per annum determined pursuant to the following:
|
Applicable Margin
SOFR Loans
|
Applicable
Margin
ABR Loans
|
|
3.00%
|
2.00%
|
“Approved Fund” means, with respect to any Lender, any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) such Lender, (b) an Affiliate of such Lender or (c) an entity or an Affiliate of an entity that administers or manages such Lender.
4
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.02), and accepted by the
Administrative Agent, substantially in the form of Exhibit C.
“Availability Period” shall mean the period from and including the Closing Date to but excluding the earlier of the (i) Facility Termination Date and (ii) the Maturity Date.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof)
that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for
determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then
removed from the definition of “Interest Period” pursuant to Section 2.24(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law,
regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time
to time) and any other law, regulation, rule or requirement 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).
“Banking Product Obligations” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person in respect of any treasury, depository and cash management services, netting
services and automated clearing house transfers of funds services, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith.
“Bankruptcy Code” shall mean The Bankruptcy Reform Act of 1978, as heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
“Bankruptcy Event” shall mean, with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, 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.
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“Bankruptcy Law” means the Bankruptcy Code or any similar federal or state law for the relief of debtors.
“Benchmark” means initially, Term SOFR; provided that if a Benchmark Transition Event has occurred with respect to Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.24.
“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark
Replacement Date:
(a) with respect to SOFR Loans, Daily Simple SOFR; or
(b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (A) any selection or recommendation of a
replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for
syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment;
provided, that if the Benchmark Replacement 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” means with respect to any replacement of the then-current Benchmark with an 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 giving due consideration to (a) 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 or (b) 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 syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
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(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and
(ii) 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
(b) in the case of clause (c) 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 or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant
with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most
recent statement or publication referenced in such clause (c) 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, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) above 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” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) 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);
(b) 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 Federal Reserve Bank of New York, 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), 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
(c) 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) or the regulatory
supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance
with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
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).
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“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the
then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.24 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any
Loan Document in accordance with Section 2.24.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in
Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable
or is exercisable only after the passage of time.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose
assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Board of Directors” means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members, manager or managers or any controlling committee of managing members or managers thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
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“Borrower” shall have the meaning set forth in the first paragraph of this Agreement.
“Borrowing” shall mean the incurrence, conversion or continuation of Loans of a single Type made from all the Lenders on a single date and having, in the case of SOFR Loans, a single Interest Period.
“Brand IP” means the brand intellectual property assets of the Borrower and its Restricted Subsidiaries.
“Business Day” shall mean any day other than a Saturday, Sunday or other day on which commercial banks in New York City or Las Vegas are required or authorized to remain closed; provided, however,
that when used in connection with the borrowing or repayment of a SOFR Loan, the term “Business Day” shall also exclude any day that is not a U.S. Government Securities Business Day.
“Capital Lease Obligation” means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized and reflected as a
liability on a balance sheet prepared in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the
lessee without payment of a penalty. For the avoidance of doubt, Capital Lease Obligations shall not include operating leases that, prior to January 1, 2019, would not be accounted for as a Capital Lease Obligation on the Borrower’s consolidated
balance sheet.
“Capital Markets Offering” means any offering of “securities” (as defined under the Securities Act) in (a) a public offering registered under the Securities Act, or (b) an offering not required to be registered
under the Securities Act (including, without limitation, a private placement under Section 4(a)(2) of the Securities Act, an exempt offering pursuant to Rule 144A and/or Regulation S of the Securities Act and an offering of exempt securities).
“Capital Stock” means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
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“Cash Equivalents” means:
(1) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
(2) direct obligations of state and local government entities, in each case maturing within one year from the date of acquisition thereof, which have a rating of at least A- (or the equivalent
thereof) from S&P or A3 (or the equivalent thereof) from Moody’s;
(3) obligations of domestic or foreign companies and their subsidiaries (including, without limitation, agencies, sponsored enterprises or instrumentalities chartered by an Act of Congress,
which are not backed by the full faith and credit of the United States), including, without limitation, bills, notes, bonds, debentures, and mortgage-backed securities, in each case maturing within one year from the date of acquisition thereof;
(4) Investments in commercial paper maturing within 365 days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-2 (or the equivalent thereof)
from S&P or P-2 (or the equivalent thereof) from Moody’s;
(5) Investments in certificates of deposit (including Investments made through an intermediary, such as the certificated deposit account registry service), banker’s acceptances, time deposits,
eurodollar time deposits and overnight bank deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any other
commercial bank of recognized standing organized under the laws of the United States or any State thereof that has a combined capital and surplus and undivided profits of not less than $100.0 million;
(6) fully collateralized repurchase agreements with a term of not more than six months for underlying securities that would otherwise be eligible for investment;
(7) Investments in an investment company registered under the Investment Company Act of 1940, as amended, or in pooled accounts or funds offered through mutual funds, investment advisors,
banks and brokerage houses which invest its assets in obligations of the type described in clauses (1) through (6) above. This could include, but not be limited to, money market funds or short‑term and intermediate bonds funds;
(8) money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (B) are rated AAA (or the equivalent thereof) by
S&P and Aaa (or the equivalent thereof) by Moody’s and (C) have portfolio assets of at least $5.0 billion;
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(9) deposits available for withdrawal on demand with commercial banks organized in the United States, or any U.S. branch of a bank organized in an OECD country, having capital and surplus in
excess of $100.0 million;
(10) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are
rated at least A- by S&P or A3 by Moody’s; and
(11) any other securities or pools of securities that are classified under GAAP as cash equivalents or short-term investments on a balance sheet.
“Change in Law” shall mean, after the date hereof, (a) the adoption of any law, rule or regulation after the date of this Agreement (including any request, rule, regulation, guideline, requirement or directive
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III) or (b) compliance by
any Lender (or, for purposes of Section 2.12(b), by any lending office of such Lender through which Loans are made or maintained or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this Agreement.
“Change of Control” means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the
properties or assets of the Borrower and its Subsidiaries taken as a whole to any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)); or
(2) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including any “person” (as defined above)) becomes
the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Borrower (measured by voting power rather than number of shares), other than (A) any such transaction where the Voting Stock of the Borrower (measured by voting
power rather than number of shares) outstanding immediately prior to such transaction constitutes or is converted into or exchanged for a majority of the outstanding shares of the Voting Stock of such Beneficial Owner (measured by voting power rather
than number of shares), or (B) any sale, transfer, conveyance or other disposition to, or any merger or consolidation of the Borrower with or into, any Person (including any “person” (as defined above)) which owns or operates (directly or indirectly
through a contractual arrangement) a Permitted Business (a “Permitted Person”) or a Subsidiary of a Permitted Person, in each case, if immediately after such transaction no Person (including any “person” (as defined above)) is the Beneficial
Owner, directly or indirectly, of more than 50% of the total Voting Stock of such Permitted Person (measured by voting power rather than number of shares).
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“Class”, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or the Loans comprising such Borrowing, are Loans or Incremental Loans that are a different class of Loans.
“Closing Date” shall mean the date on which this Agreement has been executed and the conditions precedent set forth in Section 4.01 have been satisfied or waived.
“Closing Date Transactions” shall mean the Transactions.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means all property and assets of the Borrower and its Restricted Subsidiaries, now owned or hereafter acquired, upon or in respect of which a Lien is or is purported to be granted (or otherwise
created) by any Collateral Document, including, the Capital Stock in the Borrower’s Subsidiaries (including Allegiant Air, Sunrise Asset Management, LLC, Allegiant Vacations, LLC and Sunseeker Resorts, Inc.) to the extent such Capital Stock is owned
by the Borrower or a Guarantor; provided, however, that the Collateral shall not include any Excluded Property.
“Collateral Documents” shall mean, collectively, the Security Agreement, the Allegiant Spare Parts Security Agreement, the Sun Country Spare Parts Security Agreement, the Account Control Agreements and other
agreements, instruments or documents that create or purport to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties, in each case so long as such agreement, instrument or document shall not have been terminated in
accordance with its terms.
“Commitment” shall mean, as to any Lender, the commitment of such Lender to make Loans hereunder in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Commitment”
opposite its name in Annex A hereto. The original aggregate amount of the Total Commitments as of the Amendment No. 1 Effective Date is $150,000,000.
“Commitment Fee” shall have the meaning given to such term in Section 2.18.
“Commitment Fee Rate” shall mean 0.25% per annum.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §1 et seq.), as amended from time to time, and any successor statute.
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“Conforming Changes” means, with respect to either the use or administration of the then-applicable Benchmark for Loans, or the use, administration, adoption or implementation of any Benchmark
Replacement thereof, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of
“Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or
continuation notices, the applicability and length of lookback periods, the applicability of Section 2.13 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and
implementation of any such rate or to permit the use and 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 any such rate 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).
“Consolidated EBITDA” means, with respect to any specified Person for any period, Consolidated EBITDAR of such Person for such period, less the aggregate amount of aircraft rent expense described in clause (5) of
the definition of “Fixed Charges” for such period.
“Consolidated EBITDAR” means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:
(1) an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with any Disposition of assets, to the extent such losses were deducted
in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(3) Fixed Charges, and expenses of subservice agreements contracted with third parties to service scheduled flights of such Person and its Restricted Subsidiaries, to the extent that such Fixed Charges and
expenses were deducted in computing such Consolidated Net Income; plus
(4) any foreign currency translation losses (including losses related to currency remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for such period, to the extent that such losses
were deducted in computing such Consolidated Net Income; plus
(5) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non‑cash charges and expenses (excluding any
such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries to the extent that such depreciation, amortization and other non‑cash charges or expenses were deducted in computing such Consolidated Net Income; plus
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(6) the amortization of debt discount to the extent that such amortization was deducted in computing such Consolidated Net Income; plus
(7) stock compensation expense for grants to any employee, director or contractor of the Borrower or its Restricted Subsidiaries to the extent such loss was deducted in computing such Consolidated Net Income;
plus
(8) any net loss arising from the sale, exchange or other disposition of capital assets by the Borrower or its Restricted Subsidiaries (including any fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets and all securities) to the extent such loss was deducted in computing such Consolidated Net Income; plus
(9) any losses arising under fuel hedging arrangements entered into prior to February 5, 2019 and any losses actually realized under fuel hedging arrangements entered into after February 5, 2019, in each case to
the extent deducted in computing such Consolidated Net Income; plus
(10) proceeds from business interruption insurance for such period, to the extent not already included in computing such Consolidated Net Income; plus
(11) any expenses and charges that are covered by indemnification or reimbursement provisions in connection with any permitted acquisition, merger, disposition, incurrence of Indebtedness, issuance of Equity
Interests or any investment to the extent (a) actually indemnified or reimbursed and (b) deducted in computing such Consolidated Net Income; minus
(12) non-cash items, other than the accrual of revenue in the ordinary course of business, to the extent such amount increased such Consolidated Net Income; minus
(13) the sum of (i) income tax credits and (ii) Consolidated Interest Income included in computing such Consolidated Net Income,
in each case of clauses (1) through (13), determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Income” means, as of any day of determination, the sum of the amounts that would appear on a consolidated income statement of the Borrower and its consolidated Restricted Subsidiaries as the
interest income of the Borrower and its Restricted Subsidiaries, determined in accordance with GAAP
“Consolidated Net Income” means, with respect to any specified Person for any period, the aggregate of the net income (or loss) of such Person and its Restricted Subsidiaries for such period, on a consolidated
basis (excluding the net income (loss) of any Unrestricted Subsidiary of such Person), determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
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(1) all (a) extraordinary, non-recurring, special or unusual gains or losses or income or expenses, including without limitation, any expenses related to a facilities closing and any
reconstruction, recommissioning or reconfiguration of fixed assets for alternate uses; any severance or relocation expenses; executive recruiting costs; restructuring or reorganization costs; curtailments or modifications to pension and
post-retirement employee benefit plans; (b) any expenses (including, without limitation, transaction costs, integration or transition costs, financial advisory fees, accounting fees, legal fees and other similar advisory and consulting fees and
related out-of-pocket expenses), cost-savings, costs or charges incurred in connection with any issuance of securities, Permitted Investments, acquisitions, dispositions, recapitalizations or incurrences of repayments of Indebtedness permitted
hereunder, including a refinancing thereof (in each case whether or not successful); and (c) gains or losses realized in connection with any Disposition of assets, the disposition of securities, or the early extinguishment of Indebtedness or
associated Hedging Obligations, together with any related provision for taxes on any such gain, will be excluded;
(2) the net income (but not loss) of any Person that is not the specified Person or a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included for
such period only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or Restricted Subsidiary of the specified Person;
(3) the net income (but not loss) of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that net income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;
(4) the cumulative effect of a change in accounting principles on such Person will be excluded;
(5) the effect of non-cash gains and losses of such Person resulting from Hedging Obligations, including attributable to movement in the mark‑to‑market valuation of Hedging Obligations
pursuant to Financial Accounting Standards Board Accounting Standards Codification 815 – Derivatives and Hedging will be excluded;
(6) any non-cash compensation expense recorded from grants by such Person of stock appreciation or similar rights, restricted stock units, restricted stock grants, stock options or other
rights to officers, directors, employees or contractors, will be excluded;
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(7) the effect on such Person of any non-cash items resulting from any write-up, write-down or write-off of assets (including intangible assets, goodwill and deferred financing costs) in
connection with any acquisition, disposition, merger, consolidation or similar transaction or any other non-cash impairment charges incurred subsequent to February 5, 2019 resulting from the application of Financial Accounting Standards Board
Accounting Standards Codifications 205 – Presentation of Financial Statements, 350 – Intangibles – Goodwill and Other, 360 – Property, Plant and Equipment and 805 – Business Combinations (excluding any such non-cash item to the extent that it
represents an accrual of or reserve for cash expenditures in any future period except to the extent such item is subsequently reversed), will be excluded; and
(8) any provision for income tax reflected on such Person’s financial statements for such period will be excluded to the extent such provision exceeds the actual amount of taxes paid in cash
during such period by such Person and its consolidated Subsidiaries.
“Consolidated Total Leverage Ratio” means the ratio of (x) the outstanding amount of the Loans together with any other Indebtedness of the Borrower or any of its Restricted Subsidiaries to (y) Consolidated EBITDA
of the Borrower and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Borrower have been or are required to be
delivered; provided that any arrangements which could have been accounted for by the Borrower or any of its Restricted Subsidiaries as operating leases prior to the adoption by the Borrower of the new lease accounting rules (FASB Accounting
Standards Update No. 2016-02, Leases (Topic 842)) shall not be considered Indebtedness for purposes of calculating the Consolidated Total Leverage Ratio.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day “i”) that is five U.S. Government
Securities Business Days prior to (A) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (B) 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 and (b) the Floor. If by 5:00 pm (New York City time) on the second (2nd) U.S. Government Securities
Business Day immediately following any day “i”, the SOFR in respect of such day “i” has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to the Daily Simple SOFR has not occurred, then the SOFR for
such day “i” will be the SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided that any SOFR determined pursuant to this sentence
shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive SOFR Rate Days. 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.
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“Default” means any event that, unless cured or waived, is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Defaulting Lender” shall mean, at any time, any Lender that has become, or has had its direct or indirect parent company become, the subject of a Bankruptcy Event or a Bail-In Action. If the Administrative Agent
determines that a Lender is a Defaulting Lender, such Lender will be deemed to be a Defaulting Lender upon notification of such determination by the Administrative Agent to the Borrower and the Lenders.
“Designated Banking Product Agreement” means any agreement evidencing Designated Banking Product Obligations entered into by the Borrower and any Person that, at the time such Person entered into such agreement,
was a Lender or the Administrative Agent or a banking Affiliate of any such Person, in each case designated by the relevant Lender and the Borrower, by written notice to the Administrative Agent, as a “Designated Banking Product Agreement”.
“Designated Banking Product Obligations” means any Banking Product Obligations, in each case as designated by any Lender or the Administrative Agent (or a banking Affiliate thereof) and the Borrower from time to
time and agreed to by the Administrative Agent as constituting “Designated Banking Product Obligations,” which notice shall include (i) a copy of an agreement providing an agreed-upon maximum amount of Designated Banking Product Obligations that can
be included as Obligations, and (ii) the acknowledgment of such Lender (or such banking Affiliate) that its security interest in the Collateral securing such Designated Banking Product Obligations shall be subject to the Loan Documents; provided
that, after giving effect to such designation, the aggregate agreed-upon maximum amount of all “Designated Banking Product Obligations” included as Obligations, together with the aggregate agreed-upon maximum amount of all “Designated Hedging
Obligations” included as Obligations, shall not exceed $15,000,000 in the aggregate.
“Designated Hedging Agreement” means any Hedging Agreement entered into by the Borrower and any Person that, at the time such Person entered into such Hedging Agreement, was a Lender, the Administrative Agent or
an Affiliate thereof, as designated by the relevant Lender or the Administrative Agent (or Affiliate thereof) and the Borrower, by written notice to the Administrative Agent, as a “Designated Hedging Agreement,” which notice shall include a copy of
an agreement providing for (i) a methodology agreed to by the Borrower, such Lender or Affiliate of a Lender, and the Administrative Agent for reporting the outstanding amount of Designated Hedging Obligations under such Designated Hedging Agreement
from time to time, (ii) an agreed-upon maximum amount of Designated Hedging Obligations under such Designated Hedging Agreement that can be included as Obligations, and (iii) the acknowledgment of such Lender or Affiliate of a Lender that its
security interest in the Collateral securing such Designated Hedging Obligations shall be subject to the Loan Documents; provided that, after giving effect to such designation, the aggregate agreed-upon maximum amount of all “Designated
Hedging Obligations” included as Obligations, together with the aggregate agreed-upon maximum amount of all “Designated Banking Product Obligations” included as Obligations, shall not exceed $15,000,000 in the aggregate.
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“Designated Hedging Obligations” means, as applied to any Person, all Hedging Obligations of such Person under Designated Hedging Agreements after taking into account the effect of any legally enforceable netting
arrangements included in such Designated Hedging Agreements; it being understood and agreed that, on any date of determination, the amount of such Hedging Obligations under any Designated Hedging Agreement shall be determined based upon the
“settlement amount” (or similar term) as defined under such Designated Hedging Agreement or, with respect to a Designated Hedging Agreement that has been terminated in accordance with its terms, the amount then due and payable (exclusive of expenses
and similar payments but including any termination payments then due and payable) under such Designated Hedging Agreement.
“Disposition” shall mean, with respect to any property, any sale, lease, sale and leaseback, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have
correlative meanings.
“Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or asset sale), is convertible or exchangeable for
Indebtedness or Disqualified Stock, or is redeemable at the option of the holder of the Capital Stock, in whole or in part (other than as a result of a change of control or asset sale), on or prior to the date that is 91 days after the Latest
Maturity Date then in effect. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless
such repurchase or redemption complies with Section 6.01 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may
become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.
“Dollars” and “$” shall mean lawful money of the United States of America.
“DOT” shall mean the United States Department of Transportation and any successor thereto.
“EEA Financial Institution” means (a) any 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 institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition
and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
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“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the
resolution of any EEA Financial Institution.
“Eligible Assignee” shall mean (a) any Lender or any Affiliate of any Lender, (b) an Approved Fund of any Lender and (c) any other Person (other than a Defaulting Lender or natural Person) reasonably satisfactory
to the Administrative Agent and, so long as no Event of Default is continuing, the Borrower (with failure by the Borrower to respond within five (5) Business Days to a consent request shall be deemed to be a consent of the Borrower); provided
that, neither the Borrower nor any Guarantor shall constitute an Eligible Assignee.
“Environmental Laws” shall mean all applicable laws (including common law), statutes, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions or legally binding agreements issued,
promulgated or entered into by or with any Governmental Authority, relating to the environment, preservation or reclamation of natural resources, the handling, treatment, storage, disposal, Release or threatened Release of, or the exposure of any
Person (including employees) to, any Hazardous Materials.
“Environmental Liability” shall mean any liability (including any liability for damages, natural resource damage, costs of environmental investigation, remediation or monitoring or costs, fines or penalties)
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment, disposal or the arrangement for disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the environment or (e) any contract, agreement, lease or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” shall mean Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” shall have the meaning given such term in Section 7.01.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Contributions” means net cash proceeds received by the Borrower after the Closing Date from:
(1) contributions to its common equity capital (other than from any Subsidiary); or
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(2) the sale (other than to a Subsidiary or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Borrower or any Subsidiary)
of Qualifying Equity Interests,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed on or around the date such capital contributions are made or the date such Equity Interests are sold, as the case may be. Excluded Contributions will
not be considered to be net proceeds of Qualifying Equity Interests for purposes of clause (a)(3)(B) of Section 6.01 hereof.
“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security
interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of
any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of
such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is
attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Property” has the meaning given to such term in the Security Agreement.
“Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any Obligation of either the Borrower or any Guarantor
hereunder or under any Loan Document, (a) any Taxes based on (or measured by) its net income, profits or capital, or any franchise taxes, imposed (i) by the United States of America or any political subdivision thereof or by the jurisdiction under
the laws of which such recipient is organized, in which it is a resident for tax purposes or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located or (ii) as a result of a present or
former connection between such Person and the jurisdiction imposing such Taxes (other than a connection arising from such Person’s having executed, delivered, enforced, become a party to, performed its obligations under, received payments under,
received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, this Agreement or any Loan Document, or sold or assigned an interest in this Agreement or any Loan Document), (b) any branch profits Tax
imposed by the United States of America or any similar Tax imposed by any other jurisdiction in which such Person is located, (c) in the case of a Foreign Lender, any withholding Tax or gross income Tax that is imposed on amounts payable to or on
behalf of such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or, in the case of a Lender that is a Foreign Lender, designates a new lending office), except, and then only to the extent that, such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 2.14(a), (d) in the case of a Lender, any
withholding Tax that is attributable to such Lender’s failure to deliver the documentation described in Section 2.14(f) or 2.14(g) and (e) any Tax that is imposed by reason of FATCA.
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“Existing Credit Agreement” means the Credit and Guaranty Agreement, dated as of February 5, 2019, among the Borrower, as borrower, the subsidiaries of the Borrower party thereto, as guarantors, the lenders party
thereto and Barclays, as administrative agent, as amended, restated, supplemented, modified, renewed, refunded, replaced or refinanced from time to time
“Existing Indebtedness” means any Indebtedness outstanding on the Closing Date that is listed on Schedule 6.02 hereof.
“Extended Commitment” shall have the meaning given to such term in Section 2.23(a)(ii).
“Extended Loan” means any Loan made pursuant to Extended Commitments.
“Extension” shall have the meaning set forth in Section 2.23(a).
“Extension Amendment” shall have the meaning given to such term in Section 2.23(c).
“Extension Offer” shall have the meaning set forth in Section 2.23(a).
“Extension Offer Date” shall have the meaning set forth in Section 2.23(a)(i).
“FAA” shall mean the Federal Aviation Administration of the United States of America and any successor thereto.
“Facility” shall mean each Class of Commitments and the Loans made thereunder.
“Facility Termination Date” shall mean the earlier to occur of the Maturity Date and the acceleration of the Loans in accordance with the terms hereof.
“Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by an
officer of the Borrower (unless otherwise provided in this Agreement); provided that any such officer of the Borrower shall be permitted to consider the circumstances existing at such time (including, without limitation, economic or other
conditions affecting the United States airline industry generally and any relevant legal compulsion, judicial proceeding or administrative order or the possibility thereof) in determining such Fair Market Value in connection with such transaction.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement, any amended or successor provisions that are similar thereto and not materially more onerous to comply with, any
regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements entered into in connection with any of the foregoing and any law (including any fiscal or
regulatory legislation) or official interpretations adopted pursuant to any such agreement.
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“Federal Funds Effective Rate” shall mean, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such
manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided,
that, if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Fee Letter” shall mean the fee letter between the Borrower and the Administrative Agent dated the Closing Date.
“Fees” shall collectively mean the fees referred to in Section 2.16(b).
“First Lien Leverage Ratio” means the ratio of (x) the outstanding amount of the Loans together with any other Indebtedness of the Borrower secured by the Collateral on a pari passu basis to (y) Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Borrower have been or are required
to be delivered; provided that:
(1) if, since the beginning of such period, the Borrower or any of its Restricted Subsidiaries shall have made any sales, transfers or other dispositions of any assets (other than Aircraft Assets) where the Fair
Market Value of such assets exceeded $10,000,000 (a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for
such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the Borrower or any of its Restricted Subsidiaries (by merger, consolidation or otherwise) shall have made any acquisition or purchase of any assets (other than
Aircraft Assets) where the Fair Market Value of any such assets exceeds $10,000,000 (a “Purchase”) or any Permitted Investment (including any Permitted Investment occurring in connection with a transaction causing a calculation to be made
hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase or Permitted Investment occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary of the Borrower or was merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries, and since the
beginning of such period such Person shall have made any Sale, Purchase or Permitted Investment that would have required an adjustment pursuant to clause (1) or (2) above if made by the Borrower or a Restricted Subsidiary of the Borrower since the
beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale, Purchase or Permitted Investment occurred on the first day of such period.
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For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase, Permitted Investment or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations
in respect thereof shall be as determined in good faith by a responsible financial or accounting officer of the Borrower.
“Fixed Charge Coverage Ratio” means the ratio of (x) Consolidated EBITDAR of the Borrower and its Restricted Subsidiaries plus the Consolidated Interest Income for the most recent four consecutive fiscal quarters
ending prior to the date of such determination for which internal consolidated financial statements of the Borrower have been or are required to be delivered to (y) the sum of all Fixed Charges for such period. If the Borrower or any of its
Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases, redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems Disqualified Stock or preferred
stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect (as determined in good faith by a responsible financial or accounting officer of the Borrower) to such incurrence, assumption, guarantee, repayment,
repurchase, redemption, defeasance or other discharge of Indebtedness, or such issuance, repurchase or redemption of Disqualified Stock or preferred stock, and the use of the proceeds therefrom, as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the Borrower or any of its Restricted Subsidiaries, including through mergers or consolidations, or any Person or any of its Restricted Subsidiaries acquired by the
Borrower or any of its Restricted Subsidiaries, and including all related financing transactions and including increases in ownership of Restricted Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on
or prior to the Calculation Date, or that are to be made on the Calculation Date, shall be given pro forma effect (as determined in good faith by a responsible financial or accounting officer of the Borrower and including any operating expense
reductions for such period resulting from such acquisition that have been realized or for which all of the material steps necessary for realization have been taken) as if they had occurred on the first day of the four-quarter reference period;
(2) the Consolidated EBITDAR attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation
Date, shall be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date,
shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges shall not be obligations of the Borrower or any of its Restricted Subsidiaries following the Calculation Date;
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(4) any Person that is a Restricted Subsidiary of the Borrower on the Calculation Date shall be deemed to have been a Restricted Subsidiary of the Borrower at all times during such four-quarter period;
(5) any Person that is not a Restricted Subsidiary of the Borrower on the Calculation Date shall be deemed not to have been a Restricted Subsidiary of the Borrower at any time during such four-quarter period;
and
(6) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the
entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the Calculation Date in excess of 12 months).
