a108allegiantguaranteeag






EXECUTION COPY         ___________________________________________________  ALLEGIANT GUARANTEE AGREEMENT  dated as of September 30, 2022  between  ALLEGIANT TRAVEL COMPANY  as Guarantor  and  BANK OF UTAH  not in its individual capacity but solely as Security Trustee for the Lenders   ___________________________________________________  





 






TABLE OF CONTENTS    Page     i      SECTION 1. THE GUARANTEE .............................................................................................. 1  SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR............. 3  SECTION 3. COVENANTS OF THE GUARANTOR .............................................................. 4  SECTION 4. MISCELLANEOUS .............................................................................................. 6  SECTION 5. REORGANIZATION OF PAYMENT OBLIGATION ........................................ 7  SECTION 6. NO SET-OFF ......................................................................................................... 8  





 






        ALLEGIANT GUARANTEE AGREEMENT  ALLEGIANT GUARANTEE AGREEMENT dated as of September 30, 2022 (this  “Agreement”) is between ALLEGIANT TRAVEL COMPANY, a corporation organized  under the laws of the State of Nevada (the “Guarantor”) and BANK OF UTAH, not in its  individual capacity but solely as Security Trustee on behalf of the Lenders (together with its  successors and assigns, the “Security Trustee”), under that certain PDP Credit Agreement dated  as of September 30, 2022 (as at any time modified, supplemented and amended, the “Credit  Agreement”) among Allegiant Air, LLC, a Nevada limited liability company (the “Borrower”),  the Security Trustee, each of the lenders party thereto, as Lenders (the “Lenders”) and  Landesbank Hessen-Thüringen Girozentrale, as agent for the Lenders (the “Facility Agent”).  Unless otherwise defined herein, defined terms used herein shall have the meanings ascribed to  such terms in the Credit Agreement.  W I T N E S S E T H:  WHEREAS, the Borrower, the Lenders, the Facility Agent and the Security Trustee have  entered or will enter into certain of the Credit Agreement and the other Operative Documents to  which each of them is or will be a party;  WHEREAS, the Guarantor wishes, in furtherance of its corporate purposes and in order  to induce the Lenders to enter into the transaction contemplated by the Credit Agreement, to  guarantee, whether scheduled or contingent, liquidated or undetermined, now or hereafter  existing (including all such amounts which would become due but for the operation of the  automatic stay under section 362(a) of the United States Bankruptcy Code, 11 U.S.C. §362(a),  and the operation of sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.  §502(b): (i) prompt payment by the Borrower in full when due of all amounts payable pursuant  to the Credit Agreement and the other Operative Documents and (ii) complete performance by  the Borrower of its agreements in the Credit Agreement and the other Operative Documents (all  the foregoing obligations being collectively referred to herein as the “Guaranteed Obligations”)  and, in order to guarantee the Guaranteed Obligations, is executing and delivering this  Agreement; and  NOW, THEREFORE, in consideration of the premises and the mutual covenants  contained herein and in order to induce the Lenders to enter into the transaction contemplated by  the Credit Agreement, the Guarantor covenants and agrees with the Security Trustee, on behalf  of the Lenders, as follows:  Section 1. The Guarantee.    (a) The Guarantor absolutely, irrevocably and unconditionally guarantees, as  primary obligor and not merely as surety, the due and punctual payment in full, observance and  performance of the Guaranteed Obligations (whether on stated due dates, by acceleration or  otherwise), the foregoing guarantee (in respect of payment obligations) constituting hereby a  guarantee of payment and not of collection.    (b) The Guarantor hereby irrevocably waives (v) any right of subrogation,  (w) notice of acceptance hereof, and of any action taken or omitted in reliance hereon,  





 






   2     (x) presentment for payment, observance or performance upon the Borrower, demand of  payment, observance or performance from the Borrower, protest or notice to the Borrower of  failure to pay, observe or perform or notice to the Guarantor of any default in the payment,  observance or performance by the Borrower of any Guaranteed Obligations, except as otherwise  expressly stated herein, (y) any requirement of diligence or promptness on the part of the  Security Trustee or the Lenders in making demand, commencing suit or exercising any other  right or remedy under any of the Operative Documents and (z) any right to require the Security  Trustee or the Lenders to exercise any right or remedy against the Borrower or any other Person  or entity prior to enforcing any right of the Security Trustee or the Lenders against the Guarantor  hereunder.  (c) The obligations of the Guarantor hereunder shall be absolute,  unconditional and continuing under any and all circumstances and shall be performed by the  Guarantor regardless of (a) whether the Borrower, the Guarantor, the Lenders, the Facility Agent  or the Security Trustee shall have taken or failed to take any steps to collect or enforce any  obligation or liability from the Borrower, or shall have otherwise exercised or failed to exercise  any rights, powers or remedies under any of the Operative Documents against the Borrower and  shall in no way be affected or impaired by (and no notice to the Guarantor shall be required in  respect of) any compromise, waiver, settlement, release, extension, change in or modification of  any of the Guaranteed Obligations, (b)  the disaffirmance or rejection or purported disaffirmance  or purported rejection of any of the Operative Documents in any insolvency, bankruptcy or  reorganization proceedings relating to the Borrower, (c) any law, regulation or decree now or  hereafter in effect which might in any manner affect any of the terms or provisions of any of the  Operative Documents or any of the Security Trustee’s, Facility Agent’s or Lender’s rights,  powers or remedies thereunder as against the Borrower or which might cause or permit to be  invoked any alteration in the time, amount, manner of payment or performance of any of the  obligations and liabilities of the Borrower, (d) any failure of the Borrower to comply with the  requirements of any federal, state or local law, regulation or order of any political subdivision or  agency thereof, (e) the occurrence and continuance of any Default or Event of Default, (f) the  merger or consolidation of the Borrower into or with any corporation or other entity or the sale  by the Borrower of all or any part of its assets, (g) whether the Security Trustee, Facility Agent  or Lenders shall have taken or failed to take any steps to mitigate damages, (h) any other  circumstance which might otherwise constitute a defense available to or a discharge of the  Borrower in respect of its obligations or liabilities under any of the Operative Documents, or  (i) any other act or omission to act by the Security Trustee or any other Person or entity or any  other circumstances whatsoever (with or without notice to or the knowledge of the Guarantor),  whether similar or dissimilar to the foregoing, which may or might in any manner or to any  extent vary the risk of the Guarantor, or otherwise constitute a legal or equitable discharge of a  surety or the Guarantor; it being the purpose and intent of the Guarantor and the Security Trustee  that this Agreement and the obligations and liabilities of the Guarantor hereunder shall be  absolute, unconditional and continuing under any and all circumstances and shall not be  discharged except by payment, observance and performance in full of all the Guaranteed  Obligations.  (d) Notwithstanding anything to the contrary contained in this Section 1, (i)  the Guarantor may assert as a defense to any claim by the Facility Agent, the Security Trustee or  any Lender for payment or performance of the Guaranteed Obligations any valid defense, claim,  





 






   3     set-off or deduction which the Borrower could reasonably have asserted against such party in  respect of such claim as the borrower under the Credit Agreement to the extent that such claim  made by the Facility Agent, the Security Trustee or any Lender was not available to be made by  the Facility Agent, the Security Trustee or any Lender under the Credit Agreement; provided,  that for the avoidance of doubt, the Guarantor may not assert such defense to the extent that any  defense, claim, set-off or deduction available to the Borrower is only made available under any  insolvency, bankruptcy or reorganization proceedings relating to the Borrower and (ii) to the  extent that the Borrower is relieved of any of the Guaranteed Obligations under the terms of any  of the Operative Documents other than in connection with an insolvency, bankruptcy or  reorganization proceedings, or any of the Guaranteed Obligations are compromised, settled,  waived, released or extended in a writing signed by the party making such claim, or the terms of  any of the Guaranteed Obligations or of the Operative Documents in respect thereof are validly  amended or modified other than in connection with an insolvency, bankruptcy or reorganization  proceedings, the Guarantor shall be similarly relieved of its corresponding liabilities and  obligations with respect to such Guaranteed Obligations and/or shall be entitled to the benefit of  any such compromise, settlement, waiver, release, extension, amendment or modification.  (e) The Guarantor agrees to pay all costs and expenses (including, without  limitation, attorneys’ fees and expenses) incurred in connection with the enforcement of the  obligations of the Borrower after the occurrence and during the continuance of an Event of  Default, to the extent that such costs and expenses are not paid by the Borrower or otherwise and  in connection with the enforcement of the obligations of the Guarantor under this Agreement  after the occurrence and during the continuance of an Event of Default.  (f) If any payment of any Guaranteed Obligations is rescinded or must  otherwise be returned by the Security Trustee, the Facility Agent or any Lender as a result of any  law or an order issued in a bankruptcy or insolvency proceeding relating to the Borrower or  otherwise, the amount so repaid shall not be deemed to have been paid and shall be deemed to be  outstanding and the guarantee of the Guarantor hereunder in respect of such payment shall be  reinstated and shall remain in full force and effect.  Section 2. Representations and Warranties of the Guarantor.  The Guarantor hereby  represents and warrants to the Security Trustee that:  (a) The Guarantor is a corporation duly organized and validly existing in good  standing under the laws of the State of Nevada, is qualified to do business in each jurisdiction  where the failure to be so qualified could have a materially adverse effect on the Guarantor’s  business, operations or condition (financial or otherwise) or on its ability to perform its  obligations hereunder, and has the corporate power and authority, and all licenses, rights,  permits, certificates, franchises and other privileges, necessary to carry on its business as  presently conducted and to perform its obligations under this Agreement.  (b) The execution, delivery and performance by the Guarantor of this  Agreement has been duly authorized by all necessary corporate action on the part of the  Guarantor, does not require any approval of the shareholders of the Guarantor, and neither the  execution and delivery hereof nor the consummation of the transactions contemplated hereby nor  compliance by the Guarantor with any, nor the Guarantor’s performance of all, of the terms and  