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense (net of consolidated interest income) of such Person and its Restricted Subsidiaries for such period to the extent that such interest expense is payable
in cash (and such interest income is receivable in cash); plus
(2) the interest component of Capital Lease Obligations of such Person and its Restricted Subsidiaries for such period to the extent that such interest component is related to lease payments
payable in cash; plus
(3) any interest expense actually paid in cash for such period by such specified Person on Indebtedness of another Person that is guaranteed by such specified Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such specified Person or one of its Restricted Subsidiaries; plus
(4) the product of (A) all cash dividends accrued on any series of preferred stock of such Person or any of its Restricted Subsidiaries for such period, other than to the Borrower or a
Restricted Subsidiary of the Borrower, times (B) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each
case, determined on a consolidated basis in accordance with GAAP; plus
(5) the aircraft rent expense of such Person and its Restricted Subsidiaries for such period to the extent that such aircraft rent expense is payable in cash,
all as determined on a consolidated basis in accordance with GAAP.
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“Floor” means, with respect to any SOFR Loans, 0%.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower or any Guarantor is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“GAAP” shall mean generally accepted accounting principles in the United States of America, which are in effect from time to time, including those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants, statements and pronouncements of the Financial Accounting Standards Board, such other statements by such other entity as have been approved by a significant segment of the
accounting profession and the rules and regulations of the SEC governing the inclusion of financial statements in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of the SEC; provided that GAAP shall be construed as not to give effect to changes to lease accounting rules taking effect on January 1, 2019.
“Governmental Authority” shall mean the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank organization, or other entity exercising executive, legislative, judicial, taxing or regulatory powers or functions of or pertaining to government. Governmental Authority shall not include any Person in its
capacity as an Airport Authority.
“Grantor” shall mean the Borrower and any Guarantor that shall at any time pledge Collateral under a Collateral Document.
“Guarantee” means a guarantee (other than (a) by endorsement of negotiable instruments for collection or (b) customary contractual indemnities, in each case in the ordinary course of business), direct or indirect,
in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions).
“Guaranteed Obligations” shall have the meaning given such term in Section 9.01(a).
“Guarantors” shall mean, collectively, each Subsidiary of the Borrower that becomes pursuant to Section 5.10 a party to the Guarantee contained in Section 9. As of the Amendment No. 2 Effective Date, the
Guarantors are listed in Exhibit A.
“Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature that are regulated pursuant to, or could reasonably be expected to give rise to liability under any
Environmental Law.
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“Hedging Agreement” shall mean any agreement evidencing Hedging Obligations.
“Hedging Obligations” means, with respect to any Person, all obligations and liabilities of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed) and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates, fuel prices or other commodity prices, but excluding (x) clauses in
purchase agreements and maintenance agreements pertaining to future prices and (y) fuel purchase agreements and fuel sales that are for physical delivery of the relevant commodity.
“Immaterial Subsidiaries” shall mean one or more Subsidiaries, for which (a) the assets of all such Subsidiaries constitute, in the aggregate, no more than 5.0% of the total assets of the Borrower and its
Subsidiaries on a consolidated basis (determined as of the last day of the most recent fiscal quarter of the Borrower for which financial statements are available to the Administrative Agent pursuant to Section 5.01), and (b) the revenues of all such
Subsidiaries account for, in the aggregate, no more than 5.0% of the total revenues of the Borrower and its Subsidiaries on a consolidated basis for the twelve-month period ending on the last day of the most recent fiscal quarter of the Borrower for
which financial statements are available to the Administrative Agent pursuant to Section 5.01; provided that a Subsidiary will not be considered to be an Immaterial Subsidiary if it directly or indirectly guarantees, or pledges any property
or assets to secure, any Obligations or Junior Secured Debt.
“Increase Effective Date” shall have the meaning given such term in Section 2.22(a).
“Increase Joinder” shall have the meaning given such term in Section 2.22(c).
“Incremental Commitment” shall have the meaning given such term in Section 2.22(a).
“Incremental Loans” shall have the meaning given such term in Section 2.22(c)(i).
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:
(1) in respect of borrowed money;
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(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker’s acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, but
excluding in any event trade payables arising in the ordinary course of business; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person to the extent of such Guarantee. Indebtedness shall be calculated without giving effect to the effects of Financial Accounting Standards Board Accounting Standards Codification 815 – Derivatives and
Hedging and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of accounting for any embedded derivatives created by the terms of such
Indebtedness.
Notwithstanding the foregoing, none of the following will constitute Indebtedness: (a) Banking Product Obligations, (b) obligations in respect of the pre-purchase of frequent flyer miles, (c) maintenance deferral
agreements, (d) an amount recorded as indebtedness in the Borrower’s financial statements solely by operation of Financial Accounting Standards Board Accounting Standards Codification 840-40-55 or any successor provision of GAAP but which does not
otherwise constitute Indebtedness as defined hereinabove, (e) a deferral of pre-delivery payments relating to the purchases of Aircraft Assets, (f) obligations under frequent flyer miles participation agreements and (g) air traffic liability.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent
not otherwise described in clause (a), Other Taxes.
“Indemnitee” shall have the meaning given such term in Section 10.04(b).
“Installment” shall have the meaning given such term in Section.
“Intercreditor Agreement” shall have the meaning given such term in Section 10.17.
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“Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.04, which, when in writing, shall be substantially in the form of Exhibit D (or
such other form as the Administrative Agent may approve).
“Interest Payment Date” shall mean (a) as to any SOFR Loan, the last day of such Interest Period and (b) with respect to ABR Loans, the last Business Day of each April, July, October and January.
“Interest Period” shall mean, as to any Borrowing of SOFR Loans, the period commencing on the date of such Borrowing (including as a result of a conversion from ABR Loans) or on the last day of the preceding
Interest Period applicable to such Borrowing and ending on (but excluding) the numerically corresponding day to the date of such Borrowing (or if there is no corresponding day, the last day) in the calendar month that is, at the Borrower’s election,
one month, three months or six months thereafter; provided that (i) if any Interest Period would end on a day which shall not be a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) no Interest Period shall end later than the applicable Maturity Date.
“Investments” means, with respect to any Person, all direct or indirect investments made from and after the Closing Date by such Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees), capital contributions or advances (but excluding advance and pre-delivery payments and deposits for goods and services and advances to officers, employees and consultants made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other securities of other Persons, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Borrower or any
Restricted Subsidiary of the Borrower sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Borrower after the Closing Date such that, after giving effect to any such sale or disposition, such
Person is no longer a Restricted Subsidiary of the Borrower, the Borrower will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Borrower’s Investments in such Subsidiary that were
not sold or disposed of in an amount determined as provided in Section 6.01 hereof. Notwithstanding the foregoing, any Equity Interests retained by the Borrower or any of its Subsidiaries after a disposition or dividend of assets or Capital Stock of
any Person in connection with any partial “spin-off” of a Subsidiary or similar transactions shall not be deemed to be an Investment. The acquisition by the Borrower or any Restricted Subsidiary of the Borrower after the Closing Date of a Person
that holds an Investment in a third Person will be deemed to be an Investment by the Borrower or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third
Person in an amount determined as provided in Section 6.01 hereof. Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in
value.
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“Junior Secured Debt” shall mean Indebtedness referred to in clause (b) of the definition of “Permitted Debt”.
“Latest Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such time.
“Lead Arranger” has the meaning set forth in the first paragraph of this Agreement.
“Lenders” shall have the meaning set forth in the first paragraph of this Agreement.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (but excluding any lease, sublease, use or license agreement or swap agreement or similar arrangement by any Grantor described in clause (e) or (f) of the definition of “Permitted Disposition”), including any conditional sale or
other title retention agreement, any option or other agreement to sell or give a security interest and any agreement to give any financing statement under the UCC (or equivalent statutes) of any jurisdiction.
“Liquidity” shall mean the sum of (i) all unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries (including, for the avoidance of doubt, any cash or Cash Equivalents held in
accounts subject to Account Control Agreements), (ii) the aggregate principal amount committed and available to be drawn by the Borrower and its Restricted Subsidiaries (taking into account all borrowing base limitations or other restrictions) under
all revolving credit facilities of the Borrower and its Restricted Subsidiaries and (iii) the scheduled net proceeds (after giving effect to any expected repayment of existing Indebtedness using such proceeds) of any Capital Markets Offering of the
Borrower or any of its Restricted Subsidiaries that has priced but has not yet closed (until the earliest of the closing thereof, the termination thereof without closing or the date that falls five (5) Business Days after the initial scheduled
closing date thereof).
“Loan” means the Loans incurred pursuant to the Commitments hereunder.
“Loan Documents” shall mean this Agreement, the Collateral Documents, any Intercreditor Agreement, the Fee Letter and any other instrument or agreement (which is designated as a Loan Document therein) executed and
delivered by the Borrower or a Guarantor to the Administrative Agent or any Lender, in each case, as the same may be amended, restated, modified, supplemented, extended or amended and restated from time to time in accordance with the terms hereof.
“Loan Request” shall mean a request by the Borrower, executed by a Responsible Officer of the Borrower, for a Loan in accordance with Section 2.02 in substantially the form of Exhibit D.
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“Loyalty Programs” means the assets of the Borrower’s non-card loyalty program Allways Rewards™ and the Borrower’s co-branded credit card loyalty program, the assets of the loyalty program of Sun Country Airlines
Holdings, Inc., or any similar program.
“Margin Stock” shall have the meaning given such term in Section 3.10(a).
“Material Adverse Change” shall mean any event, development or circumstance that has had or would reasonably be expected to have a Material Adverse Effect.
“Material Adverse Effect” shall mean a material adverse effect on (a) the consolidated business, operations or financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the
validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder or (c) the ability of the Borrower and the Guarantors, collectively, to pay the Obligations.
“Material Indebtedness” shall mean Indebtedness of the Borrower and/or Restricted Subsidiaries (other than the Loans) outstanding under the same agreement in a principal amount exceeding $100,000,000.
“Maturity Date” shall (a) with respect to Loans that have not been extended pursuant to Section 2.23, December 5, 2030 and (b) with respect to Extended Loans, the final maturity date therefor as specified in the
applicable Extension Offer accepted by the respective Lenders (as the same may be further extended pursuant to Section 2.23); provided that the Maturity Date with respect to any Loan shall be May 17, 2027 if,
on or prior to May 17, 2027 the Senior Notes have not been (x) repaid to the extent that any outstanding Indebtedness under the Senior Notes is less than $100,000,000, (y) replaced or refinanced with Permitted Refinancing Indebtedness having a
maturity date not earlier than the Maturity Date or (z) otherwise amended or modified to have a maturity date not earlier than the Maturity Date.
“Minimum Extension Condition” shall have the meaning given such term in Section 2.23(a).
“Moody’s” shall mean Moody’s Investors Service, Inc.
“Non-Extending Lender” shall have the meaning given such term in Section 10.08(e).
“Non-Recourse Debt” shall mean Indebtedness:
(1) the portion as to which neither the Borrower nor any of its Restricted Subsidiaries (A) provides credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or (B) is directly or indirectly liable as a guarantor or otherwise; and
(2) the portion as to which the holders of such Indebtedness do not otherwise have recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries (other than the Equity
Interests of an Unrestricted Subsidiary).
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“Obligations” shall mean 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 of 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, the Designated Hedging Obligations, the
Designated Banking Product Obligations, and all other obligations and liabilities of the Borrower to the Administrative Agent or any Lender (or (i) in the case of Designated Hedging Obligations, any obligee with respect to such designated Hedging
Obligations who was a Lender or an Affiliate of a Lender when the related Designated Hedging Agreement was entered into, or (ii) in the case of Designated Banking Product Obligations, any obligee with respect to such Designated Banking Product
Obligations who was a Lender or a banking Affiliate of any Lender at the time the related Designated Banking Product Agreement was entered into), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred, which arise under this Agreement or any other Loan Document, whether on account of principal, interest, reimbursement obligations, fees, indemnities, out-of-pocket costs, and expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided, however, that the aggregate amount of all Designated Hedging Obligations and Designated Banking
Product Obligations (in each case valued in accordance with the definitions thereof) at any time outstanding that shall be included as “Obligations” shall not exceed $15,0000,000; provided, further, that in no event shall the
Obligations include Excluded Swap Obligations.
“Officer” means, with respect to any Person, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer or any Senior Vice-President of such Person.
“Officer’s Certificate” shall mean a certificate signed on behalf of the Borrower by an Officer of the Borrower.
“Other Taxes” shall mean any and all present or future stamp, court, mortgage, recording, filing or documentary taxes or any other similar, charges or similar levies arising from any payment made hereunder or from
the execution, performance, delivery, registration of or enforcement of, otherwise in respect to this Agreement or any other Loan Document.
“Pari Passu Debt” shall mean any Incremental Loans and any Pari Passu Notes.
“Pari Passu Notes” shall mean any securities secured by the Collateral on a pari passu basis with the Obligations.
“Participant” shall have the meaning given such term in Section 10.02(d).
“Participant Register” shall have the meaning given such term in Section 10.02(d).
“Patriot Act” shall mean the USA PATRIOT Act Improvement and Reauthorization Act, L. 109-177, signed into law on March 9, 2009 and any subsequent legislation that amends or supplements such Act or any subsequent
legislation that supersedes such Act.
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“Permitted Business” means any business that is the same as, or reasonably related, ancillary, supportive or complementary to, the business in which the Borrower and its Subsidiaries are engaged on the date of
this Agreement.
“Permitted Debt” shall have the meaning given to such term in Section 6.02.
“Permitted Disposition” shall mean (i) any Disposition (excluding any Disposition of Cash Equivalents) for which the aggregate Net Proceeds of all such Dispositions during any fiscal year do not exceed $10.0
million and (ii) any of the following:
(a) the Disposition of obsolete or worn out property in the ordinary course of business;
(b) the Disposition of spare parts, inventory and Permitted Investments in the ordinary course of business;
(c) the Disposition of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition
are reasonably promptly applied to the purchase price of such replacement property;
(d) the Disposition of property by any Subsidiary to the Borrower or to any Guarantor;
(e) Dispositions permitted by Section 6.03;
(f) leases, licenses, subleases or sublicenses granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its
Subsidiaries;
(g) Dispositions of intellectual property rights that are no longer used or useful in the business of the Borrower and its Subsidiaries;
(h) the discount, write-off or Disposition of accounts receivables overdue by more than 180 days, in each case in the ordinary course of business;
(i) Restricted Payments permitted by Section 6.01;
(j) Dispositions of Aircraft Assets;
(k) Dispositions of the Capital Stock of Sunseeker Resorts, Inc.; and
(l) Dispositions by the Borrower and its Subsidiaries not otherwise listed in clauses (a) through (k) above; provided that the aggregate book value of all property Disposed of pursuant to this clause (l) shall
not exceed $150.0 million.
“Permitted Investments” shall mean:
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(1) any Investment in the Borrower or in a Restricted Subsidiary of the Borrower;
(2) any Investment in cash, Cash Equivalents and any foreign equivalents;
(3) any Investment by the Borrower or any Restricted Subsidiary of the Borrower in a Person, if as a result of such Investment:
(A) such Person becomes a Restricted Subsidiary of the Borrower; or
(B) such Person, in one transaction or a series of related and substantially concurrent transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;
(4) any Investment made as a result of the receipt of non-cash consideration from a Disposition of assets;
(5) any acquisition of assets or Capital Stock in exchange for the issuance of Qualifying Equity Interests;
(6) any Investments received in compromise or resolution of (A) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its
Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (B) litigation, arbitration or other disputes;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to officers, directors or employees made in the ordinary course of business of the Borrower or any Restricted Subsidiary of the Borrower in an aggregate principal amount
not to exceed $10.0 million at any one time outstanding;
(9) prepayment of any Loans in accordance with the terms and conditions of this Agreement;
(10) any guarantee of Indebtedness permitted to be incurred by Section 6.02 other than a guarantee of Indebtedness of an Affiliate of the Borrower that is not a Restricted Subsidiary of the
Borrower;
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(11) any Investment of the Borrower and its Restricted Subsidiaries existing on, or made pursuant to binding commitments existing on, the Closing Date and any Investment consisting of an
extension, modification or renewal of any Investment existing on, or made pursuant to a binding commitment existing on, the Closing Date; provided that the amount of any such Investment may be increased (A) as required by the terms of such
Investment as in existence on the Closing Date or (B) as otherwise permitted under this Agreement;
(12) Investments or commitments to make Investments acquired after the Closing Date as a result of the acquisition by the Borrower or any Restricted Subsidiary of the Borrower of another Person,
including by way of a merger, amalgamation or consolidation with or into the Borrower or any of its Restricted Subsidiaries in a transaction that is not prohibited by Section 6.03 hereof after the Closing Date to the extent that such Investments were
not made in contemplation of such acquisition, merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger, amalgamation or consolidation;
(13) the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Equity Interests of a trust or other Person established by such Receivables Subsidiary
to effect such Qualified Receivables Transaction; and any other Investment by the Borrower or a Subsidiary of the Borrower in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Transaction;
(14) accounts receivable arising in the ordinary course of business;
(15) Investments consisting of reimbursable extensions of credit; provided that any such Investment made pursuant to this clause (15) shall not be permitted if unreimbursed within 90 days of any
such extension of credit;
(16) Investments in connection with making or financing any pre‑delivery, progress or other similar payments relating to the acquisition of Aircraft Related Equipment;
(17) Investments consisting of payroll advances and advances for business and travel expenses in the ordinary course of business;
(18) Investments made by way of any endorsement of negotiable instruments received in the ordinary course of business and presented to any bank for collection or deposit;
(19) Investments consisting of stock, obligations or securities received in settlement of amounts owing to the Borrower or any Restricted Subsidiary in the ordinary course of business or in a
distribution received in respect of an Investment permitted hereunder;
(20) Investments in fuel and credit card consortia and in connection with agreements with respect to fuel consortia, credit card consortia and fuel supply, in each case, in the ordinary course
of business;
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(21) Investments in connection with outsourcing initiatives in the ordinary course of business;
(22) Investments in the nature of security deposits or maintenance reserves in connection with the financing of any Aircraft Asset; and
(23) guarantees incurred in the ordinary course of business of obligations that do not constitute Indebtedness of any regional air carrier doing business with the Borrower or any of its
Restricted Subsidiaries in connection with the regional air carrier’s business with the Borrower or such Restricted Subsidiary; advances to airport operators of landing fees and other customary airport charges for carriers on behalf of which the
Borrower or any of its Restricted Subsidiaries provides ground handling services.
“Permitted Liens” means:
(1) Liens existing on the Closing Date and any Liens created pursuant to the Loan Documents;
(2) Liens securing Indebtedness permitted to be incurred pursuant to clause (iii), clause (vi) and clause (xv) of Section 6.02(b) hereof; provided
that in the case of Liens securing Indebtedness permitted under 6.02(b)(iii), such Liens attach only to the assets being financed thereby, in the case of Liens securing Indebtedness permitted under 6.02(b)(vi), such Liens are junior to the Liens of
the Collateral Documents or in the case of Liens securing Indebtedness permitted under 6.02(b)(xv) such Liens attach only to the assets being financed thereby or to Excluded Property;
(3) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves with respect thereto
in accordance with GAAP;
(4) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business and securing obligations that are not due and payable or
which are being contested in good faith by appropriate proceedings and the Borrower shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or charge and enforcement of a Lien;
(5) pledges and deposits made in the ordinary course of business in compliance with workmen’s compensation, unemployment insurance and other social security laws or regulations;
(6) deposits to secure the performance of bids, trade contracts (other than for Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of business;
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(7) Liens attaching solely to cash earnest money deposits in connection with any letter of intent or purchase agreement in connection with an acquisition permitted under the terms of this
Agreement;
(8) any encumbrance or restriction (including, but not limited to, put and call agreements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint
venture or similar agreement;
(9) Liens created by landlords over leasehold property and zoning restrictions, easements, rights-of-way, restrictions on use of real property and other similar encumbrances incurred in the
ordinary course of business which do not interfere with the intended use by the Borrower or any of its Restricted Subsidiaries of such property;
(10) Liens securing reimbursement obligations with respect to commercial letters of credit which encumber documents and other property relating to such letters of credit and products and proceeds
thereof;
(11) Liens on insurance proceeds or unearned premiums incurred in the ordinary course of business in connection with the financing of insurance premiums;
(12) judgment Liens so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment have not been finally
terminated or the period within which such proceedings may be initiated has not expired;
(13) Liens securing Pari Passu Debt permitted to be incurred pursuant to the covenant described under Section 6.02(v)(C)(1);
(14) Liens securing Junior Lien Debt permitted to be incurred pursuant to the covenant described under Section 6.02(b)(v)(C)(2);
(15) Liens securing Indebtedness permitted to be incurred pursuant to the covenant described under Section 6.02(b)(xvi), provided that such Liens securing such Indebtedness are limited to assets
that would constitute Excluded Property;
(16) Liens on Aircraft Assets in favor of airport authorities; and
(17) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Permitted Lien referred to in clauses (1) through (16) above,
inclusive of any Lien existing at the date hereof; provided, however, that the obligation secured by such new Lien shall not extend beyond the property subject to the existing Lien and other than in respect of Aircraft Assets is not
greater in amount than the obligations secured by the Lien extended, renewed or replaced (plus an amount in respect of any applicable premium and reasonable financing fees and related transaction costs).
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“Permitted Refinancing Indebtedness” shall mean any Indebtedness (or commitments in respect thereof) of the Borrower or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are
used to renew, refund, extend, refinance, replace, defease or discharge other Indebtedness of Borrower or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the original principal amount (or accreted value, if applicable) when
initially incurred of the Indebtedness renewed, refunded, extended, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection
therewith); provided that with respect to any such Permitted Refinancing Indebtedness that is refinancing secured Indebtedness and is secured by the same collateral, the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness shall not exceed the greater of the preceding amount and the Fair Market Value of the assets securing such Permitted Refinancing Indebtedness;
(2) if such Permitted Refinancing Indebtedness has a maturity date that is after the Latest Maturity Date then in effect (with any amortization payment comprising such Permitted Refinancing
Indebtedness being treated as maturing on its amortization date), such Permitted Refinancing Indebtedness has a Weighted Average Life to Maturity that is (A) equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being
renewed, refunded, extended, refinanced, replaced, defeased or discharged or (B) more than 60 days after the Latest Maturity Date then in effect;
(3) if the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Loans, such Permitted Refinancing
Indebtedness is subordinated in right of payment to the Loans on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or
discharged;
(4) no Restricted Subsidiary that is not the Borrower or a Guarantor shall be an obligor with respect to such Permitted Refinancing Indebtedness unless such Restricted Subsidiary was an
obligor with respect to the Indebtedness being renewed, refunded, extended, refinanced, replaced, defeased or discharged; and
(5) notwithstanding that the Indebtedness being renewed, refunded, refinanced, extended, replaced, defeased or discharged may have been repaid or discharged by the Borrower or any of its
Restricted Subsidiaries prior to the date on which the new Indebtedness is incurred, Indebtedness that otherwise satisfies the requirements of this definition may be designated as Permitted Refinancing Indebtedness so long as such renewal, refunding,
refinancing, extension, replacement, defeasance or discharge occurred not more than 36 months prior to the date of such payment or discharge of Permitted Refinancing Indebtedness.
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“Person” shall mean any natural person, corporation, division of a corporation, partnership, limited liability company, trust, joint venture, association, company, estate, unincorporated organization, Airport
Authority or Governmental Authority or any agency or political subdivision thereof.
“Plan” shall mean a Single Employer Plan or a Multiple Employer Plan that is a pension plan subject to the provisions of Title IV of ERISA, Sections 412 or 430 of the Code or Section 302 of ERISA.
“Platform” means Debt Domain, Intralinks, SyndTrak, DebtX or a substantially similar electronic transmission system.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate
published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the
Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Qualified Receivables Transaction” means any transaction or series of transactions entered into by the Borrower or any of its Subsidiaries pursuant to which the Borrower or any of its Subsidiaries sells, conveys
or otherwise transfers to (1) a Receivables Subsidiary or any other Person (in the case of a transfer by the Borrower or any of its Subsidiaries) and (2) any other Person (in the case of a transfer by a Receivables Subsidiary), or grants a security
interest in, any accounts receivable (whether now existing or arising in the future) of the Borrower or any of its Subsidiaries, and any assets related thereto including, without limitation, all Equity Interests and other investments in the
Receivables Subsidiary, all collateral securing such accounts receivable, all contracts and all Guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving accounts receivable; provided that the financing terms, covenants, termination events and other provisions
(including collateralization levels) thereof shall be on customary market terms for securitization transactions involving assets such as, or similar to, the assets subject thereto (as determined in good faith by a responsible financial officer of the
Borrower).
“Qualifying Equity Interests” means Equity Interests of the Borrower other than Disqualified Stock.
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“Receivables Subsidiary” means a Subsidiary of the Borrower which engages in no activities other than in connection with the financing or securitization of accounts receivable and which is designated by the Board
of Directors of the Borrower (as provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (i) is guaranteed by the Borrower or any Restricted Subsidiary of the Borrower
(other than comprising a pledge of the Capital Stock or other interests in such Receivables Subsidiary (an “incidental pledge”), and excluding any Guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to
representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction), (ii) is recourse to or obligates the Borrower or any Restricted Subsidiary of the Borrower
in any way other than through an incidental pledge or pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction or (iii) subjects any
property or asset of the Borrower or any Subsidiary of the Borrower (other than accounts receivable and related assets as provided in the definition of “Qualified Receivables Transaction”), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to representations, warranties, covenants and indemnities entered into in the ordinary course of business in connection with a Qualified Receivables Transaction, (b) with which neither the Borrower nor any
Subsidiary of the Borrower has any material contract, agreement, arrangement or understanding (other than pursuant to the Qualified Receivables Transaction) other than (i) on terms no less favorable to the Borrower or such Subsidiary than those that
might be obtained at the time from Persons who are not Affiliates of the Borrower, and (ii) fees payable in the ordinary course of business in connection with servicing accounts receivable and (c) with which neither the Borrower nor any Subsidiary of
the Borrower has any obligation to maintain or preserve such Subsidiary’s financial condition, other than a minimum capitalization in customary amounts, or to cause such Subsidiary to achieve certain levels of operating results. Any such designation
by the Board of Directors of the Borrower will be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and an
Officer’s Certificate certifying that such designation complied with the foregoing conditions.
“Register” shall have the meaning set forth in Section 10.02(b)(iv).