 






   4     provisions hereof will contravene or has contravened any judgment or order applicable to or  binding on it or any applicable law or conflict with, result in any breach of, or constitute any  default under, its organizational documents or conflict with, result in the creation of a lien under,  or require the consent of any trustee or creditor pursuant to, any indenture, mortgage, chattel  mortgage, deed of trust, conditional sales contract, lease, bank loan or credit agreement or other  agreement or instrument to which the Guarantor is a party or by which it or any of its assets may  be bound.  (c) This Agreement has been duly executed and delivered by the Guarantor,  and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the  Guarantor in accordance with the terms hereof, except as such enforceability may be limited by  applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the  enforcement of creditors’ rights generally, and by general principles of equity (regardless of  whether such enforceability is considered in a proceeding in equity or at law).  (d) There are no actions, suits or proceedings pending or, to the best of the  Guarantor’s knowledge after due inquiry, threatened in any court or before any regulatory  commission, board or administrative or other Governmental Authority against or affecting the  Guarantor which could have a materially adverse effect on its ability to enter into or perform its  obligations under this Agreement or on the condition (financial or otherwise), operations,  business or prospects of the Guarantor.  (e) The Guarantor is in material compliance with all applicable laws in all  applicable jurisdictions, the violation of which could have a material adverse effect on the  properties, business, prospects, profits or condition of the Guarantor.  (f) The Guarantor is solvent and will not be rendered insolvent by the  consummation of the transactions contemplated by the Operative Documents, including, without  limitation, this Agreement; after such consummation, the capital of the Guarantor will not be  unreasonably small for the conduct of the business in which the Guarantor is engaged or is about  to engage; the Guarantor has no intention or belief that it is about to incur debts beyond its ability  to pay as they mature; and the Guarantor’s participation in such transactions is made without any  intent to hinder, delay or defraud either present or future creditors of the Guarantor, and none of  the transactions contemplated by the Operative Documents to which the Guarantor is a party is  void or voidable at the behest of any creditor of the Guarantor.  (g) The financial statements of the Guarantor for the fiscal year ending  December 31, 2021 (i) were prepared in accordance with GAAP consistently applied (except as  may be indicated in the notes thereto or as permitted by Form 10-Q in the case of interim  unaudited consolidated financial statements) and (ii) fairly represent in all material respects the  consolidated financial condition and operations of the Guarantor as at the respective dates  thereof and the consolidated results of its operations and cash flows for the periods indicated  therein.  (h) Since December 31, 2021, there has been no material adverse change in  the financial condition or prospects of the Guarantor.  





 