“Related Parties” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, employees, agents and advisors of such Person and such
Person’s Affiliates.
“Release” shall have the meaning specified in Section 101(22) of the Comprehensive Environmental Response Compensation and Liability Act.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee
officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Required Lenders” shall mean Lenders holding more than 50% of the Total Commitments then in effect or, if the Commitments have been terminated, the Loans then outstanding. The Loans and Commitments of any
Defaulting Lender shall be disregarded in determining the “Required Lenders” at any time.
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“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means an Officer.
“Restricted Investment” means an Investment other than a Permitted Investment.
“Restricted Payments” shall have the meaning set forth in Section 6.01(a).
“Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary.
“Sanctioned Country” means, at any time, a country, territory or region which is itself the subject or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) a Person which is subject or target of any Sanctions or (b) any Person owned or controlled by any such Person or Persons.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by
the Office of Foreign Assets Control of the U.S. Department of the Treasury), the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“S&P” shall mean Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business.
“SEC” shall mean the United States Securities and Exchange Commission.
“Secured Leverage Ratio” means the ratio of (x) the outstanding amount of the Loans together with any other Indebtedness of the Borrower secured by the Collateral on a pari passu or a junior basis to (y)
Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower have been or are
required to be delivered; provided that:
(1) if, since the beginning of such period, the Borrower or any of its Restricted Subsidiaries shall have made any sales, transfers or other dispositions of any assets (other than Aircraft Assets) where the Fair
Market Value of such assets exceeded $10,000,000 (a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for
such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the Borrower or any of its Restricted Subsidiary (by merger, consolidation or otherwise) shall have made any acquisition or purchase of any assets (other than Aircraft
Assets) where the Fair Market Value of any such assets exceeds $10,000,000 (a “Purchase”) or any Permitted Investment (including any Permitted Investment occurring in connection with a transaction causing a calculation to be made hereunder),
Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase or Permitted Investment occurred on the first day of such period; and
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(3) if, since the beginning of such period, any Person became a Restricted Subsidiary of the Borrower or was merged or consolidated with or into the Borrower or any of its Restricted Subsidiaries, and since the
beginning of such period such Person shall have made any Sale, Purchase or Permitted Investment that would have required an adjustment pursuant to clause (1) or (2) above if made by the Borrower or a Restricted Subsidiary of the Borrower since the
beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale, Purchase or Permitted Investment occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase, Permitted Investment or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations
in respect thereof shall be as determined in good faith by a responsible financial or accounting officer of the Borrower.
“Secured Parties” shall mean the Administrative Agent, the Lenders and all other holders of Obligations.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Security Agreement” shall mean the Security Agreement, dated the Amendment No. 2 Effective Date, among the Borrower, the other Grantors party thereto and the Administrative Agent, as the same may be amended,
restated, modified, supplemented, extended or amended and restated from time to time.
“Senior Notes” means the Borrower’s $650.0 million 7.125% senior secured notes due 2031, each outstanding on the Amendment No. 2 Effective Date.
“Significant Guarantor” means Allegiant Air, Sunrise Asset Management, LLC and Allegiant Vacations, LLC, and each of their successors and permitted assigns.
“Significant Subsidiary” means any Significant Guarantor and any Restricted Subsidiary of the Borrower that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of this Agreement.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
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“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, 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 Loan” means a Loan for which the applicable rate of interest is based upon the Adjusted Term SOFR.
“SOFR Tranche” shall mean the collective reference to SOFR Loans under a particular Facility 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).
“Solvent” shall mean, with respect to any Person, that as of the date of determination, (1) the sum of such Person’s consolidated debt and liabilities (including contingent and subordinated liabilities) does not
exceed the fair value of such Person’s present consolidated assets; (2) such Person’s capital is not unreasonably small in relation to its business as contemplated on the date of determination; (3) such Person is able to pay its debts and liabilities
as they become due (whether at maturity or otherwise) and (4) the present fair saleable value of the property of such Person is greater than the amount that will be required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the
facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of
Financial Accounting Standard No. 5 or any other analogous criteria in any jurisdiction).
“Standard Securitization Undertakings” means all representations, warranties, covenants, indemnities, performance Guarantees and servicing obligations entered into by the Borrower or any Subsidiary (other than a
Receivables Subsidiary), which are customary in connection with any Qualified Receivables Transaction.
“Stated Maturity” means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation
governing such Indebtedness as of the Closing Date, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subordinated Debt” means any Indebtedness of the Borrower or the Guarantors that is contractually subordinated in right of payment to the Senior Notes or the guarantees thereof (excluding any intercompany
Indebtedness between or among the Borrower and any of its Restricted Subsidiaries)
“Subsidiary” shall mean, with respect to any Person
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(1) any corporation, association or other business entity (other than a partnership, joint venture or limited liability company) of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees
of the corporation, association or other business entity is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and
(2) any partnership, joint venture or limited liability company of which (A) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and
limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, whether in the form of membership, general, special or
limited partnership interests or otherwise and (B) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“Sun Country Spare Parts Security Agreement” means the Spare Parts Security Agreement, dated the Amendment No. 2 Effective Date, between Sun Country, Inc., as grantor, and the Administrative Agent, as the same may
be amended, restated, modified, supplemented, extended or amended and restated from time to time.
“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity
Exchange Act.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, assessments, fees, deductions, charges or withholdings imposed by any Governmental Authority including any interest, additions to
tax or penalties applicable thereto.
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”)
that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic
Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR
will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR
Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
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(b) for any calculation with respect to an ABR Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two (2) U.S.
Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference
Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as
published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S.
Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such ABR Term SOFR Determination Day.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.
“Title 14” means Title 14 of the U.S. Code of Federal Regulations, including Part 93, Subparts K and S thereof, as amended from time to time or any successor or recodified regulation.
“Title 49” shall mean Title 49 of the United States Code, which, among other things, recodified and replaced the U.S. Federal Aviation Act of 1958, and the rules and regulations promulgated pursuant thereto, and
any subsequent legislation that amends, supplements or supersedes such provisions.
“Title Company” shall mean any title insurance company as shall be retained by the Borrower and reasonably acceptable to the Administrative Agent.
“Title Policy” shall have the meaning assigned to such term in Section.
“Total Commitment” shall mean, at any time, the sum of the Commitments of all Lenders at such time.
“Transactions” shall mean the execution, delivery and performance by the Borrower and Guarantors of this Agreement and the other Loan Documents to which they may be a party, the creation of the Liens in the
Collateral in favor of the Administrative Agent and/or the Administrative Agent for the benefit of the Secured Parties, the borrowing of Loans from time to time pursuant to the terms of this Agreement and the use of the proceeds thereof.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Term SOFR (a
“SOFR Loan”) or the Alternate Base Rate (an “ABR Loan”).
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“UCC” shall mean the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person
falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit
institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States Citizen” shall have the meaning set forth in Section 3.02.
“U.S. Government Securities Business Day” means 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.
“Unrestricted Subsidiary” means (i) Sunseeker Resorts, Inc. and each of its direct and indirect Subsidiaries so long as such Person meets the requirements set forth in clauses (1) through (4) below, or (ii) any
other Subsidiary of the Borrower that is designated by the Board of Directors of the Borrower as an Unrestricted Subsidiary in compliance with Section 5.06 hereof pursuant to a resolution of the Board of Directors, but only if such Subsidiary:
(1) except as permitted by Section 6.05 hereof, is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the
terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower;
(2) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (A) to subscribe for additional Equity Interests or (B)
to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results;
(3) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Borrower or any of its Restricted Subsidiaries; and
(4) does not own any assets or properties that constitute Collateral.
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“Unused Total Commitment” shall mean, at any time, (a) the Total Commitments less (b) the aggregate principal amount of the Loans then outstanding.
“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (A) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment
at final maturity, in respect of the Indebtedness, by (B) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
“Withholding Agent” shall mean the Borrower, a Guarantor and the Administrative Agent.
“Working Capital” shall mean, as of any date, (i) the current assets of the Borrower minus (ii) the current liabilities of the Borrower (other than the current portion of long term debt), in each case, determined
on a consolidated basis and otherwise, in accordance with GAAP as of such date.
“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.
Section 1.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented, extended, amended and restated or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s permitted successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this
Agreement, unless expressly provided otherwise, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights and (f) “knowledge” or “aware” or words of similar import shall mean, when used in reference to the Borrower or the Guarantors, the actual knowledge of any Responsible Officer.
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Section 1.03. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that,
if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance
herewith. Upon any such request for an amendment, the Borrower, the Required Lenders and the Administrative Agent agree to consider in good faith any such amendment in order to amend the provisions of this Agreement so as to reflect equitably such
accounting changes so that the criteria for evaluating the Borrower’s consolidated financial condition shall be the same after such accounting changes as if such accounting changes had not occurred.
Section 1.04. 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 Equity Interests at such time.
Section 1.05. Rates. The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other
matter related to ABR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any
Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or
have the same volume or liquidity as, ABR, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.
The Administrative Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate
(including any Benchmark Replacement) 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 ABR, the Term
SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, 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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SECTION 2.
(i) (1) Commitments. Each Lender severally, and not jointly with the other Lenders, agrees, upon the terms and subject to the conditions herein set forth, to make
revolving credit Loans denominated in Dollars to the Borrower at any time and from time to time during the Availability Period in an aggregate principal amount not to exceed the Commitment of such Lender, which Loans may be repaid and reborrowed in
accordance with the provisions of this Agreement. At no time shall the sum of the then outstanding aggregate principal amount of the Loans exceed the Total Commitment.
Each Borrowing of a Loan shall be made from the Lenders pro rata in accordance with their respective Commitments; provided, however, that the failure of any Lender to make any Loan shall not in itself
relieve the other Lenders of their obligations to lend.
(ii) Type of Borrowing. Each Borrowing shall be comprised entirely of ABR Loans or SOFR Loans as the Borrower may request in accordance herewith. Each Lender at its option
may make any SOFR Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement. There may be multiple Borrowings incurred, converted or continued on the same day.
(iii) Amount of Borrowing. At the commencement of each Interest Period for any SOFR Borrowing, such Borrowing shall be in an aggregate amount that is in an integral multiple
of $1,000,000 and not less than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000. Borrowings of more than one Type may be
outstanding at the same time.
(iv) Limitation on Interest Period. Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing of a Loan if the Interest Period requested with respect thereto would end after the Maturity Date with respect to the applicable Commitments.
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Section 2.02. Requests for Loans. Unless otherwise agreed to by the Administrative Agent in connection with making the initial Loans, to request a Loan, the Borrower shall notify the Administrative Agent of such request (i) by
telephone or (ii) by electronic mail or by facsimile delivery of a written Loan Request (A) in the case of a SOFR Loan, not later than 2:00 p.m., New York City time, three (3) Business Days before the date of the proposed Loan and (B) in the case of
an ABR Loan, not later than 11:00 a.m., New York City time, on the date of the proposed Loan. Any such telephonic Loan request shall be irrevocable and shall be confirmed promptly by electronic mail delivery or telecopy to the Administrative Agent
of a written Loan Request signed by the Borrower. Each such telephonic Loan request and written Loan Request shall specify the following information:
the aggregate amount of the requested Loan (which shall comply with Section 2.01(c));
(1) the date of such Loan, which shall be a Business Day;
(2) whether such Loan is to be an ABR Loan or a SOFR Loan; and
(3) in the case of a SOFR Loan, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”.
If no election as to the Type of Loan is specified, then the requested Loan shall be a SOFR Loan with a one-month Interest Period. If no Interest Period is specified with respect to any requested SOFR Loan, then the Borrower shall be deemed to
have selected an Interest Period of one month’s duration. Promptly following receipt of a Loan Request in accordance with this Section 2.02, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s
Loan to be made as part of the requested Loan
(i) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, or
such earlier time as may be reasonably practicable, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Upon satisfaction or waiver of the conditions precedent specified herein, the
Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account designated by the Borrower in the applicable Loan Request.
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(ii) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Loan (or, with respect to any ABR Loan made on same-day notice, prior to 11:00 a.m., New York City
time, on the date of such Loan) that such Lender will not make available to the Administrative Agent such Lender’s share of such Loan, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with
paragraph (a) and/or (b) of this Section 2.03 and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Loan available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith upon written demand such corresponding amount with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate otherwise applicable to such Loan. If such Lender pays such amount to the Administrative Agent, then (x) such amount shall constitute such
Lender’s Loan included in such Loan and the Borrower shall not be obligated to repay such amount pursuant to the preceding sentence if not previously repaid and (y) if such amount was previously repaid by the Borrower, the Administrative Agent shall
promptly make a corresponding amount available to the Borrower.
(i) The Borrower may elect from time to time to (A) convert ABR Loans to SOFR Loans, (B) convert SOFR Loans to ABR Loans, provided that any such conversion of SOFR Loans may be made only on the last day of an
Interest Period with respect thereto or (C) continue any SOFR Loan as such upon the expiration of the then current Interest Period with respect thereto.
(ii) To make an Interest Election Request pursuant to this Section 2.04, the Borrower shall notify the Administrative Agent of such election by telephone or by hand or facsimile
delivery or by electronic mail of a written Interest Election Request by the time that a Loan Request would be required under Section 2.02 if the Borrower were requesting a Loan of the Type resulting from such election to be made on the effective
date of such election. Each Interest Election Request shall be irrevocable and shall be given by hand delivery, electronic mail or telecopy to the Administrative Agent of a written Interest Election Request in substantially the same form as a Loan
Request signed by the Borrower.
(iii) Each written Interest Election Request shall specify the following information in compliance with Section 2.01:
(1) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clause (iii) below shall be specified for each resulting Borrowing);
(2) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(4) if the resulting Borrowing is a SOFR Loan, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the
term “Interest Period”.
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If any such Interest Election Request specifies a SOFR Borrowing but does not specify an Interest Period, the then Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(iv) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.
(v) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, and upon the request of the Required Lenders, (i) no outstanding Borrowing
may be converted to or continued as a SOFR Borrowing and (ii) unless repaid, each SOFR Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
Section 2.05. Limitation on SOFR Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of SOFR 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 SOFR Loans comprising each SOFR Tranche shall be equal to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than twenty SOFR Tranches shall be outstanding at any one time.
Section 2.06. Interest on Loans.
(i) Subject to the provisions of Section 2.07, each ABR Loan shall bear interest (computed on the basis of the actual number of days elapsed over a year of 365 days or 366 days in a leap year) at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin.
(ii) Subject to the provisions of Section 2.07, each SOFR Loan shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a rate per
annum equal, during each Interest Period applicable thereto, to the Adjusted Term SOFR for such Interest Period in effect for such Borrowing plus the Applicable Margin.
(iii) Accrued interest on all Loans shall be payable in arrears on each Interest Payment Date applicable thereto, on the Facility Termination Date with respect to such Loans and
thereafter on written demand and upon any repayment or prepayment thereof (on the amount repaid or prepaid); provided that in the event of any conversion of any SOFR Loan to an ABR Loan, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(iv) Subject to Section 2.24, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the
definition thereof on or prior to the first day of any Interest Period, the Administrative Agent will promptly so notify the Borrower and each Lender. Upon notice thereof by the Administrative Agent to the
Borrower, any obligation of the Lenders to make or continue SOFR Loans or to convert ABR Loans to SOFR Loans shall be
suspended (to the extent of the affected SOFR Loans or, in the case of a SOFR Borrowing, the affected Interest Periods) until the Administrative Agent revokes such notice. Upon receipt of such notice, (i)
the Borrower may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or, in the case of a SOFR Borrowing, the
affected Interest Periods) or, failing that, in the case of any request for an affected SOFR Borrowing, then such request shall be ineffective and (ii) any
outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans. Upon any such conversion, the Borrower shall also pay any additional amounts required pursuant to Section 2.13. If the
Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on ABR Loans shall be determined
by the Administrative Agent without reference to clause (c) of the definition of “Alternate Base Rate” until the Administrative Agent revokes such determination.
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Section 2.07. Default Interest. If the Borrower or any Guarantor, as the case may be, shall default in the payment of the principal of or interest on any Loan or in the payment of any other amount becoming due hereunder, whether at
stated maturity, by acceleration or otherwise, the Borrower or such Guarantor, as the case may be, shall on written demand of the Administrative Agent from time to time pay interest, to the extent permitted by law, on all overdue amounts up to (but
not including) the date of actual payment (after as well as before judgment) at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days or, when the Alternate Base Rate is applicable, a year of 365 days or
366 days in a leap year) equal to (a) with respect to the principal amount of any Loan, the rate then applicable for such Borrowings plus 2.0%, and (b) in the case of all other amounts, the rate applicable for ABR Loans plus 2.0%.
Section 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the date that is two (2)
Business Days prior to the commencement of any Interest Period for a SOFR Loan, the Administrative Agent shall have reasonably determined (which determination shall be conclusive and binding upon the Borrower absent manifest error) that reasonable
means do not exist for ascertaining the applicable Adjusted Term SOFR, the Administrative Agent shall, as soon as practicable thereafter, give written or facsimile notice of such determination to the Borrower and the Lenders and, until the
circumstances giving rise to such notice no longer exist, any request by the Borrower for a Borrowing of SOFR Loans hereunder (including pursuant to a refinancing with SOFR Loans and including any request to continue, or to convert to, SOFR Loans)
shall be deemed a request for a Borrowing of ABR Loans.
Notwithstanding any provision to the contrary set forth in this Agreement, in the event the Administrative Agent determines, pursuant to and in accordance with this Section 2.08, that reasonable means do not exist for
ascertaining the applicable Adjusted Term SOFR and the Administrative Agent and the Borrower mutually determine that the syndicated loan market has broadly accepted a replacement standard for the Adjusted Term SOFR, then the Administrative Agent and
Borrower may, without the consent of any Lender, amend this Agreement to adopt such new broadly accepted market standard and to make such other changes as shall be necessary or appropriate in the good faith determination of the Administrative Agent
and the Borrower in order to implement such new market standard herein and in the other Loan Documents so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such replacement standard is provided
to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.
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Section 2.09. Repayment of Loans; Evidence of Debt.
(i) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender’s share thereof. The Borrower shall have the right, upon reasonable notice, to request information regarding the accounts referred to in the preceding sentence.
(iii) The entries made in the accounts maintained pursuant to paragraph (a) or (b) of this 0 shall be prima facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(iv) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall promptly execute and deliver to such Lender a promissory note
payable to such Lender and its registered assigns in a form furnished by the Administrative Agent and reasonably acceptable to the Borrower. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 10.02) be represented by one or more promissory notes in such form payable to such payee and its registered assigns.
(i) On the Facility Termination Date applicable to any Commitment, such Commitment shall be terminated and the Borrower shall repay the applicable Loans then outstanding under such Commitment in full.
(ii) All prepayments under this Section 2.10 shall be accompanied by accrued but unpaid interest on the principal amount being prepaid to (but not including) the date of prepayment, plus any accrued and unpaid
Fees and any losses, costs and expenses, as more fully described in Section 2.13 hereof.
(i) The Borrower shall have the right, at any time and from time to time, to prepay any Loans, in whole or in part, (i) with respect to SOFR Loans upon written or facsimile notice (or notice by electronic mail)
to the Administrative Agent, in any case received by 1:00 p.m., New York City time, three (3) Business Days prior to the proposed date of prepayment and (ii) with respect to ABR Loans, upon written or facsimile notice (or notice by electronic mail)
to the Administrative Agent received by 1:00 p.m., New York City time, one Business Day prior to the proposed date of prepayment; provided that (A) each such partial prepayment shall be in an amount not less than $1,000,000 and in integral
multiples of $1,000,000, (B) no prepayment of SOFR Loans shall be permitted pursuant to this Section 2.11(a) other than on the last day of an Interest Period applicable thereto unless such prepayment is accompanied by the payment of the amounts
described in Section 2.13, and (C) no partial prepayment of a SOFR Tranche shall result in the aggregate principal amount of the SOFR Loans remaining outstanding pursuant to such SOFR Tranche being less than $1,000,000.
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(ii) Any prepayments under Section 2.11(a) shall be applied, at the option of the Borrower, to prepay the outstanding Loans of the Lenders (without any reduction in the Total Commitment) until all Loans shall
have been paid in full (plus any accrued but unpaid interest and fees thereon).
(iii) Each notice of prepayment shall be in the form of Exhibit E and shall specify the prepayment date, the principal amount of the Loans to be prepaid and, the Borrowing or
Borrowings to be prepaid, shall be irrevocable and shall commit the Borrower to prepay such Loan by the amount and on the date stated therein; provided that the Borrower may revoke any notice of prepayment under this Section 2.11 if such
prepayment would have resulted from a refinancing of any or all of the Obligations hereunder, which refinancing shall not be consummated or shall otherwise be delayed. The Administrative Agent shall, promptly after receiving notice from the Borrower
hereunder, notify each Lender of the principal amount of the Loans held by such Lender which are to be prepaid, the prepayment date and the manner of application of the prepayment.
(iv) Upon at least one (1) Business Day prior written notice to the Administrative Agent, the Borrower may at any time in whole permanently terminate a Total Commitment (subject to compliance with Section
2.10(b)), or from time to time in part permanently reduce the Unused Total Commitment; provided that each such notice shall be revocable at any time prior to such reduction or termination, as the case may be, or to the extent such termination
or reduction would have resulted from a refinancing of the Obligations, which refinancing shall not be consummated or shall otherwise be delayed. Each such reduction of the Unused Total Commitment shall be in the principal amount not less than
$1,000,000 and in an integral multiple of $1,000,000. Simultaneously with each reduction or termination of the Commitment, the Borrower shall pay to the Administrative Agent for the account of each Lender the Commitment Fee accrued and unpaid on the
amount of the Commitment of such Lender so terminated or reduced through the date thereof. Any reduction of the Unused Total Commitment pursuant to this Section 2.11 shall be applied to reduce the Commitment of each Lender on a pro rata basis.
(1) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any such reserve requirement subject to Section 2.12(c)); or
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(2) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement or SOFR Loans made by such Lender or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting into, continuing or maintaining any SOFR Loan (or of maintaining its obligation to make any such SOFR Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder with respect to any SOFR Loan (whether of principal, interest or otherwise), then, upon the request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(ii) If any Lender reasonably determines in good faith that any Change in Law affecting such Lender or such Lender’s holding company regarding capital or liquidity requirements has
or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the SOFR Loans made by such Lender to a level below that which such
Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender such additional amount or amounts, in each case as documented by such Lender to the Borrower as will compensate such Lender or such Lender’s holding company for any such reduction suffered; it being understood that to
the extent duplicative of the provisions in Section 2.14, this Section 2.12(b) shall not apply to Taxes.
(iii) Solely to the extent arising from a Change in Law, the Borrower shall pay to each Lender (i) as long as such Lender shall be required to maintain reserves with respect to
liabilities or assets consisting of or including SOFR funds or deposits, additional interest on the unpaid principal amount of each SOFR Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive in the absence of manifest error) and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or
financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of SOFR Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places)
equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive absent manifest error) which in each case shall be due and payable on each date on
which interest is payable on such Loan, provided the Borrower shall have received at least fifteen (15) days’ prior written notice (with a copy to the Administrative Agent, and which notice shall specify the statutory reserve rate, if any, applicable
to such Lender) of such additional interest or cost from such Lender; it being understood that this Section 2.12(c) shall not apply to Taxes. If a Lender fails to give written notice fifteen (15) days prior to the relevant Interest Payment Date,
such additional interest or cost shall be due and payable fifteen (15) days from receipt of such notice.
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(iv) No Lender shall discriminate against the Borrower in making any claim for compensation under this Section 2.12, and shall treat the Borrower no less favorably than such Lender’s similarly situated borrowers
in similarly affected commercial loans of a similar size. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section 2.12 and the basis for calculating such amount or amounts shall be delivered to the Borrower and shall be prima facie evidence of the amount due. The Borrower shall pay such Lender the amount due
within fifteen (15) days after receipt of such certificate.
(v) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 2.12 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect thereof. The protection of this Section 2.12 shall be available to each Lender regardless of any possible contention as to the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or condition which shall have occurred or been imposed.
(vi) Notwithstanding anything herein to the contrary, regulations, requests, rules, guidelines or directives implemented pursuant to the Dodd-Frank Wall Street Reform and Consumer
Protection Act shall be deemed to be a Change in Law regardless of when implemented.
Section 2.13. Break Funding Payments. In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow,
convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.16, then, in any such event, at the request of any affected Lender, the Borrower shall compensate such affected Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense
arising from the liquidation or redeployment of funds. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 15 days after receipt thereof.
Section 2.14. Taxes.
(i) Any and all payments by or on account of any Obligation of the Borrower or any Guarantor hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if any Indemnified 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 Withholding Agent, then (i) the sum
payable by the Borrower or applicable Guarantor shall be increased as necessary so that after making all required deductions for any Indemnified Taxes or Other Taxes (including deductions for any Indemnified Taxes or Other Taxes applicable to
additional sums payable under this Section 2.14), the Administrative Agent and each Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Withholding Agent shall make such
deductions and (iii) the Withholding Agent shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
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(ii) In addition, the Borrower or any Guarantor, as applicable, shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(iii) The Borrower shall indemnify the Administrative Agent and each Lender, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by or on behalf of or withheld or deducted from payments owing to the Administrative Agent or such Lender on or with respect to any payment by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other 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 the Borrower by a Lender, or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(iv) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment to the extent available, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(v) Each Lender shall, within ten (10) days after written demand therefor, indemnify the Administrative Agent (to the extent the Administrative Agent has not been reimbursed by the
Borrower) for the full amount of any Taxes imposed by any Governmental Authority that are attributable to such Lender and that are payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses
arising therefrom or with respect thereto, as determined by the Administrative Agent in good faith. 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.
(vi) Any Lender that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) that is entitled to an exemption from or reduction of withholding tax
under the law of the United States, or any treaty to which the United States 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 prescribed by
applicable law, including as reasonably requested by the Borrower, 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 shall not be required to deliver any documentation pursuant to this Section 2.14(f) that such Lender is not legally able to deliver.
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(vii) 1. Without limiting the generality of the foregoing, each Lender that is not a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter when the previously delivered certificates and/or forms expire, or upon request of the Borrower or the
Administrative Agent) whichever of the following is applicable:
(i) two (2) duly executed originals of Internal Revenue Service Form W-8BEN-E, claiming eligibility for benefits of an income tax treaty to which the United States of America is a party,
(ii) two (2) duly executed originals of Internal Revenue Service Form W‑8ECI,
(iii) two (2) duly executed originals of Internal Revenue Service Form W‑8IMY, together with applicable attachments,
(iv) in the case of such Lender claiming the benefits of exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a
“bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code
or (D) conducting a trade or business in the United States with which the relevant interest payments are effectively connected and (y) two (2) duly executed originals of the Internal Revenue Service Form W-8BEN-E, or
(v) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax, including as reasonably requested by the
Borrower or the Administrative Agent to permit the Borrower to determine the withholding or required deduction to be made.
No Lender shall be required to deliver any form or statement pursuant to this Section 2.14(g) that such Lender is not legally able to deliver.
2. Any Lender that is a “United States person” (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the Administrative Agent and the Borrower, on or prior
to the date on which such Lender becomes a party to this Agreement (and from time to time thereafter when the previously delivered certificates and/or forms expire, or upon request of the Borrower or the Administrative Agent), two (2) copies of
Internal Revenue Service Form W‑9 (or any successor form), properly completed and duly executed by such Lender, certifying that such Lender is entitled to an exemption from United States backup withholding tax.
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3. If a payment made to a Lender under this Agreement or 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 or the Administrative Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA or to determine
the amount to deduct and withhold from such payment.
(viii) If the Administrative Agent or a Lender determines, in its sole discretion, reasonably exercised, that it has received a refund of any Taxes or Other Taxes from the Governmental
Authority to which such Taxes or Other Taxes were paid and as to which it has been indemnified by the Borrower or a Guarantor or with respect to which the Borrower or a Guarantor has paid additional amounts pursuant to this Section 2.14, it shall
promptly pay over such refund to the Borrower or such Guarantor (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower or such Guarantor under this Section 2.14 with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender incurred in obtaining such refund (including Taxes imposed with respect to such refund) and without interest (other than any interest paid to the
relevant Governmental Authority with respect to such refund); provided that the Borrower or such Guarantor, upon the request of the Administrative Agent or such Lender, agrees to promptly repay the amount paid over to the Borrower or such
Guarantor (plus any penalties, interest or other additions to Tax imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower or a Guarantor pursuant to this paragraph (h) if, and then
only to the extent, the payment of such amount would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or
additional amounts giving rise to such refund had never been paid. This Section 2.14(h) shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which
it deems confidential) to the Borrower or any other Person.
(i) The Borrower shall make each payment or prepayment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of amounts payable under Section 2.12 or 2.13, or otherwise)
prior to 1:00 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the reasonable discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, NY 10017, pursuant to wire instructions
to be provided by the Administrative Agent, except that payments pursuant to Sections 2.12, 2.13 and 10.04 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day (and,
in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension), unless, in the case of scheduled payments of interest and principal, such next succeeding Business Day would fall in the next calendar
month, in which case the date for payment shall be the next preceding Business Day. All payments hereunder shall be made in U.S. Dollars.
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(ii) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all Obligations then due hereunder, such funds shall be applied (i) first, towards payment of
Fees and expenses then due under Sections 2.16(b) and 10.04 payable to the Administrative Agent, (ii) second, towards payment of Fees and expenses then due under Section 2.16(b), and 10.04 payable to the Lenders and towards payment of
interest then due on account of the Loans, ratably among the parties entitled thereto in accordance with the amounts of such Fees and expenses and interest then due to such parties and (iii) third, towards payment of (A) principal of the
Loans, (B) any Designated Banking Product Obligations then due, to the extent such Designated Banking Product Obligations constitute “Obligations” hereunder, and (C) any Designated Hedging Obligations then due, to the extent such Designated Hedging
Obligations constitute “Obligations” hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal, Designated Banking Product Obligations constituting Obligations and Designated Hedging Obligations constituting
Obligations then due to such parties. Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustment shall be made
with respect to payments from the Borrower or other Guarantors to preserve the allocations to Obligations otherwise set forth above in this Section 2.15(b).
(iii) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(iv) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.03(a), 8.04 or 10.04(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.
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(v) Pro Rata Treatment.
(1) Each payment by the Borrower in respect of the Loans shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and
owing to the Lenders.
(2) Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Loans shall be made pro rata according to the respective outstanding principal
amounts of such Loans then held by the applicable Lenders.
(i) If the Borrower is required to pay any additional amount to any Lender under Section 2.12 or to any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.14, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder, to assign its rights and obligations hereunder to another of its offices, branches or affiliates, to
file any certificate or document reasonably requested by the Borrower or to take other reasonable measures, if, in the judgment of such Lender, such designation, assignment, filing or other measures (i) would eliminate or reduce amounts payable
pursuant to Section 2.12 or 2.14, as the case may be, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment. Nothing in this Section 2.16 shall affect or postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.12 or 2.14.
(ii) If, after the date hereof, any Lender requests compensation under Section 2.12 or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.14, or if any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (i) terminate such Lender’s Commitment and prepay such
Lender’s outstanding Loans or (ii) require such Lender to assign, without recourse (in accordance with and subject to the restrictions contained in Section 10.02), all its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), in any case as of a Business Day specified in such notice from the Borrower; provided that (i) such terminated or assigning Lender
shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts due, owing and payable to it hereunder at the time of such termination or assignment, from the
assignee (to the extent of such outstanding principal and accrued interest and fees in the case of an assignment) or the Borrower (in the case of all other amounts) and (ii) in the case of an assignment due to payments required to be made pursuant to
Section 2.14, such assignment will result in a reduction in such compensation or payments.
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Section 2.18. Commitment Fee. The Borrower shall pay to the Administrative Agent for the accounts of the Lenders a commitment fee (the “Commitment Fee”) for the period commencing on the Closing Date to the Facility
Termination Date with respect to the applicable Commitments or the earlier date of termination of the applicable Commitment, computed (on the basis of the actual number of days elapsed over a year of 360 days) at the Commitment Fee Rate on the
average daily Unused Total Commitment. Such Commitment Fee, to the extent then accrued, shall be payable quarterly in arrears (a) on the last day of each December, March, June and September, (b) on the Facility Termination Date with respect to the
applicable Commitments, and (c) as provided in Section 2.11 hereof, upon any reduction or termination in whole or in part of the Total Commitment.
Section 2.19. Nature of Fees. All Fees and the Commitment Fee shall be paid on the dates due, in immediately
available funds, to the Lenders, the Lead Arranger and the Administrative Agent, as applicable, as provided herein and in the Fee Letter. Once paid, none of the Fees nor the Commitment Fee shall be refundable under any circumstances.
Section 2.20. Right of Set-Off. Upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent and each Lender (and their respective banking Affiliates) are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final accounts, in each case, held in trust for an identified beneficiary) at any time held and other indebtedness at any time owing by the Administrative Agent and each such Lender (or any of such banking Affiliates) to or for
the credit or the account of the Borrower or any Guarantor against any and all of any such overdue amounts owing under the Loan Documents, irrespective of whether or not the Administrative Agent or such Lender shall have made any demand under any
Loan Document; provided that in the event that any Defaulting Lender exercises any such right of setoff, the Defaulting Lender will 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 setoff. Each Lender and the Administrative Agent agree promptly to notify the Borrower and Guarantors after any such set-off and application made by such Lender or the Administrative
Agent (or any of such banking Affiliates), as the case may be, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Lender and the Administrative Agent under this Section
2.20 are in addition to other rights and remedies which such Lender and the Administrative Agent may have upon the occurrence and during the continuance of any Event of Default.
Section 2.21. Payment of Obligations. Subject to the provisions of Section 7.01, upon the maturity (whether by acceleration or otherwise) of any of the Obligations under this Agreement or any of the other Loan Documents of the
Borrower and the Guarantors, the Lenders shall be entitled to immediate payment of such Obligations.
Section 2.22. Increase in Commitment.
(i) Borrower Request. The Borrower may by written notice to the Administrative Agent request, at any time the establishment of one or more new Commitments (each, an “Incremental
Commitment”) by an amount not less than $25,000,000 individually. Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the increased or new Commitments shall be effective,
which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each Eligible Assignee to whom the Borrower proposes any portion of such increased or new
Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the increased or new Commitments may elect or decline, in its sole discretion, to provide such increased
or new Commitment. The parties waive the requirement for such notice in connection with the increases effective on the Closing Date.
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(ii) Conditions. The increased or new Commitments shall become effective, as of such Increase Effective Date provided that:
(1) each of the conditions set forth in Section 4.01 shall be satisfied on or prior to such Increase Effective Date;
(2) no Event of Default shall have occurred and be continuing or would result from giving effect to the increased or new Commitments on, or the making of any new
Loans on, such Increase Effective Date;
(3) the amount of any increased or new Commitments does not exceed the amount permitted to be incurred pursuant to Section 6.02(b)(v)(C)(1); and
(4) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with
any such transaction.
(iii) Terms of New Loans and Commitments. The terms and provisions of Loans made pursuant to the new Commitments shall be as follows:
(1) terms and provisions with respect to interest rates and maturity date of Loans made pursuant to any Incremental Commitments (“Incremental Loans”) shall
be as agreed upon between the Borrower and the applicable Lenders providing such Loans (it being understood that the Incremental Loans may be part of the Loans or any other Class of Loans); provided that all other terms of the Incremental Loans shall
be the same as the Commitments and Loans then outstanding;
(2) the final maturity date of any Loans made pursuant to Incremental Commitments shall be no earlier than the final maturity date of the existing Loans; and
(3) to the extent that the terms and provisions of Incremental Loans are not identical to an outstanding Class of Loans (except to the extent permitted by clauses
(i), and (ii) above), such terms and conditions shall be reasonably satisfactory to the Administrative Agent.
The increased or new Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrower, the Administrative Agent and each Lender making such increased or new Commitment, in form and substance
satisfactory to each of them. The Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent,
to effect the provisions of this Section 2.22. In addition, unless otherwise specifically provided herein, all references in the Loan Documents to Loans shall be deemed, unless the context otherwise requires, to include references to any Incremental
Loans made pursuant to this Agreement.
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(iv) Adjustments to Outstanding Loans. On each Increase Effective Date, (i) if there are Loans then outstanding, the Borrower shall prepay such Loans (and pay any additional amounts required pursuant to
Section 2.13 in connection therewith), and borrow Loans from the Lender(s) providing such Incremental Commitments, as shall be necessary in order that, after giving effect to such prepayments and borrowings, all Loans will be held ratably by all
Lenders in accordance with their respective Commitments after giving effect to the applicable Incremental Commitment(s).
(v) Equal and Ratable Benefit. The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the
benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably from the security interests created by the Collateral Documents.
(i) Extension of Loans. Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time
by the Borrower to all Lenders holding Commitments with a like maturity date, on a pro rata basis (based on the aggregate Commitments with a like maturity date) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate
from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Commitments and otherwise modify the terms of such Commitments pursuant to the terms of
the relevant Extension Offer (including, without limitation, by changing the interest rate or fees payable in respect of such Commitments (and related outstanding Loans)) (each, an “Extension”, and each group of Commitments, as so extended, as
well as the original Commitments not so extended, being a “tranche of Loans”, and any Extended Commitments shall constitute a separate tranche of Commitments from the tranche of Commitments from which they were converted), so long as the
following terms are satisfied:
(1) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the applicable Lenders (the “Extension
Offer Date”);
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(2) except as to interest rates, fees and final maturity (which shall be set forth in the relevant Extension Offer), the Commitment of any Lender that agrees to an Extension with respect to
such Commitment extended pursuant to an Extension Amendment (an “Extended Commitment”), and the related outstanding Loans, shall be a Commitment (or related outstanding Loans, as the case may be) with the same terms as the original Commitments
(and related outstanding Loans); provided that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Commitments (and related outstanding Loans), (B) repayments required upon the maturity
date of the non-extending Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments) of Loans with respect to Extended Commitments after the applicable Extension date shall be made on a pro rata basis
with all other Commitments, (2) the permanent repayment of Loans with respect to, and termination of, Extended Commitments after the applicable Extension date shall be made on a pro rata basis with all other Commitments, except that the Borrower
shall be permitted to permanently repay and terminate commitments of any such tranche of Loans on a better than a pro rata basis as compared to any other tranche of Loans with a later maturity date than such tranche of Loans, (3) assignments and
participations of Extended Commitments and Extended Loans shall be governed by the same assignment and participation provisions applicable to Commitments and Loans and (4) at no time shall there be Commitments hereunder (including Extended
Commitments and any original Commitments) which have more than five different maturity dates;
(3) if the aggregate principal amount of Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of
Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed
actual holdings of record) with respect to which such Lenders have accepted such Extension Offer;
(4) if the aggregate principal amount of Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall be less than the maximum aggregate principal amount of
Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Borrower may require each Lender that does not accept such Extension Offer to assign pursuant to Section 10.02 no later than forty-five
(45) days after the Extension Offer Date its pro rata share of the outstanding Commitments and/or Loans offered to be extended pursuant to such Extension Offer to one or more assignees which have agreed to such assignment and to extend the applicable
Maturity Date; provided that (1) each Lender that does not respond affirmatively within thirty (30) days of the Extension Offer Date shall be deemed not to have accepted such Extension Offer, (2) the processing and recordation fee specified
in Section 10.02(b) shall be paid by the Borrower or such assignee and (3) the assigning Lender shall continue to be entitled to the rights under Section 10.04 for any period prior to the effectiveness of such assignment;
(5) all documentation in respect of such Extension shall be consistent with the foregoing; and
(6) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower. For the avoidance of doubt, no Lender shall be obligated to accept any Extension Offer.
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(ii) Minimum Extension Condition. With respect to all Extensions consummated by the Borrower pursuant to this Section 2.23, (i) such Extensions shall not constitute voluntary or mandatory payments or
prepayments for purposes of Section 2.10 or Section 2.11 and (ii) each Extension Offer shall specify the minimum amount of Loans to be tendered, which shall be a minimum amount approved by the Administrative Agent (a “Minimum Extension Condition”).
The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.23 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Loans on such terms as may be
set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.10, 2.15 and 8.08) or any other Loan Document that may otherwise prohibit any such Extension or
any other transaction contemplated by this Section 2.23.
(iii) Extension Amendment. The consent of the Administrative Agent shall be required to effectuate any Extension, such consent not to be unreasonably withheld. No consent of
any Lender shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans (or a portion thereof), as applicable. All Extended Loans and all obligations in
respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and
the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (each, an “Extension Amendment”) with the Borrower as may be necessary in
order to establish new tranches or sub‑tranches in respect of Loans so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the
establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.23.
(iv) In connection with any Extension, the Borrower shall provide the Administrative Agent at least five (5) Business Days (or such shorter period as may be agreed by the
Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities
hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.23.
(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event, then (A) if a Benchmark Replacement is
determined in accordance with clause (a) 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 (B) if a Benchmark Replacement is determined in accordance
with clause (b) 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 Administrative Agent has posted such proposed amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received, by
such time, written notice of objection to such amendment from Lenders comprising the Required Lenders.
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(ii) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make
Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other
party to this Agreement or any other Loan Document.
(iii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark
Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement
of any tenor of a Benchmark pursuant to Section 2.24(d) and (y) the commencement 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 2.24, 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 2.24.
(iv) Unavailability of Tenor of Benchmark. 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 Term SOFR) 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 administrator of such Benchmark or 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 not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then the Administrative Agent may modify the
definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned 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 not or will not be representative or
in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of
“Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
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(v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of,
conversion to or continuation of SOFR 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 into a request for a Borrowing of or
conversion to ABR Loans. During any Benchmark Unavailability Period or at any time that any tenor for the then-current Benchmark is not an Available Tenor, the component of Alternate Base Rate based upon the then-current Benchmark or such tenor for
such Benchmark, as applicable, will not be used in any determination of Alternate Base Rate.
(i) If at any time any Lender becomes a Defaulting Lender, then the Borrower may, on ten (10) Business Days’ prior written notice to the Administrative Agent and such Lender, replace such Lender by causing such
Lender to (and such Lender shall be obligated to) assign pursuant to Section 10.02(b) (with the assignment fee to be waived in such instance and subject to any consents required by such Section) all of its rights and obligations under this Agreement
to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender or other such Person.
(ii) Any Lender being replaced pursuant to Section 2.25(a) shall (i) execute and deliver an Assignment and Acceptance with respect to such Lender’s outstanding Commitments, Loans, and (ii) deliver any
documentation evidencing such Loans to the Borrower or the Administrative Agent. Pursuant to such Assignment and Acceptance, (A) the assignee Lender shall acquire all or a portion, as specified by the Borrower and such assignee, of the assigning
Lender’s outstanding Commitments and Loans, (B) all obligations of the Borrower owing to the assigning Lender relating to the Commitments and Loans so assigned shall be paid in full by the assignee Lender to such assigning Lender concurrently with
such Assignment and Acceptance (including, without limitation, any amounts owed under Section 2.13 due to such replacement occurring on a day other than the last day of an Interest Period), and (C) upon such payment and, if so requested by the
assignee Lender, delivery to the assignee Lender of the appropriate documentation executed by the Borrower in connection with previous Borrowings, the assignee Lender shall become a Lender hereunder and the assigning Lender shall cease to constitute
a Lender hereunder with respect to such assigned Commitments and Loans, except with respect to indemnification provisions under this Agreement, which shall survive as to such assigning Lender; provided that an assignment contemplated by this
Section 2.25(b) shall become effective notwithstanding the failure by the Lender being replaced to deliver the Assignment and Acceptance contemplated by this Section 2.26(b), so long as the other actions specified in this Section 2.25(b) shall have
been taken.
(iii) Anything herein to the contrary notwithstanding, if a Lender becomes, and during the period it remains, a Defaulting Lender, during such period, such Defaulting Lender shall not be entitled to any fees
accruing during such period pursuant to Section 2.17 and 2.18 (without prejudice to the rights of the non-Defaulting Lenders in respect of such fees).
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SECTION 3.
In order to induce the Lenders to make Loans hereunder, the Borrower and each of the Guarantors jointly and severally represent and warrant as follows:
Section 3.01. Organization and Authority. The Borrower and each of the Borrower’s Subsidiaries (a) is duly
organized, validly existing and in good standing (to the extent such concept is applicable in the applicable jurisdiction) under the laws of the jurisdiction of its organization and is duly qualified and in good standing in each other jurisdiction in
which the failure to so qualify would have a Material Adverse Effect and (b) has the requisite corporate or limited liability company power and authority to effect the Transactions, to own or lease and operate its properties and to conduct its
business as now or currently proposed to be conducted.
Section 3.02. Air Carrier Status. Allegiant Air is an “air carrier” within the meaning of Section 40102 of Title 49, U.S.C., and holds a certificate under Section 41102 of Title 49. Allegiant Air holds an air carrier operating
certificate issued pursuant to Chapter 447 of Title 49. Allegiant Air is a “citizen of the United States” as defined in Section 40102(a)(15)(C) of Title 49 and as that statutory provision has been interpreted by the DOT pursuant to its policies (a “United
States Citizen”). Allegiant Air possesses all necessary certificates, franchises, licenses, permits, rights, designations, authorizations, exemptions, concessions, frequencies and consents which relate to the operation of the routes flown by
it and the conduct of its business and operations as currently conducted except where failure to so possess would not, in the aggregate, have a Material Adverse Effect.
Section 3.03. Due Execution. The execution, delivery and performance by each of the Borrower and the Guarantors of
each of the Loan Documents to which it is a party (a) are within the respective corporate or limited liability company powers of the Borrower and the Guarantors, have been duly authorized by all necessary corporate or limited liability company
action, including the consent of shareholders or members where required, and do not (i) contravene the charter, by-laws or limited liability company agreement (or equivalent documentation) of the Borrower or the Guarantors, (ii) violate any
applicable law (including, without limitation, the Securities Exchange Act of 1934) or regulation (including, without limitation, Regulations T, U or X of the Board), or any order or decree of any court or Governmental Authority, other than
violations by the Borrower or the Guarantors which would not reasonably be expected to have a Material Adverse Effect, (iii) conflict with or result in a breach of, or constitute a default under, any material indenture, mortgage or deed of trust or
any material lease, agreement or other instrument binding on the Borrower or the Guarantors or any of their properties, which, in the aggregate, would reasonably be expected to have a Material Adverse Effect, or (iv) result in or require the creation
or imposition of any Lien upon any of the property of the Borrower or the other Grantors other than the Liens granted pursuant to this Agreement or the other Loan Documents; and (b) do not require the consent, authorization by or approval of or
notice to or filing or registration with any Governmental Authority or any other Person, other than (i) the filing of financing statements under the UCC, (ii) the filings and consents contemplated by the Collateral Documents, (iii) approvals,
consents and exemptions that have been obtained on or prior to the Closing Date and remain in full force and effect, (iv) consents, approvals and exemptions that the failure to obtain in the aggregate would not be reasonably expected to result in a
Material Adverse Effect and (v) routine reporting obligations. Each Loan Document to which a Borrower or a Guarantor is a party has been duly executed and delivered by the Borrower and the Guarantors party thereto. This Agreement and the other Loan
Documents to which the Borrower or any of the Guarantors is a party, each is a legal, valid and binding obligation of the Borrower and each Guarantor party thereto, enforceable against the Borrower and the Guarantors, as the case may be, in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a
proceeding in equity or at law.
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Section 3.04. Statements Made.
(i) The written information furnished by or on behalf of the Borrower or any of the Borrower’s Subsidiaries to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and
the negotiation of this Agreement or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), together with all Annual Reports on Form 10-K, all Quarterly Reports on Form 10-Q or Current
Reports on Form 8-K that have been filed after December 31, 2021, by the Borrower, with the SEC (as amended), taken as a whole, do not contain any untrue statement of a material of fact or omit to state a material fact necessary to make the
statements therein not misleading in light of the circumstances in which such information was provided; provided that, with respect to projections, estimates or other forward-looking information the Borrower and the Borrower’s Subsidiaries
represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(ii) The Annual Report on Form 10-K of the Borrower most recently filed with the SEC, and each Quarterly Report on Form 10-Q and Current Report on Form 8-K of the Borrower filed with
the SEC subsequently and prior to the date that this representation and warranty is being made, did not as of the date filed with the SEC (giving effect to any amendments thereof made prior to the date that this representation and warranty is being
made) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(i) The audited consolidated financial statements of the Borrower and its Subsidiaries as of and for the fiscal year ended December 31, 2021, included in the Borrower’s Annual Report on Form 10-K for 2021 filed
with the SEC, as amended, present fairly, in all material respects, in accordance with GAAP, the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of such date and for such
period.
(ii) Except as disclosed in the Borrower’s Annual Report on Form 10-K for 2021 or any subsequent report on Form 10-K, Form 10-Q or Form 8-K filed by the Borrower with the SEC, since
December 31, 2021, there has been no Material Adverse Change.
Section 3.06. Ownership of Subsidiaries. As of the Closing Date, other than as set forth on Schedule 3.06, (a) each
of the Persons listed on Schedule 3.06 is a wholly-owned, direct or indirect Subsidiary of the Borrower, and (b) the Borrower owns no other Subsidiaries (other than Immaterial Subsidiaries), whether directly or indirectly.
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Section 3.07. Title to Properties. The Borrower and each of the Borrower’s Restricted Subsidiaries has good and indefeasible title in fee simple to, or valid leasehold interests in, all its material properties and assets other than
(i) minor defects in title that do not materially interfere with its ability to conduct its business or to utilize such assets for their intended purposes, (ii) except where the failure to have such title or other property interests described above
could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iii) all such material properties and assets are free and clear of Liens, other than Permitted Liens.
Section 3.08. Use of Proceeds. The proceeds of the Loans shall be used to prepay or purchase existing indebtedness of the Borrower and for working capital or other general corporate purposes of the Borrower, the Guarantors and
their respective Subsidiaries (including the refinancing of existing indebtedness and the payment of transaction costs, fees and expenses as contemplated hereby and as referred to in Section 2.16(b)).
(i) Except as disclosed in the Borrower’s Annual Report on Form 10-K for 2021 or any report filed by the Borrower on Form 10-Q or Form 8-K with the SEC after December 31, 2021, there are no actions, suits,
proceedings or investigations pending or, to the knowledge of the Borrower or the Guarantors, threatened against the Borrower or the Borrower’s Subsidiaries or any of their respective properties (including any properties or assets that constitute
Collateral under the terms of the Loan Documents), before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that (i) are likely to have a Material Adverse Effect or (ii) could reasonably
be expected to affect the legality, validity, binding effect or enforceability of the Loan Documents or, in any material respect, the rights and remedies of the Administrative Agent or the Lenders thereunder or in connection with the Transactions.
(ii) Except with respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, the Borrower and each of the
Borrower’s Subsidiaries to its knowledge is currently in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and
ownership of its property.
(i) Neither the Borrower nor any of the Borrower’s Subsidiaries is engaged, principally or as one of its important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board, “Margin Stock”), or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Loans will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock in violation of Regulation U.
(ii) Neither the Borrower nor any the Borrower’s Subsidiaries is, or after the making of the Loans will be, or is required to be, registered as an “investment company” under the
Investment Company Act of 1940, as amended. Neither the making of any Loan nor the application of the proceeds of any Loan or repayment of any Loan by the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents,
will violate any provision of such Act or any rule, regulation or order of the SEC thereunder.
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Section 3.11. Perfected Security Interests. The Collateral Documents, taken as a whole, are effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a legal, valid and enforceable security
interest in all of the Collateral to the extent purported to be created thereby, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law. With respect to the Collateral as of the Closing Date, at such time as (a) financing statements in appropriate form are filed in the appropriate
offices (and the appropriate fees are paid) and (b) the Account Control Agreements are executed, the Administrative Agent, for the benefit of the Secured Parties, shall have a first priority perfected security interest (or comparable Lien) in all of
such Collateral to the extent that the Liens on such Collateral may be perfected upon the filings or recordations or upon the taking of the actions described in clauses (a) and (b) above, subject in each case only to Permitted Liens, and such
security interest is entitled to the benefits, rights and protections afforded under the Collateral Documents applicable thereto (subject to the qualification set forth in the first sentence of this Section 3.11).
Section 3.12. Payment of Taxes. Each of the Borrower and its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed by it prior to the date hereof and has paid or
caused to be paid when due all Taxes required to have been paid by it, except and solely to the extent that, in each case (a) such Taxes are being contested in good faith by appropriate proceedings or (b) the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
Section 3.13. Anti-Corruption Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures intended to ensure compliance by the Borrower, its Subsidiaries and, when acting in such capacity, their
respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower and its Subsidiaries are in compliance with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions in all
material respects. None of the Borrower, any of its Subsidiaries or to the knowledge of the Borrower any of their respective directors or officers is a Sanctioned Person.
Section 3.14. Beneficial Ownership Certifications. As of the Closing Date, the information included in the
Beneficial Ownership Certification is true and correct in all respects.
Section 3.15. Solvency. As of the Closing Date, after giving effect to the Closing Date Transactions and the payment of all costs and expenses in connection therewith, the Borrower and the Guarantors, taken as a whole, are Solvent.
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SECTION 4.