   5     (i) The Borrower is a wholly-owned consolidated subsidiary of the  Guarantor.  (j) It is in the best interests of the Guarantor to execute this Guarantee,  inasmuch as the Guarantor will derive substantial direct and indirect benefits from the Loans  made by the Lenders and the Guarantor agrees that the Lenders are relying on this representation  in agreeing to make such Loans.  Section 3. Covenants of the Guarantor.  The Guarantor hereby covenants in favor of  the Security Trustee as follows:  (a) The Guarantor shall not take any action to cause the Borrower not to  comply, or to prohibit the Borrower from complying, with its covenants, agreements and  undertakings set forth in the Operative Documents to which the Borrower is or will become a  party.  (b) From time to time the Guarantor agrees that it will do all such acts,  execute, acknowledge and deliver all such instruments and make all filings and recordings in all  jurisdictions as it shall be reasonably requested by the Security Trustee to do or execute for the  purpose of fully carrying out and effectuating this Agreement and the intent hereof.  (c) The Guarantor shall not, and shall not permit the Borrower to, liquidate,  dissolve or consolidate with or merge into or with any other Person without the prior written  consent of the Security Trustee (acting on behalf of the Lenders).  (d) The Guarantor shall not at any time institute against the Borrower or cause  the Borrower to make a voluntary filing or consent to an involuntary filing with respect to itself  in any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any  other Insolvency Proceeding.  (e) The Guarantor shall provide to the Security Trustee:  (i) as soon as practicable and in any event within 120 days after the  end of each fiscal year of the Guarantor, audited consolidated statements of income and  cash flows and an audited consolidated statement of stockholders’ equity of the  Guarantor and its subsidiaries for such year, and a consolidated balance sheet of such  Person and its subsidiaries as at the end of such year, setting forth in each case in  comparative form corresponding consolidated figures from the preceding annual audit, all  in reasonable detail and reported on by independent public accountants of recognized  national standing (without a “going concern” or like qualification or exception and  without any qualification or exception as to the scope of such audit) to the effect that such  consolidated financial statements present fairly in all material respects the financial  condition and results of operations of the Guarantor and its subsidiaries on a consolidated  basis in accordance with GAAP consistently applied (except for inconsistencies required  by changes to GAAP and changes approved by such accountants in accordance with  GAAP); provided, that compliance with the above shall be satisfied by the timely filing  of 10K and 10Q statements with the Securities and Exchange Commission; and   





 






   6     (ii) as soon as practicable and in any event within 90 days after the end  of each quarterly period (other than the last quarterly period) in each fiscal year of the  Guarantor beginning after December 31, 2021, consolidated statements of income,  stockholders’ equity and cash flows of the Guarantor and its subsidiaries for the period  from the beginning of the current fiscal year to the end of such quarterly period, and a  consolidated balance sheet of the Guarantor and its subsidiaries as at the end of such  quarterly period, setting forth in each case in comparative form figures for the  corresponding period in the preceding fiscal year, all in reasonable detail and presenting  fairly in all material respects the financial condition and results of operations of the  Guarantor and its Subsidiaries, certified by the Guarantor’s chief executive officer or  chief financial officer as having been prepared on a consolidated basis in accordance with  GAAP consistently applied (except for inconsistencies required by changes to GAAP and  changes approved by the accountants referred to in clause (i) above in accordance with  GAAP), subject to normal year-end audit adjustments and the absence of footnotes;  provided, that compliance with the above shall be satisfied by the timely filing of 10K  and 10Q statements with the Securities and Exchange Commission.  (f) Subject to the terms of this Agreement, the Guarantor will maintain 100%  of the direct or indirect ownership interests in the Borrower.  (g) The Guarantor shall keep adequate records and books of account  concerning the Borrower, in which complete entries will be made in accordance with generally  accepted accounting principles consistently applied.  Section 4. Miscellaneous.  (a)  Except as expressly otherwise provided herein, all  notices, requests, demands or other communications to or upon the Security Trustee, or the  Guarantor shall be deemed to have been duly given or made when given pursuant to the terms of  the Credit Agreement, with all notices to the Guarantor being sent to:  Allegiant Travel Company   1201 North Town Center Drive  Las Vegas, Nevada 89144  Attn:  Mr. Robert Neal, Sr.Vice President Corporate Finance  and Treasurer  Telephone:  (702) 830-8039  Email:  DebtServicing@AllegiantAir.com   (b) Neither the Lenders, the Facility Agent nor the Security Trustee shall by  any act, delay, indulgence, omission or otherwise be deemed to have waived any right or remedy  hereunder or to have acquiesced in any Default or Event of Default or in any breach by the  Guarantor of any of the terms and conditions hereof.  No failure to exercise, nor any delay in  exercising, on the part of the Security Trustee, the Facility Agent or the Lenders, any right,  power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of  any right, power or privilege hereunder shall preclude any other or further exercise thereof or the  exercise of any other right, power or privilege.  A waiver by the Security Trustee, the Facility  Agent or any Lender of any right or remedy hereunder on any one occasion shall not be  construed as a bar to any right or remedy which the Security Trustee, the Facility Agent or any  





 