Section 4.01. Conditions Precedent to Closing. This Agreement shall become effective, subject to, the satisfaction
(or waiver by the Lenders in accordance with Section 10.08 and by the Administrative Agent) of the following conditions precedent:
(ii) Supporting Documents. The Administrative Agent shall have received with respect to the Borrower and the Guarantors in form and substance reasonably satisfactory to the Administrative Agent:
(1) a certificate of the Secretary of State of the state of such entity’s incorporation or formation, dated as of a recent date, as to the good standing of that
entity (to the extent available in the applicable jurisdiction) and as to the charter documents on file in the office of such Secretary of State;
(2) a certificate of the Secretary or an Assistant Secretary (or similar officer), of such entity dated the Closing Date and certifying (A) that attached thereto
is a true and complete copy of the certificate of incorporation or formation and the by-laws or limited liability company or other operating agreement (as the case may be) of that entity as in effect on the date of such certification, (B) that
attached thereto is a true and complete copy of resolutions adopted by the board of directors, board of managers or members of that entity authorizing the Borrowings hereunder, the execution, delivery and performance in accordance with their
respective terms of this Agreement, the other Loan Documents and any other documents required or contemplated hereunder or thereunder, and the granting of the Liens contemplated hereby or the other Loan Documents (in each case to the extent
applicable to such entity), (C) that the certificate of incorporation or formation of that entity has not been amended since the date of the last amendment thereto indicated on the certificate of the Secretary of State furnished pursuant to clause
(i) above, and (D) as to the incumbency and specimen signature of each officer of that entity executing this Agreement and the Loan Documents or any other document delivered by it in connection herewith or therewith (such certificate to contain a
certification by another officer of that entity as to the incumbency and signature of the officer signing the certificate referred to in this clause (ii));
(3) an Officer’s Certificate from the Borrower certifying (A) as to the truth in all material respects of the representations and warranties made by it contained
in the Loan Documents as though made on the Closing Date, except to the extent that any such representation or warranty relates to a specified date, in which case as of such date (provided that any representation or warranty that is qualified by
materiality, “Material Adverse Change” or “Material Adverse Effect” shall be true and correct in all respects as of the applicable date, before and after giving effect to the Closing Date Transactions) and (B) as to the absence of any event occurring
and continuing, or resulting from the Closing Date Transactions, that constitutes an Event of Default; and
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(4) an Officer’s Certificate from the Borrower’s chief financial officer certifying that the Borrower and the Guarantors, taken as a whole, are Solvent on the Closing Date, before and after
giving effect to the Closing Date Transactions.
(iii) Representations and Warranties. All representations and warranties of the Borrower and the Guarantors contained in this Agreement and the
other Loan Documents executed and delivered on the Closing Date shall be true and correct in all material respects on and as of the Closing Date, before and after giving effect to the Closing Date Transactions, as though made on and as of such date
(except to the extent any such representation or warranty by its terms is made as of a different specified date, in which case as of such specified date); provided that any representation or warranty that is qualified by materiality,
“Material Adverse Change” or “Material Adverse Effect” shall be true and correct in all respects, as though made on and as of the applicable date, before and after giving effect to the Closing Date Transactions.
(iv) No Default. On the Closing Date, no Default or Event of Default shall have occurred and be continuing nor shall any such Event of Default or Default, as the case may be,
occur by reason of the making of the requested Borrowing and the application of proceeds thereof.
(v) Loan Agreements. Each party hereto shall have duly executed and delivered to the Administrative Agent this Agreement and the other Loan Documents to which it is a party.
(vi) Collateral. To the extent required to be effected by the Closing Date, all actions necessary to establish that the Administrative Agent will have a perfected security
interest in the Collateral (subject to any Permitted Liens) shall have been taken, including without limitation that the Borrower or applicable Restricted Subsidiary shall have duly executed and delivered to the Administrative Agent the Security
Agreement and the Spare Parts Security Agreement, each in form and substance reasonably acceptable to the Administrative Agent and all financing statements in form and substance reasonably acceptable to the Administrative Agent, as may be required to
grant, continue and maintain an enforceable security interest in the applicable Collateral (subject to the terms hereof and of the other Loan Documents) in accordance with the UCC as enacted in all relevant jurisdictions.
(1) a written opinion of Vedder Price P.C., special New York counsel to the Borrower and the Guarantors, dated the Closing Date, in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders;
(2) a written opinion of Greenberg Traurig, LLP, special counsel to Borrower and the Guarantors, dated the Closing Date, in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders; and
(3) a written opinion of McAfee & Taft, special FAA counsel to Borrower and the Guarantors, dated the Closing Date, in form and substance reasonably satisfactory to the Administrative
Agent and the Lenders.
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(viii) Patriot Act. The Lenders shall have received at least three (3) Business Days prior to the Closing Date (i) all documentation and other information required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, that such Lenders shall have requested from the Borrower or Guarantor prior to such date and (ii) to the extent the Borrower qualifies as a
“legal entity customer” under the Beneficial Ownership Regulation, if any Lender has requested, in a written notice to the Borrower at least two (2) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower,
such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied).
(ix) Payment of Fees and Expenses. The Borrower shall have paid to the Administrative Agent, the Lead Arranger and the Lenders the then unpaid balance of all accrued and unpaid Fees due, owing and payable
under and pursuant to this Agreement, as referred to in Section 2.16(b), and all reasonable and documented out-of-pocket expenses of the Administrative Agent (including reasonable attorneys’ fees of Milbank LLP) for which invoices have been presented
at least two Business Days prior to the Closing Date.
(x) Financial Statements. The Borrower shall have delivered to the Administrative Agent or filed with the SEC its Annual Report on Form 10-K for the period ending on December 31, 2021 and its Quarterly
Reports on Form 10-Q for the periods ending on March 31, 2022 and June 30, 2022.
(xi) Payoff and Release. The Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to it, that all obligations under the Existing Credit Agreement shall have, as
of the Closing Date, been paid in full (other than customary survival of contingent indemnification and expenses reimbursement obligations) and all Liens and guarantees granted by the Borrower or any of its Subsidiaries thereunder or in connection
therewith shall have been released.
Section 4.02. Conditions Precedent to Each Loan. The obligation of the Lenders to make each Loan is subject to the satisfaction (or waiver in accordance with Section 10.08) of the following conditions
precedent (provided, that any condition precedent to drawing of a Loan may be waived by the Required Lenders):
(i) Notice. The Administrative Agent shall have received a Loan Request pursuant to Section 2.02.
(ii) Representations and Warranties. All representations and warranties of the Borrower and the Guarantors contained in this Agreement and the other Loan Documents on the date of such Loan shall be true
and correct in all material respects on and as of the date of such Loan (both before and after giving effect thereto and, in the case of each Loan, the application of proceeds therefrom) with the same effect as if made on and as of such date except
to the extent any such representation or warranty by its terms is made as of a different specified date, in which case as of such specified date); provided that any representation or warranty that is qualified by materiality, “Material
Adverse Change” or “Material Adverse Effect” shall be true and correct in all respects, as though made on and as of the applicable date, before and after giving effect to such Loan.
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(iii) No Default. On the date of such Loan, no Default or Event of Default shall have occurred and be continuing nor shall any such Event of Default or Default, as the case may be, occur by reason of the
making of the requested Borrowing and the application of proceeds thereof.
The acceptance by the Borrower of each extension of credit hereunder shall be deemed to be a representation and warranty by the Borrower that the conditions specified in this Section 4.02 have been satisfied.
Section 4.03. Conditions Subsequent to Closing. The Borrower covenants and agrees to provide to the Administrative Agent, by no later than September 30, 2022 or such later date as may be agreed by the
Administrative Agent, fully-executed Account Control Agreements (or amendments to existing Account Control Agreements) in respect of any Pledged Bank Accounts (as defined under the Security Agreement, but excluding the Pledged Bank Account with
account number 702977554 held with Fidelity Money Market), as reasonably requested by the Administrative Agent.
Section 4.04. Conditions Subsequent to Amendment No. 2 Effective Date. The Borrower covenants and agrees to provide to the Administrative Agent, by no later than September 30, 2026 or such later date as may be agreed by the
Administrative Agent, fully-executed Account Control Agreements (or amendments to existing Account Control Agreements) in respect of any Pledged Bank Accounts (as defined under the Security Agreement), as reasonably requested by the Administrative
Agent.
SECTION 5.
From the date hereof and for so long as the principal of or interest on any Loan is owing (or any other amount that is due and unpaid on the first date that none of the foregoing is in effect, outstanding or owing,
respectively, is owing) to any Lender or the Administrative Agent hereunder:
Section
5.01. Financial Statements, Reports, etc. The Borrower shall deliver to the Administrative Agent on behalf of the Lenders:
(i) Within ninety (90) days after the end of each fiscal year, the Borrower’s consolidated balance sheet and related statement of income and cash flows, showing the financial
condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal year and the results of their respective operations during such year, the consolidated statement of the Borrower to be audited for the Borrower by
independent public accountants of recognized national standing and to be accompanied by an opinion of such accountants (without any qualification or exception as to the scope of such audit and without a “going concern” qualification under GAAP as in
effect on the date of this Agreement or, if there is a change in GAAP thereafter, any like qualification or exception under GAAP after giving effect to such change) to the effect that such consolidated financial statements fairly present in all
material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; provided that the foregoing delivery requirement shall be satisfied if the Borrower
shall have filed with the SEC its Annual Report on Form 10-K for such fiscal year, which is available to the public via EDGAR or any similar successor system;
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(ii) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, the Borrower’s consolidated balance sheets and related statements of income and cash flows, showing
the financial condition of the Borrower and its Subsidiaries on a consolidated basis as of the close of such fiscal quarter and the results of their operations during such fiscal quarter and the then elapsed portion of the fiscal year, each certified
by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year end
audit adjustments and the absence of footnotes; provided that the foregoing delivery requirement shall be satisfied if the Borrower shall have filed with the SEC its Quarterly Report on Form 10-Q for such fiscal quarter, which is available to
the public via EDGAR or any similar successor system;
(iii) Within the time period under Section 5.01(a) above, a certificate of a Responsible Officer of the Borrower certifying that, to the knowledge of such Responsible Officer, no Event
of Default has occurred and is continuing, or, if, to the knowledge of such Responsible Officer, such an Event of Default has occurred and is continuing, specifying the nature and extent thereof and any corrective action taken or proposed to be taken
with respect thereto;
(iv) Within the time period under (a) or (b) of this Section 5.01 (as applicable), a certificate of a Responsible Officer demonstrating in reasonable detail compliance with Section
6.08 as of the end of the preceding fiscal quarter;
(v) Promptly after the occurrence thereof, written notice of the termination of a Plan of the Borrower pursuant to Section 4042 of ERISA to the extent such termination would
constitute an Event of Default;
(vi) So long as any Commitment or Loan is outstanding, promptly after the Chief Financial Officer or the Treasurer of the Borrower becoming aware of the occurrence of an Event of
Default that is continuing, an Officer’s Certificate specifying such Event of Default and what action the Borrower and its Subsidiaries are taking or propose to take with respect thereto;
(vii) Promptly, from time to time, such other information regarding the Collateral and nonconfidential information regarding the operations, business affairs and financial condition of
the Borrower or any Guarantor, in each case as the Administrative Agent, at the request of any Lender, may reasonably request; and
(viii) Prompt written notice of any change in the information provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified
in parts (c) or (d) of such certification.
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Subject to the next succeeding sentence, information delivered pursuant to this Section 5.01 to the Administrative Agent may be made available by the Administrative Agent to the Lenders by posting such information on the
Syndtrak website on the Internet at http://www.syndtrak.com. Information required to be delivered pursuant to this Section 5.01 by the Borrower shall be delivered pursuant to Section 10.01 hereto. Information required to be delivered pursuant to
this Section 5.01 (to the extent not made available as set forth above) shall be deemed to have been delivered to the Administrative Agent on the date on which the Borrower provides written notice to the Administrative Agent that such information has
been posted on the Borrower’s general commercial website on the Internet (to the extent such information has been posted or is available as described in such notice), as such website may be specified by the Borrower to the Administrative Agent from
time to time. Information required to be delivered pursuant to this Section 5.01 shall be in a format which is suitable for transmission.
Any notice or other communication delivered pursuant to this Section 5.01, or otherwise pursuant to this Agreement, shall be deemed to contain material non-public information unless (i) expressly marked by the Borrower
or a Guarantor as “PUBLIC”, (ii) such notice or communication consists of copies of the Borrower’s public filings with the SEC or (iii) such notice or communication has been posted on the Borrower’s general commercial website on the Internet, as such
website may be specified by the Borrower to the Administrative Agent from time to time.
Section 5.02. Taxes. The Borrower shall timely pay, and cause each of its Subsidiaries to pay, all material Taxes,
assessments, and governmental levies, other than Taxes, assessments and levies (i) being contested in good faith by appropriate proceedings and (ii) the failure to effect such payment of which are not reasonably be expected to have a Material Adverse
Effect on the Borrower.
Section 5.03. Stay, Extension and Usury Laws. The Borrower and each of the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Agreement; and the Borrower and each of the Guarantors (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, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Administrative Agent, but
will suffer and permit the execution of every such power as though no such law has been enacted.
Section 5.04. Corporate Existence. The Borrower shall do or cause to be done all things reasonably necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be
amended from time to time) of the Borrower or any such Subsidiary; and
(2) the rights (charter and statutory) and material franchises of the Borrower and its Subsidiaries; provided, however, that the Borrower shall not be
required to preserve any such right or franchise, or the corporate, partnership or other existence of it or any of its Subsidiaries that is not an Immaterial Subsidiary, if its Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower and its Subsidiaries, taken as a whole, and that the loss thereof would not, individually or in the aggregate, have a Material Adverse Effect.
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For the avoidance of doubt, this Section 5.04 shall not prohibit any actions permitted by Section 6.03 hereof.
Section 5.05. Compliance with Laws. The Borrower shall comply, and cause each of its Subsidiaries to comply, with
all applicable laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where such noncompliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. The Borrower will maintain in effect policies and procedures intended to ensure compliance by the Borrower, its Subsidiaries and, when acting in such capacity, their respective directors, officers, employees and agents with Anti-Corruption
Laws and applicable Sanctions.
Section 5.06. Designation of Restricted and Unrestricted Subsidiaries.
(i) The Board of Directors of the Borrower may designate any Restricted Subsidiary of it (other than any Significant Guarantor) to be an Unrestricted Subsidiary; provided that such designation will be
permitted only if no Default or Event of Default would be in existence following such designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the
Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation. That designation will be permitted only if the Investment would be
permitted at that time under Section 6.01 and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary.”
(ii) The Board of Directors of the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Borrower; provided that such
designation will be permitted only if no Default or Event of Default would be in existence following such designation.
Section 5.07. Regulatory Cooperation. In connection with any foreclosure, collection, sale or other enforcement of
Liens granted to the Administrative Agent in the Collateral Documents, the Borrower will, and will cause its Restricted Subsidiaries to, reasonably cooperate in good faith with the Administrative Agent or its designee in obtaining all regulatory
licenses, consents and other governmental approvals necessary or (in the reasonable opinion of the Administrative Agent or its designee) reasonably advisable to conduct all aviation operations with respect to the Collateral and will, at the
reasonable request of the Administrative Agent and in good faith, continue to operate and manage the Collateral and maintain all applicable regulatory licenses with respect to the Collateral until such time as the Administrative Agent or its designee
obtain such licenses, consents and approvals, and at such time the Borrower will, and will cause its Restricted Subsidiaries to, cooperate in good faith with the transition of the aviation operations with respect to the Collateral to any new aviation
operator (including, without limitation, the Administrative Agent or its designee).
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Section 5.08. Regulatory Matters; Citizenship; Utilization; Collateral Requirements. Allegiant Air will, and the Borrower shall cause Allegiant Air to:
(i) maintain at all times its status as an “air carrier” within the meaning of Section 40102(a)(2) of Title 49, and hold a certificate under Section 41102(a)(1) of Title 49;
(iii) maintain at all times its status at the FAA as an “air carrier” and hold an air carrier operating certificate under Section 44705 of Title 49 and operations specifications issued
by the FAA pursuant to Parts 119 and 121 of Title 14, C.F.R., as currently in effect or as may be amended or recodified from time to time; and
(iv) possess and maintain all necessary certificates, exemptions, franchises, licenses, permits, designations, rights, concessions, authorizations, frequencies and consents that are
material to the conduct of its business and operations as currently conducted, except to the extent that any failure to possess or maintain would not reasonably be expected to result in a Material Adverse Effect.
Section 5.09. Insurance. The Borrower shall, and shall cause
each of its Restricted Subsidiaries to:
(i) Keep its material insurable properties adequately insured in all material respects at all times by financially sound and reputable insurers to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations.
(ii) Cause all such policies covering any Collateral to be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and, to the extent available on
commercially reasonable terms, cause each such policy to provide that it shall not be canceled, modified or not renewed (i) by reason of nonpayment of premium unless not less than 10 days’ prior written notice thereof is given by the insurer to the
Administrative Agent (giving the Administrative Agent the right to cure defaults in the payment of premiums) or (ii) for any other reason unless not less than 30 days’ prior written notice thereof is given by the insurer to the Administrative Agent.
(i) If the Borrower or any of its Restricted Subsidiaries acquires or creates another Restricted Subsidiary after the Closing Date, then the Borrower will promptly cause such
Subsidiary to become a party to the Guarantee contained in Section 9 hereof by executing an Instrument of Assumption and Joinder substantially in the form attached hereto as Exhibit B; provided, that any Subsidiary that constitutes an
Immaterial Subsidiary need not become a Guarantor unless and until 30 Business Days after such time as it ceases to be an Immaterial Subsidiary or such time as it guarantees, or pledges any property or assets to secure, any other Obligations.
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(ii) If the Borrower or any Restricted Subsidiary of the Borrower acquires any property or assets after the Closing Date (other than Excluded Property), the Borrower shall, in each case at its own expense, (A)
cause any such Restricted Subsidiary to become a party to the Guarantee contained in Section 9 hereof (to the extent such Restricted Subsidiary is not already a party thereto) and cause any such Grantor to become a party to each applicable Collateral
Document and all other agreements, instruments or documents that create or purport to create and perfect a first priority Lien (subject to Permitted Liens) in favor of the Administrative Agent for the benefit of the Secured Parties applicable to such
property or assets, by executing and delivering to the Administrative Agent an Instrument of Assumption and Joinder substantially in the form attached hereto as Exhibit B and/or joinders to all applicable Collateral Documents or pursuant to
new Collateral Documents, as the case may be, in form and substance reasonably satisfactory to the Administrative Agent and the Borrower or applicable Restricted Subsidiary (it being understood, that in the case of such additional Collateral of a
type that has not been theretofore included in the Collateral, such additional Collateral may be subject to such additional terms and conditions as may be customarily required by lenders in similar financings of a similar size for similarly situated
borrowers secured by the same type of Collateral, as agreed by the Borrower and the Administrative Agent in their reasonable discretion), (B) promptly execute and deliver (or cause such Restricted Subsidiary to execute and deliver) to the
Administrative Agent such documents and take such actions to create, grant, establish, preserve and perfect the first priority Liens (subject to Permitted Liens) in favor of the Administrative Agent for the benefit of the Secured Parties on such
assets of the Borrower or such Restricted Subsidiary, as applicable, to secure the Obligations to the extent required under the applicable Collateral Documents or reasonably requested by the Administrative Agent, and to ensure that such Collateral
shall be subject to no other Liens other than Permitted Liens and (C) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent, for the benefit of the Secured Parties, a written opinion of counsel (which counsel shall
be reasonably satisfactory to the Administrative Agent) to the Borrower or such Restricted Subsidiary, as applicable, with respect to the matters described in clauses (A) and (B) hereof, in each case within twenty (20) Business Days after the
addition of such Collateral and in form and substance reasonably satisfactory to the Administrative Agent.
(i) The Borrower and the Guarantors will make and keep books, records and accounts in which full, true and correct entries in conformity with GAAP are made of all financial dealings and transactions in relation
to its business and activities, including, without limitation, an accurate and fair reflection of the transactions and dispositions of the assets of the Borrower and the Guarantors.
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(ii) The Borrower and the Guarantors will permit, to the extent not prohibited by applicable law or contractual obligations, any representatives designated by the Administrative Agent or any Governmental
Authority that is authorized to supervise or regulate the operations of a Lender, as designated by such Lender, upon reasonable prior written notice and, so long as no Event of Default has occurred and is continuing, at no out-of-pocket cost to the
Borrower and the Guarantors, to (x) visit and inspect the assets and the properties of the Borrower and the Guarantors, subject to safety and regulatory restrictions, (y) examine its books and records, and (z) discuss its nonconfidential affairs,
finances and condition with its officers and independent accountants, all at such reasonable times during normal business hours and as often as reasonably requested (it being understood that a representative of the Borrower will be present) subject
to any restrictions in any applicable Collateral Document; provided that if an Event of Default has occurred and is continuing (but not otherwise), the Borrower and the Guarantors shall be responsible for the reasonable costs and expenses of
any visits of the Administrative Agent and the Lenders, acting together (but not separately); provided, further, that with respect to the property of the Borrower and the Guarantors and
matters relating thereto, the rights of Administrative Agent and the Lenders under this Section 5.11 shall, subject to the inspection provisions of the applicable Collateral Documents, be limited to the following: upon the request of the
Administrative Agent, the applicable Grantor will permit the Administrative Agent or any of its agents or representatives, at reasonable times and intervals upon reasonable prior notice, to (x) visit during normal business hours its offices, sites
and properties and (y) inspect any documents relating to (i) the existence of such property, (ii) the condition of such property, and (iii) the validity, perfection and priority of any Liens on such property, and to discuss such matters with its
officers, except to the extent the disclosure of any such document or any such discussion would result in the applicable Grantor’s violation of its contractual or legal obligations. All confidential or proprietary information obtained in connection
with any such visit, inspection or discussion shall be held confidential by the Administrative Agent and each agent or representative thereof and shall not be furnished or disclosed by any of them to anyone other than their respective bank examiners,
auditors, accountants, agents and legal counsel, and except as may be required by any court or administrative agency or by any statute, rule, regulation or order of any Governmental Authority.
Section 5.12. Further Assurances. The Borrower covenants and agrees with each Lender that until the Facility
Termination Date the Borrower will, and will cause each Restricted Subsidiary to:
(i) From time to time duly authorize, execute and deliver, or cause to be duly authorized, executed and delivered, such additional instruments, certificates, financing statements,
agreements or documents, and take all reasonable actions (including filing UCC and other financing statements but subject to the limitations set forth in the Collateral Documents), as the Administrative Agent may reasonably request, for the purposes
of perfecting the rights of the Administrative Agent and the Secured Parties with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other property or assets
hereafter acquired by the Borrower or any of its Restricted Subsidiaries which may be deemed to be part of the Collateral) pursuant hereto or thereto. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document,
nothing in this Agreement or any other Loan Document shall require the Borrower or any Restricted Subsidiary to make any filings or take any actions to record or to perfect any security interest in (i) (A) any intellectual property other than in the
United States Copyright Office or United States Patent and Trademark Office or (B) any non-United States intellectual property or (ii) any property subject to a certificate of title, in each case other than any UCC financing statements.
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(ii) With respect to any assets acquired by the Borrower or any Restricted Subsidiary after the Closing Date of the type constituting Collateral and as to which the Administrative Agent, for the benefit of the
Secured Parties, does not have a perfected first priority (subject only to Permitted Liens) security interest, within 30 days following such acquisition (or such longer period as to which the Administrative Agent may consent), (x) execute and deliver
to the Administrative Agent such amendments to the applicable Collateral Document as the Administrative Agent reasonably deems necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a security interest in such assets
and (y) take all commercially reasonable actions necessary and reasonably requested by the Administrative Agent to grant to, or continue on behalf of, the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority
security interest in such assets (subject only to Permitted Liens), including the filing of UCC financing statements in such jurisdictions as may be required by the applicable Collateral Document or as may be reasonably requested by the
Administrative Agent.
(iii) With respect to any wholly owned Restricted Subsidiary (other than a Subsidiary that is a disregarded entity for U.S. federal income tax purposes owned by a regarded non-U.S. entity or that is owned by
another disregarded entity or entities that is or are owned by such a regarded non-U.S. entity) created or acquired after the Closing Date, within 30 days following the date of such creation or acquisition (or such longer period as to which the
Administrative Agent may consent), (x) execute and deliver to the Administrative Agent such amendments to the applicable Collateral Documents as the Administrative Agent deems necessary to grant to the Administrative Agent, for the benefit of the
relevant Secured Parties, a valid, perfected first priority (subject only to Permitted Liens) security interest in the Equity Interests in such new Subsidiary that are owned by the Borrower or any Restricted Subsidiary to the extent the same
constitute Collateral under any Collateral Document, (y) deliver to the Administrative Agent the certificates, if any, representing any of such Equity Interests that constitute certificated securities, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the pledgor and (z) cause such Restricted Subsidiary (A) to become a party to the applicable Collateral Document and (B) to take such actions necessary and reasonably requested by the
Administrative Agent to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected first priority (subject only to Permitted Liens) security interest in any assets required to be Collateral pursuant to the Collateral
Documents with respect to such Restricted Subsidiary, including, if applicable, the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Office and the filing of UCC financing statements in such
jurisdictions as may be required by the Collateral Documents or as may be reasonably requested by the Administrative Agent, but excluding the endorsement to the Administrative Agent of any certificate of title to any property.
(iv) If, at any time and from time to time after the Closing Date, any wholly-owned Subsidiary that is not a disregarded entity for U.S. federal income tax purposes owned by a regarded non-U.S. entity ceases to
constitute an Immaterial Subsidiary in accordance with the definition of “Immaterial Subsidiary”, then the Borrower shall cause such subsidiary to become a Restricted Subsidiary if it is not an Unrestricted Subsidiary and take all the actions
contemplated by clause (c) above as if such Subsidiary were a newly-formed wholly-owned Subsidiary of the Borrower.
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(v) Neither the Borrower nor any Restricted Subsidiary shall open a deposit account in which more than $250,000 will be on account at any time after the Closing Date unless, prior to the date on which such
account is opened, the Borrower or such Restricted Subsidiary, as the case may be, the bank with which such account is to be maintained and the Administrative Agent enter into a deposit account control agreement reasonably satisfactory to the
Administrative Agent, pursuant to which the Administrative Agent shall have a perfected, first priority (subject, as to priority, only to Permitted Liens) security interest in such deposit account (and all funds deposited therein or credited
thereto), in each case perfected by control. Except as aforesaid, neither the Borrower nor any Restricted Subsidiary has granted or shall grant control of any deposit account (including any deposit account of the type referenced in the preceding
sentence) to any Person other than the Administrative Agent to secure the Obligations. The Administrative Agent shall not give any instructions directing the disposition of funds from time to time deposited in or credited to any deposit account, or
withhold any withdrawal rights from the Borrower or such Restricted Subsidiary, as the case may be, in whose name the deposit account is maintained, unless an Event of Default has occurred and is continuing, or after giving effect to any withdrawal,
would occur and subject to any Intercreditor Agreement.
Notwithstanding anything to the contrary in this Section 5.12 (other than Section 5.12(e)) or any other Collateral Document, but subject in all respects to Section 5.12(e), (1) the Administrative Agent shall not require
the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is excessive
in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent and (2) Liens required to be granted pursuant to this Section 5.12 shall be subject to exceptions and
limitations consistent with those set forth in the Collateral Documents as in effect on the Closing Date (to the extent appropriate in the applicable jurisdiction).
Section 5.13. Ownership of Property. The Borrower will, and will cause each of its Restricted Subsidiaries to, (a) use commercially reasonable efforts to maintain, preserve and protect all of its
properties and equipment necessary in the operation of its business in good working order and condition (ordinary wear and tear excepted) and (b) make all necessary repairs thereto and renewals and replacements thereof, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.
From the date hereof and for so long as the principal of or interest on any Loan is owing (or any other amount that is due and unpaid on the first date that none of the foregoing is in effect, outstanding or owing,
respectively, is owing) to any Lender or the Administrative Agent hereunder:
(i) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests
(including, without limitation, any payment in connection with any merger or consolidation involving the Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Borrower’s or any of its Restricted Subsidiaries’
Equity Interests in their capacity as such (other than (A) dividends, distributions or payments payable in Qualifying Equity Interests or in the case of preferred stock of the Borrower, an increase in the liquidation value thereof and (B) dividends,
distributions or payments payable to the Borrower or a Restricted Subsidiary of the Borrower);
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(2) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrower;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (collectively for purposes of this clause (iii),
a “purchase”) any Indebtedness of the Borrower or any Guarantor that is contractually subordinated to the Obligations (excluding any intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries); or
(4) make any Restricted Investment (including any Guarantee of any Indebtedness of any Unrestricted Subsidiary of the Borrower),
(all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”),
unless, at the time of and after giving effect to such Restricted Payment:
ii. at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter
periods, the Fixed Charge Coverage Ratio of the Borrower would not be less than 2.00:1.00; and
iii. such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries since February 5, 2019 and
together with Restricted Investments outstanding at the time of giving effect to such Restricted Payment (excluding, in each case, Restricted Payments permitted by clauses (ii) through (xvi) of Section 6.01(b) hereof), is less than the sum, without
duplication, of:
(1) 50% of the Consolidated Net Income of the Borrower for the period (taken as one accounting period) from October 1, 2018 to the end of the Borrower’s most recently ended fiscal
quarter for which financial statements are available at the time of such Restricted Payment provided that, solely for purposes of this clause, Consolidated Net Income shall be determined without giving effect to any losses relating to Sunseeker
Resorts, Inc. and each of its direct and indirect Subsidiaries; plus
(2) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Borrower since February 5, 2019 as a contribution to its common
equity capital or from the issue or sale of Qualifying Equity Interests (other than Qualifying Equity Interests sold to a Subsidiary of the Borrower and excluding Excluded Contributions); plus
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(3) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Borrower or a Restricted Subsidiary of the Borrower from the issue or sale of convertible or
exchangeable Disqualified Stock of the Borrower or a Restricted Subsidiary of the Borrower or convertible or exchangeable debt securities of the Borrower or a Restricted Subsidiary of the Borrower (regardless of when issued or sold) or in connection
with the conversion or exchange thereof, in each case that have been converted into or exchanged since February 5, 2019 for Qualifying Equity Interests (other than Qualifying Equity Interests and convertible or exchangeable Disqualified Stock or debt
securities sold to a Subsidiary of the Borrower); plus
(4) to the extent that any Restricted Investment that was made after February 5, 2019 is (i) sold for cash or otherwise cancelled, liquidated or repaid for cash or (ii) made in an
entity that subsequently becomes a Restricted Subsidiary of the Borrower, the initial amount of such Restricted Investment (or, if less, the amount of cash received upon repayment or sale); plus
(5) to the extent that any Unrestricted Subsidiary of the Borrower designated as such after February 5, 2019 is redesignated as a Restricted Subsidiary after February 5, 2019, the
greater of (i) the Fair Market Value of the Borrower’s Restricted Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted
Subsidiary after February 5, 2019; plus
(6) 100% of any dividends received in cash by the Borrower or a Restricted Subsidiary of the Borrower after February 5, 2019 from an Unrestricted Subsidiary (other than any
Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) of the Borrower, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Borrower for
such period.
(1) so long as no Event of Default has occurred and is continuing as of such time, the declaration and payment of any regularly
scheduled dividend payable to the holders of the Borrower’s common stock, provided that the aggregate amount of such dividends for any four consecutive fiscal quarters shall not exceed the greater of (A) $100.0 million and (B) 15% of the
Borrower’s Consolidated EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal consolidated financial statements of the Borrower have been or are required to be delivered;
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(2) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the
redemption notice, as the case may be, if at the date of declaration or notice, the dividend or distribution or redemption payment would have complied with the provisions of this Agreement;
(3) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary
of the Borrower) of, Qualifying Equity Interests or from the substantially concurrent contribution of common equity capital to the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such Restricted
Payment will not be considered to be net proceeds of Qualifying Equity Interests for purposes of clause (a)(3)(B) of Section 6.01 hereof and will not be considered to be Excluded Contributions;
(4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution), distribution or payment by a
Restricted Subsidiary of the Borrower to the holders of its Equity Interests on a pro rata basis;
(5) the repurchase, redemption, defeasance or other acquisition or retirement for value of any Junior Secured Debt, Pari Passu Debt or Subordinated Debt with the
net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(6) the repurchase, redemption, acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by
any current or former officer, director, consultant or employee (or their estates or beneficiaries of their estates) of the Borrower or any of its Restricted Subsidiaries pursuant to any management equity plan or equity subscription agreement, stock
option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $30.0 million in any 12-month period; provided further
that the Borrower or any of its Restricted Subsidiaries may carry over and make in subsequent 12-month periods, in addition to the amounts permitted for such 12-month period, up to $10.0 million of unutilized capacity under this clause (vi)
attributable to the immediately preceding twelve-month period;
(7) the repurchase of Equity Interests or other securities deemed to occur upon (A) the exercise of stock options, warrants or other securities convertible or
exchangeable into Equity Interests or any other securities, to the extent such Equity Interests or other securities represent a portion of the exercise price of those stock options, warrants or other securities convertible or exchangeable into Equity
Interests or any other securities or (B) the withholding of a portion of Equity Interests issued to employees and other participants under an equity compensation program of the Borrower or its Subsidiaries to cover withholding tax obligations of such
persons in respect of such issuance or upon the vesting of such Equity Interests;
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(8) so long as no Event of Default has occurred and is continuing, the declaration and payment of regularly scheduled or accrued dividends, distributions or payments to holders of any
class or series of Disqualified Stock or subordinated debt of the Borrower or any preferred stock of any Restricted Subsidiary of the Borrower, in each case either outstanding on the Closing Date or issued on or after the Closing Date in
accordance with Section 6.02 hereof and not to exceed the greater of (A) $100,000,000 and (B) 15% of the Borrower’s Consolidated EBITDAR for the preceding four fiscal quarters of the Borrower in the aggregate;
(9) payments of cash, dividends, distributions, advances, common stock or other Restricted Payments by the Borrower or any of its Restricted Subsidiaries to allow the payment of cash in
lieu of the issuance of fractional shares upon (A) the exercise of options or warrants, (B) the conversion or exchange of Capital Stock of any such Person, (C) a distribution of split or (D) the conversion or exchange of Indebtedness or hybrid
securities into Capital Stock of any such Person;
(10) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any Disqualified Stock or preferred stock of any Restricted
Subsidiary of the Borrower to the extent such dividends are included in the definition of “Fixed Charges” for such Person;
(11) in the event of a Change of Control, and if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or
retirement of any Junior Secured Debt, Pari Passu Debt and Subordinated Debt, in each case, at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest thereon; provided that the amount paid in excess of 101% of such principal amount is otherwise permitted under this Section 6.01;
(12) Restricted Payments made with Excluded Contributions;
(13) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Borrower or any of its Restricted Subsidiaries by, any Unrestricted Subsidiary;
(14) so long as no Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $200,000,000, such aggregate amount to be calculated from
and after the Amendment No. 2 Effective Date;
(15) any Restricted Payment if, after giving pro forma effect thereto and to the incurrence of any Indebtedness the net proceeds of which are used to finance such Restricted Payment, the
Consolidated Total Leverage Ratio would be no greater than 2.50:1.00;
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(16) the payment of any amounts in respect of any restricted stock units or other instruments or rights whose value is based in whole or in part on the value of any Equity Interests issued
to any directors, officers or employees of the Borrower or any Restricted Subsidiary of the Borrower;
(17) so long as no Event of Default has occurred and is continuing, Restricted Payments (A) made to purchase or redeem Equity Interests of the Borrower or (B) consisting of payments in
respect of any Indebtedness (whether for purchase or prepayment thereof or otherwise); and
(18) Restricted Investments in an aggregate amount that does not exceed the greater of (A) $325.0 million and (B) 50% of the Borrower’s Consolidated EBITDAR for the preceding four fiscal
quarters of the Borrower.
In the case of any Restricted Payment that is not cash, the amount of such non-cash Restricted Payment will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Borrower or such Restricted Subsidiary of the Borrower, as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued pursuant to this
Section 6.01 shall be determined by an Officer of the Borrower and, if greater than $20,000,000, set forth in an Officer’s Certificate delivered to the Administrative Agent.
Section 6.02. Incurrence of Indebtedness and Issuance of Preferred Stock.
(i) The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness, and the Borrower shall not issue any Disqualified Stock and shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock.
(ii) The provisions of Section 6.02(a) hereof shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”):
(1) the incurrence by the Borrower and the Guarantors of the (A) Loans and Guarantees in the aggregate principal amount available on the Closing Date , (B) the outstanding 7.250% Senior
Notes due 2031, (C) the Senior Notes in an aggregate amount not to exceed the amount outstanding on the Amendment No. 2 Effective Date and (D) any Permitted Refinancing Indebtedness that is incurred to renew, refund, refinance, replace, defease,
extend or discharge any Indebtedness incurred pursuant to this clause (i);
(2) the incurrence by the Borrower or any of its Restricted Subsidiaries of the Existing Indebtedness;
(3) the incurrence by the Borrower or any of its Restricted Subsidiaries of Capital Lease Obligations, mortgage financings or purchase money obligations incurred to finance (or to
reimburse the Borrower or any of its Restricted Subsidiaries for) all or any part of the purchase price or installation or improvement of any Aircraft Asset used in the business of the Borrower or any of its Restricted Subsidiaries or leased by
third parties;
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(4) the incurrence by the Borrower of any Incremental Commitment pursuant to Section 2.22;
(5) the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate consolidated (i.e. without duplication) principal amount (or accreted
value, as applicable), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, extend, defease or discharge any Indebtedness incurred pursuant to this clause (b)(ii)(5), not to exceed the sum of
(1) the greater of (x) $650,000,000 and (y) 100% of Consolidated EBITDAR of the Borrower for the most recent four consecutive fiscal quarters ending prior to the date of such determination (as calculated on
a pro forma basis); plus
(2) any permanent reduction in the Total Commitments (other than with the proceeds of Permitted Refinancing Indebtedness of the Commitments and/or Loans); plus
(3) an additional amount such that, after giving effect to the incurrence of such additional amount (but without giving effect to any amount incurred simultaneously under subclauses (1) and (2) above), and
after giving pro forma effect to any acquisition or investment consummated in connection therewith or any other appropriate pro forma adjustments:
in the case of Pari Passu Debt, the First Lien Leverage Ratio would not exceed 3.00:1.00; and
in the case of Indebtedness that is secured by a junior Lien on the Collateral and expressly contractually subordinated to the prior payment in full in cash of all Obligations, the Secured
Leverage Ratio would not exceed 4.00:1.00;
(vi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in an aggregate principal amount (or accreted value, as applicable), not to exceed $350,000,000 at
any time outstanding
(vii) the incurrence by the Borrower or any of its Restricted Subsidiaries of additional Indebtedness that is unsecured (or issue Disqualified Stock or preferred stock), so long as the Fixed
Charge Coverage Ratio would be no less than 2.00:1.00 after such additional Indebtedness is incurred;
(viii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund,
refinance, replace, extend, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under this Section 6.02(b);
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(ix) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Borrower and/or any of its Restricted Subsidiaries; provided
that any such intercompany Indebtedness owed to a Restricted Subsidiary shall be subordinated to the Obligations;
(x) the issuance by any Restricted Subsidiaries of the Borrower to the Borrower or to any of its Restricted Subsidiaries of shares of preferred stock;
(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes;
(xii) the Guarantee (including by way of co-obligation or assumption) by the Borrower or any Restricted Subsidiary of the Borrower of Indebtedness of the Borrower or a Restricted Subsidiary
of the Borrower to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 6.02; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Loan, then
the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed or assumed;
(xiii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness or reimbursement obligations in respect of workers’ compensation claims, self-insurance obligations
(including reinsurance), bankers’ acceptances, performance bonds and surety bonds in the ordinary course of business (including without limitation in respect of customs obligations, landing fees, taxes, airport charges, overfly rights and any
other obligations to airport and governmental authorities);
(xiv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of any overdrafts and related liabilities arising from treasury, depository and cash
management services or in connection with any automated clearing house transfers of funds;
(xv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness (A) constituting credit support or financing from aircraft or engine manufacturers or their
affiliates or (B) incurred to finance or refinance Aircraft Assets (including, without limitation, to reimburse the Borrower or any of its Restricted Subsidiaries for the acquisition cost of any of the foregoing, to finance any pre-delivery,
progress or similar payment or pursuant to a sale and lease-back) (whether in advance of or at any time following any acquisition of items being financed, and whether such indebtedness is unsecured in whole or in part or is secured by such items
or by other Excluded Property or by any combination); provided that the principal amount of such Indebtedness incurred in reliance on subsection (B) of this clause (xv), at the time of incurrence of such Indebtedness, may exceed the
aggregate incurred and anticipated costs to finance acquisition of the item or items being financed by such Indebtedness (calculated at the time of incurrence of such Indebtedness and determined in good faith by an officer of the Borrower or
Restricted Subsidiary, as applicable, (including reasonable estimates of anticipated costs) and calculated to include, without limitation, purchase price, fees, expenses, repayment of any pre-delivery financing and related interest expense
(whether or not capitalized) and premium (if any), delivery and late charges and other costs associated with such acquisition (as so calculated, for purposes of this proviso, the “financing costs”)) but, if such principal amount exceeds
such financing costs, it may not exceed the aggregate Fair Market Value of the item or items securing such Indebtedness (which Fair Market Value may, at the time of an advance commitment, be determined to be the Fair Market Value at the time of
such commitment or (at the option of the Borrower or such Restricted Subsidiary) the Fair Market Value projected for the time of incurrence of such Indebtedness) or (C) constituting letters of credit in lieu of security deposits and maintenance
reserves in connection with any Indebtedness or operating lease associated with an Aircraft Asset;
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(xvi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness, Disqualified Stock or preferred stock (including Acquired Debt) (A) as part of, or to finance, the
acquisition (including by way of merger) of any Permitted Business, (B) incurred in connection with, or as a result of, the merger, consolidation or amalgamation of any Person (including the Borrower or any of its Restricted Subsidiaries) that
owns a Permitted Business with or into the Borrower or any of its Restricted Subsidiaries, or into which the Borrower or any of its Restricted Subsidiaries is merged, consolidated or amalgamated, or (C) that is an outstanding obligation or
commitment to enter into an obligation of a Person that owns a Permitted Business at the time that such Person is acquired by the Borrower or any of its Restricted Subsidiaries and becomes a Restricted Subsidiary of the Borrower; provided
that, in each case, after giving pro forma effect to such acquisition, merger, consolidation or amalgamation, either (x) the Borrower would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 6.02(b)(vii) or (y) the Fixed Charge Coverage Ratio would be no less than the Fixed Charge Coverage Ratio immediately prior to giving effect to such incurrence of Indebtedness or issuance of Disqualified
Stock or preferred stock;
(xvii) Indebtedness issued to current or former directors, consultants, managers, officers and employees and their spouses or estates (a) to purchase or redeem Capital Stock of the Borrower
issued to such director, consultant, manager, officer or employee in an aggregate principal amount not to exceed $5,000,000 in any twelve-month period or (b) pursuant to any deferred compensation plan approved by the Board of Directors of the
Borrower;
(xviii) reimbursement obligations in respect of standby or documentary letters of credit or banker’s acceptances;
(xix) surety and appeal bonds that do not secure judgments that constitute an Event of Default;
(xx) Indebtedness of the Borrower or any of its Restricted Subsidiaries to credit card, travel charge or clearing house processors in connection with credit card processing, travel charge or
clearing house services incurred in the ordinary course of business, whether in the form of hold-backs or otherwise;
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(xxi) the incurrence of Indebtedness of the Borrower or any of its Restricted Subsidiaries owed to one or more Persons in connection with the financing of insurance premiums in the ordinary
course of business;
(xxii) credit card purchases of fuel;
(xxiii) Indebtedness arising from agreements of the Borrower or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary; provided that, in the case of a disposition, the maximum assumable liability in respect of all such Indebtedness shall at
no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower or
any of its Restricted Subsidiaries in connection with such disposition;
(xxiv) Indebtedness of the Borrower or any of its Restricted Subsidiaries consisting of take-or-pay or like obligations contained in supply, maintenance, repair, power-by-the-hour, overhaul or
like agreements entered into in the ordinary course of business;
(xxv) the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction that is without recourse to the Borrower or to any other Restricted Subsidiary of the
Borrower or their assets (other than such Receivables Subsidiary and its assets and, as to the Borrower or any other Restricted Subsidiary of the Borrower, other than Standard Securitization Undertakings) and is not guaranteed by any such Person;
and
(xxvi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of or in connection with tax-exempt or tax-advantaged municipal bond and similar financings
related to Aircraft Related Facilities.
Section 6.03. Fundamental Changes.
(i) Neither the Borrower nor any Restricted Subsidiary (whichever is applicable, the “Subject Company”) shall directly or indirectly: (i) consolidate or merge with or into another Person (whether or
not such Subject Company is the surviving corporation) or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Subject Company and its Restricted Subsidiaries taken as a whole, in
one or more related transactions, to another Person, unless:
i. either:
(A) the Subject Company is the surviving corporation; or
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(B) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is an
entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; and, if such entity is not a corporation, a co-obligor of the Loans is a corporation organized or existing under any
such laws;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Subject Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been
made assumes all the obligations of the Subject Company under the Loan Documents by operation of law (if the surviving Person is the Borrower) or pursuant to agreements reasonably satisfactory to the Administrative Agent;
(3) immediately after such transaction, no Event of Default exists; and
(4) the Subject Company shall have delivered to the Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer complies with this Agreement.
In addition, a Subject Company will not, directly or indirectly, lease all or substantially all of the properties and assets of such Subject Company and its Restricted Subsidiaries taken as a whole, in one or more
related transactions, to any other Person.
(ii) Section 6.03(a) will not apply to any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among Borrower and/or the Guarantors.
(iii) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of any Subject Company in a
transaction that is subject to, and that complies with the provisions of, Section 6.03(a), the successor Person formed by such consolidation or into or with which such Subject Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement
referring to such Subject Company shall refer instead to the successor Person and not to such Subject Company), and may exercise every right and power of such Subject Company under this Agreement with the same effect as if such successor Person
had been named as such Subject Company herein; provided, however, that the predecessor Subject Company, if applicable, shall not be relieved from the obligation to pay the principal of, and interest, if any, on the Loan except in
the case of a sale of all of such Subject Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 6.03(a) hereof.
Section 6.04. Dispositions. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any Disposition other than any Permitted Disposition, provided that the Borrower shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, dispose of any part of or all of the Borrower and its Affiliates’ Loyalty Programs or their respective Brand IP (including by way of spin-off or Investment
in an entity that is not a Guarantor), other than to the Borrower or a Guarantor.
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Section 6.05. Transactions with Affiliates.
(i) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Borrower (each an “Affiliate Transaction”) involving
aggregate payments or consideration in excess of $10.0 million, unless:
(1) the Affiliate Transaction is on terms that are not materially less favorable to the Borrower or the relevant Restricted Subsidiary (taking into account all effects the Borrower or such
Restricted Subsidiary expects to result from such transaction whether tangible or intangible) than those that would have been obtained in a comparable transaction by the Borrower or such Restricted Subsidiary with an unrelated Person; and
(2) The Borrower delivers to the Administrative Agent:
(1) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $25.0 million, an Officer’s Certificate certifying that such
Affiliate Transaction complies with clause (i) of this Section 6.05(a); and
(2) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $50.0 million, an opinion as to the fairness to the Borrower or such
Restricted Subsidiary of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing.
(ii) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 6.05(a) hereof:
i. any employment agreement, confidentiality agreement, non-competition agreement, incentive plan, employee stock option agreement, long-term incentive plan, profit sharing plan, employee benefit plan,
officer or director indemnification agreement or any similar arrangement entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business and payments pursuant thereto;
ii. transactions between or among the Borrower and/or its Restricted Subsidiaries (including without limitation in connection with any full or partial “spin-off” or similar transactions);
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iii. transactions with a Person (other than an Unrestricted Subsidiary of the Borrower) that is an Affiliate of the Borrower solely because the Borrower owns, directly or through a Restricted Subsidiary, an
Equity Interest in, or controls, such Person;
iv. payment of fees, compensation, reimbursements of expenses (pursuant to indemnity arrangements or otherwise) and reasonable and customary indemnities provided to or on behalf of officers, directors,
employees or consultants of the Borrower or any of its Restricted Subsidiaries;
v. any issuance of Qualifying Equity Interests to Affiliates of the Borrower or any increase in the liquidation preference of preferred stock of the Borrower;
vi. transactions with customers, clients, suppliers or purchasers or sellers of goods or services in the ordinary course of business or transactions with joint ventures, alliances, alliance members or
Unrestricted Subsidiaries entered into in the ordinary course of business;
vii. loans or advances to employees, directors and contractors in the ordinary course of business not to exceed $5.0 million in the aggregate at any one time outstanding;
viii. transactions pursuant to agreements or arrangements in effect on the Closing Date or any amendment, modification or supplement thereto or replacement thereof and any payments made or performance under
any agreement as in effect on the Closing Date or any amendment, replacement, extension or renewal thereof (so long as such agreement as so amended, replaced, extended or renewed is not materially less advantageous, taken as a whole, to the
Lenders than the original agreement as in effect on the Closing Date);
ix. transactions between or among the Borrower and/or its Subsidiaries;
x. any purchase by the Borrower’s Affiliates of Indebtedness of the Borrower or any of its Restricted Subsidiaries, the majority of which Indebtedness is offered to Persons who are not Affiliates of the
Borrower;
xi. transactions between the Borrower or any of its Restricted Subsidiaries and any employee labor union or other employee group of the Borrower or such Restricted Subsidiary provided such transactions are
not otherwise prohibited by this Agreement; and
xii. transactions with captive insurance companies of the Borrower or any of its Restricted Subsidiaries.
Section 6.06. Liens. The Borrower will not, directly or indirectly, create, incur, assume or suffer to exist any Lien (except Permitted Liens) on any asset or property of the Borrower or any Restricted Subsidiary, or any income
or profits therefrom, or assign or convey any right to receive income therefrom.
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Section 6.07. Business Activities. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the
Borrower and its Restricted Subsidiaries taken as a whole.
Section 6.08. Consolidated Total Leverage Ratio; Liquidity.
(i) If an amount equal to 35% of the Commitments or more has been funded in Loans and is outstanding, the Borrower will not permit the Consolidated Total Leverage Ratio at the close of business on the last
day of each March, June, September and December to exceed (x) for each quarter from the Closing Date through and including March 31, 2023, 5.50:1.00 and (y) for each quarter thereafter, 5.00:1.00.
(ii) The Borrower will not permit the aggregate amount of Liquidity at the close of business on the last day of each March, June, September and December to be less than $300,000,000.
Section 6.09. Use of Proceeds. The Borrower will not use, and will not permit any of its Subsidiaries to use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any Borrowing (A)
in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country (except to the extent permitted by
applicable law), or (C) in any manner that would result in the violation of any Sanctions applicable to the Borrower or any of its Subsidiaries.
SECTION 7.
EVENTS OF DEFAULT
Section 7.01. Events of Default. In the case of the happening of any of the following events and the continuance thereof beyond the applicable grace period if any (each, an “Event of Default”):
(i) any representation or warranty made by the Borrower or any Guarantor in this Agreement or in any other Loan Document shall prove to have been false or incorrect in any material respect when made, and
such representation or warranty, to the extent capable of being corrected, is not corrected within ten (10) Business Days after the earlier of (A) a Responsible Officer of the Borrower obtaining knowledge of such default or (B) receipt by the
Borrower of notice from the Administrative Agent of such default; or
(ii) default shall be made in the payment of (i) any principal of the Loans when due; or (ii) any interest on the Loans or any Fees and such default shall continue unremedied for more than five (5) Business
Days; or (iii) any other amount payable hereunder when due and such default shall continue unremedied for more than ten (10) Business Days after receipt of written notice by the Borrower from the Administrative Agent of the default in making such
payment when due; or
(iii) default shall be made by the Borrower in the due observance of any covenant in Section 5.01(e), Section 5.01(f), Section 5.04 or Section 6; or
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(iv) default shall be made by the Borrower in the due observance or performance of any other covenant, condition or agreement to be observed or performed by it pursuant to the terms of this Agreement or any of
the other Loan Documents and such default shall continue unremedied for more than thirty (30) days after the earlier of (y) receipt of written notice by the Borrower from the Administrative Agent of such default and (z) the day on which the
Borrower or any Guarantor obtains actual knowledge of such default; or
(v) (A) any material provision of any Loan Document to which the Borrower or a Guarantor is a party ceases to be a valid and binding obligation of the Borrower or Guarantor for a period of fifteen (15)
consecutive days after the Borrower receives written notice thereof from the Administrative Agent, or (B) the Lien on any material portion of the Collateral intended to be created by the Loan Documents shall cease to be or shall not be a valid
and perfected Lien having the priorities contemplated hereby or thereby (subject to Permitted Liens and except as permitted by the terms of this Agreement or the Collateral Documents or other than as a result of the action, delay or inaction of
the Administrative Agent) for a period of fifteen (15) consecutive days after the Borrower receives written notice thereof from the Administrative Agent; or
(vi) the Borrower, any Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of
Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an involuntary case,
(c) consents to the appointment of a custodian of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) admits in writing its inability generally to pay its debts; or
(vii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against the Borrower, any Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary
in an involuntary case;
(b) appoints a custodian of the Borrower, any Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary
or for all or substantially all of the property of the Borrower, any Significant Subsidiary or such group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary; or
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(c) orders the liquidation of the Borrower, any Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant
Subsidiary;
and in each case the order or decree remains unstayed and in effect for sixty (60) consecutive days; or
(viii) failure by the Borrower or any Restricted Subsidiary to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $100,000,000 (determined net of amounts covered
by insurance policies issued by creditworthy insurance companies or by third party indemnities or a combination thereof), which judgments are not paid, discharged, bonded, satisfied or stayed for a period of sixty (60) days; or
(ix) (1) the Borrower or any Restricted Subsidiary shall default in the performance of any obligation relating to Material Indebtedness and any applicable grace periods shall have expired and any applicable
notice requirements shall have been complied with, and as a result of such default the holder or holders of such Material Indebtedness or any trustee or agent on behalf of such holder or holders shall have caused such Material Indebtedness to
become due prior to its scheduled final maturity date or (2) the Borrower or any Restricted Subsidiary shall default in the payment of the outstanding principal amount due on the scheduled final maturity date of any Indebtedness outstanding under
one or more agreements of the Borrower or a Restricted Subsidiary, any applicable grace periods shall have expired and any applicable notice requirements shall have been complied with and such failure to make payment when due shall be continuing
for a period of more than five (5) consecutive Business Days following the applicable scheduled final maturity date thereunder, in an aggregate principal amount at any single time unpaid exceeding $100,000,000; or
(x) a termination of a Plan of the Borrower pursuant to Section 4042 of ERISA that would reasonably be expected to result in a Material Adverse Effect; or
(xi) a Change of Control has occurred;
then, and in every such event and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders, the Administrative Agent shall, by written notice to the Borrower, take
one or more of the following actions, at the same or different times:
(1) terminate forthwith the Commitments;
(2) declare the Loans or any portion thereof then outstanding to be forthwith due and payable, whereupon the principal of such Loans and other Obligations (other than Designated Hedging
Obligations) together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower and the Guarantors, anything contained herein or in any other Loan Document to the contrary notwithstanding;
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(3) set-off amounts in any accounts (other than accounts held in trust for an identified beneficiary) maintained with the Administrative Agent (or any of its affiliates) and apply such
amounts to the obligations of the Borrower and the Guarantors hereunder and in the other Loan Documents; and
(4) exercise any and all remedies under the Loan Documents and under applicable law available to the Administrative Agent and the Lenders.
In case of any event with respect to the Borrower, any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary described in clause (f) or (g) of this Section 7.01, the
actions and events described in clauses (i), (ii) and (iii) above shall be required or taken automatically, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Any payment received as
a result of the exercise of remedies hereunder shall be applied in accordance with Section 2.15(b).
SECTION 8.
THE AGENTS
Section 8.01. Administration by Agents.
(i) Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
(ii) Each of the Lenders hereby authorizes the Administrative Agent, in its sole discretion:
(1) in connection with the sale or other disposition of any asset that is part of the Collateral of the Borrower or any other Grantor, as the case may be, to the extent permitted by the
terms of this Agreement, to release a Lien granted to the Administrative Agent, for the benefit of the Secured Parties, on such asset;
(2) to determine that the cost to the Borrower or any other Grantor, as the case may be, is disproportionate to the benefit to be realized by the Secured Parties by perfecting a Lien in a
given asset or group of assets included in the Collateral and that the Borrower or such other Grantor, as the case may be, should not be required to perfect such Lien in favor of the Administrative Agent, for the benefit of the Secured Parties;
(3) to enter into the other Loan Documents on terms acceptable to the Administrative Agent and to perform its respective obligations thereunder;
(4) to execute any documents or instruments necessary to release any Guarantor from the guarantees provided herein pursuant to Section 9.05;
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(5) to enter into any intercreditor and/or subordination agreements in accordance with Sections 6.06 and 10.17 on terms reasonably acceptable to the Administrative Agent, and in each case
to perform its obligations thereunder and to take such action and to exercise the powers, rights and remedies granted to it thereunder and with respect thereto; and
(6) to enter into any other agreements reasonably satisfactory to the Administrative Agent granting Liens to the Administrative Agent, for the benefit of the Secured Parties, on any assets
of the Borrower or any other Grantor to secure the Obligations.
Section 8.02. Rights of Administrative Agent. Any institution serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as
though it were not an Administrative Agent, and such bank and its respective Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate of the Borrower as
if it were not an Administrative Agent hereunder.
Section 8.03. Liability of Agents.
(i) The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.08), (iii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of the Borrower’s Subsidiaries that is communicated to or obtained by the institution serving as an Administrative Agent or any of its Affiliates in any capacity and (iv) the Administrative Agent will not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt, any action that may
be in violation of the automatic stay under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or that may effect a forfeiture, modification or termination of property of a Defaulting
Lender in violation of any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.08) or in the absence of its own gross negligence, bad faith or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible
for, or have any duty to ascertain or inquire into, (A) any statement, warranty or representation made in or in connection with this Agreement, (B) the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (D) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or
document, or (E) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
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(ii) The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or experts.
(iii) The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers through its Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent.
(iv) Anything herein to the contrary notwithstanding, the Lead Arranger listed on the cover page hereof shall have no powers, duties or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent or a Lender.
Section 8.04. Reimbursement and Indemnification. Each Lender agrees (a) to reimburse on demand the Administrative Agent for such Lender’s Aggregate Exposure Percentage of any expenses and fees incurred for the benefit of the
Lenders under this Agreement and any of the Loan Documents, including, without limitation, counsel fees and compensation of agents and employees paid for services rendered on behalf of the Lenders, and any other expense incurred in connection
with the operations or enforcement thereof, not reimbursed by the Borrower or the Guarantors and (b) to indemnify and hold harmless the Administrative Agent and any of its Related Parties, on demand, in the amount equal to such Lender’s Aggregate
Exposure Percentage, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against it or any of them in any way relating to or arising out of this Agreement or any of the Loan Documents or any action taken or omitted by it or any of them under this Agreement or any of the Loan Documents to the extent not
reimbursed by the Borrower or the Guarantors (except such as shall result from its gross negligence or willful misconduct).
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Section 8.05. Successor Agents. Subject to the appointment and acceptance of a successor agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower. Upon any
such resignation by the Administrative Agent, the Required Lenders shall have the right, with the consent (provided no Event of Default or Default has occurred and is continuing) of the Borrower (such consent not to be unreasonably withheld or
delayed), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, with the consent (provided no Event of Default or Default has occurred or is continuing) of the Borrower (such consent not to be unreasonably withheld or delayed), appoint a successor Administrative Agent
which shall be a bank institution with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder, the provisions of this Section 8 and
Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as an
Administrative Agent.
Section 8.06. Independent Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
Section 8.07. Advances and Payments.
(i) On the date of each Loan, the Administrative Agent shall be authorized (but not obligated) to advance, for the account of each of the Lenders, the amount of the Loan to be made by it in accordance with
its Commitment hereunder. Should the Administrative Agent do so, each of the Lenders agrees forthwith to reimburse the Administrative Agent in immediately available funds for the amount so advanced on its behalf by the Administrative Agent,
together with interest at the Federal Funds Effective Rate if not so reimbursed on the date due from and including such date but not including the date of reimbursement.
(ii) Any amounts received by the Administrative Agent in connection with this Agreement (other than amounts to which the Administrative Agent is entitled pursuant to Sections 2.16(b), 8.04 and 10.04), the
application of which is not otherwise provided for in this Agreement, shall be applied in accordance with Section 2.15(b). All amounts to be paid to a Lender by the Administrative Agent shall be credited to that Lender, after collection by the
Administrative Agent, in immediately available funds either by wire transfer or deposit in that Lender’s correspondent account with the Administrative Agent, as such Lender and the Administrative Agent shall from time to time agree.
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Section 8.08. Sharing of Setoffs. Each Lender agrees that, except to the extent this Agreement expressly provides for payments to be allocated to a particular Lender, if it shall, through the exercise either by it or any of its
banking Affiliates of a right of banker’s lien, setoff or counterclaim against the Borrower or a Guarantor, including, but not limited to, a secured claim under Section 506 of the Bankruptcy Code or other security or interest arising from, or in
lieu of, such secured claim and received by such Lender (or any of its banking Affiliates) under any applicable bankruptcy, insolvency or other similar law, or otherwise, obtain payment in respect of its Loans as a result of which the unpaid
portion of its Loans is proportionately less than the unpaid portion of the Loans of any other Lender (a) it shall promptly purchase at par (and shall be deemed to have thereupon purchased) from such other Lender a participation in the Loans of
such other Lender, so that the aggregate unpaid principal amount of each Lender’s Loans and its participation in Loans of the other Lenders shall be in the same proportion to the aggregate unpaid principal amount of all Loans then outstanding as
the principal amount of its Loans prior to the obtaining of such payment was to the principal amount of all Loans outstanding prior to the obtaining of such payment and (b) such other adjustments shall be made from time to time as shall be
equitable to ensure that the Lenders share such payment pro-rata, provided that if any such non-pro-rata payment is thereafter recovered or otherwise set aside, such purchase of participations shall be rescinded (without interest). The Borrower
expressly consents to the foregoing arrangements and agrees, to the fullest extent permitted by law, that any Lender holding (or deemed to be holding) a participation in a Loan acquired pursuant to this Section or any of its banking Affiliates
may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by the Borrower to such Lender as fully as if such Lender was the original obligee thereon, in the amount of such participation.
The provisions of this Section 8.08 shall not be construed to apply to (a) any payment made by the Borrower or a Guarantor pursuant to and in accordance with the express terms of this Agreement or (b) any payment obtained by any Lender as
consideration for the assignment or sale of a participation in any of its Loans or other Obligations owed to it.
Section 8.09. Withholding Taxes. To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any withholding tax applicable to such payment. If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender for any reason, or the Administrative Agent has paid over to the Internal Revenue Service applicable withholding tax relating to a payment to a Lender but no deduction has been made from such payment, without duplication of any indemnification obligations set forth in Section 8.04, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with any expenses incurred.
Section 8.10. Appointment by Secured Parties. Each Secured Party that is not a party to this Agreement shall be deemed to have appointed the Administrative Agent as its agent under the Loan Documents in accordance with the
terms of this Section 8 and to have acknowledged that the provisions of this Section 8 apply to such Secured Party mutatis mutandis as though it were a party hereto (and any acceptance by such Secured
Party of the benefits of this Agreement or any other Loan Document shall be deemed an acknowledgment of the foregoing).
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Section 8.11. Erroneous Payments.
(i) Each Lender (and each Participant of any of the foregoing, by its acceptance of a participation) hereby acknowledges and agrees that if the Administrative Agent notifies such Lender that the
Administrative Agent has determined in its sole discretion that any funds (or any portion thereof) received by such Lender (any of the foregoing, a “Recipient”) from the Administrative Agent (or any of its Affiliates) were erroneously
transmitted to, or otherwise erroneously or mistakenly received by, such Recipient (whether or not known to such Recipient) (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a
“Payment”) and demands the return of such Payment, such Recipient shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment as to which such a demand was made.
A notice of the Administrative Agent to any Recipient under this Section shall be conclusive, absent manifest error.
(ii) Without limitation of clause (a) above, each Recipient further acknowledges and agrees that if such Recipient receives a Payment from the Administrative Agent (or any of its Affiliates) (x) that is in
an amount, or on a date different from the amount and/or date specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”), (y) that was not preceded or
accompanied by a Payment Notice, or (z) that such Recipient otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), in each case, it understands and agrees at the time of receipt of such Payment that an
error has been made (and that it is deemed to have knowledge of such error) with respect to such Payment. Each Recipient agrees that, in each such case, it shall promptly notify the Administrative Agent of such occurrence and, upon demand from
the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made.
(iii) Any Payment required to be returned by a Recipient under this Section shall be made in same day funds in the currency so received, together with interest thereon in respect of each day from and including
the date such Payment (or portion thereof) was received by such Recipient to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation from time to time in effect. Each Recipient hereby agrees that it shall not assert and, to the fullest extent permitted by applicable law, hereby waives, any right to retain such
Payment, and any claim, counterclaim, defense or right of set-off or recoupment or similar right to any demand by the Administrative Agent for the return of any Payment received, including without limitation any defense based on “discharge for
value” or any similar doctrine.
(iv) The Borrower and each Guarantor hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is 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 Guarantor except, in each case, to the extent such erroneous Payment is, and with respect to the amount of such erroneous Payment that is, comprised of funds of the Borrower or any other Guarantor.
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(v) Each party’s obligations, agreements and waivers under this Section 8.11 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the
replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
SECTION 9.
GUARANTY
Section 9.01. Guaranty.
(i) Each of the Guarantors unconditionally and irrevocably guarantees the due and punctual payment by the Borrower of the Obligations (including interest accruing on and after the filing of any petition in
bankruptcy or of reorganization of the obligor whether or not post filing interest is allowed in such proceeding) (collectively, the “Guaranteed Obligations”). Each of the Guarantors further agrees that, to the extent permitted by
applicable law, the Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and it will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The
Obligations of the Guarantors shall be joint and several. Each of the Guarantors further agrees that its guaranty hereunder is a primary obligation of such Guarantor and not merely a contract of surety.
(ii) To the extent permitted by applicable law, each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor, and also waives notice of protest
for nonpayment. The obligations of the Guarantors hereunder shall not, to the extent permitted by applicable law, be affected by (i) the failure of the Administrative Agent or a Lender to assert any claim or demand or to enforce any right or
remedy against the Borrower or any other Guarantor under the provisions of this Agreement or any other Loan Document or otherwise; (ii) any extension or renewal of any provision hereof or thereof; (iii) any rescission, waiver, compromise,
acceleration, amendment or modification of any of the terms or provisions of any of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by the Administrative Agent for the Obligations or any of them; (v) the
failure of the Administrative Agent or a Lender to exercise any right or remedy against any other Guarantor; or (vi) the release or substitution of any Collateral or any other Guarantor.
(iii) To the extent permitted by applicable law, each of the Guarantors further agrees that this guaranty constitutes a guaranty of payment when due and not just of collection, and waives any right to require
that any resort be had by the Administrative Agent or a Lender to any security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of the Administrative Agent or a Lender in favor of the Borrower
or any other Guarantor, or to any other Person.
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(iv) To the extent permitted by applicable law, each of the Guarantors hereby waives any defense that it might have based on a failure to remain informed of the financial condition of the Borrower and of any
other Guarantor and any circumstances affecting the ability of the Borrower to perform under this Agreement.
(v) To the extent permitted by applicable law, each Guarantor’s guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any other instrument evidencing
any Obligations, or by the existence, validity, enforceability, perfection, or extent of any collateral therefor or by any other circumstance relating to the Obligations which might otherwise constitute a defense to this guaranty (other than
payment in full in cash of the Obligations in accordance with the terms of this Agreement (other than those that constitute unasserted contingent indemnification obligations)). Neither the Administrative Agent nor any of the Lenders makes any
representation or warranty in respect to any such circumstances or shall have any duty or responsibility whatsoever to any Guarantor in respect of the management and maintenance of the Obligations.
(vi) Upon the occurrence of the Obligations becoming due and payable (by acceleration or otherwise), the Lenders shall be entitled to immediate payment of such Obligations by the Guarantors upon written demand
by the Administrative Agent.
Section 9.02. No Impairment of Guaranty. To the extent permitted by applicable law, the obligations of the Guarantors hereunder shall not be subject to any reduction, limitation or impairment for any reason, including, without
limitation, any claim of waiver, release, surrender, alteration or compromise, other than pursuant to a written agreement in compliance with Section 10.08 and shall not be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations. To the extent permitted by applicable law, without limiting the generality of the foregoing, the obligations of the Guarantors hereunder shall not be
discharged or impaired or otherwise affected by the failure of the Administrative Agent or a Lender to assert any claim or demand or to enforce any remedy under this Agreement or any other agreement, by any waiver or modification of any provision
hereof or thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent
vary the risk of the Guarantors or would otherwise operate as a discharge of the Guarantors as a matter of law.
Section 9.03. Continuation and Reinstatement, etc. Each Guarantor further agrees that its guaranty hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored by the Administrative Agent, any Lender or any other Secured Party upon the bankruptcy or reorganization of the Borrower or a Guarantor, or otherwise.
Section 9.04. Subrogation. Upon payment by any Guarantor of any sums to the Administrative Agent or a Lender hereunder, all rights of such Guarantor against the Borrower arising as a result thereof by way of right of
subrogation or otherwise, shall in all respects be subordinate and junior in right of payment to the prior payment in full of all the Obligations (including interest accruing on and after the filing of any petition in bankruptcy or of
reorganization of an obligor whether or not post filing interest is allowed in such proceeding). If any amount shall be paid to such Guarantor for the account of the Borrower relating to the Obligations prior to payment in full of the
Obligations, such amount shall be held in trust for the benefit of the Administrative Agent and the Lenders and shall forthwith be paid to the Administrative Agent and the Lenders to be credited and applied to the Obligations, whether matured or
unmatured.
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Section 9.05. Discharge of Guaranty.
(i) In the event of any sale or other disposition of all or substantially all of the assets of any Guarantor (other than Allegiant Air), by way of merger, consolidation or otherwise, or a sale or other
disposition of all Capital Stock of any Guarantor (other than Allegiant Air), in each case to a Person that is not (either before or after giving effect to such transactions) the Borrower or a Restricted Subsidiary of the Borrower or the merger
or consolidation of a Guarantor with or into the Borrower or another Guarantor, in each case, in a transaction permitted under this Agreement, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be automatically released and
relieved of any obligations under its Guarantee of the Guaranteed Obligations.
(ii) Upon designation of any Guarantor as an Unrestricted Subsidiary in accordance with the terms of this Agreement, such Guarantor will be automatically released and relieved of any obligations under its
Guarantee of the Guaranteed Obligations. In addition, upon the request of the Borrower, the guarantee of any Guarantor that is an Immaterial Subsidiary shall be promptly released; provided that (i) no Event of Default shall have occurred
and be continuing or shall result therefrom and (ii) the Borrower shall have delivered a certificate of a Responsible Officer certifying that such Subsidiary is an Immaterial Subsidiary; provided further that a Subsidiary that is
considered not to be an Immaterial Subsidiary solely pursuant to clause (1) of the proviso of the definition thereof shall, solely for purposes of this clause (b), be considered an Immaterial Subsidiary so long as any applicable guarantee, pledge
or other obligation of such Subsidiary with respect to any Junior Secured Debt shall be irrevocably released and discharged substantially simultaneously with the release of such guarantee hereunder.
(iii) The Administrative Agent shall use commercially reasonable efforts to execute and deliver, at the Borrower’s expense, such documents as the Borrower or any such Guarantor may reasonably request to
evidence the release of the guarantee of such Guarantor provided herein.
SECTION 10.
MISCELLANEOUS
Section 10.01. Notices.
(i) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein or
under any other Loan Document shall be in writing, and shall be delivered by email, by hand or overnight courier service or mailed by certified or registered mail, as follows:
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(1) if to the Borrower or any Guarantor, to it at Allegiant Travel Company, 1201 North Town Center, Las Vegas, Nevada 89144, Telephone No.: (702) 851-7300; in each case Attention:
Gregory Anderson; with a copy to: Ellis Funk, P.C., 5555 Glenridge Connector, Suite 675, Atlanta, Georgia 30342, Attention: Rob Goldberg, Telephone: (404) 233‑2800;
(2) if to Barclays as Administrative Agent, to it at Barclays Bank PLC, 745 7th Avenue, New York, NY 10019, email: brian.chu@barclays.com; Attention: Brian Chu; and
(3) if to any other Lender, to it at its address (or telecopy number) set forth in
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(4) ANNEX A hereto or, if subsequently delivered, an Assignment and Acceptance.
(ii) Notices and other communications to the Lenders hereunder (collectively, the “Borrower Materials”) may be delivered or furnished by electronic communications pursuant to procedures approved by
the Administrative Agent; provided that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities; provided, further, that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be
distributed to the Public Lenders and that (1) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (2) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or
its securities for purposes of U.S. Federal and state securities laws (provided, however, that to the extent that such Borrower Materials constitute Information, they shall be subject to Section 10.03); (3) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (4) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Side Information”. The Administrative Agent or the Borrower may, in its reasonable 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; provided, further, that no such approval shall be required for any
notice delivered to the Administrative Agent by electronic mail pursuant to Section 2.04(b) or Section 2.11(a). For purposes of this Section, “Information” means all information received from the Borrower or any of its Subsidiaries
relating to the Borrower or any of its Subsidiaries or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower
or any of its Subsidiaries.
(iii) Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
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Section 10.02. Successors and Assigns.
(i) 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), provided that
the foregoing shall not restrict any transaction permitted by Section 6.03, and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 10.02. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (d) of this Section 10.02) and, to the
extent expressly contemplated hereby, the Related Parties of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(ii) (1) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or
a portion of the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of the Administrative Agent; provided that no consent of the Administrative Agent shall be required for an
assignment if the assignee is a Lender, an Affiliate of a Lender or an Approved Fund of a Lender, in each case so long as such assignee is an Eligible Assignee;
Assignments shall be subject to the following additional conditions:
(a) any assignment of any Loans shall be made to an Eligible Assignee;
(b) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund of a Lender or an assignment of the entire remaining amount of the assigning Lender’s
Loans, the amount of such Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be
less than $1,000,000, and after giving effect to such assignment, the portion of the Loan or Commitment held by the assigning Lender of the same tranche as the assigned portion of the Loan or Commitment shall not be less than $1,000,000, in each
case unless the Borrower and the Administrative Agent otherwise consent (with failure by the Borrower to respond within five (5) Business Days to a consent request shall be deemed to be a consent of the Borrower); provided that no consent
of the Borrower shall be required with respect to such assignment if an Event of Default has occurred and is continuing; provided, further, that any such assignment shall be in increments of $500,000 in excess of the minimum
amount described above;
(c) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(d) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 for the
account of the Administrative Agent; and
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(e) the assignee, if it was not a Lender immediately prior to such assignment, shall deliver to the Administrative Agent an administrative questionnaire in a form as the Administrative
Agent may require.
(2) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below of this Section 10.02, from and after the effective date specified in each Assignment and Acceptance,
the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance 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 2.12, 2.14 and 10.04). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 10.02 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 (d) of this Section 10.02.
(3) The Administrative Agent, acting solely for such purpose as a non-fiduciary agent of the Borrower, shall maintain at its offices a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders 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 be conclusive absent manifest error, and the Borrower, the Guarantors, 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.
(4) Notwithstanding anything to the contrary contained herein, no assignment may be made hereunder to any Defaulting Lender or any of its subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing Persons described in this clause (v).
(iii) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed administrative questionnaire in a form as the Administrative Agent
may require (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 Acceptance and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to
be made by it pursuant to Section 2.03(b), 8.04 or 10.04(c), the Administrative Agent shall have no obligation to accept such Assignment and Acceptance and record the information therein in the Register unless and until such payment shall have
been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
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(iv) (1) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans); 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 or instrument 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 or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.08(a) that affects such Participant. Subject to Section 10.02(d)(ii), the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.12, and 2.14 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 10.02(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 8.08 as though it were a Lender, provided such Participant
agrees to be subject to the requirements of Section 8.08 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”); 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 this Agreement or 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. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender, the Borrower, a Guarantor and the Administrative Agent 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.
(2) A Participant shall not be entitled to receive any greater payment under Section 2.12 or 2.14 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant and shall be subject to the terms of Section 2.16(a). The Lender selling the participation to such Participant shall be subject to the terms of Section 2.16(b) if such Participant requests compensation or
additional amounts pursuant to Section 2.12 or 2.14. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.14 unless such Participant agrees, for the benefit of the Borrower, to
comply with Sections 2.14(f), 2.14(g) and 2.14(h) as though it were a Lender.
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(v) 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 without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender, and this Section 10.02 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.
(vi) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.02, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or any of the Guarantors furnished to such Lender by or on behalf of the Borrower or any of the Guarantors; provided that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant provides to the Administrative Agent its agreement in writing to be bound for the benefit of the Borrower by either the provisions of Section 10.03 or other provisions at least as restrictive as
Section 10.03.
Section 10.03. Confidentiality. Each Lender agrees to keep any information delivered or made available by the Borrower or any of the Guarantors to it confidential, in accordance with its customary procedures, from anyone other
than persons employed or retained by such Lender or its Affiliates who are or are expected to become engaged in evaluating, approving, structuring, insuring or administering the Loans, and who are advised by such Lender of the confidential nature
of such information; provided that nothing herein shall prevent any Lender from disclosing such information (a) to any of its Affiliates and their respective agents and advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential) or to any other Lender, (b) to the extent required by Law or regulations or upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency or authority (including any self-regulatory authority), (d) which has been publicly disclosed other than as a result of a disclosure by the Administrative Agent or any
Lender which is not permitted by this Agreement, (e) in connection with any litigation to which the Administrative Agent, any Lender, or their respective Affiliates may be a party to the extent reasonably required under applicable rules of
discovery, (f) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document, (g) to such Lender’s legal counsel and independent auditors, (h) on a confidential basis to (I) any rating
agency in connection with rating the Borrower and its Subsidiaries or the Loans or (II) any direct or indirect provider of credit protection to such Lender or its Affiliates (or its brokers), (i) with the consent of the Borrower, (j) to any
actual or proposed participant or assignee of all or part of its rights hereunder or to any direct or indirect contractual counterparty (or the professional advisors thereto) to any swap or derivative transaction relating to the Borrower and its
obligations, in each case, subject to the proviso in Section 10.02(f) (with any reference to any assignee or participant set forth in such proviso being deemed to include a reference to such contractual counterparty for purposes of this Section
10.03(j)), (k) to the extent that such information is received by such Lender from a third party that is not, to such Lender’s knowledge, subject to confidentiality obligations to the Borrower, (l) to the extent that such information is
independently developed by such Lender and (m) to any other party hereto. If any Lender is in any manner requested or required to disclose any of the information delivered or made available to it by the Borrower or any of the Guarantors under
clauses (b) or (e) of this Section, such Lender will, to the extent permitted by law, provide the Borrower or Guarantor with prompt notice, to the extent reasonable, so that the Borrower or Guarantor may seek, at its sole expense, a protective
order or other appropriate remedy or may waive compliance with this Section 10.03.
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Section 10.04. Expenses; Indemnity; Damage Waiver.
(i) (1) The Borrower agrees to pay or reimburse (i) all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent in connection with the preparation, negotiation, execution, delivery
and administration of this Agreement and the other Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), including
the reasonable fees, charges and disbursements of counsel (but limited to one primary counsel for the Administrative Agent and, if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in
multiple jurisdictions) and special counsel for each relevant specialty (and, in the case of an actual or perceived conflict of interest, where the party 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)) and (ii) all out-of-pocket costs and expenses incurred by the Administrative Agent and each Lender following and during the continuance of any Event of Default in connection
with the enforcement or protection of any rights and remedies under this Agreement and the other Loan Documents, including all such costs and expenses incurred during any legal proceeding, including any proceeding under applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, and including in connection with any workout, restructuring or negotiations in respect of the Loans and the Loan Documents, including the reasonable fees, charges and disbursements of
counsel (but limited to one counsel for the Administrative Agent and the Lenders taken as a whole and, if necessary, one local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions) and
special counsel for each relevant specialty (and, in the case of an actual or perceived conflict of interest, where the party 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)).
(2) All payments or reimbursements pursuant to the foregoing clause (a)(i) shall be paid within thirty (30) days of written demand together with back-up documentation supporting such
reimbursement request.
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(ii) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs (including settlement costs), disbursements and out-of-pocket fees and expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee) of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted or awarded against any Indemnitee in any way relating to or arising
out of or in connection with or by reason of (i) any actual or prospective claim, litigation, investigation or proceeding in any way relating to, arising out of, in connection with or by reason of any of the following, whether based on contract,
tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, litigation or proceeding): (x) the execution, delivery, enforcement, performance or administration of any Loan Document or
any other document delivered in connection with the transactions contemplated thereby or the consummation of the transactions contemplated thereby or (y) any Commitment, any Loan or the use or proposed use thereof or of the proceeds thereof; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, fees and expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee; or (ii) any actual or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower or any of its Subsidiaries or any other location, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, in all cases, whether or not caused by or
arising, in whole or in part, out of the negligence of such Indemnitee and regardless of whether such Indemnitee is a party thereto, and whether or not any such claim, litigation, investigation or proceeding is brought by the Borrower, its equity
holders, its affiliates, its creditors or any other Person. Paragraph (b) of this Section shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(iii) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a) or (b) of this Section 10.04, each Lender severally agrees to pay to the
Administrative Agent such portion of the unpaid amount equal to such Lender’s Aggregate Exposure Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such.
(iv) To the extent permitted by applicable law, each party hereto shall not assert, and hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential
or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions or the use of the proceeds thereof; provided
that, nothing in this clause (d) shall 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.
Section 10.05. Governing Law; Jurisdiction; Consent to Service of Process.
(i) This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(ii) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and
of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, 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 New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall, to the extent permitted by law, be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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(iii) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any court referred to in Section 10.05(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(iv) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 10.01 (but only if sent by hand or courier). Nothing in this Agreement will affect
the right of any party to this Agreement to serve process in any other manner permitted by law.
Section 10.06. No Waiver. No failure on the part of the Administrative Agent or any of the Lenders to exercise, and no delay in exercising, any right, power or remedy hereunder or any of the other Loan Documents shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
Section 10.07. Extension of Maturity. Should any payment of principal of or interest or any other amount due hereunder become due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable thereon at the rate herein specified during such extension.
Section 10.08. Amendments, etc.
(i) No modification, amendment or waiver of any provision of this Agreement or any Collateral Document (other than the Account Control Agreements), and no consent to any departure by the Borrower or any
Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders (or signed by the Administrative Agent with the consent of the Required Lenders), and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given; provided, however, that no such modification or amendment shall without the prior written consent of:
(1) each Lender directly and adversely affected thereby (A) increase the Commitment of any Lender or extend the termination date of the Commitment of any Lender (it being understood that a
waiver of an Event of Default shall not constitute an increase in or extension of the termination date of the Commitment of a Lender), or (B) reduce the principal amount of any Loan, the rate of interest payable thereon or any Fees (provided that
only the consent of the Required Lenders shall be necessary for a waiver of default interest referred to in Section 2.07), or extend any date for the payment of principal, interest or Fees hereunder or reduce any Fees payable hereunder or extend
the final maturity of the Borrower’s obligations hereunder or (C) amend, modify or waive any provision of Section 2.15(b);
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(2) all of the Lenders (A) amend or modify any provision of this Agreement which provides for the unanimous consent or approval of the Lenders, (B) amend this Section 10.08 that has the
effect of changing the number or percentage of Lenders that must approve any modification, amendment, waiver or consent or modify the percentage of the Lenders required in the definition of Required Lenders, (C) release all or substantially all
of the Liens granted to the Administrative Agent hereunder or under any other Loan Document, or release all or substantially all of the Guarantors (except to the extent contemplated by Section 9.05 or upon discharge in full of all Obligations) or
(D) amend or modify Section 2.15;
(3) all Lenders, change the definition of the term Required Lenders or the percentage of Lenders which shall be required for Lenders to take any action hereunder;
(4) each Lender that is being allocated a lesser repayment or prepayment as a result thereof (relating to the amount of repayment or prepayment being allocated to another Class) or that is
otherwise adversely affected by such modification or amendment, change the application of prepayments as among or between Classes or Lenders under Section 2.10 (it being understood that if additional Classes of Loans or additional Loans under
this Agreement consented to by the Required Lenders or additional Loans pursuant to Section 2.22 are made, such new Loans may be included on a pro rata basis in the various prepayments required pursuant to Section 2.10);
(5) all Lenders, reduce the percentage specified in the definition of “Required Lenders”; and
(6) each Lender release any Borrower or Guarantor from its Guaranteed Obligations or release any material portion of the Collateral, in each case, other than in connection with a
Disposition permitted hereunder; and provided that no such modification or agreement shall amend, modify or otherwise affect the rights or duties of any Secured Party hereunder without the prior written consent of such Secured Party.
provided further, that, no such modification, amendment or waiver shall subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to
any other Indebtedness or Lien (including without limitation any Indebtedness or Lien issued under this Agreement or any other agreement), as the case may be, without the written consent of the Lenders holding at least 66 2/3% of the
outstanding Obligations and unfunded Commitments.
(ii) No such amendment or modification shall adversely affect the rights and obligations of the Administrative Agent hereunder without its prior written consent.
(iii) No notice to or demand on the Borrower or any Guarantor shall entitle the Borrower or any Guarantor to any other or further notice or demand in the same, similar or other circumstances. Each assignee
under Section 10.02(b) shall be bound by any amendment, modification, waiver, or consent authorized as provided herein, and any consent by a Lender shall bind any Person subsequently acquiring an interest on the Loans held by such Lender. No
amendment to this Agreement shall be effective against the Borrower or any Guarantor unless signed by the Borrower or such Guarantor, as the case may be.
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(iv) Notwithstanding anything to the contrary contained in Section 10.08(a), (i) in the event that the Borrower requests that this Agreement be modified or amended in a manner which would require the
unanimous consent of all of the Lenders or the consent of all Lenders directly and adversely affected thereby and, in each case, such modification or amendment is agreed to by the Required Lenders, then the Borrower may replace any non-consenting
Lender in accordance with an assignment pursuant to Section 10.02 (and such non-consenting Lender shall reasonably cooperate in effecting such assignment); provided that (x) such amendment or modification can be effected as a result of
the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this clause (i)) and (y) such non-consenting Lender shall have received payment of an amount equal to the
outstanding principal amount of its Loans, accrued interest thereon, accrued Fees and all other amounts due and payable to it under this Agreement from the applicable assignee or the Borrower; (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that the Commitment and the outstanding Loans or
other extensions of credit held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the Lenders), (iii) notwithstanding anything to the contrary herein, any modifications or
amendments under any Extension Amendment entered in accordance with Section 2.23 may be made without the consent of the Required Lenders and (iii) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any
error or omission of a technical or immaterial nature in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further
action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days after written notice thereof to the Lenders.
(v) In addition, notwithstanding anything to the contrary contained in Section 10.08(a), this Agreement and, as appropriate, the other Loan Documents, 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 (whether pursuant to Section 2.22 or otherwise) 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 Loans 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.
(vi) In addition, notwithstanding anything to the contrary contained in Section 7.01 or Section 10.08(a), following the consummation of any Extension pursuant to Section 2.23, no modification, amendment or
waiver (including, for the avoidance of doubt, any forbearance agreement entered into with respect to this Agreement) shall limit the right of any non-extending Lender (each, a “Non-Extending Lender”) to enforce its right to receive
payment of amounts due and owing to such Non-Extending Lender on the applicable Maturity Date applicable to the Loans of such Non-Extending Lenders without the prior written consent of any affected Non-Extending Lenders.
119
(vii) It is understood that the amendment provisions of this Section 10.08 shall not apply to extensions of the Maturity Date or the maturity date of any tranche of Commitments, in each case, made in
accordance with Section 2.23.
Section 10.09. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 10.10. Headings. Section headings used herein are for convenience only and are not to affect the construction of or be taken into consideration in interpreting this Agreement.
Section 10.11. Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Event of Default or incorrect representation or warranty at the time any credit is extended hereunder. The provisions of Sections 2.12, 2.13,
2.14, Section 8, Section 10.03 and 10.04 and shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments,
or the termination of this Agreement or any provision hereof.
Section 10.12. Execution in Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of
an executed counterpart of a signature page of this Agreement by telecopy or electronic .pdf copy shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 10.13. USA Patriot Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Borrower and each Guarantor that pursuant to the requirements of the Act, it is required to obtain, verify and
record information that identifies the Borrower and each Guarantor, which information includes the name and address of the Borrower and each Guarantor and other information that will allow such Lender to identify the Borrower and each Guarantor
in accordance with the Patriot Act.
120
Section 10.14. New Value. It is the intention of the parties hereto that any provision of Collateral by a Grantor as a condition to, or in connection with, the making of any Loan, shall be made as a contemporaneous exchange for
new value given by the Lenders to the Borrower.
Section 10.15. WAIVER OF JURY TRIAL. EACH PARTY HERETO 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 ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY (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 10.15.
Section 10.16. No Fiduciary Duty. The Administrative Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the
Borrower, its stockholders and/or its affiliates. The Borrower agrees that nothing in the Loan Documents or otherwise related to the Transactions will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other
implied duty between any Lender, on the one hand, and the Borrower, its stockholders or its affiliates, on the other hand. The parties hereto acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Borrower and the Guarantors, on the other hand, and (ii) in connection therewith and with the process
leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of the Borrower, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with
respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise the Borrower, its stockholders or its affiliates on other matters) or any other obligation to the Borrower
except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of the Borrower, its management, stockholders, affiliates, creditors or any other Person. The
Borrower acknowledges and agrees that the Borrower has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the
process leading thereto. The Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with such transaction or the process
leading thereto.
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Section 10.17. Intercreditor Agreements. Notwithstanding anything to the contrary contained in this Agreement, if at any time the Administrative Agent shall enter into (or shall have entered into) any intercreditor agreement
pursuant to and as permitted by the terms of this Agreement (any such intercreditor agreement an “Intercreditor Agreement”) and such Intercreditor Agreement shall remain outstanding, the rights granted to the Secured Parties hereunder and
under the other Loan Documents, the lien and security interest granted to the Administrative Agent pursuant to this Agreement or any other Loan Document and the exercise of any right or remedy by the Administrative Agent hereunder or under any
other Loan Document shall be subject to the terms and conditions of such Intercreditor Agreement. In the event of any conflict between the terms of this Agreement, any other Loan Document and such Intercreditor Agreement, the terms of such
Intercreditor Agreement shall govern and control with respect to any right or remedy, and no right, power or remedy granted to the Administrative Agent hereunder or under any other Loan Document shall be exercised by the Administrative Agent, and
no direction shall be given by the Administrative Agent, in contravention of such Intercreditor Agreement.
Section 10.18. Acknowledgement and Consent to Bail-In of Affected Financial Institutions. 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, to the extent such liability is unsecured, 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:
(i) 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
(ii) the effects of any Bail-in Action on any such liability, including, if applicable:
(1) a reduction in full or in part or cancellation of any such liability;
(2) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, 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
(3) 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.
Section 10.19. Certain ERISA Matters.
(i) 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 not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that at least one of the following is and will be true:
(1) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Commitments or this Agreement,
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(2) 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,
(3) (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
(4) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(ii) 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 in
accordance with 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 not, for the avoidance of doubt, to or for the benefit of the Borrower or any of its Subsidiaries, that the Administrative
Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and 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 hereto or thereto).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and the year first written.
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ALLEGIANT TRAVEL COMPANY, as the Borrower
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By:
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Name: Robert J. Neal
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Title: President & Chief Financial Officer
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ALLEGIANT AIR, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President & Chief Financial Officer
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ALLEGIANT VACATIONS, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: Executive Vice President and Chief Financial Officer
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G4 PROPERTIES, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President & Chief Financial Officer
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G4 WORKS, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President & Chief Financial Officer
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AFH, INC., as a Guarantor
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By:
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Name: Robert J. Neal
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Title: Chief Financial Officer
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SUNRISE ASSET MANAGEMENT, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President & Chief Financial Officer
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SUN COUNTRY AIRLINES HOLDINGS, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President
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SUN COUNTRY, INC., as a Guarantor
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By:
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Name: Robert J. Neal
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Title: Chief Executive Officer
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SCA ACQUISITION INTERMEDIATE, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President
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SCA ACQUISITION, LLC, as a Guarantor
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By:
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Name: Robert J. Neal
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Title: President
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BARCLAYS BANK PLC, as Administrative Agent and a Lender
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By:
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Name:
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Title:
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ANNEX A
to Credit and Guaranty Agreement
LENDERS AND COMMITMENTS
A. Commitments
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Lender
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Commitment
|
|
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Barclays Bank PLC
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$100,000,000
|
|
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Deutsche Bank AG New York Branch
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$50,000,000
|
|
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TOTAL:
|
$150,000,000
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B. Lender Notices
Barclays Bank PLC
745 Seventh Avenue
New York, New York 10019
EXHIBIT A
to Credit and Guaranty Agreement
GUARANTORS
Allegiant Air, LLC
Allegiant Vacations, LLC
G4 Properties, LLC
G4 Works, LLC
AFH, Inc.
Sunrise Asset Management, LLC
Sun Country Airlines Holdings, LLC
Sun Country, Inc.
SCA Acquisition Intermediate, LLC
SCA Acquisition, LLC
Exhibit 99.1
ALLEGIANT TRAVEL COMPANY ANNOUNCES EARLY TENDER RESULTS AND RECEIPT OF CONSENTS FROM THE HOLDERS OF A MAJORITY OF THE OUTSTANDING PRINCIPAL AMOUNT OF
ITS 7.250% SENIOR SECURED NOTES DUE 2027
LAS VEGAS. June 23, 2026 – Allegiant Travel Company (NASDAQ: ALGT) (the “Company,” “we,” “us,” or “our”) announced today that it has received for purchase $377,534,000 aggregate principal amount of its outstanding 7.250% Senior
Secured Notes Due 2027 (the “Notes”) validly tendered (and not validly withdrawn) by 5:00 p.m., New York City time, on June 23, 2026 (the “Early Tender Deadline”), and has received consents (the “Consents”) from holders (each a “Holder” and
collectively the “Holders) of a majority (93.68%) of the aggregate principal amount of the Notes outstanding as of the Early Tender Deadline pursuant to the Company’s tender offer (the “Tender Offer”) to purchase for cash any and all of its
outstanding $403,009,000 remaining aggregate principal amount of Notes and solicitation of consents (the “Consent Solicitation”) to proposed amendments (the “Proposed Amendments”) to the Indenture, dated August 17, 2022 (the “Indenture”), which
governs the Notes.
Information related to the Notes, the aggregate principal amount of Notes validly tendered (and not validly withdrawn) by the Early Tender Deadline, and other
information relating to the Tender Offer and Consent Solicitation are listed in the table below.
The terms and conditions of the Tender Offer and Consent Solicitation are described in greater detail in the Offer to Purchase and Consent Solicitation Statement,
dated June 9, 2026 (the “Statement”), which Holders should carefully read before making any decision with respect to the Tender Offer and Consent Solicitation.
|
CUSIP No.
|
Title of Security
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Outstanding
Principal
Amount
|
Principal
Amount
Tendered
|
Tender Offer
Consideration(1)
|
Early
Tender
Premium
(2)
|
Total
Consideration
(3)
|
||||||
|
144A: 01748X AD4
Reg S: U0177P AC2
|
7.250% Senior Secured Notes due 2027
|
$403,009,000
|
$377,534,000
|
$955.00
|
$50.00
|
$1,005.00
|
| (1) |
Per $1,000 principal amount of Notes validly tendered and not withdrawn at or prior to the Expiration Time (as defined below) and excludes accrued and unpaid interest.
|
| (2) |
Per $1,000 principal amount of Notes validly tendered and not withdrawn at or prior to the Early Tender Deadline.
|
| (3) |
Includes the Tender Offer Consideration plus the Early Tender Premium (as defined below) and excludes accrued and unpaid interest.
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With respect to the Notes validly tendered and not validly withdrawn at or prior to the Early Tender Deadline, the Company has elected to have an initial settlement
date with payment for such Notes expected to occur on June 24, 2026 (unless extended by the Company) (the “Initial Settlement Date”), subject to the satisfaction of certain conditions described in the Statement, including the Company successfully
completing one or more debt financings.
Holders who validly tendered their Notes and thereby delivered their consents at or prior to the Early Tender Deadline are eligible to receive total consideration (the
“Total Consideration”) of $1,005.00 per $1,000 principal amount of Notes, which includes the consideration for the Notes validly tendered (and not validly withdrawn), pursuant to the Statement, of $955.00 per $1,000 principal amount of such Notes
(the “Tender Offer Consideration”) and the early tender premium of $50.00 per $1,000 principal amount of such Notes (the “Early Tender Premium”). Holders must have validly tendered and not validly withdrawn their Notes, and have their Notes
accepted for purchase in the Tender Offer, at or prior to the Early Tender Deadline in order to be eligible to receive the Total Consideration.
Holders who validly tender their Notes after the Early Tender Deadline, but at or prior to 5:00 p.m., New York City time, on July 9, 2026, unless extended or earlier
terminated by the Company (such time and date as the same may be extended or earlier terminated, the “Expiration Time”) will be eligible to receive only the Tender Offer Consideration for such Notes if such Notes are accepted for purchase, and will
not be entitled to the Early Tender Premium.
A Holder cannot deliver a consent with respect to the Notes without tendering its corresponding Notes or tender its Notes without delivering a corresponding consent.
Holders of Notes who tender their Notes will be deemed by virtue of such tender to have delivered their consent to the Proposed Amendments.
The Consents received as of the Early Tender Deadline are sufficient to effect all of the Proposed Amendments as set forth in the Statement.
Subject to the satisfaction of the conditions described in the Statement, the Company intends to execute a supplement to the Indenture (the “First Supplemental
Indenture”) on the Initial Settlement Date in order to effect the Proposed Amendments. The Proposed Amendments eliminate most of the restrictive covenants and certain events of default applicable to the Notes, reduce the minimum notice period
required for redemptions of the Notes from 30 days as currently required by the Indenture to 3 business days and amend certain other provisions applicable to the Notes. The First Supplemental Indenture is described in greater detail in the
Statement. The Proposed Amendments will become operative pursuant to the First Supplemental Indenture only upon the Company’s purchase of a majority of the outstanding Notes that have been validly tendered (and not validly withdrawn) pursuant to
the Tender Offer.
Holders whose Notes are accepted for purchase pursuant to the Tender Offer will receive accrued and unpaid interest from the last interest payment date on such
purchased Notes up to, but not including, the date on which such Notes are purchased.
With respect to any Notes not purchased in the Tender Offer, the Company may choose, but has no obligation, to satisfy and discharge the Indenture by sending a notice
of redemption to the Trustee under the Indenture for the redemption of all outstanding Notes on August 15, 2026, at a price equal to 100.00% of the aggregate principal amount of the Notes to be redeemed, plus accrued and unpaid interest up to, but
not including, the date of redemption.
Holders who tender their Notes after the Early Tender Deadline, but on or prior to the Expiration Time, may not withdraw their tendered Notes, except in certain
limited circumstances where additional withdrawal rights are required by law. A valid withdrawal of tendered Notes will constitute the concurrent valid revocation of such Holder’s related consent.
The Company has retained Barclays Capital Inc. to act as dealer-manager and solicitation agent for the Tender Offer and Consent Solicitation. Global Bondholder
Services Corporation is acting as the Information Agent and the Tender Agent for the Tender Offer and Consent Solicitation. Questions regarding the Tender Offer and Consent Solicitation should be directed to Barclays Capital Inc. at (212) 528-7581
(collect) or (800) 438-3242 (toll-free). Requests for documentation should be directed to Global Bondholder Services Corporation at (855) 654-2014 (toll-free), (212) 430-3774 (banks and brokers) or contact@gbsc-usa.com.
This press release does not constitute a notice of redemption with respect to the Notes.
This press release is not an offer to buy any securities and does not constitute a solicitation of consents of Holders and shall not be deemed an offer to buy or a
solicitation of consents with respect to any other securities of the Company. The Tender Offer and Consent Solicitation is being made solely pursuant to the Statement. All statements herein regarding the terms of the Tender Offer and Consent
Solicitation, the Proposed Amendments, the First Supplemental Indenture and the Indenture are qualified in their entirety by reference to the text of the Statement, the First Supplemental Indenture and the Indenture.
Allegiant – Together We Fly™
Las Vegas-based Allegiant (NASDAQ: ALGT) is an integrated travel company with an airline at its heart, focused on connecting customers with the people, places and
experiences that matter most. Through Allegiant Air and Sun Country Airlines, the company serves approximately 22 million annual customers across scheduled passenger, charter and cargo operations. Together, the airlines operate more than 650
routes serving nearly 175 cities throughout the United States and select international destinations. Allegiant is committed to providing affordable travel options, operational excellence and long-term value for customers, employees, communities
and shareholders. For more information, visit Allegiant.com. Media information, including photos, is available at http://gofly.us/iiFa303wrtF
Media Inquiries: mediarelations@allegiantair.com
Investor Inquiries: ir@allegiantair.com
No Offer or Solicitation
This press release is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy the Notes or any other securities
and shall not constitute an offer to sell or solicitation of an offer to buy, or a sale of, the Notes or any other securities in any jurisdiction in contravention of applicable law. This press release does not constitute a notice of redemption
with respect to the Notes.
Forward-Looking Statements
This communication contains forward-looking statements under the safe harbor provisions of Section 21E of the Securities Exchange Act of 1934, Section 27A of the
Securities Act of 1933 and the Private Securities Litigation Reform Act of 1995. Forward-looking statements include all statements that are not historical facts and often can be identified by the use of forward-looking terminology such as the words
"believe," "expect," "anticipate," "intend," "plan," "estimate", "project", "hope" or similar expressions. Forward-looking statements in this communication are based on Allegiant's current expectations about the Tender Offer and certain assumptions
made by Allegiant, all of which are subject to change.
Such forward-looking statements also include statements related to the Tender Offer described herein, including the Expiration Time, the Early Tender Deadline, the
Initial Settlement Date, the possible completion of the Tender Offer and Consent Solicitation and any intention to redeem the Notes. When considering forward-looking statements, a reader should keep in mind the risk factors and other cautionary
statements included and incorporated by reference in the Statement. Should one or more of the risks and uncertainties described or incorporated by reference in the Statement occur, or should underlying assumptions prove incorrect, our actual
results and plans could differ materially from those expressed in any forward-looking statements. Accordingly, there are or will be important factors that could cause actual results to differ materially from those indicated in such statements and,
therefore, you should not place undue reliance on any such statements and caution must be exercised in relying on forward-looking statements.
Forward-looking statements in this communication are qualified by and should be read together with, the risk factors referenced above and the risk factors included in
Allegiant’s annual and quarterly reports as filed with the Securities and Exchange Commission, and readers should refer to such risks, uncertainties and risk factors in evaluating such forward-looking statements.
The forward-looking statements in this communication are made only as of the date they were first issued, and unless otherwise required by applicable securities laws,
Allegiant disclaims any intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events, or otherwise.
Exhibit 99.2
ALLEGIANT TRAVEL COMPANY ISSUES SENIOR SECURED NOTES
LAS VEGAS. June 24, 2026 – Allegiant Travel Company (NASDAQ: ALGT) (the “Company,” “we,” “us,” or “our”) announced today that it issued $650.0 million in aggregate principal amount of its 7.125% Senior Secured Notes due 2031 (the
“Notes”) upon closing of its previously announced private offering.
Each of the Company's subsidiaries, other than Dustland, LLC and certain other insignificant subsidiaries, have guaranteed the Notes (the “Guarantors”). The Notes and
the related guarantees are secured by security interests in substantially all of the property and assets of the Company and the Guarantors, excluding aircraft, aircraft engines, real property and certain other assets (the “Collateral”). The
Collateral also secures the Company’s currently undrawn $150.0 million Revolving Credit and Guaranty Agreement dated as of August 17, 2022.
The Company used a portion of the net proceeds from the sale of the Notes to purchase $377,534,000 aggregate principal amount of the Company’s 7.25% Senior Secured
Notes due 2027 (the “Existing Notes”) that were tendered pursuant to the Company’s previously announced tender offer for the Existing Notes, and all interest, costs, fees, expenses and other amounts due and payable in respect thereof. The Company
canceled the Existing Notes purchased today. $25,465,000 aggregate principal amount of the Existing Notes remain outstanding and the Company expects to redeem such remaining Notes in third quarter 2026. The Company will use the balance of the net
proceeds of the Notes for general corporate purposes.
The Notes and the related guarantees have not been and will not be registered under the Securities Act of 1933, as amended (the "Securities Act"), or the securities
laws of any other jurisdiction. The Notes and the related guarantees were offered and sold only to persons reasonably believed to be qualified institutional buyers in reliance on Rule 144A under the Securities Act and to certain non-U.S. persons
in offshore transactions in reliance on Regulation S under the Securities Act.
This press release does not constitute a notice of redemption with respect to the Notes.
Allegiant – Together We Fly™
Las Vegas-based Allegiant (NASDAQ: ALGT) is an integrated travel company with an airline at its heart, focused on connecting customers with the people, places and
experiences that matter most. Through Allegiant Air and Sun Country Airlines, the company serves approximately 22 million annual customers across scheduled passenger, charter and cargo operations. Together, the airlines operate more than 650
routes serving nearly 175 cities throughout the United States and select international destinations. Allegiant is committed to providing affordable travel options, operational excellence and long-term value for customers, employees, communities
and shareholders. For more information, visit Allegiant.com.
Media information, including photos, is available at http://gofly.us/iiFa303wrtF
Media Inquiries: mediarelations@allegiantair.com
Investor Inquiries: ir@allegiantair.com
No Offer or Solicitation
This press release is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities and shall not
constitute an offer to sell or solicitation of an offer to buy, or a sale of, any securities in any jurisdiction in contravention of applicable law.