   7     Lender would otherwise have on any future occasion.  The rights and remedies herein provided  are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or  remedies provided by law.  No waiver of any of the terms and conditions of this Agreement and  no notice to or demand on the Guarantor or the Borrower in any case shall entitle the Guarantor  or the Borrower to any other or further notice or demand in similar or other circumstances or  constitute the waiver of the rights of the Security Trustee, the Facility Agent or any Lender to  any other or further action in any circumstances without notice or demand.  (c) THIS AGREEMENT SHALL IN ALL RESPECTS, INCLUDING  ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE  GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE  STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED  WITHIN THE STATE OF NEW YORK.  (d) The Guarantor hereby irrevocably and unconditionally submits, for itself  and its property, the non-exclusive jurisdiction of the courts of the State of New York sitting in  the City and County of New York and to the non-exclusive jurisdiction of the U.S. District Court  for the Southern District of New York, in any action or proceeding arising out of or relating to  this Agreement, or the transactions contemplated hereby.  The Guarantor agrees that a final  judgment in any such action or proceeding shall be conclusive and may be enforced in other  jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this  Agreement shall affect any right that any party may otherwise have to bring any action or  proceeding relating to this Agreement against another party or its properties in the courts of any  jurisdiction.    (e) The Guarantor hereby irrevocably waives, to the fullest extent permitted  by applicable law, 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 paragraph (d) of this Section 4.  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.  (f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE  GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL  BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS  AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.  (g) If any provision hereof should be held invalid, illegal, or unenforceable in  any respect in any jurisdiction, then, to the fullest extent permitted by law, (i) all other provisions  hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in  favor of the Security Trustee in order to carry out the intentions of the parties hereto as nearly as  may be possible and (ii) such invalidity, illegality or unenforceability shall not affect the validity,  legality or enforceability of such provision in any other jurisdiction.  To the extent permitted by  applicable law, the Guarantor hereby waives any provision of law which would render any  provision hereof prohibited or unenforceable in any respect.  





 






   8     (h) No amendment, modification, waiver, termination or discharge of any  provision of this Agreement, nor consent to any departure by the Guarantor therefrom, shall in  any event be effective unless the same shall be in writing specifically identifying this Agreement  and the provision intended to be amended, modified, waived, terminated or discharged and is  signed by each of the Security Trustee (being duly authorized to bind the Lenders thereto,  evidence of which to be supplied by the Security Trustee upon any such execution by the  Security Trustee) and the Guarantor, and each such amendment, modification, waiver,  termination or discharge shall be effective only in the specific instance and for the specific  purpose for which given.  No provision of this Agreement shall be varied, contradicted or  explained by any oral agreement, course of dealing or performance or any other matter not set  forth in an agreement in writing and signed by the Security Trustee and the Guarantor.  (i) This Agreement shall be binding upon the Guarantor, its successors and  permitted assigns, and shall inure to the benefit of the Security Trustee, on behalf of the Lenders,  and be enforceable by the Security Trustee and its successors and assigns; provided that, the  Guarantor shall not assign any of its obligations hereunder without the prior written consent of  the Security Trustee.  This Agreement shall not be deemed to create any right in any Person or  entity nor be construed in any respect to be a contract in whole or in part for the benefit of any  Person or entity except as provided herein.   Section 5. Reorganization of Payment Obligation.  If, as a result of any insolvency,  bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar  proceeding with respect to, or affecting the status, existence, assets or obligations of the  Borrower, the amount or timing of any payment, observance or performance of any Guaranteed  Obligations shall be discharged, adjusted, rescheduled, rearranged or otherwise becomes payable  in an amount or at a time, other than as specifically provided for in the Operative Documents, the  Guarantor specifically agrees, as a primary obligation, to pay, observe and perform such  Guaranteed Obligations at the time and in the amount such payment, observance or performance  would have become due in accordance with the terms of the Operative Documents if such  insolvency, bankruptcy, reorganization, arrangement, readjustment of debt, dissolution,  liquidation or similar proceeding had not occurred.  Section 6. No Set-Off.  The obligations of the Guarantor hereunder shall not be  released, discharged or otherwise affected by the existence of any claim, set-off, defense, or  other right that the Guarantor may have at any time and from time to time against the Security  Trustee, the Facility Agent, the Lenders or any other Person or entity, whether in connection  herewith or with any related or unrelated transaction.  *     *      





 






        IN WITNESS WHEREOF, each of the Guarantor and the Security Trustee has caused  this Allegiant Guarantee Agreement to be duly executed and delivered by its proper and duly  authorized officer as of the day and year first above written.   ALLEGIANT TRAVEL COMPANY, as  Guarantor  By:    Name:  Title:   BANK OF UTAH, not in its individual  capacity but solely as Security Trustee  By:    Name:  Title: