January 15, 2021

Hawaiian Airlines, Inc.

Attn: Shannon L. Okinaka

Executive Vice President & Chief Financial Officer

Phone: 808-835-3604

Fax: 808-840-8326

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819

Email: Shannon.Okinaka@hawaiianair.com

With a copy to:

Hawaiian Airlines, Inc.

Attn: Aaron J. Alter

Executive Vice President & Chief Legal Officer

Phone: 808-564-7470

Fax: 808-840-8369

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819

Email: Aaron.Alter@HawaiianAir.com

Re: Amendments to Loan and Guarantee Agreement

Reference is made to that certain Loan and Guarantee Agreement, dated as of September 

25, 2020 and amended and restated pursuant to that certain Restatement Agreement, dated as of October 

23, 2020 (the “Existing Loan and Guarantee Agreement”, and as amended hereby and as may be further 

amended, supplemented and restated or otherwise modified from time to time, the “Loan and Guarantee 

Agreement”), among HAWAIIAN AIRLINES, INC., a corporation organized under the laws of 

Delaware (the “Borrower”), HAWAIIAN HOLDINGS, INC., a corporation organized under the laws 

of Delaware (the “Parent”), the United States Department of the Treasury (“Treasury”) and The Bank 

of New York Mellon as Administrative Agent and Collateral Agent. Capitalized terms used herein but 

not otherwise defined shall have the meanings ascribed to such terms in the Loan and Guarantee 

Agreement.

WHEREAS, Pursuant to Section 11.02 of the Loan and Guarantee Agreement, the Borrower 

has requested amendments to the Existing Loan and Guarantee Agreement as set forth herein; and

WHEREAS, Treasury, as the Initial Lender and constituting the Required Lenders, has agreed 

to amend the Existing Loan and Guarantee Agreement as set forth herein.

NOW, THEREFORE, in consideration of the mutual promises contained herein and other 

good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the 

parties hereto agree as follows:

1. Effective as of the date hereof, Section 1.01 of the Existing Loan and Guarantee Agreement is 

hereby amended by inserting the following definition, in alphabetical order:

““PSP2 Warrant Agreement” means that certain warrant agreement, dated as of January 15, 

2021 between Parent and Treasury.”

2. Effective as of the date hereof, the definition of “Warrants” in Section 1.01 of the Existing 

Loan and Guarantee Agreement is hereby amended and restated in its entirety as follows:

““Warrants” means, collectively, those certain warrants issued to Treasury under the Warrant 

Agreement, the PSP Warrant Agreement or the PSP2 Warrant Agreement.”
3. Effective as of the date hereof, Section 2.07 of the Existing Loan and Guarantee Agreement is 

hereby amended by deleting the reference to “March 26, 2021” and replacing it with “May 28, 2021”.

4. This letter agreement shall be limited as written and nothing herein shall be deemed to 

constitute an amendment or waiver of any other term, provision or condition of the Loan and 

Guarantee Agreement or any of the other Loan Documents in any other instance than as expressly set

forth herein or prejudice any right or remedy that any Lender, the Administrative Agent or the 

Collateral Agent may now have or may in the future have under the Loan and Guarantee Agreement 

or any of the other Loan Documents. For the avoidance of doubt, this letter agreement is hereby 

deemed to be a Loan Document under the Loan and Guarantee Agreement. Except as herein 

provided, the Loan and Guarantee Agreement and the other Loan Documents shall remain unchanged 

and in full force and effect. This letter agreement shall not constitute a novation of the Loan and 

Guarantee Agreement or any other Loan Documents.

5. The Agents assume no responsibility for, and shall be entitled to rely on, without any 

obligation to ascertain or investigate, the correctness of the recitals and statements contained herein. 

The Agents shall not be liable or responsible in any manner whatsoever for, or in respect of, the 

validity or sufficiency of the amendments contained in this letter agreement.

6. Sections 11.06(b) (Electronic Execution), 11.09 (Governing Law; Jurisdiction; Etc.) and 

11.10 (Waiver of Jury Trial) of the Loan and Guarantee Agreement shall apply mutatis mutandis to 

this letter agreement as if set out herein.

7. This letter agreement may be executed in counterparts (and by different parties hereto in 

different counterparts), each of which shall constitute an original, but all of which when taken 

together shall constitute a single contract. Delivery of an executed counterpart of a signature page of 

this letter agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as 

delivery of a manually executed counterpart of this letter agreement. 

The Lenders party hereto hereby authorize and direct the Administrative Agent and the Collateral 

Agent to acknowledge this letter agreement.

[Remainder of this page intentionally left blank.]


[Signature Page to Letter Agreement – Hawaiian Airlines] 

Acknowledged: 

THE BANK OF NEW YORK MELLON, as Administrative Agent 

By: _______________________ 

Name: 

Title: 

THE BANK OF NEW YORK MELLON, as Collateral Agent 

By: _______________________ 

Name: 

Title: 

Bret S. Derman

Vice President

Bret S. Derman

Vice President
Execution Version

RESTATEMENT AGREEMENT

RESTATEMENT AGREEMENT, dated as of October 23, 2020 (this “Restatement 

Agreement”), to that certain Loan and Guarantee Agreement, dated as of September 25, 2020 (the 

“Existing Loan and Guarantee Agreement”, and as amended and restated by this Restatement 

Agreement, and as may be further amended, restated, amended and restated, supplemented or 

otherwise modified from time to time, the “Loan and Guarantee Agreement”), among HAWAIIAN 

AIRLINES, INC., a corporation organized under the laws of Delaware (the “Borrower”), 

HAWAIIAN HOLDINGS, INC. a corporation organized under the laws of Delaware (the 

“Parent”), the Guarantors party hereto from time to time, the UNITED STATES DEPARTMENT 

OF THE TREASURY (“Treasury”), as Initial Lender and THE BANK OF NEW YORK 

MELLON, as Administrative Agent and as Collateral Agent. Capitalized terms used and not 

otherwise defined herein shall have the meanings assigned to such terms in the Loan and Guarantee 

Agreement.

W I T N E S S E T H:

WHEREAS, the Parent, the Borrower, Treasury and the Agents are each party to 

the Existing Loan and Guarantee Agreement;

WHEREAS, the Borrower has requested that Treasury extend additional 

Commitments to the Borrower (the “Additional Commitments”) as is permissible under the 

Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136 (Mar. 27, 2020), as the 

same may be amended form time to time (the “CARES Act”) to the Borrower, and Treasury is 

willing to do so on the terms and conditions set forth herein; 

WHEREAS, pursuant to Section 4003(h)(1) of the CARES Act, for purposes of the 

Code, the Loans made pursuant to the Commitments (as increased by the Additional Commitments

being provided hereby) shall be treated as indebtedness and as having been issued for their 

aggregate stated principal amount, and the interest payable pursuant to Section 2.09(a) of the Loan 

and Guarantee Agreement shall be treated as qualified stated interest;

WHEREAS, Loans made pursuant to the Commitments (as increased by the

Additional Commitments being provided hereby) will be secured by Liens on the Collateral 

securing the existing Obligations, subject to the distribution priorities set forth in the Loan and 

Guarantee Agreement; 

WHEREAS, pursuant to Section 11.02 of the Loan and Guarantee Agreement, the 

Borrower has requested amendments to the Existing Loan and Guarantee Agreement as set forth 

in this Restatement Agreement; and

WHEREAS, Treasury has agreed to amend the Existing Loan and Guarantee

Agreement as more particularly set forth in this Restatement Agreement.

NOW, THEREFORE, in consideration of the mutual promises contained herein 

and other good and valuable consideration, the receipt and sufficiency of which is hereby 

acknowledged, the parties hereto agree as follows:
2

Section 1. Additional Commitments. Treasury hereby agrees to provide 

Additional Commitments to the Borrower on the Restatement Effective Date on the terms set forth 

herein and in the Loan and Guarantee Agreement and the other Loan Documents, and subject to 

the conditions set forth below, in an aggregate principal amount, together with the Closing Date

Commitment, not to exceed the amount of the Commitments as defined in the Loan and Guarantee 

Agreement (as amended hereby). The Additional Commitments shall be deemed to be 

“Commitments” under and as defined in the Loan and Guarantee Agreement (as amended hereby) 

for all purposes of the Loan and Guarantee Agreement and the other Loan Documents, and shall 

be secured by the applicable Liens granted to the Collateral Agent for the benefit of the Secured 

Parties and entitled to the benefits of the applicable Security Documents.

Section 2. Amendments. Effective as of the Restatement Effective Date, (a) 

the Existing Loan and Guarantee Agreement is hereby amended and restated, in its entirety, to be 

in the form attached as Annex A hereto and (b) all of the other Schedules and Exhibits to the 

Existing Loan and Guarantee Agreement remain in the forms attached to the Existing Loan and 

Guarantee Agreement.

Section 3. Representations and Warranties. The Credit Parties represent 

and warrant to the Administrative Agent, the Collateral Agent and the Lenders as of the 

Restatement Effective Date that:

(a) The execution, delivery and performance by each Credit Party of this 

Restatement Agreement and each other Loan Document to which it is party have been duly 

authorized by all necessary corporate or other organizational action, and do not and will not 

(a) contravene the terms of its Organizational Documents, (b) conflict with or result in any 

breach or contravention of, or the creation of any Lien under, or require any payment to be made 

under (i) any material Contractual Obligation to which each Credit Party is a party or affecting 

each Credit Party or the material properties of any Credit Party or (ii) any material order, 

injunction, writ or decree of any Governmental Authority or any arbitral award to which any 

Credit Party or its property is subject or (c) violate any Law, except to the extent such violation 

could not reasonably be expected to have a Material Adverse Effect.

(b) No approval, consent, exemption, authorization, or other action by, or 

notice to, or filing with, any Governmental Authority or any other Person is necessary or required 

in connection with the execution, delivery or performance by, or enforcement against, each 

Credit Party of this Restatement Agreement or any other Loan Document, except for (i) such 

approvals, consents, exemptions, authorizations, actions or notices that have been duly obtained, 

taken or made and in full force and effect and (ii) filings and consents contemplated by the 

Security Documents or Section 5.14 of the Loan and Guarantee Agreement.

(c) This Restatement Agreement has been, and each other Loan 

Document, when delivered hereunder, will have been, duly executed and delivered by each 

Credit Party set forth on the signature pages to this Restatement Agreement. This Restatement 

Agreement constitutes, and each other Loan Document when so delivered will constitute, the 

legal, valid and binding obligation of each Credit Party hereto enforceable against such Credit

Party in accordance with its terms, except as such enforceability may be limited by bankruptcy, 
3

insolvency, reorganization, receivership, moratorium or other Laws affecting the creditors’ 

rights generally and by general principles of equity.

(d) No Default exists under the Loan and Guarantee Agreement.

(e) All representations and warranties contained in the Loan and 

Guarantee Agreement and the other Loan Documents are true and correct in all material respects 

as of the date hereof, except to the extent that (A) such representations or warranties are qualified 

by a materiality standard, in which case they are true and correct in all respects, and (B) such 

representations or warranties expressly relate to an earlier date (in which case such 

representations and warranties are true and correct in all material respects as of such earlier date).

Section 4. Conditions Precedent to Effectiveness. The effectiveness of this 

Restatement Agreement and the Additional Commitments provided hereby are subject to the 

satisfaction (or waiver in accordance with Section 11.02 of the Loan and Guarantee Agreement) 

of the following conditions (and, in the case of each document specified in this Section to be 

received by the Initial Lender (and the applicable Agent or Agents), such document shall be in 

form and substance satisfactory to the Initial Lender and/or the applicable Agent or Agents) (the 

date on which such conditions are satisfied or waived being the “Restatement Effective Date”) 

when:

(a) Executed Counterparts. The Initial Lender and the Agents shall have 

received from each Credit Party hereto a counterpart of this Restatement Agreement signed on 

behalf of such Credit Party. Notwithstanding anything herein to the contrary, delivery of an 

executed counterpart of a signature page of this Restatement Agreement by telecopy or other 

electronic means, or confirmation of the execution of this Restatement Agreement on behalf of 

a party by an email from an authorized signatory of such party shall be effective as delivery of a 

manually executed counterpart of this Restatement Agreement.

(b) Certificates. The Initial Lender and any applicable Agent shall have 

received such customary certificates of resolutions or other action, incumbency certificates 

and/or other certificates of Responsible Officers of the Credit Parties as the Lenders may require 

evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to 

act as a Responsible Officer in connection with the Loan Documents;

(c) Organizational Documents. The Initial Lender shall have received 

customary resolutions or evidence of corporate authorization, secretary’s certificates and such 

other documents and certificates (including Organizational Documents and good standing 

certificates) as the Initial Lender may request relating to the organization, existence and good 

standing of each Credit Party and any other legal matters relating to the Credit Parties, the Loan 

Documents or the transactions contemplated thereby.

(d) Opinion of Counsel to Credit Parties. The Initial Lender and the 

applicable Agent or Agents shall have received all opinions of counsel (including opinions of 

counsel covering the creation and perfection, or the continuing creation and perfection, of the 

security interests on Collateral, consistent with the opinions delivered on the Closing Date, and 

including substantially similar opinions with respect to any Additional Collateral) to the Credit 
4

Parties that is acceptable to the Initial Lender, addressed to the Initial Lender and the applicable 

Agent or Agents and dated as of the Restatement Effective Date, in form and substance 

satisfactory to the Initial Lender and the applicable Agent (and the Parent hereby instructs such 

counsel to deliver such opinions to such Persons).

(e) Expenses. The Borrower shall have paid all reasonable fees, expenses 

(including the reasonable fees and expenses of legal counsel) and other amounts due to the Initial 

Lender, the Administrative Agent and the Collateral Agent (to the extent that statements for such 

expenses shall have been delivered to the Borrower on or prior to the Restatement Effective 

Date); provided that such expenses payable by the Borrower may be offset against the proceeds 

of any Loans funded on the Restatement Effective Date.

(f) Officer’s Certificate. The Initial Lender shall have received a 

certificate executed by a Responsible Officer of the Parent and the Borrower confirming (i) that 

the representations and warranties contained in Section 3 of this Restatement Agreement are true 

and correct on and as of the Restatement Effective Date, (ii) that the information provided in the 

Loan Application Form submitted by the Borrower was true and correct on and as of the date of 

delivery thereof, (iii) the satisfaction of Sections 4(i) and (k) herein as of the Restatement 

Effective Date, (iv) the satisfaction of all other conditions precedent to the Restatement Effective 

Date described in this Section 4 and (v) that no Default or Event of Default exists or will result 

from the terms of this Restatement Agreement on the Restatement Effective Date.

(g) Consents and Authorizations. Each Credit Party shall have obtained 

all consents and authorizations from Governmental Authorities and all consents of other Persons 

(including shareholder approvals, if applicable) that are necessary or advisable in connection 

with this Restatement Agreement, any Loan Document, any of the transactions contemplated 

hereby or thereby or the continuing operations of the Credit Parties and each of the foregoing 

shall be in full force and effect and in form and substance satisfactory to the Initial Lender.

(h) Lien Searches. The Initial Lender shall have received UCC, 

Intellectual Property and other applicable lien searches, including tax and judgment liens 

searches, conducted in the jurisdictions and offices where such liens on material assets of the 

Credit Parties are required to be filed or recorded, in each case, as of the date that such lien 

searches were last conducted pursuant to the Loan and Guarantee Agreement in each case, 

reflecting the absence of Liens on the assets of the Credit Parties, other than Permitted Liens or 

Liens to be discharged on or prior to the Restatement Effective Date pursuant to documentation 

satisfactory to the Initial Lender.

(i) Collateral Coverage Ratio. On the Restatement Effective Date (and 

after giving pro forma effect to any Borrowings on such date), the Collateral Coverage Ratio 

shall not be less than 2.0 to 1.0.

(j) Solvency Certificate. The Initial Lender shall have received a 

certificate of the chief financial officer or treasurer (or other comparable officer) of the Parent 

certifying that the Borrower and its Subsidiaries (taken as a whole) are, and will be immediately 

after giving effect to the Restatement Agreement, Solvent.
5

(k) No Material Adverse Effects. Since the Closing Date, (i) there has 

been no event or circumstance that, either individually or in the aggregate, has had or could 

reasonably be expected to have a Material Adverse Effect and (ii) none of the Credit Parties has 

made a Disposition (including any sale of Currency) of any assets of the type that would be 

included in the Collateral other than as would have been permitted under the Loan and Guarantee 

Agreement.

(l) Audits. On the Restatement Effective Date, the opinion of the 

independent public accountants (after giving effect to any reissuance or revision of such opinion) 

on the most recent audited consolidated financial statements delivered by the Parent pursuant to 

Section 5.01(a) of the Loan and Guarantee Agreement shall not include a “going concern” 

qualification under GAAP as in effect on the date of this Restatement Agreement or, if there is 

a change in the relevant provisions of GAAP thereafter, any like qualification or exception under 

GAAP after giving effect to such change; and 

(m)Perfection of Liens on Collateral. On or prior to the Restatement 

Effective Date, in connection with the execution of the Pledge and Security Agreement, the 

Perfection Requirement (as defined in the Pledge and Security Agreement) shall have been 

satisfied and all of the perfection steps thereunder shall have been completed, and copies or 

evidence, if available, of any relevant filings, recordings and other perfection documentation 

shall have been provided to the Initial Lender, the Administrative Agent and the Collateral 

Agent.

Section 5. Miscellaneous. 

(a) Fees. The Borrower shall pay all fees required to be paid to the 

Administrative Agent, the Collateral Agent and the Lenders and all expenses (including fees and 

expenses of counsel) required to be paid to the Administrative Agent, Collateral Agent and the 

Lenders, in each case as required by and in accordance with the terms of the Loan and Guarantee

Agreement, as they are due and payable in connection with this Restatement Agreement.

(b) Continued Effectiveness. Notwithstanding anything contained herein, 

the terms of this Restatement Agreement shall not constitute a novation or termination of the 

Existing Loan and Guarantee Agreement or any other Loan Documents and are not intended to 

and do not serve to effect a novation or termination of the obligations outstanding under the 

Existing Loan and Guarantee Agreement or instruments guaranteeing or securing the same, 

which instruments shall remain and continue in full force and effect.

(c) Governing Law; Jurisdiction, Etc. THIS RESTATEMENT 

AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE 

WITH, THE FEDERAL LAW OF THE UNITED STATES IF AND TO THE EXTENT SUCH 

LAW IS APPLICABLE, AND OTHERWISE IN ACCORDANCE WITH THE LAW OF THE 

STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE 

PERFORMED ENTIRELY WITHIN SUCH STATE.

(d) WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED 

BY APPLICABLE LAW, EACH CREDIT PARTY AND EACH LENDER HEREBY 
6

UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL ACTION 

OR PROCEEDING RELATING TO THIS AGREEMENT, THE LOAN DOCUMENTS 

OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

(e) Entire Agreement. This Restatement Agreement, the Loan and 

Guarantee Agreement and the other Loan Documents constitute the entire contract among the 

parties relating to the subject matter hereof and supersede any and all previous agreements and 

understandings, oral or written, relating to the subject matter hereof. The Borrower and the 

Agents hereby designate this Restatement Agreement as a Loan Document.

(f) Counterparts. This Restatement Agreement may be executed in 

counterparts (and by different parties hereto in different counterparts), each of which shall 

constitute an original, but all of which when taken together shall constitute a single contract. 

Delivery of an executed counterpart of a signature page of this Restatement Agreement by 

facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually 

executed counterpart of this Agreement.

(g) Electronic Execution. The words “execution,” “signed,” “signature,” 

and words of like import in this Restatement Agreement shall be deemed to include electronic 

signatures or the keeping of records in electronic form, each of which shall be of the same legal 

effect, validity or enforceability as a manually executed signature or the use of a paper-based 

recordkeeping system, as the case may be, to the extent and as provided for in any Applicable 

Law, including the Federal Electronic Signatures in Global and National Commerce Act, the 

New York State Electronic Signatures and Records Act, or any other similar state laws based on 

the Uniform Electronic Transactions Act.

(h) Successors and Assigns. When this Restatement Agreement has been 

executed by the Parent, the Borrower, the Agents and the Lenders party hereto, this Restatement 

Agreement shall thereafter be binding upon and inure to the benefit of the parties and their 

respective successors and assigns, in accordance with the terms of the Loan and Guarantee 

Agreement.

(i) Severability. If any provision of this Restatement Agreement or the 

other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity 

and enforceability of the remaining provisions of this Restatement Agreement and the other Loan 

Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good 

faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions 

the economic effect of which comes as close as possible to that of the illegal, invalid or 

unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not 

invalidate or render unenforceable such provision in any other jurisdiction.

(j) Headings. The headings of this Restatement Agreement are for 

purposes of reference only and shall not limit or otherwise affect the meaning hereof.

(k) Direction to Agents. The Lenders party hereto hereby authorize and 

direct the Administrative Agent and the Collateral Agent to execute and deliver this Restatement 

Agreement. 
7

(l) Release by Credit Parties. Each Credit Party hereto hereby 

acknowledges and agrees that it has no actual knowledge of any defenses or claims against any 

Lender, the Agents, any of their respective Affiliates or any of their respective officers, directors, 

employees, attorneys, representatives, predecessors, successors or assigns with respect to the 

Obligations, and that if such Credit Party now has, or ever did have, any defenses or claims with 

respect to the Obligations against any Lender, the Agents, any of the respective Affiliates or any 

of their respective officers, directors, employees, attorneys, representatives, predecessors, 

successors, or assigns, whether known or unknown, at law or in equity, from the beginning of 

the world through this date and through the time of effectiveness of this Restatement Agreement, 

all of them are hereby expressly WAIVED, and the Borrower hereby RELEASES each Lender, 

each Agent, their respective Affiliates and their respective officers, directors, employees, 

attorneys, representatives, predecessors, successors and assigns from any liability therefor.

(m) No Liability of Agents. The Agents assume no responsibility for, and

shall be entitled to rely on, without any obligation to ascertain or investigate, the correctness of 

the recitals and statements contained herein. The Agents shall not be liable or responsible in any 

manner whatsoever for, or in respect of, the validity or sufficiency of this Restatement 

Agreement.

Section 6. Reaffirmation.

(a) Each Credit Party hereto hereby consents to the execution, delivery 

and performance of this Restatement Agreement and agrees that each reference to “the Loan and 

Guarantee Agreement,” “this Agreement,” “hereunder,” “hereof” or words of like import 

referring to the Loan and Guarantee Agreement in the Loan Documents shall, on and after the 

Restatement Effective Date, be deemed to be a reference to the Loan and Guarantee Agreement, 

as amended and restated by this Restatement Agreement.

(b) Each Credit Party hereto hereby reaffirms all of its respective 

obligations and liabilities under the Loan Documents to which it is a party, as such obligations 

and liabilities have been amended by this Restatement Agreement, and acknowledges and agrees 

that such obligations and liabilities remain in full force and effect.

(c) Each Credit Party hereto hereby irrevocably and unconditionally 

ratifies each Loan Document to which it is a party (as such Loan Documents are amended to and 

including the date hereof) and ratifies and reaffirms such Credit Party’s guarantee and grant of 

liens and security interests under the Security Documents and confirms that the guarantees, liens 

and security interests granted thereunder continue to secure the Obligations, including, without 

limitation, any additional Obligations resulting from or incurred pursuant to the Loan and 

Guarantee Agreement.

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[Signature Page to Restatement Agreement – Hawaiian Airlines, Inc.]

THE BANK OF NEW YORK MELLON, as 

Administrative Agent

By: _______________________

Name: 

Title: 

THE BANK OF NEW YORK MELLON, as 

Collateral Agent

By: _______________________

Name: 

Title: 

Bret S. Derman 

Vice President

Bret S. Derman 

Vice President
Annex A

Form of Amended and Restated Loan and Guarantee Agreement
Execution Version

LOAN AND GUARANTEE AGREEMENT

dated as of

September 25, 2020,

and as amended and restated as of

October 23, 2020

among

HAWAIIAN AIRLINES, INC., as Borrower,

the Guarantors party hereto from time to time,

THE UNITED STATES DEPARTMENT OF THE TREASURY,

and

THE BANK OF NEW YORK MELLON,

as Administrative Agent and Collateral Agent

__________
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TABLE OF CONTENTS

Page

ARTICLE I

DEFINITIONS

SECTION 1.01 Defined Terms............................................................................................................ 1

SECTION 1.02 Terms Generally ....................................................................................................... 35

SECTION 1.03 Accounting Terms; Changes in GAAP .................................................................... 36

SECTION 1.04 Rates......................................................................................................................... 36

SECTION 1.05 Divisions................................................................................................................... 36

ARTICLE II

COMMITMENTS AND BORROWINGS

SECTION 2.01 Commitments ........................................................................................................... 36

SECTION 2.02 Loans and Borrowings.............................................................................................. 37

SECTION 2.03 Borrowing Requests ................................................................................................. 37

SECTION 2.04 [Reserved]................................................................................................................. 37

SECTION 2.05 [Reserved]................................................................................................................. 37

SECTION 2.06 Prepayments ............................................................................................................. 37

SECTION 2.07 Reduction and Termination of Commitments .......................................................... 39

SECTION 2.08 Repayment of Loans................................................................................................. 39

SECTION 2.09 Interest ...................................................................................................................... 39

SECTION 2.10 Benchmark Replacement Setting.............................................................................. 40

SECTION 2.11 Evidence of Debt ...................................................................................................... 41

SECTION 2.12 Payments Generally.................................................................................................. 42

SECTION 2.13 Sharing of Payments................................................................................................. 43

SECTION 2.14 Compensation for Losses.......................................................................................... 43

SECTION 2.15 Increased Costs......................................................................................................... 44

SECTION 2.16 Taxes ........................................................................................................................ 44

SECTION 2.17 [Reserved]................................................................................................................. 48

SECTION 2.18 [Reserved]................................................................................................................. 48

SECTION 2.19 Mitigation Obligations; Replacement of Lenders..................................................... 48

ARTICLE III

REPRESENTATIONS AND WARRANTIES

SECTION 3.01 Existence, Qualification and Power.......................................................................... 49

SECTION 3.02 Authorization; No Contravention ............................................................................. 49

SECTION 3.03 Governmental Authorization; Other Consents ......................................................... 50

SECTION 3.04 Execution and Delivery; Binding Effect .................................................................. 50

SECTION 3.05 Financial Statements; No Material Adverse Change................................................ 50

SECTION 3.06 Litigation .................................................................................................................. 50

SECTION 3.07 Contractual Obligations; No Default........................................................................ 50

SECTION 3.08 Property .................................................................................................................... 50

SECTION 3.09 Taxes ........................................................................................................................ 51
ii

SECTION 3.10 Disclosure ................................................................................................................. 51

SECTION 3.11 Compliance with Laws............................................................................................. 51

SECTION 3.12 ERISA Compliance .................................................................................................. 51

SECTION 3.13 Environmental Matters............................................................................................. 52

SECTION 3.14 Investment Company Act......................................................................................... 53

SECTION 3.15 Sanctions; Export Controls; Anti-Corruption; AML Laws...................................... 53

SECTION 3.16 Solvency ................................................................................................................... 53

SECTION 3.17 Subsidiaries............................................................................................................... 53

SECTION 3.18 Senior Indebtedness.................................................................................................. 53

SECTION 3.19 Insurance Matters ..................................................................................................... 53

SECTION 3.20 Labor Matters ........................................................................................................... 53

SECTION 3.21 Insolvency Proceedings............................................................................................ 54

SECTION 3.22 Margin Regulations.................................................................................................. 54

SECTION 3.23 Liens......................................................................................................................... 54

SECTION 3.24 Perfected Security Interests...................................................................................... 54

SECTION 3.25 US Citizenship.......................................................................................................... 54

SECTION 3.26 Air Carrier Status...................................................................................................... 54

SECTION 3.27 Cybersecurity............................................................................................................ 54

SECTION 3.28 Loyalty Program Agreements................................................................................... 55

ARTICLE IV

CONDITIONS

SECTION 4.01 Closing Date and Initial Borrowing.......................................................................... 55

SECTION 4.02 Each Borrowing........................................................................................................ 57

ARTICLE V

AFFIRMATIVE COVENANTS

SECTION 5.01 Financial Statements................................................................................................. 59

SECTION 5.02 Certificates; Other Information ................................................................................ 60

SECTION 5.03 Notices...................................................................................................................... 61

SECTION 5.04 Preservation of Existence, Etc.................................................................................. 62

SECTION 5.05 Maintenance of Properties........................................................................................ 62

SECTION 5.06 Maintenance of Insurance......................................................................................... 62

SECTION 5.07 Payment of Obligations............................................................................................ 62

SECTION 5.08 Compliance with Laws............................................................................................. 62

SECTION 5.09 Environmental Matters............................................................................................. 62

SECTION 5.10 Books and Records................................................................................................... 63

SECTION 5.11 Inspection Rights...................................................................................................... 63

SECTION 5.12 Sanctions; Export Controls; Anti-Corruption Laws and AML Laws....................... 63

SECTION 5.13 Guarantors; Additional Collateral ............................................................................ 63

SECTION 5.14 Post-Closing Matters................................................................................................ 64

SECTION 5.15 Further Assurances................................................................................................... 64

SECTION 5.16 Delivery of Appraisals.............................................................................................. 65

SECTION 5.17 Ratings...................................................................................................................... 65

SECTION 5.18 Regulatory Matters................................................................................................... 65

SECTION 5.19 Loyalty Programs; Loyalty Program Agreements.................................................... 65

SECTION 5.20 Collections; Accounts; Payments............................................................................. 66
iii

ARTICLE VI

NEGATIVE COVENANTS

SECTION 6.01 [Reserved]................................................................................................................. 67

SECTION 6.02 Liens......................................................................................................................... 67

SECTION 6.03 Fundamental Changes .............................................................................................. 67

SECTION 6.04 Dispositions.............................................................................................................. 67

SECTION 6.05 Restricted Payments ................................................................................................. 69

SECTION 6.06 Investments............................................................................................................... 70

SECTION 6.07 Transactions with Affiliates...................................................................................... 72

SECTION 6.08 [Reserved]................................................................................................................. 72

SECTION 6.09 [Reserved]................................................................................................................. 72

SECTION 6.10 Changes in Nature of Business................................................................................. 72

SECTION 6.11 Sanctions; AML Laws.............................................................................................. 72

SECTION 6.12 Amendments to Organizational Documents............................................................. 72

SECTION 6.13 [Reserved]................................................................................................................. 73

SECTION 6.14 Prepayments of Junior Indebtedness ........................................................................ 73

SECTION 6.15 Lobbying................................................................................................................... 73

SECTION 6.16 Use of Proceeds........................................................................................................ 73

SECTION 6.17 Financial Covenants ................................................................................................. 73

ARTICLE VII

EVENTS OF DEFAULT

SECTION 7.01 Events of Default...................................................................................................... 75

SECTION 7.02 Application of Payments .......................................................................................... 78

ARTICLE VIII

AGENCY

SECTION 8.01 Appointment and Authority...................................................................................... 78

SECTION 8.02 Collateral Matters. .................................................................................................... 79

SECTION 8.03 Removal or Resignation of Administrative Agent ................................................... 79

SECTION 8.04 Exculpatory Provisions............................................................................................. 80

SECTION 8.05 Reliance by Agent .................................................................................................... 81

SECTION 8.06 Delegation of Duties................................................................................................. 82

SECTION 8.07 Non-Reliance on Agents and Other Lenders............................................................ 82

SECTION 8.08 Administrative Agent May File Proofs of Claim ..................................................... 82

ARTICLE IX

GUARANTEE

SECTION 9.01 Guarantee of the Obligations.................................................................................... 83

SECTION 9.02 Payment or Performance by a Guarantor ................................................................. 83

SECTION 9.03 Liability of Guarantors Absolute.............................................................................. 83

SECTION 9.04 Waivers by Guarantors............................................................................................. 84

SECTION 9.05 Guarantors’ Rights of Subrogation, Contribution, etc.............................................. 85
iv

SECTION 9.06 Subordination ........................................................................................................... 85

SECTION 9.07 Continuing Guarantee............................................................................................... 85

SECTION 9.08 Financial Condition of the Borrower........................................................................ 85

SECTION 9.09 Reinstatement ........................................................................................................... 86

SECTION 9.10 Discharge of Guarantees........................................................................................... 86

ARTICLE X

CARES ACT REQUIREMENTS

SECTION 10.01 CARES Act Compliance .......................................................................................... 86

SECTION 10.02 Dividends and Buybacks.......................................................................................... 86

SECTION 10.03 Maintenance of Employment Levels........................................................................ 86

SECTION 10.04 United States Business ............................................................................................. 87

SECTION 10.05 Limitations on Certain Compensation...................................................................... 87

SECTION 10.06 Continuation of Certain Air Service......................................................................... 87

SECTION 10.07 Treasury Access........................................................................................................ 88

SECTION 10.08 Additional Defined Terms........................................................................................ 88

ARTICLE XI

MISCELLANEOUS

SECTION 11.01 Notices; Public Information...................................................................................... 89

SECTION 11.02 Waivers; Amendments ............................................................................................. 91

SECTION 11.03 Expenses; Indemnity; Damage Waiver .................................................................... 93

SECTION 11.04 Successors and Assigns............................................................................................ 94

SECTION 11.05 Survival..................................................................................................................... 97

SECTION 11.06 Counterparts; Integration; Effectiveness; Electronic Execution............................... 97

SECTION 11.07 Severability............................................................................................................... 98

SECTION 11.08 Right of Setoff.......................................................................................................... 98

SECTION 11.09 Governing Law; Jurisdiction; Etc............................................................................. 98

SECTION 11.10 Waiver of Jury Trial ................................................................................................. 99

SECTION 11.11 Headings................................................................................................................... 99

SECTION 11.12 Treatment of Certain Information; Confidentiality .................................................. 99

SECTION 11.13 Money Laundering; Sanctions................................................................................ 100

SECTION 11.14 Interest Rate Limitation.......................................................................................... 100

SECTION 11.15 Payments Set Aside ................................................................................................ 100

SECTION 11.16 No Advisory or Fiduciary Responsibility............................................................... 100

SECTION 11.17 Acknowledgement and Consent to Bail-In of EEA Financial Institutions............. 101
v

SCHEDULES

SCHEDULE 1.01(a) - Carrier Loyalty Programs

SCHEDULE 1.01(b) - Loyalty Program Agreements

SCHEDULE 1.01(c) - Loyalty Subscription Programs

SCHEDULE 3.05 - Financial Statements

SCHEDULE 3.17 - Subsidiaries

SCHEDULE 5.14 - Post-Closing Matters

SCHEDULE 6.05(i) - Restricted Payments

SCHEDULE 6.06 - Investments

SCHEDULE 6.07 - Affiliate Transactions

EXHIBITS

EXHIBIT A - Assignment and Assumption

EXHIBIT B-1 - Form of U.S. Tax Compliance Certificate

EXHIBIT B-2 - Form of U.S. Tax Compliance Certificate

EXHIBIT B-3 - Form of U.S. Tax Compliance Certificate

EXHIBIT B-4 - Form of U.S. Tax Compliance Certificate

EXHIBIT C - Form of Note

EXHIBIT D - Form of Direct Agreement 

EXHIBIT E - Form of Borrowing Request
LOAN AND GUARANTEE AGREEMENT dated as of September 25, 2020 (as 

amended and restated by the Restatement Agreement, this “Agreement”), among HAWAIIAN 

AIRLINES, INC., a corporation organized under the laws of Delaware (the “Borrower”), HAWAIIAN 

HOLDINGS, INC., a corporation organized under the laws of Delaware (the “Parent”), the Guarantors 

party hereto from time to time, the UNITED STATES DEPARTMENT OF THE TREASURY 

(“Treasury”) and THE BANK OF NEW YORK MELLON as Administrative Agent and Collateral Agent.

WHEREAS, the Borrower has requested that the Initial Lender (as defined below) extend 

credit as is permissible under the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136 

(Mar. 27, 2020), as the same may be amended form time to time (the “CARES Act”) to the Borrower, and 

the Initial Lender is willing to do so on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 4003(h)(1) of the CARES Act, for purposes of the Code 

(as defined below) the Loans (as defined below) shall be treated as indebtedness and as having been 

issued for their aggregate stated principal amount, and the interest payable pursuant to Section 2.09(a)

shall be treated as qualified stated interest.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein 

contained, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the 

meanings specified below:

“Additional Collateral” shall mean (a) cash and Cash Equivalents pledged to the 

Collateral Agent for the benefit of the Secured Parties under the Security Documents (and subject to an 

account control agreement in form and substance satisfactory to the Appropriate Party), (b) airframes, 

aircraft, engines and Spare Parts, registered, habitually located, or located in a designated location, 

respectively, in the United States and that are eligible for the benefits of Section 1110 of the Bankruptcy 

Code, 11 U.S.C. § 1110 or otherwise acceptable to the Required Lenders (provided that any airframe must 

be less than 20 years old at the time of its designation as Additional Collateral), (c) Route Authorities for 

routes with at least one end point located in the United States and all Slots and Gate Leaseholds related 

from time to time thereto or otherwise acceptable to the Required Lenders, (d) real property, (e) ground 

support equipment, (f) flight simulators and (g) any other assets acceptable to the Required Lenders, and 

all of which assets shall (i) (other than Additional Collateral of the type described in clause (a)) be valued 

by a new Appraisal at the time the Parent designates such assets as Additional Collateral, (ii) as of any 

date of addition of such assets as Collateral, be subject, to the extent purported to be created by the 

applicable Security Document, to a perfected first priority Lien and/or mortgage (or comparable Lien), in 

favor of the Collateral Agent for the benefit of the Secured Parties and otherwise subject only to 

Permitted Liens (excluding those referred to in clause (4) of the definition of “Permitted Lien”), (iii) 

pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to security agreement(s) or 

mortgage(s), as applicable, in a form satisfactory to the Appropriate Party and (iv) at the time of their 

designation as Additional Collateral, be accompanied by a legal opinion in form satisfactory to the 

Appropriate Party; provided that, in accordance with Section 8.06, the Collateral Agent may designate a 

sub-agent to accept the security interest in any Additional Collateral for the benefit of the Secured Parties; 

provided further that, with respect to Additional Collateral of the type described in clauses (c), (d) and (g), 

the Borrower agrees to notify the Collateral Agent as promptly as practicable of any new categories of 

assets which are expected to be designated as Additional Collateral or any new jurisdictions in which any 
2

asset is to be secured or located; provided further that, with respect to Additional Collateral of the type 

described in clause (d), (e) or (f), (i) such assets are acceptable to the Required Lenders, (ii) the Borrower 

shall have delivered Appraisals acceptable in form and substance to the Required Lenders with respect to 

such assets, (iii) such assets are subject to a loan to value framework acceptable to the Required Lenders, 

(iv) such assets are pledged pursuant to documentation acceptable in form and substance to the Required 

Lenders and (v) the benefits of pledging such assets outweigh the associated cost, burden, difficulty or 

other consequences, as determined by the Required Lenders in their sole discretion; provided further that 

the Aircraft and Engine Assets (as defined in the Pledge and Security Agreement) listed on Schedule 2.1 

of the Pledge and Security Agreement on the Closing Date shall be deemed to be Additional Collateral for 

purposes of 6.17(b).

“Adjusted LIBO Rate” means, as to any Borrowing for any Interest Period, an interest 

rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for 

such Interest Period divided by (b) one minus the Eurodollar Reserve Percentage.

“Administrative Account” means the account opened with the Administrative Agent in 

the name of the Initial Lender as notified to the Borrower and the Initial Lender, or such other account as 

the Administrative Agent shall advise the Borrower and each Lender from time to time.

“Administrative Agency Fee Letter” means any fee letter entered into between the 

Borrower, the Administrative Agent and the Collateral Agent, or with any successor administrative agent

or collateral agent, in its capacity as administrative agent and in its capacity as collateral agent under any 

of the Loan Documents.

“Administrative Agent” means The Bank of New York Mellon, in its capacity as 

administrative agent under any of the Loan Documents, or any successor administrative agent.

“Administrative Questionnaire” means an Administrative Questionnaire in a form 

supplied by or otherwise acceptable to the Administrative Agent.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK 

Financial Institution.

“Affiliate” means any Person that directly or indirectly controls, is controlled by, or is 

under common control with, any other Person. For purposes of this definition, “control” of a Person shall 

mean having the power, directly or indirectly, to direct or cause the direction of the management and 

policies of such Person, whether by ownership of voting equity, by contract, or otherwise.

“Agent Parties” has the meaning specified in Section 11.01(d)(ii).

“Agent Responsible Officer” means, when used with respect to an Agent, any vice 

president, assistant vice president, assistant treasurer or trust officer in the corporate trust and agency 

administration of the Agent or any other officer of the Agent customarily performing functions similar to 

those performed by any of the above-designated officers, and, in each case, who shall have direct 

responsibility for the administration of this Agreement and also means, with respect to a particular agency 

matter, any other officer to whom such matter is referred because of his or her knowledge of and 

familiarity with the particular subject. 

“Agents” means any of the Administrative Agent and the Collateral Agent.

“Agreement” has the meaning specified in introductory paragraph hereof.
3

“Air Carrier” has the meaning such term has under Section 40102 of Title 49, United 

States Code.

“Alternate Base Rate” means, for any day, a rate per annum equal to the highest of (a) the 

Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% 

and (c) the Adjusted LIBO Rate for a one-month term in effect on such day (taking into account any 

LIBO Rate floor under the definition of “Adjusted LIBO Rate”) plus 1.00%. Any change in the Alternate 

Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO 

Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal 

Funds Effective Rate or such Adjusted LIBO Rate, respectively.

“AML Laws” means (a) the USA Patriot Act of 2001 (Pub. L. No. 107-56), (b) the U.S. 

Money Laundering Control Act of 1986, as amended, (c) the Bank Secrecy Act, 31 U.S.C. sections 5301 

et seq., (d) Laundering of Monetary Instruments, 18 U.S.C. section 1956, (e) Engaging in Monetary 

Transactions in Property Derived from Specified Unlawful Activity, 18 U.S.C. section 1957, (f) the 

Financial Recordkeeping and Reporting of Currency and Foreign Transactions Regulations (Title 31 Part 

103 of the US Code of Federal Regulations), or (g) any other applicable money laundering or financial 

recordkeeping Laws. 

“Applicable Law” means, as to any Person, all applicable Laws binding upon such 

Person or to which such a Person is subject.

“Applicable Percentage” means, with respect to any Lender, the percentage of the total 

Outstanding Amount of Loans of all Lenders represented by the aggregate Outstanding Amount of Loans 

of such Lender at such time.

“Applicable Rate” means 2.50%.

“Appraisal” means any appraisal specifying a value in Dollars (and not a range of 

values), dated as of the delivery thereof, prepared by an Eligible Appraiser that certifies, at the time of 

determination, in reasonable detail the Appraised Value of Eligible Collateral; provided that any 

methodology, form of presentation and all assumptions must be acceptable to the Appropriate Party; 

provided further that the methodology, form of presentation and assumptions in the Appraisal delivered 

on the Closing Date pursuant to Section 4.01(i) shall be satisfactory for any subsequent Appraisal with 

respect to the same category and specific type of Eligible Collateral.

“Appraised Value” means, as of any date, (a) the specific value in Dollars (and not a 

range of values) of any property constituting Eligible Collateral (other than cash and Cash Equivalents) as 

reflected in the most recent Appraisal, (b) with respect to any cash pledged or being pledged at such time 

as Collateral, 160% of the face amount and (c) with respect to any Cash Equivalents pledged or being 

pledged at such time as Collateral, 100% of the fair market value thereof as determined by the Parent in 

accordance with customary financial market practices determined no earlier than 45 days prior to such 

date; provided that (i) if no Appraisal relating to such Eligible Collateral has been delivered to the 

Collateral Agent prior to such date, the Appraised Value of such Eligible Collateral shall be deemed to be 

zero and (ii) in the case of any such property consisting of ground support equipment, the Appraised 

Value shall be deemed to be 50% of the value set forth in the most recent Appraisal.

“Appropriate Party” means (i) while the Initial Lender holds any Commitment or Loan, 

the Initial Lender and (ii) if the Initial Lender is no longer a Lender, the Administrative Agent (acting at 

the direction of the Required Lenders). 
4

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, 

(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a 

Lender.

“Assignment and Assumption” means an assignment and assumption entered into by a 

Lender and an Eligible Assignee (with the consent of any party whose consent is required by 

Section 11.04), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any 

other form approved by the Administrative Agent.

“Attributable Indebtedness” means, as of any date of determination, (a) in respect of any 

Capitalized Lease Obligations of any Person, the capitalized amount thereof that would appear on a 

balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any 

Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant 

lease that would appear on a balance sheet of such Person prepared as of such date in accordance with 

GAAP if such lease were accounted for as a capital lease.

“Available Tenor” means, as of any date of determination and with respect to the thencurrent Benchmark, as applicable, any tenor for such Benchmark or payment period for interest 

calculated with reference to such Benchmark, as applicable, that is or may be used for determining the 

length of an Interest Period pursuant to this Agreement as of such date and not including, for the 

avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of 

“Interest Period” pursuant to clause (d) of Section 2.10.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by an 

applicable Resolution Authority in respect of any liability of any 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 for such EEA Member Country from time to time which is described in the 

EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United 

Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule 

applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms 

or other financial institutions or their affiliates (other than through liquidation, administration or other 

insolvency proceedings).

“Benchmark” means, initially, USD LIBO Rate; provided that if a Benchmark 

Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement 

Date have occurred with respect to USD LIBO Rate 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 2.10(a).

“Benchmark Replacement” means, for any Available Tenor, the first alternative set 

forth in the order below that can be determined by the Required Lenders for the applicable Benchmark 

Replacement Date:

(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark

Replacement Adjustment;

(3) the sum of: (a) the alternate benchmark rate that has been selected by (y) so long as the 

Initial Lender is a Lender, the Initial Lender and (z) otherwise, the Required Lenders 
5

and the Borrower, in each case, as the replacement for the then-current Benchmark for 

the applicable Corresponding Tenor giving due consideration to (i) any selection or 

recommendation of a replacement benchmark rate or the mechanism for determining 

such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing

market convention for determining a benchmark rate as a replacement for the thencurrent Benchmark for U.S. dollar-denominated syndicated credit facilities at such time 

and (b) the related Benchmark ReplacementAdjustment;

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a 

screen or other information service that publishes such rate from time to time as selected by the 

Required Lenders in their reasonable discretion and such screen is administratively acceptable as 

determined by the Administrative Agent in its reasonable discretion. If the Benchmark 

Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the 

Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the 

other Loan Documents; provided further that any such Benchmark Replacement shall be 

administratively feasible as determined by the Administrative Agent in its reasonable discretion.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the 

then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest 

Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the 

first alternative set forth in the order below that can be determined by the Required 

Lenders:

(a) the spread adjustment, or method for calculating or determining such spread 

adjustment, (which may be a positive or negative value or zero) as of the 

Reference Time such Benchmark Replacement is first set for such Interest Period 

that has been selected or recommended by the Relevant Governmental Body for 

the replacement of such Benchmark with the applicable Unadjusted Benchmark 

Replacement for the applicable Corresponding Tenor;

(b) the spread adjustment (which may be a positive or negative value or zero) as of 

the Reference Time such Benchmark Replacement is first set for such Interest 

Period that would apply to the fallback rate for a derivative transaction 

referencing the ISDA Definitions to be effective upon an index cessation event

with respect to such Benchmark for the applicable Corresponding Tenor; and

(2) for purposes of clause (3) of the definition of “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 (y) so long as the Initial Lender is 

a Lender, the Initial Lender and (z) otherwise, the Required Lenders and the Borrower, in 

each case, for the applicable Corresponding Tenor giving due consideration to (i) any 

selection or recommendation of a spread adjustment, or method for calculating or determining 

such spread adjustment, for the replacement of such Benchmark with the applicable 

Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable 

Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for 

determining a spread adjustment, or method for calculating or determining such spread 

adjustment, for the replacement of such Benchmark with the applicable Unadjusted 

Benchmark Replacement for U.S. dollar- denominated syndicated credit facilities;

provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other 

information service that publishes such Benchmark Replacement Adjustment from time to time 
6

as selected by the Required Lenders in their reasonable discretion and such screen is 

administratively acceptable as determined by the Administrative Agent in its reasonable 

discretion; provided that, any such Benchmark Replacement Adjustment shall be 

administratively feasible as determined by the Administrative Agent in its reasonable discretion.

“Benchmark Replacement Conforming Changes” means, with respect to any 

Benchmark Replacement, any technical, administrative or operational changes (including changes to the 

definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” 

timing and frequency of determining rates and making payments of interest, timing of borrowing 

requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability 

of breakage provisions, and other technical, administrative or operational matters) that the 

Administrative Agent (after consultation with the Required Lenders) decides may be appropriate to 

reflect the adoption and implementation of such Benchmark Replacement and to permit the 

administration thereof by the Administrative Agent in a manner substantially consistent with market 

practice (or, if the Administrative Agent (after consultation with the Required Lenders) decides that 

adoption of any portion of such market practice is not administratively feasible or if the Administrative 

Agent (after consultation with the Required Lenders) determines that no market practice for the 

administration of such Benchmark Replacement exists, in such other manner of administration as the 

Administrative Agent (after consultation with the Required Lenders) decides is reasonably necessary in 

connection with the administration of this Agreement and the other Loan Documents). The Required 

Lenders shall cooperate in good faith with the Administrative Agent so that the Administrative Agent 

may determine such Benchmark Replacement Conforming Changes.

“Benchmark Replacement Date” means the earliest to occur of the following events 

with respect to the then-current Benchmark:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of

(a) the date of the public statement or publication of information referenced therein and (b) 

the date on which the administrator of such Benchmark (or the published component used in 

the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of 

such Benchmark (or such component thereof);

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the 

public statement or publication of information referenced therein;or

(3) in the case of an Early Opt-in Election, (y) so long as the Initial Lender is a Lender, the sixth 

(6th) Business Day after the date notice of such Early Opt-in Election is provided to the 

Administrative Agent and (z) otherwise, the sixth (6th) Business Day after the date notice of 

such Early Opt-in Election is provided to the Administrative Agent, so long as the 

Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) 

Business Day after the date notice of such Early Opt-in Election is provided to the Lenders,

written notice of objection to such Early Opt-in Election from Lenders comprising the 

RequiredLenders.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on 

the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark 

Replacement Date will be deemed to have occurred prior to the Reference Time for such determination 

and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) 

or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth 

therein with respect to all then-current Available Tenors of such Benchmark (or the published 

component used in the calculation thereof).
7

“Benchmark Transition Event” means the occurrence of one or more of the 

following events with respect to the then-current Benchmark:

(1) a public statement or publication of information by or on behalf of the administrator of 

such Benchmark (or the published component used in the calculation thereof) announcing 

that such administrator has ceased or will cease to provide all Available Tenors of such 

Benchmark (or such component thereof), permanently or indefinitely, provided that, at the 

time of such statement or publication, there is no successor administrator that will continue 

to provide any Available Tenor of such Benchmark (or such componentthereof);

(2) a public statement or publication of information by the regulatory supervisor for the 

administrator of such Benchmark (or the published component used in the calculation 

thereof), the Federal Reserve Board, the 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

(3) a public statement or publication of information by the regulatory supervisor for the 

administrator of such Benchmark (or the published component used in the calculation 

thereof) announcing that all Available Tenors of such Benchmark (or such component 

thereof) are no longer representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with 

respect to any Benchmark if a public statement or publication of information set forth above has 

occurred with respect to each then-current Available Tenor of such Benchmark (or the published 

component used in the calculation thereof).

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time 

that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at 

such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes 

hereunder and under any Loan Document in accordance with Section 2.10 and (y) 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 2.10.

“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.

“Blocked Account” means a deposit account in the name of a Credit Party noted as a 

Blocked Account on Schedule 2.1 (as supplemented from time to time) of the Pledge and Security 
8

Agreement that is, or is otherwise required under the terms thereof to be, subject to an agreement, in form 

and substance satisfactory to the Appropriate Party, establishing Control (as defined in the Pledge and 

Security Agreement) of such account by the Collateral Agent, and any replacement account thereof.

“Borrower” has the meaning specified in introductory paragraph hereof.

“Borrower Materials” has the meaning specified in Section 11.01(e).

“Borrowing” means a borrowing of Loans.

“Borrowing Request” means a request for a Borrowing in substantially the form of 

Exhibit E or any other form approved by the Administrative Agent.

“Business Day” means any day on which Treasury and the Federal Reserve Bank of New 

York are both open for business that is not a Saturday, Sunday or other day that is a legal holiday under 

the laws of the State of New York or is a day on which banking institutions in such state are authorized or 

required by Law to close; provided that, when used in connection with a Loan, the term “Business Day” 

means any such day that is also a day on which dealings in Dollar deposits are conducted by and between 

banks in the London interbank market.

“Capital Markets Offering” means any offering of “securities” (as defined under the 

Securities Act and, including, for the avoidance of doubt, any offering of pass-through certificates by any 

pass-through trust established by the Parent or any of its Subsidiaries) 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).

“Capitalized Lease Obligations” means, at the time any determination thereof is to be 

made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to 

be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in 

accordance with GAAP; provided that all leases of such Person that are or would have been treated as 

operating leases for purposes of GAAP prior to the issuance of the ASU shall continue to be accounted 

for as operating leases for purposes of all financial definitions and calculations for purposes of this 

Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding 

the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive 

basis or otherwise) to be treated as capitalized lease obligations for other purposes.

“Capitalized Leases” means all leases that have been or should be, in accordance with 

GAAP as in effect on the Closing Date, recorded as capitalized leases; provided that for all purposes 

hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted 

for as a liability in accordance with GAAP; provided, further, that all leases of such Person that are or 

would have been treated as operating leases for purposes of GAAP prior to the issuance of the ASU shall 

continue to be accounted for as operating leases for purposes of all financial definitions and calculations 

for purposes of this Agreement (whether or not such operating lease obligations were in effect on such 

date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a 

prospective or retroactive basis or otherwise) to be treated as capitalized lease obligations for other 

purposes.

“CARES Act” has the meaning specified in the preamble to this Agreement.
9

“Carrier Loyalty Programs” means the Loyalty Programs listed on Schedule 1.01(a) and 

any other Loyalty Program that is operated under a Trademark owned by any Credit Party, or that is 

otherwise operated, owned or controlled, directly or indirectly by, or principally associated with, any 

Credit Party or any of its Affiliates, as such program may be in effect from time to time, in each case 

whether now existing or established, arising or acquired in the future and including any successor 

program of such program. The term “Carrier Loyalty Program” shall include the provision, operation and 

promotion of such program.

“Cash Equivalents” means:

(a) direct obligations of, or obligations the principal of and interest on which are 

unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such 

obligations are backed by the full faith and credit of the United States of America), in each case maturing 

within one year from the date of acquisition thereof;

(b) investments in commercial paper maturing within one year from the date of 

acquisition thereof and having, at such date of acquisition, a rating of at least A-2 from S&P or at least P2 from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time 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 commercial bank 

organized under the laws of the United States of America or any State thereof that has a combined capital 

and surplus and undivided profits of not less than $250,000,000;

(d) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 

under the Investment Company Act of 1940, (ii) are rated AAA and Aaa (or equivalent rating) by at least 

two Credit Rating Agencies and (iii) have portfolio assets of at least $5,000,000,000; 

(e) deposits available for withdrawal on demand with commercial banks organized 

in the United States having capital and surplus in excess of $100,000,000; and 

(f) other short-term liquid investments held by the Parent and the Subsidiaries as of 

the Closing Date in accordance with their normal investment policies and practices for cash management.

“CCR Certificate” has the meaning specified in Section 6.17(b).

“CCR Certificate Delivery Date” has the meaning specified in Section 6.17(b).

“CCR Reference Date” has the meaning specified in Section 6.17(b).

“CFC” means a controlled foreign corporation within the meaning of Section 957 of the 

Code. 

“CFC Holdco” means any Domestic Subsidiary that has no material assets other than 

Equity Interests of one or more Foreign Subsidiaries that are CFCs.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the 

following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any 

law, rule, regulation or treaty or in the administration, interpretation, implementation or application 

thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or 
10

directive (whether or not having the force of law) by any Governmental Authority; provided that 

notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer 

Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection 

therewith and (y) all requests, rules, guidelines or directives 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, shall in each case be 

deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means the occurrence of any of the following: (a) 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, or if the Borrower is a direct or indirect Subsidiary of the Parent, the Parent 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)); (b) 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 or the Parent, as applicable, (measured by voting power rather than number of shares), other 

than (i) any such transaction where the Voting Stock of the Borrower or the Parent, as applicable, 

(measured by voting power rather than number of shares) outstanding immediately prior to such 

transaction constitutes or is converted into or exchanged for at least a majority of the outstanding shares 

of the Voting Stock of such Beneficial Owner (measured by voting power rather than number of shares), 

or (ii) the consummation of any merger or consolidation of the Borrower or the Parent, as applicable, 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); (c) if 

the Borrower is a direct or indirect Subsidiary of the Parent, the Parent ceasing to own, directly or 

indirectly, 100% of the Equity Interests of the Borrower; (d) the adoption of a plan relating to the 

liquidation or dissolution of the Borrower or the Parent or (e) the occurrence of a “change of control”, 

“change in control” or similar event under any Material Indebtedness of the Borrower, the Parent or any 

parent entity of the foregoing.

“Closing Date” means the first date all the conditions precedent in Section 4.01 are 

satisfied. 

“Closing Date Commitment” means the commitment of the Initial Lender on the Closing 

Date to make Loans in the amount of $420,000,000, as such commitment may have been reduced or 

terminated pursuant to Section 2.07.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Collateral” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Collateral Account” means any of the Collection Account, the Blocked Account, the 

Payment Account and the Collateral Proceeds Account. 

“Collateral Agent” means The Bank of New York Mellon, in its capacity as collateral 

agent under any of the Loan Documents, or any successor collateral agent. 
11

“Collateral Cash Flow” means the funds that are deposited into a Collateral Account

pursuant to the Direct Agreements or directly by a Credit Party.

“Collateral Coverage Ratio” means, as of any date of determination, the ratio of (i) the 

Appraised Value of the Eligible Collateral as of the date of the Appraisal most recently delivered pursuant 

to Section 5.16 (or in the case of cash and Cash Equivalents, as of such date of determination) to (ii) the 

aggregate principal amount of all Loans and Commitments outstanding as of such date; provided that for 

the purposes of calculating clause (i) above, (x) no more than 25% of the Appraised Value of the Eligible 

Collateral may correspond to ground support equipment and (y) any amounts held in the Blocked 

Account, Payment Account and Collateral Proceeds Account shall not be included; provided further that 

for the purposes of calculating clause (i) above, Loyalty Program Assets (other than any Loyalty 

Subscription Program) shall not be included unless (x) each Material Loyalty Program Agreement has and 

(y) Loyalty Program Agreements representing 90% of Loyalty Program Revenues (excluding revenues 

generated under any Loyalty Subscription Program) in the aggregate over the immediately preceding 

twelve (12) calendar month period then ended have, in each case, an expiration date that is at least six (6) 

months after the Maturity Date.

“Collateral Proceeds Account” means a deposit account in the name of the Borrower that 

is subject to an agreement in form and substance satisfactory to the Appropriate Party establishing 

Control (as defined in the Pledge and Security Agreement) of such account by the Collateral Agent.

“Collection Account” means that certain concentration account at Citibank, N.A. in the 

name of a Credit Party, and any replacement account, which, in each case, must be a segregated deposit 

account and subject at all times to an account control agreement in form and substance satisfactory to the 

Appropriate Party.

“Commitment” means the commitment of the Initial Lender to make Loans in the amount 

of $622,000,000 (which, for the avoidance of doubt, is an increase of the Closing Date Commitment by 

$202,000,000, pursuant to that certain Restatement Agreement), as such commitment may be reduced or 

terminated pursuant to Section 2.07.

“Communications” has the meaning specified in Section 11.01(d)(ii).

“Competitor” means (i) any Person operating an Air Carrier or a commercial passenger 

air carrier business and (ii) any Affiliate of any Person described in clause (i) (other than any Affiliate of 

such Person as a result of common control by a Governmental Authority or instrumentality thereof and 

any Affiliate of such Person under common control with such Person which Affiliate is not actively 

involved in the management and/or operations of such Person).

“Connection Income Taxes” means Other Connection Taxes that are imposed on or 

measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Contingent Payment Event” means any indemnity, termination payment or liquidated 

damages under a Loyalty Program Agreement.

“Contractual Obligation” means, as to any Person, any provision of any security issued 

by such Person or of any agreement, instrument or other undertaking to which such Person is a party or 

by which it or any of its property is bound.
12

“Control” means the possession, directly or indirectly, of the power to direct or cause the 

direction of the management or policies of a Person, whether through the ability to exercise voting power, 

by contract or otherwise. “Controlling” and “Controlled” have meanings analogous thereto.

“Convertible Indebtedness” means Indebtedness of the Parent that is convertible into 

common Equity Interests of the Parent (and cash in lieu of fractional shares) and/or cash (in an amount 

determined by reference to the price of such common Equity Interests).

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either 

a tenor (including overnight) or an interest payment period having approximately the same length 

(disregarding business day adjustment) as such Available Tenor.

“Credit Parties” means the Borrower and the Guarantors.

“Credit Rating” means a rating as determined by a Credit Rating Agency of the Parent’s 

non-credit-enhanced, senior unsecured long-term indebtedness.

“Credit Rating Agency” means a nationally recognized credit rating agency that evaluates 

the financial condition of issuers of debt instruments and then assigns a rating that reflects its assessment 

of the issuer’s ability to make debt payments.

“Currency” means miles, points or other units that are a medium of exchange constituting 

a convertible, virtual and private currency that is tradable property and that can be sold or issued to 

Persons.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate 

(which will include a lookback) being established by the Required Lenders in accordance with the 

conventions for this rate selected or recommended by the Relevant Governmental Body for determining 

“Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such 

convention is not administratively feasible for the Administrative Agent, then the Required Lenders may 

establish another convention in its reasonable discretion, subject to the determination by the 

Administrative Agent of the administrative feasibility of such convention.

“Debt Service Amount” means, as of any DSCR Determination Date or any other date of 

determination, the sum of all accrued interest on the Loans and any other Indebtedness secured by Liens 

on the Collateral in respect of the most recently ended DSCR Test Period.

“Debt Service Coverage Ratio” means, as of any DSCR Determination Date or any other 

date of determination, the ratio of (a) the aggregate amount of Collateral Cash Flow received during the 

relevant DSCR Test Period that has been deposited into a Collateral Account (and for the avoidance of 

doubt, excluding any amounts on deposit in a Collateral Account in respect of prior periods) to (b) the 

Debt Service Amount for such DSCR Test Period; provided, however, that for (i) the first calendar 

quarter ending after the Closing Date, such ratio shall be calculated for the one calendar quarter ending on 

such date, (ii) the second calendar quarter ending after the Closing Date, such ratio shall be calculated for 

the two calendar quarters ending on such date and (iii) the third calendar quarter ending after the Closing 

Date, such ratio shall be calculated for the three calendar quarters ending on such date.

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and 

all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, 

rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States 

or other applicable jurisdictions from time to time in effect.
13

“Default” means any event or condition that constitutes an Event of Default or that, with 

the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means an interest rate (before as well as after judgment) equal to the 

applicable interest rate plus 2.00% per annum.

“Direct Agreements” means those certain Loyalty Partner Direct Agreements entered into 

by and among the applicable Credit Party, the Collateral Agent, the Initial Lender and the applicable 

counterparty to the Material Loyalty Program Agreements, substantially in the form of Exhibit D hereto.

“Disposition” or “Dispose” means the sale, transfer (including through a plan of 

division), license, lease or other disposition of any property by any Person (including (i) any sale and 

leaseback transaction, any issuance of Equity Interests by a Subsidiary of such Person, (ii) with respect to 

Intellectual Property, any covenant not to sue, release, abandonment, lapse, forfeiture, dedication to the 

public or other similar disposition of Intellectual Property and (iii) with respect to any Personal Data, any 

deletion, de-identification, purging or other similar disposition of Personal Data), including any sale, 

assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or 

any rights and claims associated therewith.

“Disqualified Equity Interest” means any Equity Interest that, by its terms (or the terms 

of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or 

upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely 

for Equity Interests that are not Disqualified Equity Interests), pursuant to a sinking fund obligation or 

otherwise (except as a result of a change of control or asset sale so long as any rights of the holders 

thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior 

repayment in full of the Loans and all other Obligations that are accrued and payable and the termination 

of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, 

(c) provides for scheduled payments of dividends in cash, or (d) is or becomes convertible into or 

exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity 

Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided that 

if such Equity Interests are issued pursuant to a plan for the benefit of employees of the Parent or any 

Subsidiary or by any such plan to such employees, such Equity Interests shall not constitute Disqualified 

Equity Interests solely because they may be required to be repurchased by the Parent or its Subsidiaries in 

order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s 

termination, death or disability.

“Dollar” and “$” mean lawful money of the United States.

“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the 

United States of America, any state thereof, or the District of Columbia.

“DOT” means the U.S. Department of Transportation.

“DSCR Determination Date” means the fifth Business Day following the last day of each 

March, June, September and December (beginning with December 2020).

“DSCR Test Period” means, at any DSCR Determination Date or other date of 

determination, the period of twelve (12) calendar months ending on the last day of the calendar month 

ending immediately prior to such date.

“DSCR Trigger Event” has the meaning specified in Section 6.17(c)(ii)
14

“Early Opt-in Election” means, if the then-current Benchmark is USD LIBO Rate, the 

occurrence of:

(1) (x) so long as the Initial Lender is a Lender, the Initial Lender and (y) otherwise, the 

Required Lenders, in each case notifying to the Administrative Agent that the Initial 

Lender or the Required Lenders have determined that at least five currently outstanding 

U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of 

amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR 

or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit 

facilities are identified in such notice and are publicly available for review), and

(2) (x) so long as the Initial Lender is a Lender, the election by the Initial Lender and (y) 

otherwise, the joint election by the Required Lenders and the Borrower to trigger a fallback 

from USD LIBO Rate and, in each case, the provision to the Administrative Agent and the 

other Lenders of written notice of such election.

“EEA Financial Institution” means (a) any credit institution or investment firm 

established in any EEA Member Country that is subject to the supervision of an EEA Resolution 

Authority, (b) any entity established in an EEA Member Country that is a parent of an institution 

described in clause (a) of this definition, or (c) any financial institution established in an EEA Member 

Country that is a subsidiary of an institution described in clauses (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.

“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 Appraiser” means (a) with respect to aircraft or engines: Morten Beyer & 

Agnew, International Bureau of Aviation, Ascend Worldwide Group, ICF International Inc., BK 

Associates, Inc., Aircraft Information Services Inc., AVITAS, Inc., PAC Appraisal Inc., Aviation 

Specialists Group, Aviation Asset Management Inc. or IBA Group Ltd., (b) with respect to slots, gates or 

routes: Morten Beyer & Agnew, ICF International Inc., PAC Appraisal Inc. or BK Associates, Inc., (c) 

with respect to parts, Morten Beyer & Agnew, ICF International Inc., Sage-Popovich, Inc., PAC 

Appraisal Inc., Aviation Asset Management Inc. or Alton Aviation Consultancy LLC, (d) with respect to 

any other type of property, Deloitte & Touche LLP, Andersen Tax LLC, BBC Aviation Enterprises 

Aviation Advisors Group, LLC, PricewaterhouseCoopers, CBRE Group Inc. and Jones Lang LaSalle 

Incorporated, and (e) any independent appraisal firm appointed by the Borrower and acceptable to the 

Appropriate Party.

“Eligible Assignee” means any Person that meets the requirements to be an assignee 

under Section 11.04(b)(iii), 11.04(b)(v) and 11.04(b)(vi) (subject to such consents, if any, as may be 

required under Section 11.04(b)(iii)); provided that no Competitor shall be an Eligible Assignee.

“Eligible Collateral” means, as of any date, all Collateral on which the Collateral Agent 

has, as of such date, to the extent purported to be created by the applicable Security Document, a valid 

and perfected first priority Lien and/or mortgage (or comparable Lien) for the benefit of the Secured 

Parties and which is otherwise subject only to Permitted Liens and satisfies the requirements set out in the 

Loan Documents for such type of Collateral.
15

“Environmental Laws” means any and all federal, state, local, and foreign statutes, Laws, 

regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, 

licenses, agreements or governmental restrictions, including all common law, relating to pollution or the 

protection of health, safety or the environment or the release of any materials into the environment, 

including those related to Hazardous Materials, air emissions, discharges to waste or public systems and 

health and safety matters.

“Environmental Liability” means any liability or obligation, contingent or otherwise 

(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), 

directly or indirectly, resulting from or based upon (a) violation of any Environmental Law, (b) the 

generation, use, handling, transportation, storage, treatment, disposal or permitting or arranging for the 

disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or 

threatened release of any Hazardous Materials or (e) any contract, agreement or other consensual 

arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, as to any Person, all of the shares of capital stock of (or other 

ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase 

or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) 

such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other 

ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition 

from such Person of such shares (or such other interests), and all of the other ownership or profit interests 

in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, 

and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of 

determination (other than Convertible Indebtedness or any other debt security that is convertible into or 

exchangeable for Equity Interests of such Person and the Warrants).

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, 

and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under 

common control with any Credit Party within the meaning of Section 414(b) or (c) of the Code (and 

Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or 

Section 302 of ERISA).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the 

failure by any Credit Party or any ERISA Affiliate to meet all applicable requirements under the Pension 

Funding Rules or the filing of an application for the waiver of the minimum funding standards under the 

Pension Funding Rules; (c) the incurrence by any Credit Party or any ERISA Affiliate of any liability 

pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan 

within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by any Credit 

Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in 

reorganization or insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent 

to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, 

Section 4041 of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; 

(g) any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, 

or the appointment of a trustee to administer, any Pension Plan; (h) the determination that any Pension 

Plan is in at-risk status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a 

Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the Code or 

Section 305 of ERISA); (i) the imposition or incurrence of any liability under Title IV of ERISA, other 

than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or 

any ERISA Affiliate; (j) the engagement by any Credit Party or any ERISA Affiliate in a transaction that 
16

could be subject to Section 4069 or Section 4212(c) of ERISA; (k) the imposition of a lien upon any 

Credit Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA; or (l) the making of an 

amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) 

of the Code.

“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.

“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the 

reserve percentage in effect on such day, whether or not applicable to any Lender, under regulations 

issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement 

(including any emergency, special, supplemental or other marginal reserve requirement) with respect to 

eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). The Adjusted 

LIBO Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any 

change in the Eurodollar Reserve Percentage.

“Event of Default” has the meaning specified in Article VII.

“Excluded Assets” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Excluded Subsidiary” means any Subsidiary of the Parent (other than the Borrower) that 

(i) is not wholly-owned, directly or indirectly, by the Parent, (ii) is a captive insurance company, (iii) is an 

Immaterial Subsidiary, (iv) is a Receivables Subsidiary or (v) is a Foreign Subsidiary or a CFC Holdco 

existing on the Closing Date; provided that, notwithstanding the foregoing, a Subsidiary will not be an 

Excluded Subsidiary if it (x) owns assets of the type that would be included in the Collateral, (y) owns 

individually, or in the aggregate with other Subsidiaries (including any Subsidiary that would otherwise 

qualify as an Excluded Subsidiary), a majority of the Equity Interests of any Subsidiary that owns any 

assets of the type that would be included in the Collateral or is party to any agreements that constitute (or 

would constitute) Collateral or (z) guarantees Material Indebtedness of the Parent or any of its 

Subsidiaries (other than any acquired Subsidiary that guarantees assumed Indebtedness of a Person

acquired pursuant to an acquisition permitted under this Agreement that is existing at the time of such 

acquisition or investment; provided that such Indebtedness was not created in contemplation of or in 

connection with such acquisition and the amount of such Indebtedness is not increased).

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a 

Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or 

measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, 

(i) imposed as a result of such Recipient being organized under the laws of, or having its principal office 

or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax 

(or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, 

U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with 

respect to an applicable interest in a Loan pursuant to a law in effect on the date on which (i) such Lender 

acquires such interest in the Loans (other than pursuant to an assignment request by the Borrower under 

Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, 

pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s 

assignor immediately before such Lender became a party hereto or to such Lender immediately before it 

changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with 

Section 2.16(g) and (d) any withholding Taxes imposed under FATCA.
17

“Export Control Laws” means any applicable export control Laws including the 

International Traffic in Arms Regulations (22 C.F.R. 120 et seq.) and the Export Administration 

Regulations (15 C.F.R. 730 et seq.).

“FAA” means the United States Federal Aviation Administration and any successor 

thereto.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this 

Agreement (or any amended or successor version that is substantively comparable and not materially 

more onerous to comply with), any current or future regulations or official interpretations thereof, any 

agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory 

legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention 

among Governmental Authorities and implementing such Sections of the Code.

“FCPA” has the meaning specified in Section 3.15(b).

“Federal Funds Effective Rate” means, for any day, the greater of (a) the rate calculated 

by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary 

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 and (b) 0%.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System 

of the United States.

“Finance Entity” means any Person created or formed by or at the direction of the Parent 

or any of its Subsidiaries for the purpose of financing aircraft and aircraft related assets and related predelivery payment obligations of Parent or such Subsidiaries that; provided, that, such (i) Person holds no 

material assets other than the aircraft or aircraft related assets to be financed or assets pursuant to which 

related pre-delivery payment obligations arise, (ii) financing is in the ordinary course of business of the 

Parent and its Subsidiaries or otherwise customary for airlines based in the United States and (iii) Person 

holds no assets constituting, or otherwise intended to be included in, Collateral.

“Financial Officer” means, as to any Person, the chief financial officer, principal 

accounting officer, treasurer or controller of such Person.

“Fitch” means Fitch Ratings and any successor to its rating agency business.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as 

of the execution of this Agreement, the modification, amendment or renewal of this Agreement or 

otherwise) with respect to USD LIBO Rate. As of the Closing Date, the Floor shall be 0%. 

“Foreign Lender” means any Lender that is not a U.S. Person.

“Foreign Plan” means any employee pension benefit plan, program, policy, arrangement 

or agreement maintained or contributed to by the Parent or any Subsidiary with respect to employees 

employed outside the United States (other than any governmental arrangement).

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
18

“Fund” means any Person (other than a natural person) that is (or will be) engaged in 

making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of 

credit in the ordinary course of its activities.

“GAAP” means, subject to Section 1.03, United States generally accepted accounting 

principles as in effect from time to time; provided that if at any time any change in GAAP would affect 

the computation of any financial ratio or financial requirement, or compliance with any covenant, set 

forth in any Loan Document, the Required Lenders and the Borrower will negotiate in good faith to 

amend such ratio, requirement or covenant to preserve the original intent thereof in light of such change 

in GAAP (subject to the approval of the Required Lenders); provided that until so amended, (a) such 

ratio, requirement or covenant will continue to be computed in accordance with GAAP prior to such 

change therein and (b) the Borrower will provide to the Administrative Agent and the Lenders 

reconciliation statements to the extent requested.

“Gate Leasehold” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Governmental Authority” means the government of the United States of America or any 

other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, 

instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, 

judicial, taxing, regulatory or administrative powers or functions of or pertaining to government 

(including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such 

Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation 

payable or performable by another Person (the “primary obligor”) in any manner, whether directly or 

indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or 

advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to 

purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such 

Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, 

(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or 

level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such 

Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the 

obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to 

protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any assets of 

such Person securing any Indebtedness or other obligation of any other Person, whether or not such 

Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any 

holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not 

include endorsements for collection or deposit in the ordinary course of business. The amount of any 

Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related 

primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or 

determinable, the maximum reasonably anticipated liability in respect thereof as determined by the 

guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranteed Obligations” has the meaning specified in Section 9.01.

“Guarantor” means the Parent and each other Guarantor listed on the signature page to 

this Agreement and any other Person that Guarantees the Obligations under this Agreement and any other 

Loan Document.
19

“Hazardous Materials” means 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 other substances or wastes of any nature regulated under or with respect to which liability or 

standards of conduct are imposed pursuant to any Environmental Law.

“Immaterial Subsidiaries” means one or more Subsidiaries, for which (a) the assets of all 

such Subsidiaries constitute, in the aggregate, no more than 7.50% of the total assets of the Parent and its 

Subsidiaries on a consolidated basis (determined as of the last day of the most recent fiscal quarter of 

Parent for which financial statements are available), and (b) the revenues of all such Subsidiaries account 

for, in the aggregate, no more than 7.50% of the total revenues of the Parent and its Subsidiaries on a 

consolidated basis for the four (4) fiscal quarter period ending on the last day of the most recent fiscal 

quarter of Parent for which financial statements are available; provided that (x) a Subsidiary will not be 

an Immaterial Subsidiary if it (i) directly or indirectly guarantees, or pledges any property or assets to 

secure, any Obligations, (ii) owns any assets of the type that are intended to be included in the Collateral

or is party to any agreements that constitute (or would constitute) Collateral or (iii) owns a majority of the 

Equity Interests of any Subsidiary that owns any assets of the type that are intended to be included in the 

Collateral or is party to any agreements that constitute (or would constitute) Collateral and (y) the 

Borrower shall not be an Immaterial Subsidiary.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of 

the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such 

Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under (i) letters of 

credit (including standby and commercial), bankers’ acceptances and bank guaranties and (ii) surety 

bonds, performance bonds and similar instruments issued or created by or for the account of such Person;

(c) net obligations of such Person under any Swap Contract;

(d) all obligations of such Person to pay the deferred purchase price of property or 

services (other than trade accounts payable in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property 

owned or being purchased by such Person (including indebtedness arising under conditional sales or other 

title retention agreements), whether or not such indebtedness shall have been assumed by such Person or 

is limited in recourse;

(f) all Attributable Indebtedness;

(g) all obligations of such Person in respect of Disqualified Equity Interests; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership 

or joint venture (other than a joint venture that is itself a corporation or limited liability company) in 

which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made 

non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date 

shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any 
20

Indebtedness of any Person for purposes of clause (e) that is expressly made non-recourse or limitedrecourse (limited solely to the assets securing such Indebtedness) to such Person shall be deemed to be 

equal to the lesser of (i) the aggregate principal amount of such Indebtedness and (ii) the fair market value 

of the property encumbered thereby as determined by such Person in good faith.

“Indemnified Taxes” means (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 (a), Other Taxes.

“Indemnitee” has the meaning specified in Section 11.03(b).

“Information” has the meaning specified in Section 11.12.

“Initial Lender” means Treasury or its designees (but, for the avoidance of doubt, 

excluding any assignee of the Loans). 

“Intellectual Property” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Interest Payment Date” means the first Business Day following the 14th day of each 

March, June, September and December (beginning with September 15, 2021), and the Maturity Date.

“Interest Period” means, as to any Borrowing, (a) for the initial Interest Period, the period 

commencing on the date of such Borrowing and ending on the next succeeding Interest Payment Date and 

(b) for each Interest Period thereafter, the period commencing on the last day of the next preceding 

Interest Period and ending on the next succeeding Interest Payment Date.

“International Registry” has the meaning assigned to such term in the Pledge and 

Security Agreement. 

“Interpolated Rate” means, at any time, the rate per annum determined by the 

Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be 

equal to the rate that results from interpolating on a linear basis between: (a) the rate as displayed on the 

Bloomberg “LIBOR01” screen page (or any successor or replacement screen on such service; in each 

case the “Screen Rate”) for the longest period (for which that Screen Rate is available) that is shorter than 

three (3) months and (b) the Screen Rate for the shortest period (for which that Screen Rate is available) 

that is equal to or exceeds three (3) months, in each case, at approximately 11:00 a.m., London time, two 

(2) Business Days prior to the commencement of such Interest Period.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by 

such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other 

securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of 

debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another 

Person, including any partnership or joint venture interest in such other Person and any arrangement 

pursuant to which the investor incurs Indebtedness of the type referred to in clause (h) of the definition of 

“Indebtedness” in respect of such other Person, or (c) the purchase or other acquisition (in one transaction 

or a series of transactions) of all or substantially all of the property and assets or business of another 

Person or assets constituting a business unit, line of business or division of such Person. For purposes of 

covenant compliance, the amount of any Investment shall be the amount actually invested, without 

adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any 
21

returns or distributions of capital or repayment of principal actually received in case by such Person with 

respect thereto.

“IP Licenses” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“IRS” means the United States Internal Revenue Service. 

“ISDA Definitions” means the 2006 ISDA Definitions published by the International 

Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time 

to time, or any successor definitional booklet for interest rate derivatives published from time to time by 

the International Swaps and Derivatives Association, Inc. or such successor thereto.

“IT Systems” has the meaning specified in Section 3.27.

“Laws” means, collectively, all international, foreign, federal, state and local statutes, 

treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or 

authorities, including the interpretation or administration thereof by any Governmental Authority charged 

with the enforcement, interpretation or administration thereof, and all applicable administrative orders, 

directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental 

Authority, in each case whether or not having the force of law.

“Lenders” means the Initial Lender and any other Person that shall have become party 

hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party 

hereto pursuant to an Assignment and Assumption. 

“LIBO Rate” means, the greater of (a) the rate appearing on the Bloomberg “LIBOR01” 

screen page (or any successor or replacement screen on such service) at approximately 11:00 a.m., 

London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for 

dollar deposits with a maturity of three (3) months; provided that (i) if such rate is not available at such 

time for any reason, then the “LIBO Rate” shall be the Interpolated Rate, and (ii) if the Interpolated Rate 

is not available (except as set forth in Section 2.10), the “LIBO Rate” shall be the LIBO Rate for the 

immediately preceding Interest Period, two (2) Business Days prior to the commencement of such Interest 

Period and (b) 0%.

“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit 

arrangement, encumbrance, lien (statutory or other), charge, any option or other agreement to sell or give 

a security interest in an asset, or preference, priority, or other security interest or preferential arrangement 

of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any 

easement, right of way or other encumbrance on title to real property, and any financing lease having 

substantially the same economic effect as any of the foregoing).

“Liquidity” means the sum of (i) all unrestricted cash and Cash Equivalents of Parent and 

its Subsidiaries, (ii) cash or Cash Equivalents of the Parent and its Subsidiaries restricted in favor of the 

Obligations or in connection with the Payroll Support Program Agreement (other than any amounts held 

in the Blocked Account, Payment Account and Collateral Proceeds Account), (iii) the aggregate principal 

amount committed and available to be drawn by the Parent and its Subsidiaries (taking into account all 

borrowing base limitations or other restrictions) under all revolving credit facilities of the Parent and its 

Subsidiaries, (iv) any remaining aggregate principal amount committed and available to be drawn (taking 

into account any applicable restrictions) by the Parent and its Subsidiaries in respect of the Loans and (v) 

the scheduled net proceeds (after giving effect to any expected repayment of existing Indebtedness using 
22

such proceeds) of any Capital Markets Offering of the Parent or any of its 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 a loan made by a Lender to the Borrower pursuant to this Agreement.

“Loan Application Form” means the application form and any related materials submitted 

by the Borrower to the Initial Lender in connection with an application for the Loans under Division A, 

Title IV, Subtitle A of the CARES Act.

“Loan Documents” means, collectively, this Agreement, any Security Document, any 

promissory notes issued pursuant to Section 2.11(b) and any other documents entered into in connection 

herewith (including an Administrative Agency Fee Letter, if any).

“Loyalty Program” means (a) any frequent flyer program, co-branded card program or

any other program (whether now existing or established, arising or acquired in the future) that grants 

members in such program or co-branded cardholders Currency based on such member’s or co-branded 

cardholder’s purchasing or other behavior and that entitles a member or co-branded cardholder to accrue, 

redeem or otherwise exploit such Currency for a benefit or reward, including flights, priority access, 

lounge or “club” access, discounts, upgrades (including in seat or class) or other goods or services or (b) 

any Loyalty Subscription Program. 

“Loyalty Program Agreement” means each contract, agreement, transaction or other 

undertaking described on Schedule 1.01(b) and any other current or future contract, agreement, 

transaction or other undertaking between any Credit Party (or any of its Affiliates, as applicable) and a 

Loyalty Program Participant entered into connection with any Carrier Loyalty Program, including any 

card marketing agreement with respect to credit cards co-branded by a Credit Party and a Loyalty 

Program Participant and any card network agreement, and any amendment, supplement or modification 

thereto, but excluding all reciprocal passenger Currency accrual and redemption agreements with other 

Air Carriers.

“Loyalty Program Assets” has the meaning assigned to such term in the Pledge and 

Security Agreement. 

“Loyalty Program Data” means all data (whether or not constituting Personal Data) 

Processed in connection with, or generated or produced in the course of the operation of, any Carrier 

Loyalty Program, but, with respect to Personal Data, solely to the extent Processed, generated or 

produced regarding Loyalty Program Members as Loyalty Program Members, including all such data 

consisting of (a) a list of all Loyalty Program Members and (b)data concerning each Loyalty Program 

Member as a member of any of the Carrier Loyalty Programs, including such Loyalty Program Member’s 

(i) name, mailing address, email address, date of birth, gender and phone number and other identifiers, (ii) 

communication and promotion opt-ins and opt-outs, (iii) financial information and transaction histories, 

(iv) total miles and awards, (v) third-party engagement history and customer experience, (vi) accrual and 

redemption activity, (vii) member tier and status designations and member tier and status activity and 

qualifications, (viii) internet or network activity (including information regarding interaction with a 

website), (ix) profile preferences, (x) login information, (xi) Loyalty Program Member spend activity, 

(xii) geolocation data and (xiii) any inferences drawn or enrichments created from any of the foregoing. 

Loyalty Program Data also includes any Proceeds relating to any of the foregoing (other than any such 

Proceeds to the extent arising from a Credit Party’s non-Loyalty Program operations). For the avoidance 

of doubt, the definition of “Loyalty Program Data” does not impose an obligation on any Credit Party to 

collect any data inconsistent with its past or current practices.
23

“Loyalty Program Intellectual Property” has the meaning assigned to such term in the 

Pledge and Security Agreement.

“Loyalty Program Member” means, as of any date, any individual who is an applicant or 

member of any Carrier Loyalty Program (or a legal guardian of such applicant or member).

“Loyalty Program Participant” means (a) a financial institution or other Person that is a 

party to any card agreement with a Credit Party or (b) any other Person (i) to which a Credit Party or any 

of its Affiliates sells, leases or otherwise transfers Currency in connection with any Carrier Loyalty 

Program, including partner airline, co-branded card, hotel and car rental partners, (ii) that provides goods, 

services or other consideration to Loyalty Program Members in exchange for, or redemption of, Currency 

or (iii) that, in connection with the provision of goods, services or other consideration by such Person to 

Loyalty Program Members or the use of the services of such Person by Loyalty Program Members, such 

Person offers Currency to such Loyalty Program Members or provides any Credit Party (or any Affiliate 

thereof) with sufficient information so that such Credit Party (or any Affiliate thereof) may post Currency 

to such Loyalty Program Members’ accounts. 

“Loyalty Program Revenue” means all payments received by, or otherwise required to be 

paid to, the Credit Parties (and their Affiliates), and all other amounts the Credit Parties are entitled to,

under the Loyalty Program Agreements and any Loyalty Subscription Program.

“Loyalty Revenue Advance Transaction” means (i) any Pre-paid Currency Purchase or 

(ii) any other transaction between any Credit Party and a counterparty to a Loyalty Program Agreement 

providing for the advance of cash that is expected to be paid from or set off against future payments 

otherwise required to be made by the counterparty to such Credit Party.

“Loyalty Subscription Program” means any program (whether now existing or 

established, arising or acquired in the future) that grants members in such program access to discounted 

goods or services in exchange for a periodic cash payment. The Loyalty Subscription Programs in 

existence as of the Closing Date are listed on Schedule 1.01(c) of this Agreement.

“Margin Stock” means margin stock within the meaning of Regulations T, U and X.

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse 

effect on, the operations, business, properties, liabilities (actual or contingent), condition (financial or 

otherwise) or prospects of the Parent and its Subsidiaries taken as a whole; or (b) a material adverse effect 

on (i) the ability of the Borrower or any Credit Party to perform its Obligations, (ii) the legality, validity, 

binding effect or enforceability against the Borrower or any Credit Party of any Loan Document to which 

it is a party or the validity, perfection and first priority of the Liens on the Collateral in favor of the 

Collateral Agent taken as a whole or with respect to a substantial portion of the Collateral, (iii) the rights, 

remedies and benefits available to, or conferred upon, the Lenders or the Agents under any Loan 

Documents, (iv) the ability of the Borrower or any Credit Party to perform its obligations under any 

Material Loyalty Program Agreement, (v) the legality, validity, binding effect or enforceability against 

the Borrower or any Credit Party of any Material Loyalty Program Agreement or (vi) the business and 

operations of any Carrier Loyalty Program, in each case, taken as a whole; provided that the impacts of 

the COVID-19 disease outbreak will be disregarded for purposes of clauses (a) and (b)(vi) of this 

definition to the extent (i) publicly disclosed in any SEC filing of the Parent or otherwise provided to the 

Initial Lender prior to the Closing Date and (ii) the scope of such adverse effect is no greater than that 

which has been disclosed as of the Closing Date.
24

“Material Indebtedness” means Indebtedness of the Parent or any of its Subsidiaries 

(other than the Loans) outstanding under the same agreement in a principal amount exceeding 

$50,000,000.

“Material Loyalty Program Agreements” means (a) each Loyalty Program Agreement 

identified as a Material Loyalty Program Agreement as set forth on Schedule 1.01(b), as updated from 

time to time pursuant to the terms of the Pledge and Security Agreement and (b) any other Loyalty 

Program Agreements between a Credit Party and a Loyalty Program Participant such that, at all times, the 

Credit Parties have identified to Lender Loyalty Program Agreements then in full force and effect and 

generating not less than 90% of aggregate Loyalty Program Revenue (excluding revenues generated 

under any Loyalty Subscription Program).

“Material Modification” means any amendment or waiver of, or modification or 

supplement to, any term or condition of a Loyalty Program Agreement agreed to, executed or effected on 

or after the Closing Date, which:

(a) extends, waives, delays or contractually or structurally subordinates one or more 

payments due to any Credit Party with respect to such Loyalty Program Agreement;

(b) reduces the rate or amount of payments due to any Credit Party with respect to 

such Loyalty Program Agreement or reduces the frequency or timing of payments due to any Credit 

Party;

(c) gives any Person other than Credit Parties party to such Loyalty Program 

Agreement additional or improved termination rights with respect to such Loyalty Program Agreement;

(d) shortens the term of such Loyalty Program Agreement (other than in connection 

with the replacement of such Loyalty Program Agreement with another Loyalty Program Agreement on 

terms at least as favorable to the Lenders, as determined by the Appropriate Party in its reasonable 

discretion (or in the case of the Initial Lender, its sole discretion)) or expands or improves any 

counterparty’s rights or remedies following a termination;

(e) limits, or requires or results in the limitation of (x) the right or ability of any 

Credit Party, any of its Affiliates, any of its or their successors or assigns or the Collateral Agent to, or to 

authorized others to, use, exploit, share or transfer the Loyalty Program Intellectual Property or the IP 

Licenses included in the Collateral (other than third-party Intellectual Property that ceases to be required 

or useful for the conduct of any Carrier Loyalty Program as currently conducted and as currently 

contemplated to be conducted) or (y) the right or ability of any Credit Party, any of its Affiliates, any of 

its or their successors or assigns or the Collateral Agent to, or to authorized others to, Process any Loyalty 

Program Data, including such amendment, waiver, modification or supplement that removes or narrows, 

or requires or results in the removal or narrowing of any disclosure to individuals existing as of the date 

hereof regarding the potential future transfer, sharing or disclosure of Loyalty Program Data, in each case 

other than pursuant to a change required under applicable Law; or

(f) imposes new financial obligations on any Credit Party under such Loyalty 

Program Agreement,

in each case, to the extent such amendment, waiver, modification or supplement would reasonably be 

expected to (1) be materially adverse to the Lenders or any Secured Party (as defined in the Pledge and 

Security Agreement) or (2) result in a Material Adverse Effect; provided that any amendment to a 

Loyalty Program Agreement that (i) shortens the scheduled maturity or term thereof (other than changes 
25

that are permitted under (d) above), (ii) amends, modifies or otherwise changes the calculation or rate of 

fees, expenses, guarantee payments or termination payments due and owing thereunder, including 

changes to interchange rates, in each case as defined in the applicable Loyalty Program Agreement and 

any other term related to the calculation of fees related to the purchase of the applicable Currency, and in 

a manner materially reducing the amount owed to the Credit Parties, (iii) changes the contractual 

subordination of payments thereunder in a manner materially adverse to the Lenders, reduces the 

frequency of payments thereunder or permits payments due to the applicable Credit Parties to be 

deposited to an account other than the Collection Account, (iv) changes the amendment standards 

applicable to such Loyalty Program Agreement in a manner that would reasonably be expected to result in 

a Material Adverse Effect, (v) materially impairs the rights of the Collateral Agent or the Initial Lender to 

enforce or consent to amendments to any provisions of a Loyalty Program Agreement in accordance 

therewith, or (vi) constitutes an action set forth in clause (e) shall be deemed to result in a Material 

Adverse Effect and shall be considered a Material Modification. 

“Material Subsidiary” means any Subsidiary that is not an Immaterial Subsidiary.

“Maturity Date” means June 30, 2024 (except that, if such date is not a Business Day, the 

Maturity Date shall be the preceding Business Day); provided that to the extent either (x) any Material 

Loyalty Program Agreement (other than Material Loyalty Program Agreements that have been replaced 

as permitted under this Agreement) or (y) Loyalty Program Agreements representing 90% of Loyalty 

Program Revenues (excluding revenues generated under any Loyalty Subscription Program) in the 

aggregate over the immediately preceding twelve (12) calendar month period then ended, in each case, 

expires prior to the date that is six (6) months after June 30, 2024, the Maturity Date shall be the date that 

is six (6) months prior to the earliest such expiration date.

“Maximum Rate” has the meaning specified in Section 11.14.

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency 

business.

“Multiemployer Plan” means any employee benefit plan of the type described in 

Section 4001(a)(3) of ERISA, to which any Credit Party or any ERISA Affiliate makes or is obligated to 

make contributions, during the preceding five (5) plan years has made or been obligated to make 

contributions, or has any liability.

“Multiple Employer Plan” means a Plan with respect to which any Credit Party or any 

ERISA Affiliate is a contributing sponsor, and that has two (2) or more contributing sponsors at least two 

(2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“Net Proceeds” means in connection with any Disposition, Recovery Event or Contingent 

Payment Event, the aggregate cash and Cash Equivalents received by the Parent or any of its Subsidiaries 

in respect of a Disposition of Collateral (including, without limitation, any cash or Cash Equivalents 

received in respect of or upon the Disposition of any non-cash consideration received in any such 

Disposition of Collateral) or Recovery Event or Contingent Payment Event, net of the direct costs and 

expenses relating to such Disposition and incurred by the Parent or a Subsidiary (including the sale or 

disposition of such non-cash consideration) or any such Recovery Event or Contingent Payment Event, 

including, without limitation, legal, accounting and investment banking fees, and sales commissions, and 

any relocation expenses incurred as a result of the Disposition, Recovery Event or Contingent Payment 

Event, taxes paid or reasonably estimated to be payable as a result of the Disposition, Recovery Event or 

Contingent Payment Event, in each case, after taking into account any available tax credits or deductions 

and any tax sharing arrangements.
26

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver 

or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of 

Section 11.02 and (b) has been approved by the Required Lenders.

“Note” means the promissory note executed by the Borrower pursuant to Section 2.11(b).

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and 

duties of, each Credit Party arising under any Loan Document or otherwise with respect to any Loan, 

whether direct or indirect (including those acquired by assumption), absolute or contingent, due or 

required to be performed, or to become due or to be performed, now existing or hereafter arising and 

including interest and fees that accrue after the commencement by or against any Credit Party or any 

Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in 

such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. 

Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, 

charges, expenses, fees, indemnities and other amounts payable by the Borrower or any other Credit Party 

under any Loan Document, (b) the obligation of any Credit Party to reimburse any amount in respect of 

any of the foregoing that the Lenders, in each case in their sole discretion, may elect to pay or advance on 

behalf of any Credit Party and (c) the obligation of any Credit Party or any of its Subsidiaries to take any 

action or refrain from taking any action as required by the covenants and other provisions contained in 

this Agreement and any other Loan Document.

“Obligee Guarantor” has the meaning specified in Section 9.06.

“Organizational Documents” means (a) as to any corporation, the charter or certificate or 

articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect 

to any non-U.S. jurisdiction), (b) as to any limited liability company, the certificate or articles of 

formation or organization and operating or limited liability agreement and (c) as to any partnership, joint 

venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement 

of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in 

connection with its formation or organization with the applicable Governmental Authority in the 

jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or 

organization of such entity.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a 

result of a present or former connection between such Recipient and the jurisdiction imposing such Tax 

(other than connections arising from such Recipient having executed, delivered, become a party to, 

performed its obligations under, received payments under, received or perfected a security interest under, 

engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an 

interest in the Loans or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, 

recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, 

performance, enforcement or registration of, from the receipt or perfection of a security interest under, or 

otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes 

imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).

“Outstanding Amount” means, with respect to Loans on any date, the aggregate 

outstanding principal amount thereof after giving effect to any borrowings and prepayments or 

repayments of Loans occurring on such date.

“Parent” has the meaning specified in introductory paragraph hereof.
27

“Participant” has the meaning specified in Section 11.04(d).

“Participant Register” has the meaning specified in Section 11.04(d).

“Payment Account” has the meaning specified in Section 5.20(b). 

“Payment Event” means (a), the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.50 to 1.00 (including if the Debt Service Coverage Ratio is 

less than or equal to 1.25 to 1.00), or (b) an Event of Default or Term Trigger Event has occurred. A 

Payment Event shall be deemed continuing until (i) with respect to clause (a), the Debt Service Coverage

Ratio is greater than 1.50 to 1.00 on a DSCR Determination Date or (ii) such Event of Default or Term 

Trigger Event shall no longer be continuing. 

“Payroll Support Program Agreement” means that certain Payroll Support Program 

Agreement dated as of April 22, 2020, between the Borrower and Treasury.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Act” means the Pension Protection Act of 2006.

“Pension Funding Rules” means the rules of the Code and ERISA (as modified by the 

CARES Act) regarding minimum funding standards and minimum required contributions (including any 

installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to 

plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 

of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 

of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple 

Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by any Credit 

Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum 

funding standards under Section 412 of the Code.

“Perfection Requirement” has the meaning specified in the Pledge and Security 

Agreement.

“Permitted Bond Hedge Transaction” means any call or capped call option (or 

substantively equivalent derivative transaction) on the Parent’s common Equity Interests purchased by the 

Parent in connection with the issuance of any Convertible Indebtedness; provided that the purchase price 

for such Permitted Bond Hedge Transaction does not exceed the net proceeds received by the Parent from 

the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge 

Transaction.

“Permitted Business” means any business that is the same as, or reasonably related, 

ancillary, supportive or complementary to, the business in which the Parent and its Subsidiaries are 

engaged on the date of this Agreement.

“Permitted Liens” means:

(1) Liens created for the benefit of (or to secure the payment and performance of) the 

Obligations or any Guaranteed Obligations;
28

(2) Liens for taxes, assessments or governmental charges or claims that are not yet 

delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and 

diligently concluded; provided that any reserve or other appropriate provision as is required in conformity 

with GAAP has been made therefor;

(3) Liens imposed by law, including carriers’, vendors’, materialmen’s, warehousemen’s, 

landlord’s, mechanics’ repairmen’s, employees’ or other like Liens, in each case, incurred in the ordinary 

course of business;

(4) Liens arising by operation of law in connection with judgments, attachments or awards 

which do not constitute an Event of Default hereunder;

(5) (A) any overdrafts and related liabilities arising from treasury, netting, depository and 

cash management services or in connection with any automated clearing house transfers of funds, in each 

case as it relates to cash or Cash Equivalents, if any, and (B) Liens arising by operation of law or that are 

contractual rights of set-off in favor of the depository bank or securities intermediary in respect of any 

deposit or securities accounts pledged in favor of the Collateral Agent; provided that, such Liens shall be 

subordinated to the Liens securing the Obligations (other than the Liens relating to amounts and 

indemnities owed in connection with the maintenance of such account);

(6) [reserved]; 

(7) [reserved];

(8) to the extent applicable, salvage or similar rights of insurers, in each case as it relates to 

Collateral;

(9) any licenses or sublicenses (x) granted on a non-exclusive basis to customers or service 

providers in the ordinary course of business or to business partners in the ordinary course of business in a 

manner and subject to terms consistent with past practice or (y) granted pursuant to any Loyalty Program 

Agreement in full force and effect as of the Closing Date, any successor agreement thereto or any new 

Loyalty Program Agreement, in each case that is included in the Collateral (provided that any such grant 

pursuant to such new or successor agreement is made in the ordinary course of business in a manner and 

subject to terms substantially similar with those of the predecessor Loyalty Program Agreement or with 

any Loyalty Program Agreement in full force and effect as of the Closing Date, as the case may be); 

(10) to the extent constituting Liens on Collateral, Dispositions permitted pursuant to Section 

6.04 (b), (d)(2), (e), (f) or (h); and

(11) Liens expressly permitted by the Pledge and Security Agreement.

“Permitted Refinancing” means with respect to any Person, any refinancings, renewals, 

or extensions of any Indebtedness of such Person so long as: (a) such refinancings, renewals, or 

extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, 

or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in 

connection therewith and by the amount of unfunded commitments with respect thereto; (b) such 

refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity 

(measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or 

extended, nor are they on terms or conditions that, taken as a whole, are or could reasonably be expected 

to be materially adverse to the interests of the Lenders; (c) if the Indebtedness that is refinanced, renewed, 

or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the 
29

refinancing, renewal, or extension must include subordination terms and conditions that are at least as 

favorable to the Lenders as those that were applicable to the refinanced, renewed, or extended 

Indebtedness; (d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person 

that is liable on account of the Obligations other than those Persons which were obligated with respect to 

the Indebtedness that was refinanced, renewed, or extended and (e) to the extent the Indebtedness that is 

refinanced, renewed, or extended is unsecured, the Indebtedness resulting from such refinancing, renewal 

or extension must be unsecured.

“Person” means any natural person, corporation, limited liability company, trust, joint 

venture, association, company, partnership, Governmental Authority or other entity.

“Personal Data” means any information or data that identifies, relates to, describes, is 

reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a 

particular consumer or household, or any other data or information that constitutes personal data, 

personally identifiable information, personal information or a similar defined term under any Privacy Law 

or any policy of a Credit Party or any of its Affiliates relating to privacy or the Loyalty Program Data.

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, 

maintained for employees of the Parent or any Subsidiary, or any such plan to which the Parent or any 

Subsidiary is required to contribute on behalf of any of its employees or with respect to which any Credit 

Party has any liability.

“Platform” means Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar 

electronic transmission system.

“Pledge and Security Agreement” means the Pledge and Security Agreement executed 

and delivered by the Borrower and each Guarantor on the Closing Date in form and substance acceptable 

to the Initial Lender and the Collateral Agent, as it may be amended, supplemented, restated or otherwise 

modified from time to time. For the avoidance of doubt, the terms of the “Pledge and Security 

Agreement” shall include the terms of all Applicable Annexes (as defined in the Pledge and Security 

Agreement).

“Pre-paid Currency Purchases” means the sale, lease or other transfer by any Credit Party 

or any Subsidiary of a Credit Party of pre-paid Currency to a counterparty of a Loyalty Program 

Agreement.

“Prepayment Notice” means a notice by the Borrower to prepay Loans, which shall be in 

such form as the Appropriate Party may approve.

“Prime Rate” means the rate of interest per annum 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 Required Lenders) or any similar release by the 

Federal Reserve Board (as determined by the Required Lenders). Any change in the Prime Rate shall 

take effect at the opening of business on the day such change is publicly announced or quoted as being 

effective.

“Privacy Law” means all Applicable Laws worldwide relating to the Processing, privacy 

or security of Personal Data and all regulations issued thereunder, including, to the extent applicable, the 

EU General Data Protection Regulation (EU) 2016/679 (and all Laws implementing it), Section 5 of the 
30

Federal Trade Commission Act, the California Consumer Privacy Act, the Children’s Online Privacy 

Protection Act, Title V, Subtitle A of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq. (and the rules 

and regulations promulgated thereunder), state data breach notification Laws, state data security Laws, 

and any Law concerning requirements for website and mobile application privacy policies and practices, 

or any outbound communications (including e-mail marketing, telemarketing and text messaging), 

tracking and marketing.

“Proceeds” means “proceeds,” as defined in Article 9 of the UCC.

“Processed”, “Processing” or “Process”, with respect to data (including Loyalty Program 

Data), means collected, accessed, recorded, acquired, stored, organized, altered, adapted, retrieved, 

disclosed, used, disposed, erased, disclosed, destructed, transferred or otherwise processed; in each case, 

whether or not by automated means.

“PSP Warrant Agreement” means that certain warrant agreement, dated as of April 22, 

2020 between the Parent and Treasury.

“Public Lender” has the meaning specified in Section 11.01(e).

“Receivables Subsidiary” means (x) a Wholly-Owned Subsidiary of the Parent formed 

for the purpose of and which engages in no activities other than in connection with the financing or 

securitization of accounts receivables (a) no portion of the Indebtedness or any other obligations 

(contingent or otherwise) of which (1) is guaranteed by the Parent by any Subsidiary of the Parent, and 

excluding any guarantees of obligations (other than the principal of, and interest on, Indebtedness) 

pursuant to Standard Securitization Undertakings, (2) is recourse to or obligates the Parent or any 

Subsidiary of the Parent in any way other than pursuant to Standard Securitization Undertakings or (3) 

subjects any property or asset of the Parent or any Subsidiary of the Parent (other than accounts 

receivable and related assets) or any property or asset of the type that is intended to be include in the 

Collateral, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant 

to Standard Securitization Undertakings, (b) with which neither the Parent nor any Subsidiary of the 

Parent (other than another Receivables Subsidiary) has any material contract, agreement, arrangement or 

understanding (other than pursuant to the related financing of accounts receivable) other than on terms no 

less favorable to the Parent or such Subsidiary than those that might be obtained at the time from Persons 

who are not Affiliates of the Parent and (c) with which neither the Parent nor any Subsidiary of the Parent

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 or (y) any Subsidiary of a Receivables Subsidiary. For the avoidance of doubt, the Parent and any 

Subsidiary of the Parent may enter into Standard Securitization Undertakings for the benefit of a 

Receivables Subsidiary.

“Recipient” means (a) the Administrative Agent, (b) the Collateral Agent or (c) any 

Lender, as applicable.

“Recovery Event” means any settlement of or payment in respect of any property or 

casualty insurance claim or any condemnation proceeding relating to any Collateral or any Event of Loss 

(as defined in the Pledge and Security Agreement).

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if 

such Benchmark is USD LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking 

days preceding the date of such setting, and (2) if such Benchmark is not USD LIBO Rate, the time 
31

determined by the Required Lenders in their reasonable discretion, provided that such time is determined 

to be administratively feasible by the Administrative Agent.

“Register” has the meaning specified in Section 11.04(c).

“Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof.

“Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof.

“Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof.

“Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the 

partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and 

representatives of such Person and of such Person’s Affiliates.

“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve 

Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the 

Federal Reserve Bank of New York, or any successor thereto.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other 

than events for which the thirty (30)-day notice period has been waived.

“Required Filings” shall have the meaning specified in the Pledge and Security 

Agreement.

“Required Lenders” means, at any time, Lenders having Loans representing more than 

50% of the aggregate Outstanding Amount of Loans of all Lenders at such time. 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK 

Financial Institution, a UK Resolution Authority. 

“Responsible Officer” means (a) the chief executive officer, president, executive vice 

president or a Financial Officer of the Borrower or such Credit Party, as applicable, (b) solely for 

purposes of the delivery of incumbency certificates and certified Organizational Documents and 

resolutions pursuant to Section 4.01, any vice president, secretary or assistant secretary of the Borrower or 

such Credit Party and (c) solely for purposes of Borrowing Requests, prepayment notices and notices for 

Commitment terminations or reductions given pursuant to Article II, any other officer or employee of the 

Borrower so designated from time to time by one of the officers described in clause (a) in a notice to the 

Administrative Agent (together with evidence of the authority and capacity of each such Person to so act 

in form and substance satisfactory to the Administrative Agent). Any document delivered hereunder that 

is signed by a Responsible Officer of the a Credit Party shall be conclusively presumed to have been 

authorized by all necessary corporate, partnership or other action on the part of such Credit Party and such 

Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party.
32

“Restatement Agreement” means that certain Restatement Agreement, dated as of 

October 23, 2020, to this Agreement, between the Borrower, the Parent, the Guarantors party thereto from 

time to time, Treasury, the Administrative Agent and the Collateral Agent.

“Restricted Payment” means any dividend or other distribution (whether in cash, 

securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in 

cash, securities or other property), including any sinking fund or similar deposit, on account of the 

purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or 

on account of any return of capital to such Person’s shareholders, partners or members (or the equivalent 

Persons thereof).

“Route Authority” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“S&P” means S&P Global Ratings, and any successor to its rating agency business.

“Sanctioned Country” has the meaning specified in Section 3.15(a).

“Sanctioned Person” has the meaning specified in Section 3.15(a).

“Sanctions” has the meaning specified in Section 3.15(a).

“Screen Rate” has the meaning specified in the definition of the term “Interpolated Rate”.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority 

succeeding to any of its principal functions.

“Secured Parties” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Securities Act” means the Securities Act of 1933, as amended.

“Security Document” means the Pledge and Security Agreement and any security or 

pledge agreement, mortgage, hypothecation or other agreement, instrument or document relating to 

collateral for the Loans (including any short form agreements, supplements, control agreements, collateral 

access agreements and registrations executed or made) that may exist at any time and from time to time, 

as amended from time to time.

“Slot” has the meaning assigned to such term in the Pledge and Security Agreement.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured 

overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR 

Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately 

succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor 

administrator of the secured overnight financing rate).

“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.
33

“Solvent” means, as to any Person as of any date of determination, that on such date 

(a) the fair value of the property of such Person is greater than the total amount of liabilities, including 

contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the 

amount that will be required to pay the probable liability of such Person on its debts as they become 

absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or 

liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such 

Person is not engaged in a business or a transaction, and is not about to engage in a business or a 

transaction, for which such Person’s property would constitute an unreasonably small capital. The 

amount of any contingent liability at any time shall be computed as the amount that, in light of all of the 

facts and circumstances existing at such time, represents the amount that can reasonably be expected to 

become an actual or matured liability. For the avoidance of doubt, a Person shall not fail to be Solvent on 

any date solely as a result of such person’s audit having a “going concern” or like qualification, exception 

or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such 

audit solely due to the COVID-19 disease outbreak.

“Spare Parts” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Standard Securitization Undertakings” means all representations, warranties, covenants, 

indemnities, performance Guarantees and servicing obligations entered into by the Parent or any 

Subsidiary (other than a Receivables Subsidiary), which are customary in connection with any financing 

of accounts receivable.

“Subsidiary” of a Person means a corporation, partnership, limited liability company, 

association or joint venture or other business entity of which a majority of the Equity Interests having 

ordinary voting power for the election of directors or other governing body (other than securities or

interests having such power only by reason of the happening of a contingency) are at the time owned or 

the management of which is controlled, directly, or indirectly through one or more intermediaries, by such 

Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer 

to a Subsidiary or Subsidiaries of the Parent.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit 

derivative transactions, forward rate transactions, commodity swaps, commodity options, forward 

commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or 

options or forward bond or forward bond price or forward bond index transactions, interest rate options, 

forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency 

swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other 

similar transactions or any combination of any of the foregoing (including any options to enter into any of 

the foregoing), whether or not any such transaction is governed by or subject to any master agreement, 

and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms 

and conditions of, or governed by, any form of master agreement published by the International Swaps 

and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other 

master agreement (any such master agreement, together with any related schedules, a “Master 

Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Termination Value” means, as to any one or more Swap Contracts, after taking 

into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, 

(a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) 

determined in accordance therewith, such termination value(s), and (b) for any date prior to the date 

referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap 

Contracts, as determined based upon one or more mid-market or other readily available quotations 
34

provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate 

of a Lender).

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a socalled synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or possession of 

property creating obligations that do not appear on the balance sheet of such Person but, upon the 

insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person 

(without regard to accounting treatment).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, 

withholdings (including backup withholding), assessments, fees or other charges imposed by any 

Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable 

Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by 

the Relevant Governmental Body.

“Term Trigger Event” has the meaning specified in Section 2.06(b).

“Trade Date” means the date on which an assigning Lender enters into a binding 

agreement to sell and assign all or a portion of its rights and obligations under this Agreement to another 

Person.

“Trade Secrets” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Trademark” has the meaning assigned to such term in the Pledge and Security 

Agreement.

“Treasury” has the meaning specified in the preamble to this Agreement.

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under 

the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential 

Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from 

time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain 

credit institutions and investment firms, and certain affiliates of such credit institutions or investment 

firms.

“UK Resolution Authority” 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.

“Uniform Commercial Code” and “UCC” means the Uniform Commercial Code as in 

effect from time to time in the State of New York or, when the context implies, the Uniform Commercial 

Code as in effect from time to time in any other applicable jurisdiction.

“United States” and “U.S.” mean the United States of America.

“USD LIBO Rate” means the LIBO Rate for U.S. dollars.
35

“U.S. Person” means any Person that is a “United States Person” as defined in 

Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(g).

“Voting Stock” of any specified Person as of any date means the equity interests of such 

Person that is at the time entitled to vote in the election of the board of directors of such Person.

“Warrant Agreement” means the warrant agreement, dated as of the date hereof between 

the Parent and Treasury, pursuant to which the Parent agrees to issue Warrants to Treasury upon each 

Borrowing.

“Warrants” means, collectively, those certain warrants issued to Treasury under the 

Warrant Agreement or the PSP Warrant Agreement.

“Wholly-Owned” means, as to a Subsidiary of a Person, a Subsidiary of such Person all 

of the outstanding Equity Interests of which (other than (a) director’s qualifying shares and (b) shares 

issued to foreign nationals to the extent required by Applicable Law) are owned by such Person and/or by 

one or more Wholly-Owned Subsidiaries of such Person.

“Withholding Agent” means the Borrower and the Administrative Agent or other person 

making or transferring to any Lender any payment on behalf of the Borrower.

“Write-Down and Conversion Powers” means, (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 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 such 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 power.

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.” The word “or” is not exclusive. The 

word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) 

otherwise, to a year of three hundred sixty-five (365) days. 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, supplemented 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 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, (e) any reference to any law or regulation herein shall, unless 

otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to 

time, and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and 
36

to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and 

contract rights.

SECTION 1.03 Accounting Terms; Changes in GAAP. 

(a) Accounting Terms. Except as otherwise expressly provided herein, all accounting 

terms not otherwise defined herein shall be construed in conformity with GAAP. Financial statements 

and other information required to be delivered by the Parent to the Lenders pursuant to Sections 5.01(a)

and 5.01(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. 

Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the 

computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries 

shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of 

FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

(b) Changes in GAAP. If the Borrower notifies the Administrative Agent (who will 

forward such notification to the Lenders) 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, the Required Lenders 

shall have notified the Borrower (with a copy to the Administrative Agent) of their objection to such 

amendment or such provision shall have been amended in accordance herewith.

SECTION 1.04 Rates. The Administrative Agent does not warrant or accept responsibility 

for, and shall not have any liability with respect to, the administration, submission or any other matter 

related to the rates in the definition of “LIBO Rate” or with respect to any comparable or successor rate 

thereto.

SECTION 1.05 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.

ARTICLE II

COMMITMENTS AND BORROWINGS

SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, the 

Initial Lender agrees to make the Loans to the Borrower in one or more installments on or after the Closing 

Date in an aggregate principal amount not to exceed the Initial Lender’s Commitment. Amounts borrowed 

under this Section 2.01 and repaid or prepaid may not be reborrowed. 
37

SECTION 2.02 Loans and Borrowings.

(a) Borrowings. The Borrower shall request the initial Borrowing of the Loans on 

the Closing Date and may request one or more subsequent Borrowings of the Loans; provided that the 

Borrower shall request no more than three (3) total Borrowings. 

(b) Minimum Amounts. Each Borrowing shall be in an aggregate amount of 

$45,000,000 or a larger multiple of $5,000,000; provided that the final Borrowing may be in an amount 

equal to the aggregate remaining outstanding Commitment available to the Borrower under the terms and 

conditions of this Agreement.

(c) Funding of Borrowings. Each Lender shall make the amount of each Borrowing 

to be made by it hereunder available to the Administrative Agent by wire transfer of immediately 

available funds to the Administrative Account not later than 12:00 noon (New York City time) on the 

proposed date thereof. The Administrative Agent will make all such funds so received available to the 

Borrower in like funds, by wire transfer of such funds in accordance with the instructions provided in the 

applicable Borrowing Request; provided that if all such requested funds are not received by the 

Administrative Agent by 12:00 noon (New York City time) on the proposed date for such Borrowing, the 

Administrative Agent shall distribute such funds on the next succeeding Business Day.

SECTION 2.03 Borrowing Requests.

(a) Notice by Borrower. In order to request a Borrowing, the Borrower shall notify 

the Administrative Agent of such request in writing not later than 11:00 a.m. (New York City time) (i) 

with respect to the initial Borrowing under this Agreement, three (3) Business Days prior to the date of 

the requested Borrowing and (ii) for each subsequent Borrowing, five (5) Business Days before such 

Borrowing. Each such notice shall be irrevocable and shall be in the form of a written Borrowing 

Request, appropriately completed and signed by a Responsible Officer of the Borrower. The 

Administrative Agent shall promptly advise the applicable Lenders of any Borrowing Request given 

pursuant to this Section 2.03(a) (and the contents thereof), and of each Lender’s portion of the requested 

Borrowing. 

(b) Content of Borrowing Requests. Each Borrowing Request for a Borrowing 

pursuant to this Section shall specify the following information in compliance with Section 2.02: (i) the 

aggregate amount of the requested Borrowing; (ii) the date of such Borrowing (which shall be a Business 

Day); and (iii) the location and number of the Borrower’s account to which funds are to be disbursed.

SECTION 2.04 [Reserved].

SECTION 2.05 [Reserved].

SECTION 2.06 Prepayments.

(a) Optional Prepayments. The Borrower may, upon written notice to the 

Administrative Agent, at any time and from time to time prepay the Loans in whole or in part without 

premium or penalty, subject to the requirements of this Section. Partial prepayments of the Loans shall be 

in a minimum aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess 

thereof. Notwithstanding anything herein to the contrary, the Borrower may at any time elect to prepay 

the loans with funds contained in the Collateral Proceeds Account.
38

(b) Mandatory Prepayments.

(i) Dispositions of Collateral. Within three (3) Business Days of the receipt 

by the Parent or any of its Subsidiaries of any Net Proceeds from a Disposition of Collateral not 

permitted by Section 6.04, the Borrower shall prepay the Loans in an amount equal to 100% of 

such Net Proceeds. 

(ii) Recovery Events. Within three (3) Business Days of the receipt by the 

Parent or any of its Subsidiaries of any Net Proceeds from a Recovery Event in respect of Collateral, 

the Borrower shall prepay the Loans in an amount equal to 100% of such Net Proceeds; provided

that with respect to Collateral consisting of airframes, aircraft, engines and Spare Parts, the 

Borrower may deposit such Net Proceeds into the Collateral Proceeds Account for such purpose 

and thereafter such Net Proceeds shall be applied (to the extent not otherwise applied pursuant to 

the immediately succeeding proviso) to prepay the Loans; provided further that (I) the Borrower 

may use such Net Proceeds to (A) replace the assets which are the subject of such Recovery Event 

with assets that are of the same type of Collateral or (B) repair the assets which are the subject of 

such Recovery Event, in each case, within 270 days after such deposit is made, (II) all such Net 

Proceeds amount may, at the option of the Borrower at any time, be applied to repay the Loans, 

and (III) upon the occurrence of an Event of Default, the amount of any such deposit may be applied 

by the Administrative Agent to repay the Loans. 

(iii) Certain Debt Issuances. Immediately upon receipt by the Parent or any of 

its Subsidiaries of any proceeds from the incurrence of any Indebtedness that is secured by Liens

on the Collateral (other than Permitted Liens), the Borrower shall prepay the Loans in an amount 

equal to 100% of any such proceeds from any such Indebtedness. 

(iv) Contingent Payment Events. Within three (3) Business Days of the receipt 

by the Parent or any of its Subsidiaries of any Net Proceeds from a Contingent Payment Event 

under a Loyalty Program Agreement, which Net Proceeds, together with the aggregate amount of 

Net Proceeds previously received from Contingent Payment Events, are in excess of $5,000,000,

the Borrower shall prepay the Loans in an amount equal to 100% of such Net Proceeds.

(v) Loyalty Revenue Advance Transactions. Within three (3) Business Days 

of the receipt by the Parent or any of its Subsidiaries of any Net Proceeds from a Loyalty Revenue 

Advance Transaction, which Net Proceeds, together with the aggregate amount of Net Proceeds 

previously received from Loyalty Revenue Advance Transactions during the term of this 

Agreement, are in excess of an amount equal to the greater of (x) $10,000,000 and (y) 10% of the 

aggregate amount of Collateral Cash Flow received during the most recently ended DSCR Test 

Period that has been deposited into a Collateral Account, the Borrower shall prepay the Loans in 

an amount equal to 100% of such excess Net Proceeds.

(vi) Payment Events. 

(A) The Loans shall be required to be repaid if the Debt Service 

Coverage Ratio with respect to any DSCR Determination Date is less than 1.50 to 1.00 or 

1.25 to 1.00, as the case may be, as set forth in Section 6.17(c). 

(B) After the occurrence and during the continuation of an Event of 

Default, the Loans shall be repaid in an amount equal to 100% of all Loyalty Program 

Revenue received thereafter, and the Parent and the Subsidiaries shall ACH or wire 

transfer daily such Loyalty Program Revenue to the Payment Account (from the 
39

Collection Account or otherwise) with all such amounts deposited into the Payment 

Account to be applied to the prepayment of any Loans then outstanding.

(C) If at any time (x) any Material Loyalty Program Agreement has a 

remaining term of less than two (2) years (or, if the Lender ever provides Loans in a 

principal amount in excess of the Closing Date Commitment, thirty (30) calendar 

months) or (y) Loyalty Program Agreements representing 90% of Loyalty Program 

Revenues (excluding revenues generated under any Loyalty Subscription Program) in the 

aggregate over the immediately preceding twelve (12) calendar month period then ended

have remaining terms of less than two (2) years (or, if the Lender ever provides Loans in 

a principal amount in excess of the Closing Date Commitment, thirty (30) calendar 

months) (a “Term Trigger Event”) and such Term Trigger Event is continuing, then the 

Loans shall be repaid in an amount equal to 100% of all Loyalty Program Revenue 

received thereafter, and the Parent and the Subsidiaries shall ACH or wire transfer daily 

such Loyalty Program Revenue to the Payment Account (from the Collection Account or 

otherwise) with all such amounts deposited into the Payment Account to be applied to the 

prepayment of any Loans then outstanding. 

(vii) Change of Control. Immediately upon the occurrence of a Change of 

Control, the Borrower shall prepay the Loans in an amount equal to 100% of the aggregate 

outstanding principal amount of Loans.

(c) Notices. Each such notice pursuant to this Section shall be in the form of a 

written Prepayment Notice, appropriately completed and signed by a Responsible Officer of the 

Borrower, and must be received by the Administrative Agent not later than 11:00 a.m. (New York City

time) three (3) Business Days before the date of prepayment (which delivery may initially be by 

electronic communication including fax or email and shall be followed by an original authentic 

counterpart thereof). Each Prepayment Notice shall specify (x) the prepayment date and (y) the principal 

amount of the Loans or portion thereof to be prepaid. Each Prepayment Notice shall be irrevocable.

(d) Payments. Any prepayment of the Loans pursuant to this Section 2.06 shall be 

accompanied by accrued interest on the principal amount prepaid as set forth in Section 2.09(c).

SECTION 2.07 Reduction and Termination of Commitments. The Initial Lender’s 

Commitment shall (x) automatically and permanently be reduced by the amount of any Borrowing of a Loan

and (y) automatically and permanently terminate on March 26, 2021. The Borrower may, upon not less than 

three (3) Business Days’ notice to the Initial Lender and the Administrative Agent, terminate the Commitment 

or, from time to time, reduce the Commitment. Any such reduction in the Commitment shall be in an amount 

equal to $1,000,000 or a whole multiple thereof, and shall permanently reduce the Commitment.

SECTION 2.08 Repayment of Loans. The Borrower shall repay to the Administrative Agent 

for the ratable account of the Lenders the aggregate principal amount of all Loans outstanding on the Maturity 

Date. 

SECTION 2.09 Interest.

(a) Interest Rates. Subject to paragraph (b) of this Section, the Loans shall bear 

interest at a rate per annum equal to the Adjusted LIBO Rate plus the Applicable Rate.

(b) Default Interest. If any amount payable by the Borrower under this Agreement 

or any other Loan Document (including principal of any Loan, interest, fees and other amount) is not paid 
40

when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear 

interest at a rate per annum equal to the applicable Default Rate. Upon the request of the Required 

Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all 

Loans outstanding hereunder at a rate per annum equal to the applicable Default Rate.

(c) Payment Dates. Accrued interest on each Loan shall be payable in arrears on or 

before 12:00 noon (New York City time) on each Interest Payment Date applicable thereto and at such 

other times as may be specified herein; provided that (i) interest accrued pursuant to paragraph (b) of this 

Section shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan

(including mandatory prepayments under Section 2.06(b)), accrued interest on the principal amount 

repaid or prepaid shall be payable on the date of such repayment or prepayment.

(d) Interest Computation. All interest hereunder shall be computed on the basis of a 

year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed 

(including the first day but excluding the last day). The Adjusted LIBO Rate shall be determined by the 

Administrative Agent, and such determination shall be conclusive absent manifest error.

SECTION 2.10 Benchmark Replacement Setting.

(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in 

any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, 

and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any 

setting of the then-current Benchmark, as notified by the Required Lenders to the Administrative Agent in 

writing, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the 

definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark 

Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in 

respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or 

further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a 

Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark 

Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such 

Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark 

setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of 

such Benchmark Replacement is provided to the Lenders and the Administrative Agent by the Required 

Lenders without any amendment to, or further action or consent of any other party to, this Agreement or 

any other Loan Document, so long as the Administrative Agent has not received, by such time, written 

notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

(b) Benchmark Replacement Conforming Changes. In connection with the 

implementation of a Benchmark Replacement, the Administrative Agent (after consultation with the 

Required Lenders) will have the right to make Benchmark Replacement Conforming Changes from time 

to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any 

amendments implementing such Benchmark Replacement Conforming Changes will become effective 

without any further action or consent of any other party to this Agreement or any other Loan Document.

(c) Notices; Standards for Decisions and Determinations. The Initial Lender or the 

Required Lenders, as the case may be, will promptly notify the Administrative Agent, which will then 

promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or 

an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the 

implementation of any Benchmark Replacement, (iii) the removal or reinstatement of any tenor of a 

Benchmark pursuant to clause (d) below and (iv) the commencement or conclusion of any Benchmark 

Unavailability Period. The Administrative Agent will promptly notify the Borrower and the Lenders of 
41

the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or 

election that may be made by any Lender (or group of Lenders) or the Administrative Agent, if 

applicable, pursuant to this Section 2.10 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 2.10. Notwithstanding anything in this Agreement to the contrary, the Administrative Agent does 

not warrant or accept any responsibility for, and shall not have any liability with respect to, any 

determination made by it in connection with the adoption of Benchmark Replacement Conforming 

Changes or for the impact of such Benchmark Replacement Conforming Changes, nor for the failure to 

adopt any Benchmark Replacement Conforming Changes due to the failure of the Required Lenders to 

cooperate in good faith in connection with the determination of any Benchmark Replacement Conforming 

Changes.

(d) 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 or USD 

LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other 

information service that publishes such rate from time to time as selected by the Administrative Agent in 

its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has 

provided a public statement or publication of information announcing that any tenor for such Benchmark 

is or will be no longer representative, then the definition of “Interest Period” may be modified for any 

Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if 

a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or 

information service for a Benchmark (including a Benchmark Replacement) used by the Administrative 

Agent or (B) is not, or is no longer, subject to an announcement that it is or will no longer be 

representative for a Benchmark (including a Benchmark Replacement), then the definition of “Interest 

Period” may be modified for all Benchmark settings at or after such time to reinstate such previously 

removed tenor.

(e) Benchmark Unavailability Period. During any Benchmark Unavailability Period, 

all calculations of interest by reference to a LIBO Rate hereunder shall instead be made by reference to 

the Alternate Base Rate.

SECTION 2.11 Evidence of Debt.

(a) Maintenance of Records. The Administrative Agent shall maintain the Register 

in accordance with Section 11.04(c). The entries made in the records maintained pursuant to this 

paragraph (a) shall be prima facie evidence absent manifest error of the existence and amounts of the 

obligations recorded therein. Any failure of the Administrative Agent to maintain such records or make 

any entry therein or any error therein shall not in any manner affect the obligations of the Borrower under 

this Agreement and the other Loan Documents. 

(b) Promissory Notes. The Borrower shall prepare, execute and deliver to such 

Lender a promissory note of the Borrower payable to such Lender (or, if requested by such Lender, to 

such Lender and its registered assigns) and a form attached as Exhibit C hereto, which shall evidence such 

Lender’s Loan.
42

SECTION 2.12 Payments Generally.

(a) Payments by Borrower. All payments to be made by the Borrower hereunder and 

the other Loan Documents shall be made without condition or deduction for any counterclaim, defense, 

recoupment or setoff. Except as otherwise expressly provided herein, all such payments shall be made to 

the Administrative Agent, for the account of the respective Lenders to which such payment is owed, to 

the Administrative Account in immediately available funds not later than 12:00 noon (New York City

time) on the date specified herein. All amounts received by a Lender or the Administrative Agent after 

such time on any date shall be deemed to have been received on the next succeeding Business Day and 

any applicable interest or fees shall continue to accrue. The Administrative Agent will promptly 

distribute to each Lender its ratable share (or other applicable share as provided herein) of such payment 

in like funds as received by wire transfer to such Lender’s applicable lending office (or otherwise 

distribute such payment in like funds as received to the Person or Persons entitled thereto as provided 

herein). If any payment to be made by the Borrower shall fall due on a day that is not a Business Day, 

payment shall be made on the next succeeding Business Day and such extension of time shall be reflected 

in computing interest or fees, as the case may be; provided that, if such next succeeding Business Day 

would fall after the Maturity Date, payment shall be made on the immediately preceding Business Day. 

Except as otherwise expressly provided herein, all payments hereunder or under any other Loan 

Document shall be made in Dollars.

(b) Application of Insufficient Payments. Subject to Section 7.02, if at any time 

insufficient funds are received by and available to the Lenders or the Administrative Agent to pay fully all 

amounts of principal, interest, fees and other amounts then due hereunder, such funds shall be applied 

(i) first, to pay interest, fees and other amounts then due hereunder, ratably among the parties entitled 

thereto in accordance with the amounts of interest, fees and other amounts then due to such parties, and 

(ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in accordance 

with the amounts of principal then due to such parties.

(c) Presumptions by Administrative Agent. 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, but shall not be obligated to,

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. Notwithstanding the foregoing, the 

Administrative Agent is not required to make any payment to the Lenders until it is in possession of 

cleared funds from the Borrower.

(d) Deductions by Administrative Agent. If any Lender (other than the Initial 

Lender) shall fail to make any payment required to be made by it pursuant to Section 2.13 or 11.03(c), 

then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, 

(i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for 

the benefit of the Administrative Agent to satisfy such Lender’s obligations to the Administrative Agent 

until all such unsatisfied obligations are fully paid or (ii) hold any such amounts in a segregated account 

as cash collateral for, and for application to, any future funding obligations of such Lender under any such 

Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative 

Agent in its discretion.
43

(e) Several Obligations of Lenders. The obligations of the Lenders hereunder to 

make Loans and to make payments pursuant to Section 11.03(c) are several and not joint. The failure of 

any Lender to make any Loan or to make any such payment on any date required hereunder shall not 

relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be 

responsible for the failure of any other Lender to so make its Loan or to make its payment under 

Section 11.03(c).

SECTION 2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff 

or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or 

other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate 

amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share 

thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the 

Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and 

such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the 

benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount 

of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

(i) if any such participations are purchased and all or any portion of the 

payment giving rise thereto is recovered, such participations shall be rescinded and the purchase 

price restored to the extent of such recovery, without interest; and

(ii) the provisions of this paragraph shall not be construed to apply to (x) any 

payment made by the Borrower pursuant to and in accordance with the express terms of this 

Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or 

sale of a participation in any of its Loans to any assignee or participant, other than to the 

Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under 

Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may 

exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully 

as if such Lender were a direct creditor of the Borrower in the amount of such participation.

SECTION 2.14 Compensation for Losses. In the event of (a) the payment of any principal 

of the Loans other than on the last day of an Interest Period (including as a result of an Event of Default), 

(b) the failure to borrow or prepay the Loans (or any portion thereof) on the date specified in any notice 

delivered pursuant hereto, or (c) the assignment of the Loans (or any portion thereof) other than on the last 

day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to 

Section 2.19(b), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and 

expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an 

amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have 

accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that 

would have been applicable to such Loan, for the period from the date of such event to the last day of the 

then current Interest Period therefor (or, in the case of a failure to borrow, for the date that would have been 

the applicable Interest Period), over (ii) the amount of interest that would accrue on such principal amount 

for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such 

period, for dollar deposits of a comparable amount and period from other banks in the London interbank 

eurodollar market. 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 

promptly after receipt thereof.
44

SECTION 2.15 Increased Costs.

(a) Increased Costs Generally. If any Change in Law shall:

(i) 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 or participated in by, any Lender (except any reserve 

requirement reflected in the Adjusted LIBO Rate);

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, 

(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and 

(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or 

other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(iii) impose on any Lender or the London interbank market any other 

condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such 

Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient 

of making or maintaining any Loan or to reduce the amount of any sum received or receivable by such 

Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon 

request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the 

case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as 

the case may be, for such additional costs incurred or reduction suffered.

(b) [Reserved]. 

(c) Certificates for Reimbursement. 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) of this Section and delivered to the Borrower, shall be conclusive absent 

manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate 

within ten (10) days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender to demand 

compensation pursuant to this Section 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 for any increased costs incurred or reductions suffered more than nine (9) months 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 (except that, if the Change in 

Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to 

above shall be extended to include the period of retroactive effect thereof).

SECTION 2.16 Taxes.

(a) Defined Terms. For purposes of this Section, the term “Applicable Law” 

includes FATCA.

(b) Payments Free of Taxes. Any and all payments by or on account of any 

obligation of the Borrower under any Loan Document shall be made without deduction or withholding for 

any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith 

discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from 
45

any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to 

make such deduction or withholding and shall timely pay the full amount deducted or withheld to the 

relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified 

Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or 

withholding has been made (including such deductions and withholdings applicable to additional sums 

payable under this Section) the applicable Recipient receives an amount equal to the sum it would have 

received had no such deduction or withholding been made. Borrower acknowledges and agrees that, 

absent a Change in Law, Borrower is not required to withhold or deduct from any such payments to the 

Initial Lender on account of any U.S. federal withholding taxes or Taxes imposed pursuant to FATCA.

(c) Payment of Other Taxes by Borrower. The Borrower shall timely pay to the 

relevant Governmental Authority in accordance with Applicable Law, or at the option of the Initial 

Lender, the Required Lenders or the Administrative Agent timely reimburse it for the payment of, any 

Other Taxes.

(d) Indemnification by Borrower. The Borrower shall indemnify each Recipient, 

within thirty (30) days after demand therefor, for the full amount of any Indemnified Taxes (including 

Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable 

or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and 

any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 (with a copy to the 

Administrative Agent if such Lender is not the Initial Lender), or by the Administrative Agent on its own 

behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification by the Lenders. Each Lender (other than the Initial Lender) shall 

severally indemnify the Administrative Agent, within thirty (30) days after demand therefor, for (i) any 

Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already 

indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of 

the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions 

of Section 11.04(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes 

attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in 

connection with any Loan Document, and any reasonable expenses arising therefrom or with respect 

thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant 

Governmental Authority. A certificate as to the amount of such payment or liability delivered to any such 

Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender (other than 

the Initial Lender) hereby authorizes the Administrative Agent to set off and apply any and all amounts at 

any time owing to such Lender under any Loan Document or otherwise payable by the Administrative 

Agent to such Lender from any other source against any amount due to the Administrative Agent under 

this paragraph (e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the 

Borrower to a Governmental Authority pursuant to this Section, 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, a copy of the return reporting such payment or other evidence of such payment 

reasonably satisfactory to the Administrative Agent.

(g) Status of Lenders. (i) Any Lender (other than the Initial Lender) that is entitled 

to an exemption from or reduction of withholding Tax with respect to payments made under any Loan 

Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably 

requested by the Borrower or the Administrative Agent, such properly completed and executed 
46

documentation reasonably requested by the Borrower (or, if such Lender is not the Initial Lender, the 

Administrative Agent) as will permit such payments to be made without withholding or at a reduced rate 

of withholding. In addition, any Lender (other than the Initial Lender), if reasonably requested by the 

Borrower (or the Administrative Agent), shall deliver such other documentation prescribed by Applicable 

Law or reasonably requested by the Borrower (or the Administrative Agent) as will enable the Borrower 

(or the Administrative Agent) to determine whether or not such Lender is subject to backup withholding 

or information reporting requirements. Notwithstanding anything to the contrary in the preceding two 

sentences, the completion, execution and submission of such documentation (other than such 

documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if 

in the Lender’s reasonable judgment such completion, execution or submission would subject such 

Lender to any material unreimbursed cost or expense or would materially prejudice the legal or 

commercial position of such Lender.

(ii) Without limiting the generality of the foregoing, 

(A) any Lender (other than the Initial Lender) that is a U.S. Person 

shall deliver to the Borrower and the Administrative Agent on or about the date on which 

such Lender becomes a Lender under this Agreement (and from time to time thereafter 

upon the reasonable request of the Borrower or the Administrative Agent), executed 

copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup 

withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrower and the Administrative Agent (in such number of copies as 

shall be requested by the recipient) on or prior to the date on which such Foreign Lender 

becomes a Lender under this Agreement (and from time to time thereafter upon the 

reasonable request of the Borrower or the Administrative Agent), whichever of the 

following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of 

an income tax treaty to which the United States is a party (x) with respect to 

payments of interest under any Loan Document, executed copies of IRS 

Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or 

reduction of, U.S. federal withholding Tax pursuant to the “interest” article of 

such tax treaty and (y) with respect to any other applicable payments under any 

Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an 

exemption from, or reduction of, U.S. federal withholding Tax pursuant to the 

“business profits” or “other income” article of such tax treaty;

(2) executed copies of IRS Form W-8ECI (or any successor 

forms) and, in the case of an Agent, a withholding certificate that satisfies the 

requirements of Treasury Regulation Sections 1.1441-1(b)(2)(iv) and 1.1441-

1(e)(3)(v) as applicable to a U.S. branch that has agreed to be treated as a U.S. 

Person for withholding tax purposes;

(3) in the case of a Foreign Lender claiming the benefits of 

the exemption for portfolio interest under Section 881(c) of the Code, (x) a 

certificate substantially in the form of Exhibit B-1 to the effect that such Foreign 

Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a 

“10 percent shareholder” of the Borrower within the meaning of 

Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to 
47

the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax 

Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS 

Form W-8BEN-E; or

(4) to the extent a Foreign Lender is not the beneficial 

owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance 

Certificate substantially in the form of Exhibit B-2 or Exhibit B-3, IRS Form W9, and/or other certification documents from each beneficial owner, as applicable; 

provided that if the Foreign Lender is a partnership and one or more direct or 

indirect partners of such Foreign Lender are claiming the portfolio interest 

exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate 

substantially in the form of Exhibit B-4 on behalf of each such direct and indirect 

partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrower and the Administrative Agent (in such number of copies as 

shall be requested by the recipient) on or about the date on which such Foreign Lender 

becomes a Lender under this Agreement (and from time to time thereafter upon the 

reasonable request of the Borrower or the Administrative Agent), executed copies of any 

other form prescribed by Applicable Law as a basis for claiming exemption from or a 

reduction in U.S. federal withholding Tax, duly completed, together with such 

supplementary documentation as may be prescribed by Applicable Law to permit the 

Borrower or the Administrative Agent to determine the withholding or deduction 

required to be made; and

(D) if a payment made to a Lender (other than the Initial Lender) 

under any Loan Document would be subject to U.S. federal withholding Tax imposed by 

FATCA if such Lender were to fail to comply with the applicable reporting requirements 

of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as 

applicable), such Lender shall deliver to the Borrower and the Administrative Agent at 

the time or times prescribed by law and at such time or times reasonably requested by the 

Borrower or the Administrative Agent such documentation prescribed by Applicable Law 

(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional 

documentation reasonably requested by the Borrower or the Administrative Agent as may 

be necessary for the Borrower and the Administrative Agent to comply with their 

obligations under FATCA and to determine that such Lender has complied with such 

Lender’s obligations under FATCA or to determine the amount, if any, to deduct and 

withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall 

include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or 

becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify 

the Borrower and the Administrative Agent in writing of its legal inability to do so. Notwithstanding 

anything to the contrary in this Agreement, the Initial Lender shall be entitled to the benefits of this 

Section 2.16 and all related provisions under this Agreement without regard to whether it provides any 

documentation described in Section 2.16(g).

(h) Treatment of Certain Refunds. If any party determines, in its sole discretion 

exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified 

pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall 
48

pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity 

payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-ofpocket expenses (including Taxes) of such indemnified party and without interest (other than any interest 

paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, 

upon the request of such indemnified party, shall repay to such indemnified party the amount paid over 

pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant 

Governmental Authority) in the event that such indemnified party is required to repay such refund to such 

Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will 

the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph

(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than 

the indemnified party would have been in if the Tax subject to indemnification and giving rise to such 

refund had not been deducted, withheld or otherwise imposed and the indemnification payments or 

additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed 

to require any indemnified party to make available its Tax returns (or any other information relating to its 

Taxes that it deems confidential) to the indemnifying party or any other Person.

(i) Survival. Each party’s obligations under this Section shall survive the 

resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement 

of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all 

obligations under any Loan Document.

SECTION 2.17 [Reserved].

SECTION 2.18 [Reserved]. 

SECTION 2.19 Mitigation Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation 

under Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any 

Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such 

Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office 

for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of 

its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment 

(i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.16, as the case may be, in the 

future, 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.

(b) Replacement of Lenders. If any Lender requests compensation under 

Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any 

Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 and, in 

each case, such Lender has declined or is unable to designate a different lending office in accordance with 

paragraph (a) of this Section, or if any Lender is a Non-Consenting Lender, then the Borrower may, at its 

sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to 

assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and 

consents required by, Section 11.04), all of its interests, rights (other than its existing rights to payments 

pursuant to Section 2.15 or Section 2.16) and obligations under this Agreement and the related Loan 

Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another 

Lender, if a Lender accepts such assignment); provided that:
49

(i) the Borrower shall have paid to the Administrative Agent the assignment 

fee (if any) specified in Section 11.04;

(ii) such 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 

payable to it hereunder and under the other Loan Documents (including any amounts under 

Section 2.14) from the assignee (to the extent of such outstanding principal and accrued interest 

and fees) or the Borrower (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for 

compensation under Section 2.15 or payments required to be made pursuant to Section 2.16, such 

assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with Applicable Law; and

(v) in the case of any assignment resulting from a Lender becoming a NonConsenting Lender, the applicable assignee shall have consented to the applicable amendment, 

waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior 

thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to 

require such assignment and delegation cease to apply.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

The Credit Parties represent and warrant to the Administrative Agent, the Collateral 

Agent and the Lenders on the Closing Date and on the date of each Borrowing that:

SECTION 3.01 Existence, Qualification and Power. Each of the Credit Parties and their 

respective Material Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good 

standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power 

and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or 

lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan 

Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good 

standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the 

conduct of its business requires such qualification or license, except, in each case referred to in clause

(a) (other than with respect to any Credit Party), (b)(i) or (c), to the extent that failure to do so could not 

reasonably be expected to have a Material Adverse Effect.

SECTION 3.02 Authorization; No Contravention. The execution, delivery and 

performance by each Credit Party of each Loan Document to which it is party have been duly authorized by 

all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of its 

Organizational Documents, (b) conflict with or result in any breach or contravention of, or the creation of 

any Lien under, or require any payment to be made under (i) any material Contractual Obligation to which 

each Credit Party is a party or affecting each Credit Party or the material properties of any Credit Party or 

(ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to 

which any Credit Party or its property is subject or (c) violate any Law, except to the extent such violation 

could not reasonably be expected to have a Material Adverse Effect.
50

SECTION 3.03 Governmental Authorization; Other Consents. No approval, consent, 

exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any 

other Person is necessary or required in connection with the execution, delivery or performance by, or 

enforcement against, each Credit Party of this Agreement or any other Loan Document, except for (i) such 

approvals, consents, exemptions, authorizations, actions or notices that have been duly obtained, taken or 

made and in full force and effect and (ii) filings and consents contemplated by the Security Documents or 

Section 5.14.

SECTION 3.04 Execution and Delivery; Binding Effect. This Agreement has been, and 

each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each 

Credit Party. This Agreement constitutes, and each other Loan Document when so delivered will 

constitute, a legal, valid and binding obligation of each Credit Party, enforceable against each Credit Party 

in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, 

reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general 

principles of equity.

SECTION 3.05 Financial Statements; No Material Adverse Change.

(a) Financial Statements. The financial statements described in Schedule 3.05 were 

prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as 

otherwise expressly noted therein, and fairly present in all material respects the financial condition of the 

Parent and its Subsidiaries as of the date thereof and their results of operations and cash flows for the 

period covered thereby in accordance with GAAP consistently applied throughout the period covered 

thereby, except as otherwise expressly noted therein.

(b) No Material Adverse Change. Since the date of the most recent audited balance 

sheet included in the financial statements described in Schedule 3.05, there has been no event or 

circumstance that, either individually or in the aggregate, has had or could reasonably be expected to have 

a Material Adverse Effect.

SECTION 3.06 Litigation. Except for those matters which have been publicly disclosed in 

any SEC filing of the Parent filed prior to the Closing Date, there are no actions, suits, proceedings, claims, 

disputes or investigations pending or, to the knowledge of any Credit Party, threatened, at Law, in equity, in 

arbitration or before any Governmental Authority, by or against any Credit Party or any of its Subsidiaries 

or against any of their properties or revenues that (a) either individually or in the aggregate could 

reasonably be expected to have a Material Adverse Effect or (b) purport to affect or pertain to this 

Agreement or any other Loan Document or any of the transactions contemplated hereby.

SECTION 3.07 Contractual Obligations; No Default. None of the Credit Parties and their 

respective Subsidiaries is in default under or with respect to any Contractual Obligation that, either 

individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No 

Default has occurred and is continuing or would result from the consummation of the transactions 

contemplated by this Agreement or any other Loan Document.

SECTION 3.08 Property.

(a) Ownership of Properties and Collateral. Each of the Credit Parties and their 

respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests 

in, all real property necessary or used in the ordinary conduct of its business, except for such defects in 

title that, either individually or in the aggregate, could not reasonably be expected to have a Material 
51

Adverse Effect. Each Credit Party has good title to the Collateral owned by it, free and clear of all Liens 

other than Permitted Liens. 

(b) Intellectual Property and Personal Data. Each of the Credit Parties and their 

respective Subsidiaries owns, licenses or possesses the valid and enforceable right to use all of the 

material Intellectual Property and data (including Personal Data) that is used in or necessary for the 

operation of each Carrier Loyalty Program. The use of Loyalty Program Intellectual Property and the 

Loyalty Program Data by the Credit Parties and the conduct of the Carrier Loyalty Programs as currently 

conducted do not materially infringe upon, misappropriate, dilute or otherwise violate any Privacy Law 

nor any rights held by any other Person. No claim or litigation regarding any of the foregoing, or 

challenging the ownership, validity or enforceability of any Loyalty Program Intellectual Property is 

pending or, to the knowledge of any of the Credit Parties, threatened that could reasonably be expected to 

be material to any of the Credit Parties, and to the knowledge of the Credit Parties, there is no basis for 

any such claim.

SECTION 3.09 Taxes. The Credit Parties and their respective Subsidiaries have filed all 

federal, state and other tax returns and reports required to be filed, and have paid all federal, state and other 

taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, 

income or assets otherwise due and payable, except (a) Taxes that are being contested in good faith by 

appropriate proceedings diligently conducted and for which adequate reserves are being maintained in 

accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to 

have a Material Adverse Effect.

SECTION 3.10 Disclosure. (a) The Credit Parties and their respective Subsidiaries have 

disclosed to the Administrative Agent, the Collateral Agent and the Lenders all agreements, instruments and 

corporate or other restrictions to which they are subject, and all other matters known to them, that, either 

individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Loan 

Application Form, reports, financial statements, certificates and other written information (other than 

projected or pro forma financial information) furnished by or on behalf of the Credit Parties and their 

respective Subsidiaries to any 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), taken as a whole, do not contain any material 

misstatement of fact or omit to state any material fact necessary to make the statements therein (when taken 

as a whole), in the light of the circumstances under which they were made, not misleading; provided that, 

with respect to projected or pro forma financial information, the Credit Parties represent only that such 

information was prepared in good faith based upon assumptions believed to be reasonable at the time of 

preparation and delivery (it being understood that such projected information may vary from actual results 

and that such variances may be material) and (b) as of the Closing Date, the information included in the 

Beneficial Ownership Certification is true and correct in all respects.

SECTION 3.11 Compliance with Laws. Each of the Credit Parties and their respective 

Subsidiaries is in compliance with the requirements of all Laws (including Environmental Laws and 

Privacy Laws) and all orders, writs, injunctions and decrees applicable to it or to its properties, except in 

such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested 

in good faith by appropriate proceedings diligently conducted or (b) the failure to so comply, either 

individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

SECTION 3.12 ERISA Compliance.

(a) Except as could not reasonably be expected, either individually or in the 

aggregate, to have a Material Adverse Effect, (i) each Plan is in compliance with the applicable provisions 
52

of ERISA, the Code and other federal or state Laws and (ii) each Plan that is intended to be a qualified 

plan under Section 401(a) of the Code has received a favorable determination letter, opinion letter or 

advisory letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of 

the Code and the trust related thereto has been determined by the IRS to be exempt from federal income 

tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by 

the IRS, and, to the knowledge of any Credit Party, nothing has occurred that would prevent or cause the 

loss of such tax-qualified status.

(b) There are no pending or, to the knowledge of any Credit Party, threatened or 

contemplated claims, actions or lawsuits, or action by any Governmental Authority, with respect to any 

Plan that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse 

Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with 

respect to any Plan that, either individually or in the aggregate, has had or could reasonably be expected 

to have a Material Adverse Effect.

(c) No ERISA Event has occurred, and neither any Credit Party nor any ERISA 

Affiliate is aware of any fact, event or circumstance that, either individually or in the aggregate, could 

reasonably be expected to constitute or result in an ERISA Event that, either individually or in the 

aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

(d) Except as would not reasonably be expected to have individually or in the 

aggregate, a Material Adverse Effect, the present value of all accrued benefits under each Pension Plan 

(based on those assumptions used to fund such Pension Plan) did not, as of the last annual valuation date 

prior to the date on which this representation is made or deemed made, exceed the value of the assets of 

such Pension Plan allocable to such accrued benefits by a material amount. 

(e) To the extent applicable, each Foreign Plan has been maintained in compliance 

with its terms and with the requirements of any and all applicable requirements of Law and has been 

maintained, where required, in good standing with applicable regulatory authorities, except to the extent 

that the failure so to comply could not reasonably be expected, either individually or in the aggregate, to 

have a Material Adverse Effect. Neither the Parent nor any Subsidiary has incurred any obligation in 

connection with the termination of or withdrawal from any Foreign Plan that, either individually or in the 

aggregate, would reasonably be expected to have individually or in the aggregate, a Material Adverse 

Effect. Except as would not reasonably be expected to have individually or in the aggregate, a Material

Adverse Effect, the present value of the accrued benefit liabilities (whether or not vested) under each 

Foreign Plan that is funded, determined as of the end of the most recently ended fiscal year of the Parent 

or Subsidiary, as applicable, on the basis of actuarial assumptions, each of which is reasonable, did not 

exceed the current value of the property of such Foreign Plan by a material amount, and for each Foreign 

Plan that is not funded, the obligations of such Foreign Plan are properly accrued.

SECTION 3.13 Environmental Matters. Except with respect to any matters that, either 

individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, none 

of the Credit Parties and their respective Subsidiaries (a) has failed to comply with any Environmental Law 

or to obtain, maintain or comply with any permit, license or other approval required under any 

Environmental Law, (b) knows of any basis for any permit, license or other approval required under any 

Environmental Law to be revoked, canceled, limited, terminated, modified, appealed or otherwise 

challenged, (c) has or could reasonably be expected to become subject to any Environmental Liability, 

(d) has received notice of any claim, complaint, proceeding, investigation or inquiry with respect to any 

Environmental Liability (and no such claim, complaint, proceeding, investigation or inquiry is pending or, 

to the knowledge of the Parent, is threatened or contemplated) or (e) knows of any facts, events or 

circumstances that could give rise to any basis for any Environmental Liability with respect thereto.
53

SECTION 3.14 Investment Company Act. None of the Credit Parties is an “investment 

company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

SECTION 3.15 Sanctions; Export Controls; Anti-Corruption; AML Laws.

(a) None of the Credit Parties and their respective Subsidiaries and no director, 

officer, or affiliate of the foregoing is a Person that is: (i) the subject of any sanctions administered or 

enforced by the United States (including, but not limited to, those administered by the U.S. Department of 

the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department 

of Commerce’s Bureau of Industry and Security) (“Sanctions”), (ii) organized or resident in a country or 

territory that is the subject of country-wide or region-wide Sanctions (including, currently, Crimea, Cuba, 

Iran, North Korea, and Syria) (each a “Sanctioned Country”) or located in a Sanctioned Country except to 

the extent authorized under Sanctions or (iii) a Person with whom dealings are restricted or prohibited by 

Sanctions as a result of a relationship of ownership or control with a Person listed in (i) or (ii) (each of (i), 

(ii) and (iii) is a “Sanctioned Person”). 

(b) For the period beginning eight (8) years prior to the date hereof, each of the 

Credit Parties and their respective Subsidiaries and their respective directors, officers and employees and, 

to the knowledge of the Credit Parties, such respective affiliates, have been, in all material respects, in 

compliance with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations 

thereunder (the “FCPA”) and any other applicable anti-bribery or anti-corruption laws and regulations 

(collectively with the FCPA, the “Anticorruption Laws”) and all applicable Sanctions, Export Control 

Laws, and AML Laws.

SECTION 3.16 Solvency. The Borrower and its Subsidiaries are Solvent on a consolidated 

basis after giving effect to the borrowing of the Loans.

SECTION 3.17 Subsidiaries. Schedule 3.17 sets forth the name of, and the ownership 

interests of the Parent and each of its Subsidiaries and indicates which of such Subsidiaries are Excluded 

Subsidiaries as of the date hereof.

SECTION 3.18 Senior Indebtedness. The Loans, the Obligations and the Guaranteed 

Obligations constitute “senior indebtedness” (or any other similar or comparable term) under and as defined 

in the documentation governing any Indebtedness of the Credit Parties that is subordinated in right of 

payment to any other Indebtedness thereof. 

SECTION 3.19 Insurance Matters. The properties of the Credit Parties are insured 

pursuant to Section 5.06 hereof. Each insurance policy required to be maintained by the Credit Parties 

pursuant to Section 5.06 is in full force and effect and all premiums in respect thereof that are due and 

payable have been paid.

SECTION 3.20 Labor Matters. Except as would not reasonably be expected to have 

individually or in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or 

other material labor disputes against any Credit Party or any of its Subsidiary thereof pending or, to the 

knowledge of the Credit Parties, threatened, (b) the Credit Parties and their respective Subsidiaries have 

complied with all applicable federal, state, local and foreign Laws relating to the employment (or 

termination thereof), the hours worked by and payments made to employees of the Parent and its 

Subsidiaries comply with the Fair Labor Standards Act and any other applicable federal, state, local or 

foreign Law dealing with such matters and (c) all payments due from the Credit Parties and their respective 

Subsidiaries, or for which any claim may be made against the Credit Parties and their respective 

Subsidiaries, on account of wages and employee health and welfare insurance and other benefits, have been 
54

paid or properly accrued in accordance with GAAP as a liability on the books of the Parent or such 

Subsidiary. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair 

employment practices charges or any other claims or complaints against the Credit Parties or their 

respective Subsidiaries pending or, to the knowledge of the Credit Parties, threatened to be filed with any 

Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to 

the employment or termination of employment of any employee of the Credit Parties and their respective 

Subsidiaries that would, individually or in the aggregate, be reasonably expected to result in a Material 

Adverse Effect. 

SECTION 3.21 Insolvency Proceedings. None of the Credit Parties has taken, and none of 

the Credit Parties is currently evaluating taking, any action to seek relief or commence proceedings under 

any Debtor Relief Law in any applicable jurisdiction. 

SECTION 3.22 Margin Regulations. The Borrower is not engaged and will not engage, 

principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or 

extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any 

Borrowing hereunder will be used to buy or carry any Margin Stock. Following the application of the 

proceeds of each Borrowing, not more than 25% of the value of the assets (either of the Borrower only or of 

the Borrower and its Subsidiaries on a consolidated basis) will be Margin Stock. 

SECTION 3.23 Liens. There are no Liens of any nature whatsoever on any Collateral other 

than Liens permitted under Section 6.02 hereof. 

SECTION 3.24 Perfected Security Interests. 

(a) As of the Closing Date (or such later date as permitted under Section 5.14) and as 

of the date of each Borrowing, the Security Documents, taken as a whole, are effective to create in favor 

of the Collateral Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority 

security interest in all of the Collateral to the extent purported to be created thereby. 

(b) As of the Closing Date (or such later date as permitted under Section 5.14) and as 

of the date of each Borrowing, each Credit Party has or shall have satisfied the Perfection Requirement 

with respect to the Collateral.

SECTION 3.25 US Citizenship. The Borrower is a “citizen of the United States” as 

defined in Section 40102(a)(15) of Title 49 and as that statutory provision has been interpreted by the DOT 

pursuant to its policies. 

SECTION 3.26 Air Carrier Status. The Borrower is an “air carrier” within the meaning of 

Section 40102 of Title 49, holds a certificate under Section 41102 of Title 49 and, during the time period 

from April 1, 2019 to September 30, 2019, derived more than 50% of its air transportation revenue from the 

transportation of passengers. The Borrower holds an air carrier operating certificate issued pursuant to 

Chapter 447 of Title 49. The Borrower 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 do so, either individually or in the aggregate, could not reasonably be expected to 

have a Material Adverse Effect.

SECTION 3.27 Cybersecurity. Except as could not reasonably be expected, either 

individually or in the aggregate, to have a Material Adverse Effect, the information technology assets, 

equipment, systems, networks, software, hardware, and the computers, websites, applications and databases 
55

used by or on behalf of the Credit Parties in connection with any of the Carrier Loyalty Programs 

(collectively, “IT Systems”) (i) are adequate for the operation of the Carrier Loyalty Programs as currently 

conducted, and (ii) are free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and 

other corruptants. Except as could not reasonably be expected, either individually or in the aggregate, to 

have a Material Adverse Effect, (i) the Credit Parties have implemented and maintained commercially 

reasonable (taking into account the nature, scope and sensitivity of the information) policies, procedures, 

and safeguards designed to maintain and protect all Loyalty Program Data and confidential information 

(including Trade Secrets) included in the Collateral and the integrity, continuous operation, redundancy and 

security of all IT Systems and data and (ii) there have been no breaches, cyberattacks (including 

ransomware attacks) or unauthorized uses of or accesses to the IT Systems or any Loyalty Program Data, 

Trade Secrets or confidential information stored therein or processed thereby, except for those that have 

been fully remedied.

SECTION 3.28 Loyalty Program Agreements. The Credit Parties have delivered or made 

available to the Initial Lender complete and correct copies of each of the Material Loyalty Program 

Agreements. Each of the Material Loyalty Program Agreements is in full force and effect and except as 

could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, 

none of the Credit Parties has knowledge of or has received notice of (i) any breach, (ii) change in law or 

(iii) force majeure event, in the case of (ii) and (iii) as defined under the applicable Material Loyalty 

Program Agreement, that would prevent such Credit Party and/or the applicable counterparty from 

performing its respective obligations under such Material Loyalty Program Agreement.

ARTICLE IV

CONDITIONS

SECTION 4.01 Closing Date and Initial Borrowing. The effectiveness of this Agreement 

and the funding of the initial Borrowing hereunder are subject to the satisfaction (or waiver in accordance 

with Section 11.02) of the following conditions (and, in the case of each document specified in this Section 

to be received by the Initial Lender (and the applicable Agent or Agents), such document shall be in form 

and substance satisfactory to the Initial Lender and/or the applicable Agent or Agents):

(a) Executed Counterparts. The Initial Lender and the Agents shall have received 

from each party hereto a counterpart of this Agreement, any Security Documents to which it is a 

party and the Note, each signed on behalf of such party. Notwithstanding anything herein to the 

contrary, delivery of an executed counterpart of a signature page of this Agreement or any 

Security Documents by telecopy or other electronic means, or confirmation of the execution of 

this Agreement on behalf of a party by an email from an authorized signatory of such party shall 

be effective as delivery of a manually executed counterpart of this Agreement.

(b) Certificates. The Initial Lender and any applicable Agent shall have received 

such customary certificates of resolutions or other action, incumbency certificates and/or other 

certificates of Responsible Officers of the Credit Parties as the Lenders may require evidencing 

the identity, authority and capacity of each Responsible Officer thereof authorized to act as a 

Responsible Officer in connection with the Loan Documents;

(c) Organizational Documents. The Initial Lender shall have received customary 

resolutions or evidence of corporate authorization, secretary’s certificates and such other 

documents and certificates (including Organizational Documents and good standing certificates) 

as the Initial Lender may request relating to the organization, existence and good standing of each 
56

Credit Party and any other legal matters relating to the Credit Parties, the Loan Documents or the 

transactions contemplated thereby.

(d) Opinion of Counsel to Credit Parties. The Initial Lender and the applicable 

Agent or Agents shall have received all opinions of counsel (including any additional opinions of 

counsel as required under any Security Document) to the Credit Parties that is acceptable to the 

Initial Lender, addressed to the Initial Lender and the applicable Agent or Agents and dated the 

Closing Date, in form and substance satisfactory to the Initial Lender and the applicable Agent 

(and the Parent hereby instructs such counsel to deliver such opinions to such Persons).

(e) Beneficial Ownership Regulation Information. At least five (5) days prior to the 

Closing Date, the Borrower shall deliver to the Initial Lender a Beneficial Ownership 

Certification.

(f) Expenses. The Borrower shall have paid all reasonable fees, expenses (including 

the fees and expenses of legal counsel) and other amounts due to the Initial Lender, the 

Administrative Agent and the Collateral Agent (to the extent that statements for such expenses 

shall have been delivered to the Borrower on or prior to the Closing Date); provided that such 

expenses payable by the Borrower may be offset against the proceeds of the Loans funded on the 

Closing Date.

(g) Officer’s Certificate. The Initial Lender shall have received a certificate 

executed by a Responsible Officer of the Parent and the Borrower confirming (i) that the 

representations and warranties contained in Article III of this Agreement are true and correct on 

and as of the Closing Date, (ii) that the information provided in the Loan Application Form 

submitted by the Borrower was true and correct on and as of the date of delivery thereof, (iii) the 

satisfaction of such condition and (iv) that no Default or Event of Default exists or will result 

from the borrowing of the Loans on the Closing Date.

(h) Other Documents. The Initial Lender and the Agents shall have received such 

other documents as it may request.

(i) Appraisals. The Initial Lender shall have received Appraisals satisfactory in 

form and substance and performed by an Eligible Appraiser dated as of a date no earlier than

thirty (30) days prior to the Closing Date.

(j) Security Interests. Each Credit Party shall have, and caused its Subsidiaries to, 

take any action and execute and deliver, or cause to be executed and delivered, any agreement, 

document or instrument required in order to create a valid, perfected first priority security interest 

in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties (including 

delivery of UCC financing statements in appropriate form for filing under the UCC and of the 

Intellectual Property security agreements included in the Required Filings and entering into 

control agreements). Each Credit Party shall have satisfied, and caused its Subsidiaries to satisfy, 

the Perfection Requirement with respect to the Collateral. In addition, the Credit Parties shall 

have delivered a completed Perfection Certificate (as defined in the Pledge and Security 

Agreement). 

(k) Consents and Authorizations. Each Credit Party shall have obtained all consents 

and authorizations from Governmental Authorities and all consents of other Persons (including 

shareholder approvals, if applicable) that are necessary or advisable in connection with this 

Agreement, any Loan Document, any of the transactions contemplated hereby or thereby or the 
57

continuing operations of the Credit Parties and each of the foregoing shall be in full force and 

effect and in form and substance satisfactory to the Initial Lender.

(l) Lien Searches. The Initial Lender shall have received (i) UCC, Intellectual 

Property and other lien searches conducted in the jurisdictions and offices where liens on material 

assets of the Credit Parties are required to be filed or recorded and (ii) to the extent Collateral 

consists of (x) Aircraft and Engine Assets (as defined in the Pledge and Security Agreement), 

aircraft registry lien searches conducted with the FAA and the International Registry, and (y) 

Spare Part Assets (as defined in the Pledge and Security Agreement), registry lien searches 

conducted with the FAA (with reference to each Designated Spare Parts Location set forth on 

Schedule 2.1 of the Pledge and Security Agreement), in each case, reflecting the absence of Liens 

on the assets of the Credit Parties, other than Permitted Liens or Liens to be discharged on or 

prior to the Closing Date pursuant to documentation satisfactory to the Initial Lender.

(m) Collateral Coverage Ratio. On the Closing Date (and after giving pro forma 

effect to any Borrowings on such date), the Collateral Coverage Ratio shall not be less than 2.0 to 

1.0.

(n) Solvency Certificate. The Initial Lender shall have received a certificate of the 

chief financial officer or treasurer (or other comparable officer) of the Parent certifying that the 

Borrower and its Subsidiaries (taken as a whole) are, and will be immediately after giving effect 

to any Loans borrowed on the Closing Date, Solvent. 

(o) Warrant Agreement. Treasury and the Parent shall have entered into the Warrant 

Agreement. 

(p) Loyalty Revenue Advance Transactions. On the Closing Date, the aggregate 

outstanding balance of Loyalty Revenue Advance Transactions shall not exceed an aggregate 

amount equal to $15,000,000. 

(q) Control Agreements. The Initial Lender and the Collateral Agent shall have 

received fully executed copies of account control agreements in form and substance satisfactory 

to the Initial Lender with respect to the Collateral Accounts.

(r) [Reserved].

(s) Loyalty Partner Direct Agreements. The Initial Lender and the Collateral Agent 

shall have received duly executed Direct Agreements from the counterparties to each Material 

Loyalty Program Agreement in effect on the Closing Date substantially in the form of Exhibit D 

hereto.

(t) Other Matters. Since June 29, 2020, (i) there has been no event or circumstance 

that, either individually or in the aggregate, has had or could reasonably be expected to have a 

Material Adverse Effect and (ii) none of the Credit Parties has made a Disposition (including any 

sale of Currency) of any assets of the type that would be included in the Collateral had this 

Agreement been in effect at such time other than as would have been permitted under Section 

6.04(b), (d), (e) or (h).

SECTION 4.02 Each Borrowing. The funding by the Lenders of each Borrowing 

(including the Borrowing to be requested on the Closing Date) is additionally subject to the satisfaction of 

the following conditions:
58

(a) the Administrative Agent shall have received a written Borrowing Request in 

accordance with the requirements of Section 2.03(a), with a copy to the Initial Lender (solely to 

the extent the Initial Lender is a Lender at the time of such Borrowing);

(b) the representations and warranties of the Credit Parties set forth in this 

Agreement and in any other Loan Document shall be true and correct in all material respects (or, 

in the case of any such representation or warranty already qualified by materiality, in all respects) 

on and as of the date of such Borrowing (or, in the case of any such representation or warranty 

expressly stated to have been made as of a specific date, as of such specific date); 

(c) no Default shall have occurred and be continuing or would result from such 

Borrowing or from the application of proceeds thereof; 

(d) on the date of the funding of such Borrowing (and after giving pro forma effect 

thereto and the pledge of any Additional Collateral), the Collateral Coverage Ratio shall not be 

less than 2.0 to 1.0 as evidenced by a certificate of a Responsible Officer of the Parent;

(e) [reserved]; 

(f) the Initial Lender shall have received satisfactory evidence that (x) each Material 

Loyalty Program Agreement has and (y) Loyalty Program Agreements representing 90% of 

Loyalty Program Revenues (excluding revenues generated under any Loyalty Subscription 

Program) in the aggregate over the immediately preceding twelve (12) calendar month period 

then ended have, in each case, an expiration date that is at least six (6) months after the Maturity 

Date (without giving effect to the proviso in the definition thereof);

(g) on the date of such Borrowing, the opinion of the independent public accountants 

(after giving effect to any reissuance or revision of such opinion) on the most recent audited 

consolidated financial statements delivered by the Parent pursuant to Section 5.01(a) shall not 

include a “going concern” qualification under GAAP as in effect on the date of this Agreement 

or, if there is a change in the relevant provisions of GAAP thereafter, any like qualification or 

exception under GAAP after giving effect to such change; and

(h) on or prior to the date of such Borrowing, each Credit Party shall have satisfied 

the Perfection Requirement with respect to the Collateral.

Each Borrowing Request by the Borrower hereunder and each Borrowing shall be deemed to constitute a 

representation and warranty by the Borrower on and as of the date of the applicable Borrowing as to the 

matters specified in clauses (b) and (c) above in this Section.

ARTICLE V

AFFIRMATIVE COVENANTS

Until all the later of (i) the date on which all of the Obligations shall have been paid in 

full and (ii) such later date specified in this Agreement, the Credit Parties covenant and agree with the 

Lenders that:
59

SECTION 5.01 Financial Statements. The Parent will furnish to the Administrative Agent

and each Lender:

(a) as soon as available, and in any event within ninety (90) days after the end of 

each fiscal year of the Parent (or, if earlier, five (5) days after the date required to be filed with 

the SEC) (commencing with the fiscal year ended prior to the Closing Date), a consolidated 

balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year and the related 

consolidated statements of income or operations, shareholders’ equity and cash flows for such 

fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, 

audited and accompanied by a report and opinion of independent public accountants of nationally 

recognized standing, which report and opinion shall be prepared in accordance with generally 

accepted auditing standards (and shall not be subject to any “going concern” or like qualification

(other than a qualification solely resulting from (x) the impending maturity of any Indebtedness 

or (y) any prospective or actual default under any financial covenant), exception or explanatory 

paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit) 

to the effect that such consolidated financial statements present fairly in all material respects the 

financial condition, results of operations, shareholders’ equity and cash flows of the Parent and its 

Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; 

(b) as soon as available, but in any event within forty-five (45) days after the end of 

each of the first three (3) fiscal quarters of each fiscal year of the Parent (or, if earlier, five 

(5) days after the date required to be filed with the SEC) (commencing with the first of such fiscal 

quarters ended prior to the Closing Date), a consolidated balance sheet of the Parent and its 

Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or 

operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the 

Parent’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the 

figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding 

portion of the previous fiscal year, certified by a Financial Officer of the Parent as fairly 

presenting in all material respects the financial condition, results of operations, shareholders’ 

equity and cash flows of the Parent and its Subsidiaries on a consolidated basis in accordance 

with GAAP consistently applied, subject only to normal year-end audit adjustments and the 

absence of notes; 

(c) for so long as the Initial Lender is the only Lender, as soon as available, but in 

any event no later than seventy-five (75) days after the beginning of each fiscal year of the Parent, 

(i) forecasts prepared by management of the Parent and a summary of material assumptions used 

to prepare such forecasts, in form satisfactory to the Initial Lender, including projected 

consolidated balance sheets and statements of income or operations and cash flows of the Parent 

and its Subsidiaries on a quarterly basis for such fiscal year and (ii) reasonably detailed 

calculations in a form satisfactory to the Appropriate Party of (A) all Loyalty Program Revenues 

and related cash flows for the immediately preceding fiscal year and (B) projected Loyalty 

Program Revenues for the next two fiscal years; and

(d) solely at the request of the Appropriate Party (which shall be no more than 

quarterly), at a time mutually agreed with the Appropriate Party and the Parent, participate in a 

conference call for Lenders to discuss the financial condition and results of operations of the 

Parent and its Subsidiaries and any forecasts which have been delivered pursuant to this Section 

5.01.
60

SECTION 5.02 Certificates; Other Information. The Parent will deliver to the 

Administrative Agent and each Lender:

(a) [reserved];

(b) concurrently with the delivery of the financial statements referred to in 

Sections 5.01(a) and (b), a duly completed certificate signed by a Responsible Officer of the 

Parent certifying as to whether a Default has occurred and, if a Default has occurred, specifying 

the details thereof and any action taken or proposed to be taken with respect thereto;

(c) [reserved];

(d) promptly after the furnishing thereof, copies of any notice of default or potential 

default or other material written notice received by the Parent or any Subsidiary from, or furnished by the 

Parent or any Subsidiary to, any holder of Material Indebtedness of the Parent or any Subsidiary;

(e) promptly after receipt thereof by any Credit Party or any Subsidiary thereof, 

copies of each material notice or other material written correspondence received from the SEC (or 

comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or 

possible investigation or other inquiry by such agency regarding material financial or other 

material operational results of any Credit Party or any Subsidiary thereof; 

(f) [reserved]; 

(g) promptly following any request therefor, (i) such other information regarding the 

operations, business, properties, liabilities (actual or contingent), condition (financial or 

otherwise) or prospects of any Credit Party or any Subsidiary, or compliance with the terms of the 

Loan Documents, as the Administrative Agent, the Initial Lender or any other Lender (acting 

through the Administrative Agent) may from time to time request; or (ii) beneficial ownership 

information and documentation reasonably requested by the Administrative Agent or any Lender 

from time to time for purposes of ensuring compliance with Sanctions and AML Laws. For 

purposes of determining whether or not a representation with respect to any indirect ownership is 

true or a covenant is being complied with under this Section, the Parent shall not be required to 

make any investigation into (i) the ownership of publicly traded stock or other publicly traded 

securities or (ii) the ownership of assets by a collective investment fund that holds assets for 

employee benefit plans or retirement arrangements; 

(h) concurrently with the delivery of the financial statements referred to in 

Sections 5.01(a) and (b), a duly completed certificate signed by a Responsible Officer of the 

Borrower certifying as to its compliance with Article X of this Agreement; 

(i) knowledge or notice of any event or circumstance that has had or is reasonably 

expected to (i) result in a material reduction or suspension of payments under any Material 

Loyalty Program Agreement or any Loyalty Subscription Program or (ii) have a material adverse 

effect on the ability of a Credit Party and/or any counterparty to a Material Loyalty Program 

Agreement to perform its material obligations thereunder; 

(j) certificates with reasonably detailed calculations of the Collateral Coverage Ratio 

on each CCR Certificate Delivery Date and the Debt Service Coverage Ratio on each DSCR 

Determination Date; and 
61

(k) no later than ten (10) Business Days following the last day of each March, June, 

September and December (commencing December 31, 2020), deliver a certificate of a 

Responsible Officer of the Parent (i) setting forth the name of each new Material Loyalty 

Program Agreement entered into as of such date and each of the parties thereto, (ii) certifying that 

all Loyalty Program Revenue for the immediately preceding calendar quarter were deposited, 

directly or indirectly, into the Collection Account or another Collateral Account (and at least 90% 

of all Loyalty Program Revenues (excluding revenues generated under any Loyalty Subscription 

Program) were deposited directly into a Collateral Account) and (iii) setting forth in reasonable 

detail and in form satisfactory to the Appropriate Party (x) all Loyalty Program Revenues and 

related cash flows for the immediately preceding calendar quarter and (y) for so long as the Initial 

Lender is the only Lender, projected Loyalty Program Revenues for the current calendar quarter.

Documents required to be delivered pursuant to Section 5.01(a) or (b) or Section 5.02(c), 

(d) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may 

be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on 

which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and 

Retrieval system (EDGAR); or (ii) on which such documents are posted on the Parent’s behalf on an 

Internet or intranet website, if any, to which each Lender and the Administrative Agent have access 

(whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided

that: (A) upon written request by the Administrative Agent, the Parent shall deliver paper copies of such 

documents to the Administrative Agent or any Lender upon its request to the Parent to deliver such paper 

copies until a written request to cease delivering paper copies is given by the Administrative Agent or 

such Lender and (B) the Parent shall notify the Administrative Agent and each Lender (by facsimile or 

electronic mail) of the posting of any such documents and provide to the Lenders by electronic mail 

electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no 

obligation to request the delivery of or to maintain paper copies of the documents referred to above.

SECTION 5.03 Notices. The Parent will promptly notify the Administrative Agent and each 

Lender of:

(a) promptly after any Responsible Officer of Parent or any of its Subsidiaries 

obtains knowledge thereof, the occurrence of any Default;

(b) the filing or commencement of any action, suit, investigation or proceeding by or 

before any arbitrator or Governmental Authority against or affecting the Parent or any Controlled 

Affiliate thereof, including pursuant to any applicable Environmental Laws, that could reasonably 

be expected to be adversely determined, and, if so determined, could reasonably be expected to 

have a Material Adverse Effect;

(c) the occurrence of any ERISA Event that, either individually or together with any 

other ERISA Events, could reasonably be expected to have a Material Adverse Effect;

(d) notice of any action arising under any Environmental Law or of any 

noncompliance by any Credit Party or any Subsidiary with any Environmental Law or any 

permit, approval, license or other authorization required thereunder that, if adversely determined, 

could reasonably be expected to have a Material Adverse Effect;

(e) to the extent not publicly disclosed pursuant to an SEC filing of the Parent, any 

material change in accounting or financial reporting practices by the Parent, any Credit Party or 

any Subsidiary;
62

(f) any change in the Credit Ratings from a Credit Rating Agency with negative 

implications, or the cessation by a Credit Rating Agency of, or its intent to cease, rating the 

Borrower’s or the Parent’s debt; and 

(g) any matter or development that has had or could reasonably be expected to have 

a Material Adverse Effect. 

Each notice delivered under this Section shall be accompanied by a statement of a 

Responsible Officer of the Parent setting forth the details of the occurrence requiring such notice and 

stating what action the Parent has taken and proposes to take with respect thereto.

SECTION 5.04 Preservation of Existence, Etc. Each Credit Party will, and will cause each 

of its Subsidiaries to, (a) preserve, renew and maintain in full force and effect its legal existence and good 

standing under the Laws of the jurisdiction of its organization except in a transaction permitted by 

Section 6.03 or 6.04; (b) take all reasonable action to maintain all rights, licenses, permits, privileges and 

franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do 

so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its 

registered patents, trademarks, trade names and service marks, the non-preservation of which could 

reasonably be expected to have a Material Adverse Effect.

SECTION 5.05 Maintenance of Properties. Each Credit Party will, and will cause each of 

its Subsidiaries to, (a) 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 5.06 Maintenance of Insurance. Subject to any additional requirements under 

any Security Document, each Credit Party will maintain with financially sound and reputable insurance 

companies, insurance with respect to its properties and business against loss or damage of the kinds 

customarily insured against by Persons engaged in the same or similar business, of such types and in such 

amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons 

engaged in the same or similar businesses as Parent and its Subsidiaries; provided that, insurance in respect 

of Collateral shall be maintained with such third party insurance companies except to the extent expressly 

permitted in the Pledge and Security Agreement) as are customarily carried under similar circumstances by 

such Persons.

SECTION 5.07 Payment of Obligations. Each Credit Party will pay, discharge or 

otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including 

Tax liabilities, except to the extent (a) the same are being contested in good faith by appropriate 

proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by 

the Parent or such Credit Party or (b) the failure to do so could not reasonably be expected to have a 

Material Adverse Effect.

SECTION 5.08 Compliance with Laws. Each Credit Party will, and will cause each of its 

Subsidiaries to, comply with the requirements of all Laws and all orders, writs, injunctions and decrees 

applicable to it or to its business or property, except to the extent that the failure to do so could not 

reasonably be expected to have a Material Adverse Effect.

SECTION 5.09 Environmental Matters. Except to the extent that the failure to do so could 

not reasonably be expected to have a Material Adverse Effect, each Credit Party will, and will cause each of 

its Subsidiaries to, (a) comply with all Environmental Laws, (b) obtain, maintain in full force and effect and 
63

comply with any permits, licenses or approvals required for the facilities or operations of the Parent or any 

of its Subsidiaries, and (c) conduct and complete any investigation, study, sampling or testing, and 

undertake any corrective, cleanup, removal, response, remedial or other action necessary to identify, report, 

remove and clean up all Hazardous Materials present or released at, on, in, under or from any of the 

facilities or real properties of the Parent or any of its Subsidiaries.

SECTION 5.10 Books and Records. Each Credit Party will maintain proper books of 

record and account, in which full, true and correct entries in conformity with GAAP consistently applied 

shall be made of all financial transactions and matters involving the assets and business of the Parent or 

such Subsidiary, as the case may be. 

SECTION 5.11 Inspection Rights. Each Credit Party will, and, to the extent relevant for 

inspections of Collateral will cause each of its Subsidiaries to, permit representatives, agents and 

independent contractors of the Administrative Agent, the Initial Lender and the Special Inspector General 

for Pandemic Recovery to visit and inspect any of its properties (including all Collateral), to examine its 

corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its 

affairs, finances and accounts with its directors, officers, and independent public accountants, all at the 

reasonable expense of the Parent and at such reasonable times during normal business hours and as often as 

may be reasonably requested; provided that, other than with respect to such visits and inspections during the 

continuation of an Event of Default or by the Initial Lender or the Special Inspector General for Pandemic 

Recovery, (a) only the Administrative Agent (or its representatives, agents and independent contractors) at 

the direction of a Lender may exercise rights under this Section and (b) the Administrative Agent (or its 

representatives, agents and independent contractors) shall not exercise such rights more often than two (2) 

times during any calendar year; provided, further, that when an Event of Default exists the Administrative 

Agent, any Lender or the Special Inspector General for Pandemic Recovery (or any of their respective 

representatives, agents or independent contractors) may do any of the foregoing under this Section at the 

expense of the Parent and at any time during normal business hours and without advance notice. 

SECTION 5.12 Sanctions; Export Controls; Anti-Corruption Laws and AML Laws. Each 

Credit Party and its Subsidiaries will remain in compliance in all material respects with applicable 

Sanctions, Export Control Laws, Anticorruption Laws, and AML Laws. Until all Obligations have been 

paid in full, neither any Credit Party, any Subsidiary of a Credit Party, nor any director or officer of any 

Credit Party or any Subsidiary of a Credit Party shall become a Sanctioned Person or a Person that is 

organized or resident in a Sanctioned Country or located in a Sanctioned Country except to the extent 

authorized under Sanctions. 

SECTION 5.13 Guarantors; Additional Collateral.

(a) The Guarantors listed on the signature page to this Agreement hereby Guarantee 

the Guaranteed Obligations as set forth in Article IX. If any Subsidiary (other than an Excluded 

Subsidiary) is formed or acquired after the Closing Date, if any Subsidiary ceases to be an Excluded 

Subsidiary or if required in connection with the addition of Additional Collateral, then the Parent will 

cause such Subsidiary, promptly (in any event, within thirty (30) days of such Subsidiary being formed or 

acquired or of such Subsidiary ceasing to be an Excluded Subsidiary), (i) to become a Guarantor of the 

Loans pursuant to joinder documentation reasonably acceptable to the Appropriate Party and on the terms 

and conditions set forth in Article IX, (ii) to become a party to each applicable Security 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 Collateral Agent for the benefit of the Secured Parties in 

its assets that are of a type that are intended to be included in the Collateral (other than any Excluded 

Assets), subject to and in accordance with the terms, conditions and provisions of the Loan Documents, 

(iii) to satisfy the Perfection Requirement, (iv) to deliver a secretary’s certificate of such Subsidiary, in 
64

form and substance reasonably acceptable to the Appropriate Party, with appropriate insertions and 

attachments, and (v) to deliver legal opinions relating to the matters described above, which opinions 

shall be in form and substance, and from counsel, satisfactory to the Appropriate Party.

(b) If the Parent or any Subsidiary desires, or is required pursuant to the terms of this 

Agreement, to add Additional Collateral or, if any Subsidiary acquires any existing Collateral from a 

Grantor (as defined in the Pledge and Security Agreement) that it is required pursuant to the terms of this 

Agreement to maintain as Collateral, in each case, after the Closing Date, the Parent shall, in each case at 

its own expense, promptly (in any event, unless any other time period is specified in this Agreement or 

any other Loan Document, within thirty (30) days of the relevant date) (i) cause any such Subsidiary to 

become a Grantor (to the extent such Subsidiary is not already a Grantor) pursuant to joinder 

documentation acceptable to the Appropriate Party and on the terms and conditions set forth in the 

relevant Security Documents, (ii) cause any such Subsidiary to become a party to each applicable Security 

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 Collateral Agent for the benefit of the 

Secured Parties applicable to such Collateral, in form and substance satisfactory to the Appropriate Party 

(it being understood that in the case of any Additional Collateral of a type, or in a jurisdiction, that has not 

been theretofore included in the Collateral, such Additional Collateral may be subject to such additional 

terms and conditions as requested by the Appropriate Party), (iii) promptly execute and deliver (or cause 

such 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) (including 

to obtain any release or termination of Liens not permitted under the definition of “Additional Collateral” 

in Section 1.01 or under Section 6.02 and to satisfy all Perfection Requirements, including the filing of 

UCC financing statements, filings with the FAA and registrations with the International Registry, as 

applicable) in favor of the Collateral Agent for the benefit of the Secured Parties on such assets of the 

Parent or such Subsidiary, as applicable, to secure the Obligations to the extent required under the 

applicable Security Documents or reasonably requested by the Appropriate Party, and to ensure that such 

Collateral shall be subject to no other Liens other than Permitted Liens and (iv) if requested by the 

Appropriate Party, deliver (or cause such Subsidiary to deliver) legal opinions to the Collateral Agent, for 

the benefit of the Secured Parties, relating to the matters described above, which opinions shall be in form 

and substance, and from counsel, satisfactory to the Appropriate Party.

SECTION 5.14 Post-Closing Matters. As promptly as practicable, and in any event within 

the time periods after the Closing Date specified on Schedule 5.14 or such later date as the Initial Lender 

may agree to in writing in its sole discretion, the Parent shall deliver the documents or take the actions 

specified on Schedule 5.14 that would have been required to be delivered or taken on the Closing Date.

SECTION 5.15 Further Assurances. In each case subject to the terms, conditions and 

limitations in the Loan Documents, (a) each Credit Party shall remain in compliance with the Perfection 

Requirement with respect to all Collateral (including any assets, rights and properties that (x) become 

Collateral after the Closing Date and (y) any permitted replacement or substitute assets, rights and 

properties thereof (including any Additional Collateral) and (b) each Credit Party shall, promptly and at its 

expense, execute any and all further documents and instruments and take all further actions, that may be 

required or advisable under applicable law or that the Initial Lender, the Administrative Agent or the 

Collateral Agent may request, in order to create, grant, establish, preserve, protect, renew or perfect the 

validity, perfection or first priority of the Liens and security interests created or intended to be created by 

the Security Documents, in each case to the extent required under this Agreement or the Security 

Documents (including with respect to any additions to the Collateral (including any Additional Collateral) 

or replacements, substitutes or proceeds thereof or with respect to any other property or assets hereafter 

acquired by any Credit Party that are of a type that are intended to be included in the Collateral). Promptly 

following the entry by any Credit Party into any Material Loyalty Program Agreement after the Closing 
65

Date, the Parent will enter into and cause the counterparty to enter into a Direct Agreement substantially in 

the form of Exhibit D hereto. 

SECTION 5.16 Delivery of Appraisals. The Parent shall (1) within ten (10) Business Days 

prior to the last Business Day of March and September of each year, beginning with March 31, 2021 and (2)

promptly (but in any event within thirty (30) days) following request by the Administrative Agent (acting at 

the direction of the Required Lenders) if an Event of Default has occurred and is occurring, deliver to the 

Administrative Agent one or more Appraisals determining the Appraised Value of the Collateral. In 

addition, on the date upon which any Additional Collateral is pledged as Collateral to the Collateral Agent 

for the benefit of the Secured Parties to secure the Obligations, but only with respect to such Additional 

Collateral, the Parent shall deliver to the Administrative Agent one or more Appraisals determining the 

Appraised Value of such Additional Collateral. 

SECTION 5.17 Ratings. At any time when the Initial Lender is a Lender, the Borrower 

shall, upon request by the Initial Lender, use its reasonable best efforts to obtain a public rating in respect of 

the Loans by any two of S&P, Moody’s and Fitch in connection with any contemplated assignment of, or 

participation in, the Loans. 

SECTION 5.18 Regulatory Matters. 

(a) US Citizenship. The Borrower will at all times maintain its status as a “citizen of 

the United States” as defined in Section 40102(a)(15) of Title 49 and as that statutory provision has been 

interpreted by the DOT pursuant to its policies. 

(b) Air Carrier Status. The Borrower will at all times maintain its status as an “air 

carrier” within the meaning of Section 40102 of Title 49 and holds a certificate under Section 41102 of 

Title 49. The Borrower will at all times possess an air carrier operating certificate issued pursuant to 

Chapter 447 of Title 49. The Borrower will at all times possess 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 do so, either individually or in the aggregate, could not 

reasonably be expected to have a Material Adverse Effect.

SECTION 5.19 Loyalty Programs; Loyalty Program Agreements. 

(a) Loyalty Programs. The Parent will, and will cause each of its Subsidiaries to, 

take all actions necessary to maintain the existence, business and operations of the Carrier Loyalty 

Programs as in effect on the Closing Date or on terms at least as favorable to the Lenders, as determined 

by the Appropriate Party in its sole discretion, except as otherwise expressly permitted under this 

Agreement. 

(b) Loyalty Program Agreements. The Parent will, and will cause each of its 

Subsidiaries to, take any action permitted under the Material Loyalty Program Agreements and applicable 

law that it, in its reasonable business judgment, determines is advisable, in order to diligently and 

promptly (i) enforce its rights and any remedies available to it under the Material Loyalty Program 

Agreements, (ii) perform its obligations under the Material Loyalty Program Agreements and (iii) use 

reasonable best efforts to cause the applicable counterparties to perform their obligations under the related 

Material Loyalty Program Agreements, including such counterparties’ obligations to make payments to 

and indemnify the applicable Credit Parties in accordance with the terms thereof, in each case except as 

would not (1) be materially adverse to the Lenders or (2) reasonably be expected to result in a Material 

Adverse Effect.
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SECTION 5.20 Collections; Accounts; Payments. 

(a) The Credit Parties shall (x) instruct and use their reasonable best efforts to cause 

counterparties to all Material Loyalty Program Agreements to direct payments of all Loyalty Program 

Revenue into the Collection Account and (y) cause sufficient counterparties to the Loyalty Program 

Agreements to direct payments of Loyalty Program Revenue into the Collection Account (in the case of 

Loyalty Program Revenue generated under any Material Loyalty Program Agreement, pursuant to a 

Direct Agreement) such that during any DSCR Test Period, at least 90% of Loyalty Program Revenue 

(excluding revenues generated under any Loyalty Subscription Program) for such period is deposited 

directly into the Collection Account. Promptly following the entry by any Credit Party into any Material 

Loyalty Program Agreement after the Closing Date, the applicable Credit Party will enter into and cause 

the counterparty to enter into a Direct Agreement with respect to such Material Loyalty Program 

Agreement. To the extent the Parent, any Subsidiary or any of their respective Controlled Affiliates 

receives any payments of Loyalty Program Revenues to an account other than the Collection Account, 

such Person shall ACH or wire transfer as soon as practicable, but in any event within three (3) Business 

Days of receipt, any such amounts to the Collection Account. All amounts in the Collection Account 

shall be conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and the 

Lenders shall have no duty to inquire as to the source of the amounts on deposit in the Collection 

Account. No Credit Party shall revoke, or permit to be revoked, any payment direction included in any 

Direct Agreement other than in connection with a replacement Collection Account (which shall be at a 

depository institution satisfactory to the Appropriate Party). 

(b) Each account control agreement with respect to each Blocked Account shall 

require, after the occurrence and during the continuance of a Payment Event, the ACH or wire transfer no 

less frequently than once per Business Day (unless the Obligations are no longer outstanding), of all 

collected and available funds in such Blocked Account (net of such minimum balance, not to exceed 

$25,000, as may be required to be kept in the subject Blocked Account by the account bank), to an 

account in the name of the Borrower maintained by the Administrative Agent at The Bank of New York 

Mellon (the “Payment Account”) or such other account as directed by the Administrative Agent. The 

Payment Accounts and the Blocked Accounts shall be non-interest bearing accounts. Funds on deposit in 

the Blocked Accounts and the Payment Accounts shall be uninvested. All amounts in the Blocked 

Account shall be conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and 

the Lenders shall have no duty to inquire as to the source of the amounts on deposit in the Blocked 

Account. The Borrower may at any time elect to apply amounts on deposit in the Blocked Account to 

prepay the Loans, by requesting that the Collateral Agent instruct the account bank to withdraw such 

amounts for such prepayment.

(c) The Payment Account shall at all times be under the sole dominion and control of 

the Collateral Agent and shall be subject to an account control agreement in form and substance 

satisfactory to the Appropriate Party. The Credit Parties hereby acknowledge and agree that (i) the Credit 

Parties have no right of withdrawal from the Payment Account, (ii) the funds on deposit in the Payment 

Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in 

the Payment Account shall be applied to repay the Loans. All amounts in the Payment Account shall be 

conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and the Lenders shall 

have no duty to inquire as to the source of the amounts on deposit in the Payment Account. Upon 

payment in full of the Loans and all Obligations under this Agreement (other than contingent 

indemnification or reimbursement obligations not yet accrued and payable) and termination of the 

Commitments, any remaining amounts in the Payment Account will be released and transferred to a 

deposit account of the Credit Parties as the Borrower shall direct. 
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ARTICLE VI

NEGATIVE COVENANTS

Until all the later of (i) the date on which all of the Obligations shall have been paid in 

full and (ii) such later date specified in this Agreement, the Credit Parties covenant and agree with the 

Lenders that:

SECTION 6.01 [Reserved].

SECTION 6.02 Liens. Parent will not, and will not permit any of its Subsidiaries to, create, 

incur, assume or suffer to exist any Lien upon any property or assets constituting Collateral, whether now 

owned or hereafter acquired, except for Permitted Liens.

SECTION 6.03 Fundamental Changes. Parent will not, and will not permit any of its 

Subsidiaries to, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in 

one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or 

hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result 

therefrom:

(a) any Subsidiary may merge with (i) the Borrower; provided that the Borrower 

shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided

that (x) when any Wholly-Owned Subsidiary is merging with another Subsidiary, a WhollyOwned Subsidiary shall be the continuing or surviving Person and (y) when any Subsidiary that is 

a Credit Party is merging with another Subsidiary, then such other Subsidiary shall be a Credit 

Party; 

(b) any Subsidiary may Dispose of all or substantially all of its assets (upon 

voluntary liquidation or otherwise) to the Parent or to another Subsidiary; provided that (x) if the 

transferor in such a transaction is a Wholly-Owned Subsidiary, then the transferee shall either be 

the Parent or another Wholly-Owned Subsidiary and (y) if the transferor in such a transaction is a 

Credit Party, then the transferee shall be a Credit Party; 

(c) the Parent and its Subsidiaries may make Dispositions permitted by Section 6.04; 

(d) any Investment permitted by Section 6.06 may be structured as a merger, 

consolidation or amalgamation; 

(e) any Subsidiary may dissolve, liquidate or wind up its affairs if it owns no 

material assets, engages in no business and otherwise has no activities other than activities related 

to the maintenance of its existence and good standing; and

(f) any Subsidiary may Dispose of all or substantially all of its assets (upon 

voluntary liquidation or otherwise), provided that such assets do not constitute all or substantially all of 

the consolidated assets of the Parent and its Subsidiaries. 

SECTION 6.04 Dispositions. Parent will not, and will not permit any of its Subsidiaries to, 

sell or otherwise make any Disposition of Collateral or enter into any agreement to make any sale or other 

Disposition of Collateral (in each case, including, without limitation by way of any sale or other Disposition 

of any Guarantor), except, subject to Article X and so long as no Default shall have occurred and be continuing 

at the time of any action described below, or would result therefrom:
68

(a) the Disposition of Collateral expressly permitted under the applicable Security 

Documents;

(b) any licenses or sublicenses (i) granted on a non-exclusive basis to customers or 

service providers in the ordinary course of business or to business partners in the ordinary course 

of business in a manner and subject to terms consistent with past practice or (ii) granted pursuant 

to any Loyalty Program Agreement in full force and effect as of the Closing Date, any successor 

agreement thereto or any new Loyalty Program Agreement, in each case that is included in the 

Collateral (provided that any such grant pursuant to such new or successor agreement is made in 

the ordinary course of business in a manner and subject to terms substantially similar with those 

of the predecessor Loyalty Program Agreement or with any Loyalty Program Agreement in full 

force and effect as of the Closing Date, as the case may be);

(c) any abandonment, lapse, forfeiture or dedication to the public, in the ordinary 

course of business, of any Intellectual Property that, in the applicable Credit Party’s reasonable 

good faith judgment, is no longer used and no longer useful in the business of the Borrower or its 

Subsidiaries;

(d) any (1) deletion, de-identification or purge of any Personal Data that is required 

under applicable Privacy Laws, under any of the Credit Parties’ public-facing privacy policies in 

full force and effect as of the Closing Date or in the ordinary course of business (including in 

connection with terminating inactive Carrier Loyalty Program accounts) pursuant to the 

applicable Credit Party’s privacy and data retention policies in full force and effect as of the 

Closing Date consistent with past practice, (2) transfer of any Loyalty Program Data to services 

providers for their Processing of such data on behalf of any of the Credit Parties in the ordinary 

course of business, subject to a prohibition on deletion, de-identification and purging, except as 

permitted under clause (1) or (3) transfer of any Loyalty Program Data to a third party in the 

ordinary course of business to the extent such Credit Party also retains a copy of such Loyalty 

Program Data; 

(e) the sale, lease or other transfer any Currency under any Loyalty Program in 

accordance with any Loyalty Program Agreement as in existence on the Closing Date (or any (i) 

permitted successor agreement thereto or (ii) new Loyalty Program Agreement permitted under 

this Agreement, in each case that is included in the Collateral) or subsequently approved by the 

Appropriate Party; 

(f) Loyalty Revenue Advance Transactions in an aggregate amount (together with 

any Loyalty Revenue Advance Transactions outstanding on the Closing Date that remain 

outstanding) not to exceed an amount equal to the greater of (x) $15,000,000 and (y) 15% of the 

aggregate amount of Collateral Cash Flow received during the most recently ended DSCR Test 

Period that has been deposited into a Collateral Account; 

(g) to the extent constituting a Disposition of Collateral, the incurrence of Liens that 

are permitted to be incurred pursuant to Section 6.02;

(h) to the extent constituting a Disposition of Collateral, (1) the sale or other transfer 

of Currency in the ordinary course of business under the terms of the Loyalty Program 

Agreements and (2) transfers of Currency to Loyalty Program Members in the ordinary course of 

business in accordance with program terms;
69

(i) Dispositions of Collateral among the Credit Parties (including any Person that 

shall become a Credit Party simultaneous with such Disposition in the manner contemplated by 

Section 5.13); provided that:

(i) such Collateral remains at all times subject to a Lien with the same priority 

and level of perfection as was the case immediately prior to such Disposition (and otherwise subject 

only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties 

following such Disposition;

(ii) concurrently therewith, the Credit Parties shall execute any documents and 

take any actions reasonably required to create, grant, establish, preserve or perfect such Lien in 

accordance with the other provisions of this Agreement or the Security Documents;

(iii) if requested by the Appropriate Party, concurrently therewith the 

Appropriate Party shall receive an opinion of counsel to the applicable Credit Party as to the validity 

and perfection of such Lien on the Collateral, in each case in form and substance satisfactory to the 

Appropriate Party; and

(iv) concurrently with any Disposition of Collateral to any Person that shall 

become a Credit Party simultaneous with such Disposition in the manner contemplated by Section 

5.13, such Person shall have complied with the requirements of Section 5.13; 

(j) any Disposition of property resulting from an event of loss with respect to any 

aircraft, airframe, engine, spare engine or Spare Parts if the Credit Party is replacing such aircraft, 

airframe, engine, spare engine or Spare Parts in accordance with the terms of the Loan 

Documents; 

(k) any Disposition of Collateral permitted by any of the Security Documents; and

(l) Dispositions of cash or Cash Equivalents in exchange for other cash or Cash 

Equivalents constituting Collateral and having reasonably equivalent value therefor.

SECTION 6.05 Restricted Payments. Parent will not, and will not permit any of its 

Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation 

(contingent or otherwise) to do so, except, that, subject to additional restrictions set forth in Article X, so 

long as no Default shall have occurred and be continuing at the time of any action described below or would 

result therefrom:

(a) each Subsidiary may make Restricted Payments to the Parent and any other 

Person that owns an Equity Interest in such Subsidiary, ratably according to their respective 

holdings of such Equity Interests in respect of which such Restricted Payment is being made;

(b) the Parent and each Subsidiary may declare and make dividend payments or 

other distributions payable solely in common Equity Interests of such Person;

(c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire 

Equity Interests issued by it with the proceeds received from the substantially concurrent issue of 

new common Equity Interests; 

(d) the Parent and each Subsidiary may pay withholding or similar taxes payable by 

any future, present or former employee, director or officer (or any spouses, former spouses, 
70

successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in 

connection with any repurchases of Equity Interests or the exercise of stock options; 

(e) 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 Parent or its Subsidiaries to cover withholding tax obligations of such persons in 

respect of such issuance; 

(f) payments of cash, dividends, distributions, advances, common stock or other 

Restricted Payments by the Parent or any of its 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 or (C) the conversion or exchange of 

Indebtedness or hybrid securities into capital stock of any such Person; 

(g) the Parent may make cash payments in connection with any conversion or 

exchange of Convertible Indebtedness in amount equal to the sum of (i) the principal amount of 

such Convertible Indebtedness and (ii) the proceeds of any payments received by the Parent or 

any of its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted 

Bond Hedge Transaction;

(h) the Parent may make payments in connection with a Permitted Bond Hedge 

Transaction (i) by delivery of shares of the Parent’s Equity Interests upon net share settlement 

thereof or (ii) by (A) set-off against the related Permitted Bond Hedge Transaction and (B) 

payment of an early termination amount thereof in common Equity Interests of the Parent upon 

any early termination thereof; and

(i) Restricted Payments not to exceed the amount allowable pursuant to Schedule 

6.05(i).

SECTION 6.06 Investments. Parent will not, and will not permit any of its Subsidiaries to,

make any Investments, except:

(a) Investments held by the Parent or such Subsidiary in the form of cash or Cash 

Equivalents;

(b) (i) Investments in Subsidiaries in existence on the Closing Date, (ii) other 

Investments in existence on the Closing Date and listed in Section I to Schedule 6.06 and (iii) 

other Investments described on Section II of Schedule 6.06, and, in each case, any refinancing, 

refunding, renewal or extension of any such Investment that does not increase the amount thereof;

(c) advances to officers, directors and employees of the Parent and its Subsidiaries in 

an aggregate amount not exceeding, at any time outstanding, an amount that is customary and 

consistent with past practice, for travel, entertainment, relocation and similar ordinary business 

purposes;

(d) (x) Investments of the Parent in the Borrower or any other Credit Party, (y) 

Investments of any Subsidiary in the Parent or any other Credit Party and (z) Investments made 
71

between Subsidiaries that are not Credit Parties; provided that any such Investments made 

pursuant to this clause (d) in the form of intercompany indebtedness incurred by a Credit Party 

and owed to a Subsidiary that is not a Credit Party shall be subordinated to the Obligations and 

the Guaranteed Obligations on customary terms (it being understood and agreed that any 

Investments permitted under this clause (d) in the form of intercompany indebtedness that are not 

already subordinated on such terms as of the Closing Date shall not be required to be so 

subordinated until the date that is thirty (30) days after the Closing Date);

(e) Investments consisting of extensions of credit in the nature of accounts 

receivable or notes receivable arising from the grant of trade credit in the ordinary course of 

business, and Investments received in satisfaction or partial satisfaction thereof from financially

troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(f) Investments consisting of the indorsement by the Parent or any Subsidiary of 

negotiable instruments payable to such Person for deposit or collection in the ordinary course of 

business; 

(g) to the extent constituting an Investment, transactions otherwise permitted by 

Sections 6.03 and 6.05; 

(h) any Investments received in compromise or resolution of (i) obligations of trade 

creditors or customers that were incurred in the ordinary course of business of Parent or any of its 

Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the 

bankruptcy or insolvency of any trade creditor or customer or (ii) litigation, arbitration or other 

disputes; 

(i) Investments represented by obligations in respect of Swap Contracts that are not 

speculative in nature and that are entered into to hedge or mitigate risks to which the Parent or 

any of its Subsidiaries has (or will have) actual exposure (other than those in respect of the Equity 

Interests or Indebtedness of the Parent or any of its Subsidiaries); 

(j) accounts receivable arising in the ordinary course of business; 

(k) any guarantee of Indebtedness of Parent or any Subsidiary of Parent, other than 

any guarantee of Indebtedness secured by Liens that would not be permitted under Section 6.02; 

(l) Investments to the extent that payment for such Investment is made with the 

capital stock of the Parent;

(m) Investments having an aggregate fair market value (measured on the date each 

such Investment was made and without giving effect to subsequent changes in value other than a 

reduction for all returns of principal in cash and capital dividends in cash), when taken together 

with all Investments made pursuant to this clause (n) that are at the time outstanding, not to 

exceed 30% of the total consolidated assets of the Parent and its Subsidiaries at the time of such 

Investment; 

(n) Permitted Bond Hedge Transactions to the extent constituting Investments; and

(o) Investments in Finance Entities in the ordinary course of business of the Parent 

and its Subsidiaries or that are otherwise customary for airlines based in the United States.
72

SECTION 6.07 Transactions with Affiliates. Parent will not, and will not permit any of its 

Subsidiaries to, enter into any transaction of any kind involving aggregate payments or consideration in 

excess of $50,000,000 with any Affiliate of the Parent, whether or not in the ordinary course of business, 

other than on fair and reasonable terms substantially as favorable to the Parent or such Subsidiary as would 

be obtainable by the Parent or such Subsidiary at the time in a comparable arm’s-length transaction with a 

Person other than an Affiliate, subject to delivery of (x) with respect to any transaction or series of related 

transactions involving aggregate consideration in excess of $100,000,000, a certificate of a Responsible 

Officer of the Parent certifying as to compliance with the foregoing and (y) with respect to any transaction 

or series of related transactions involving aggregate consideration in excess of $150,000,000, an opinion as 

to the fairness to the Parent or such Subsidiary of such transaction from a financial point of view issued by 

an accounting, appraisal or investment banking firm of national standing (provided that this clause (y) shall 

not apply to any transaction between or among the Parent or any of its Subsidiaries and any Finance 

Entities); provided that, subject to Article X, the foregoing restriction shall not apply to: 

(a) transactions between or among the Parent and any Wholly-Owned Subsidiaries, 

(b) Restricted Payments permitted by Section 6.05, 

(c) Investments permitted by Section 6.06(b), or (c) or (d), 

(d) transactions described in Schedule 6.07, 

(e) 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 Parent or any of its Subsidiaries in the ordinary course of business and payments 

pursuant thereto, and 

(f) 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 Parent or any of its Subsidiaries.

SECTION 6.08 [Reserved].

SECTION 6.09 [Reserved].

SECTION 6.10 Changes in Nature of Business. Parent will not, and will not permit any of 

its Subsidiaries to, engage to any material extent in any business other than those businesses conducted by 

the Parent and its Subsidiaries on the date hereof or any business reasonably related or incidental thereto or 

representing a reasonable expansion thereof.

SECTION 6.11 Sanctions; AML Laws. Parent will not, and will not permit any of its 

Subsidiaries to, directly or knowingly indirectly, use the proceeds of the Loans, or lend, contribute or 

otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person to fund any 

activities or business of or with any Person in a manner that would result in a violation of Sanctions or 

AML Laws by any Person.

SECTION 6.12 Amendments to Organizational Documents. Parent will not, and will not 

permit any of its Subsidiaries to amend, modify, or grant any waiver or release under or terminate in any 

manner, any Organizational Documents in any manner materially adverse to, or which would impair the 

rights of, the Lenders.
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SECTION 6.13 [Reserved]

SECTION 6.14 Prepayments of Junior Indebtedness. Parent will not, and will not permit 

any of its Subsidiaries to, make any principal payment on, or redeem, repurchase, defease or otherwise 

acquire or retire for value, in each case prior to any scheduled repayment, sinking fund payment or 

maturity, any Indebtedness secured by junior Liens on the Collateral or that is subordinated in right of 

payment to the Obligations, in each case other than in connection with a Permitted Refinancing of such 

Indebtedness.

SECTION 6.15 Lobbying. Parent will not, and will not permit any of its Subsidiaries to, 

directly, or to the Parent or such Subsidiary’s knowledge, indirectly, use the proceeds of the Loans, or lend, 

contribute, or otherwise make available such proceeds to any other Person (i) for publicity or propaganda 

purposes designated to support or defeat legislation pending before the U.S. Congress or (ii) to fund any 

activities that would constitute “lobbying activities” as defined under 2 U.S.C. § 1602. The Parent shall, 

and shall cause its subsidiaries to, comply with the provisions of 31 U.S.C. § 1352, as amended, and with 

the regulations at 31 CFR Part 21.

SECTION 6.16 Use of Proceeds. Parent will not, and will not permit any of its

Subsidiaries to, use the proceeds of the Loans for any purpose other than for general corporate purposes and 

operating expenses (including payroll, rent, utilities, materials and supplies, repair and maintenance, and 

scheduled interest payments on other Indebtedness incurred before February 15, 2020), in each case in 

compliance with all applicable law to the extent permitted by the CARES Act; provided however that the 

proceeds of the Loans shall not be used for any non-operating expenses (including capital expenses, 

delinquent taxes and payments of principal on other Indebtedness), unless the Parent can demonstrate, to the 

satisfaction of the Initial Lender, that payment of any such non-operating expense is necessary to optimize 

the continued operations of the Parent’s business and does not merely constitute a transfer of risk from an 

existing creditor or investor to the Federal taxpayer.

SECTION 6.17 Financial Covenants.

(a) Liquidity. The Parent will not permit the aggregate amount of Liquidity at the 

close of any Business Day to be less than $300,000,000.

(b) Collateral Coverage Ratio.

(i) Within ten (10) Business Days after (x) the last day of March and 

September of each year (beginning with March 2021) or (y) any date on which an Appraisal is 

delivered pursuant to clause (2) of Section 5.16 (each such date in clauses (x) and (y), a “CCR 

Reference Date” and the tenth Business Day after a CCR Reference Date, a “CCR Certificate 

Delivery Date”), the Parent shall deliver to the Administrative Agent a certificate of a Responsible 

Officer of the Parent containing a calculation of the Collateral Coverage Ratio (a “CCR 

Certificate”).

(ii) If the Collateral Coverage Ratio with respect to any CCR Reference Date 

is less than 1.60 to 1.00, the Borrower shall, no later than ten (10) Business Days after the applicable 

CCR Certificate Delivery Date, (x) prepay any outstanding Loans such that following such 

prepayment, the Collateral Coverage Ratio with respect to such CCR Reference Date, recalculated 

by subtracting any such prepaid portion of the Loans, shall be no less than 1.60 to 1.00 and/or (y) 

designate Additional Collateral as additional Eligible Collateral and comply with Sections 5.13 and 

5.15, collectively, in an amount such that following such designation, the Collateral Coverage Ratio 
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with respect to such CCR Reference Date, recalculated by adding such Additional Collateral, shall 

be no less than 1.60 to 1.00.

(iii) At the Parent’s request, the Lien on any Additional Collateral will be 

released, provided, in each case, that the following conditions are satisfied or waived: (a) no Event 

of Default shall have occurred and be continuing, (b) either (x) after giving effect to such release, 

the Collateral Coverage Ratio is not less than 2.00 to 1.00 (or in the case of a swap or exchange of 

existing Additional Collateral with new Additional Collateral, less than 1.60 to 1.00) or (y) the 

Parent shall prepay or cause to be prepaid the Loans and/or shall designate Eligible Collateral as 

Additional Collateral and comply with Sections 5.13 and 5.15, collectively, in an amount necessary 

to cause the Collateral Coverage Ratio to not be less than 2.00 to 1.00 (or in the case of a swap or 

exchange of existing Additional Collateral with new Additional Collateral, less than 1.60 to 1.00) 

and (c) the Parent shall deliver a certificate executed by a Responsible Officer demonstrating 

compliance with this Section 6.17(b)(iii). 

(c) Debt Service Coverage Ratio.

(i) On each DSCR Determination Date, the Parent shall deliver to the 

Administrative Agent a certificate of a Responsible Officer of the Parent (x) containing a 

calculation of the Debt Service Coverage Ratio and (ii) certifying that all Loyalty Program Revenue 

for such DSCR Test Period has been deposited, directly or indirectly, into the Collection Account

or another Collateral Account (and at least 90% of all Loyalty Program Revenues (excluding 

revenues generated under any Loyalty Subscription Program) were deposited directly into a 

Collateral Account); and

(ii) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than 1.75 to 1.00 (a “DSCR Trigger Event”), then the Parent and the 

Subsidiaries shall cause an amount equal to at least 50% of all Loyalty Program Revenues received 

thereafter to be transferred (as such payments are received) from the Collection Account to a 

Blocked Account to be held for the benefit of the Lenders(which amounts on deposit in the Blocked 

Account may be used to prepay the Loans at the option of the Borrower, upon request to the 

Collateral Agent) until the first DSCR Determination Date on which the Debt Service Coverage 

Ratio is 1.75 to 1.00 or more, whereupon such amounts may be transferred from the Blocked 

Account to the Collection Account following a request to the Collateral Agent;

(iii) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.50 to 1.00 but greater than 1.25 to 1.00, then (x) all 

amounts then deposited in the Blocked Account shall be applied to prepay the Loans and (y) the 

Parent and the Subsidiaries shall cause an amount equal to at least 50% of all Loyalty Program 

Revenues received thereafter to be transferred (as such payments are received) from the Collection 

Account to the Payment Account with all such amounts deposited into the Payment Account to be 

applied to the prepayment of any Loans then outstanding until the first DSCR Determination Date 

on which the Debt Service Coverage Ratio is greater than 1.50 to 1.00; and 

(iv) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.25 to 1.00, then (x) all amounts then deposited in the 

Blocked Account shall be applied to prepay the Loans and (y) the Parent and the Subsidiaries shall 

cause an amount equal to at least 75% of all Loyalty Program Revenues received thereafter to be 

transferred (as such payments are received) from the Collection Account to the Payment Account 

with all such amounts deposited into the Payment Account to be applied to the prepayment of any 
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Loans then outstanding until the first DSCR Determination Date on which the Debt Service 

Coverage Ratio is greater than 1.25 to 1.00.

ARTICLE VII

EVENTS OF DEFAULT

SECTION 7.01 Events of Default. If any of the following events (each, an “Event of 

Default”) shall occur:

(a) the Borrower shall fail to pay any principal of any Loan when and as the same 

shall become due and payable, whether at the due date thereof or at a date fixed for prepayment 

thereof or otherwise;

(b) the Borrower shall fail to pay any interest on any Loan, or any fee or any other 

amount (other than an amount referred to in clause (a) of this Section) payable under this 

Agreement or under any other Loan Document, when and as the same shall become due and 

payable, and such failure shall continue unremedied for a period of two (2) or more Business 

Days;

(c) any representation or warranty made or deemed made by or on behalf of any 

Credit Party, including those made prior to the Closing Date, in or in connection with this 

Agreement, the Loan Application Form or any other Loan Document or any amendment or 

modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, 

certificate, financial statement or other document furnished pursuant to or in connection with this 

Agreement, the Loan Application Form or any other Loan Document or any amendment or 

modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to have been 

incorrect in any material respect (or, in the case of any such representation or warranty under this 

Agreement, the Loan Application Form or any other Loan Document already qualified by 

materiality, such representation or warranty shall prove to have been incorrect) when made or 

deemed made;

(d) any Credit Party shall fail to observe or perform any covenant, condition or 

agreement contained in Section 5.03(a), 5.04 (with respect to the Borrower’s existence) or in 

Article VI or Article X;

(e) any Credit Party shall fail to observe or perform any covenant, condition or 

agreement contained in this Agreement or any other Loan Document (other than those specified 

in clause (a), (b) or (d) of this Section) and such failure shall continue unremedied for a period of 

thirty (30) or more days after notice thereof by the Administrative Agent or the Initial Lender to 

the Parent;

(f) (i) Any Credit Party or any Subsidiary thereof shall fail to make any payment 

when due (whether by scheduled maturity, required prepayment, acceleration, demand, or 

otherwise) in respect of any Material Indebtedness (other than Indebtedness under this 

Agreement) and such failure shall continue after the applicable grace period, if any, specified in 

the agreement or instrument governing such Material Indebtedness; or (ii) any Credit Party or any 

Subsidiary thereof shall fail to observe or perform any other agreement or condition relating to 

any such Indebtedness or contained in any instrument or agreement evidencing, securing or 

relating thereto, or any other event occurs, the effect of which default or other event results in the 

holder or holders or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on 
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behalf of such holder or holders or beneficiary or beneficiaries) causing such Indebtedness to 

become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or 

causing an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to 

its stated maturity; provided that this clause (f)(ii) shall not apply to secured Indebtedness that 

becomes due as a result of the voluntary sale or transfer (or disposition of property as a result of a 

casualty or condemnation event) of the property or assets securing such Indebtedness, if such sale 

or transfer is permitted hereunder and under the documents providing for such Indebtedness and 

such Indebtedness is repaid when required under the documents providing for such Indebtedness;

(g) an involuntary proceeding shall be commenced or an involuntary petition shall be 

filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Party or any 

Material Subsidiary thereof or its debts, or of a substantial part of its assets, under any Debtor 

Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, 

sequestrator, conservator or similar official for any Credit Party or any Material Subsidiary 

thereof or for a substantial part of its assets, and, in any such case, such proceeding or petition 

shall continue undismissed for a period of sixty (60) or more days or an order or decree approving 

or ordering any of the foregoing shall be entered;

(h) any Credit Party or any Material Subsidiary thereof shall (i) voluntarily 

commence any proceeding or file any petition seeking liquidation, reorganization or other relief 

under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to 

contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of 

this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, 

sequestrator, conservator or similar official for the Parent or any of its Subsidiaries or for a 

substantial part of its assets, (iv) file an answer admitting the material allegations of a petition 

filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors 

or (vi) take any action for the purpose of effecting any of the foregoing;

(i) any Credit Party or any Material Subsidiary thereof shall become unable, admit 

in writing its inability or fail generally to pay its debts as they become due;

(j) there is entered against any Credit Party or any Material Subsidiary thereof (i) a 

final judgment or order for the payment of money in an aggregate amount (as to all such 

judgments and orders) exceeding $50,000,000 (to the extent not covered by independent thirdparty insurance as to which the insurer has been notified of such judgment or order and has not 

denied or failed to acknowledge coverage), or (ii) a non-monetary final judgment or order that, 

either individually or in the aggregate, has or could reasonably be expected to have a Material 

Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor 

upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which 

a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in 

effect;

(k) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan 

that has resulted or could reasonably be expected to result in liability of any Credit Party under 

Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC that, either individually 

or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect;

(l) [reserved]; 

(m) any material provision of any Loan Document, at any time after its execution and 

delivery and for any reason other than as expressly permitted hereunder or thereunder or 
77

satisfaction in full of all Obligations, ceases to be in full force and effect; or any Credit Party or 

any other Person who is a party to any Loan Document contests in writing the validity or 

enforceability of any provision of any Loan Document; or any Credit Party denies in writing that 

it has any or further liability or obligation under any Loan Document, or purports in writing to 

revoke, terminate or rescind any Loan Document;

(n) any Lien purported to be created under any Security Document shall cease to be, 

or shall be asserted in writing by any Credit Party not to be, a legal, valid and perfected Lien on 

any material portion of the Collateral (individually or in the aggregate), with the priority required 

by the applicable Security Documents, except (i) as a result of the sale or other Disposition of the 

applicable Collateral to a Person that is not a Credit Party in a transaction not prohibited under the 

Loan Documents or (ii) as a result of either Agent’s failure to maintain possession of any stock 

certificates, promissory notes or other instruments delivered to it under the Security Documents 

or (iii) as a result of acts or omissions with respect to possessory collateral held by the Collateral 

Agent pursuant to this Agreement; 

(o) any Guarantee of any Obligations by any Credit Party under any Loan Document 

shall cease to be in full force in effect (other than in accordance with the terms of the Loan 

Documents);

(p) a default or breach by any Credit Party of its material obligations under a 

Material Loyalty Program Agreement beyond any applicable notice and cure periods thereunder; 

(q) an exit from, or a termination or cancellation of, any Carrier Loyalty Program

(and in the case of any Loyalty Subscription Program, such program as a whole by a Credit Party, 

and not any individual cancellation or termination by a consumer) in effect on the Closing Date or 

any Material Loyalty Program Agreement other than in connection with any replacement 

expressly permitted hereunder;

(r) any material provision of any Material Loyalty Program Agreement, at any time 

after its execution and delivery and for any reason other than as expressly permitted hereunder or 

thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any 

Credit Party contests in writing the validity or enforceability of any provision of any Material 

Loyalty Program Agreement; or any Credit Party denies in writing that it has any or further 

liability or obligation under any Material Loyalty Program Agreement, or purports in writing to 

revoke, terminate or rescind any Material Loyalty Program Agreement; or

(s) any Credit Party makes a Material Modification to a Material Loyalty Program 

Agreement without the prior written consent of the Required Lenders.

then, and in every such event (other than an event described in clause (g) or (h) of this Section), and at 

any time thereafter during the continuance of such event, the Initial Lender may, and the Administrative 

Agent may, and at the request of the Required Lenders or the Initial Lender shall, by notice to the 

Borrower, take any or all of the following actions, at the same or different times:

(i) declare the Loans then outstanding to be due and payable in whole (or in 

part, in which case any principal not so declared to be due and payable may thereafter be declared 

to be due and payable), and thereupon the principal of the Loans so declared to be due and 

payable, together with accrued interest thereon and all fees and other Obligations of the Credit 

Parties accrued hereunder, shall become due and payable immediately, without presentment, 
78

demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and 

the other Credit Parties; and

(ii) exercise on behalf of itself and the Lenders all rights and remedies 

available to it and the Lenders under the Loan Documents and Applicable Law;

provided that, in case of any event described in clause (g) or (h) of this Section, the principal of the Loans 

then outstanding, together with accrued interest thereon and all fees and other Obligations accrued 

hereunder, shall automatically become due and payable, in each case without presentment, demand, 

protest or other notice of any kind, all of which are hereby waived by the Credit Parties.

SECTION 7.02 Application of Payments. Notwithstanding anything herein to the contrary, 

following the occurrence and during the continuance of an Event of Default, and notice thereof to the Initial 

Lender and the Administrative Agent by the Borrower or the Required Lenders, all payments received on 

account of the Obligations shall be applied by the Administrative Agent as follows:

(i) first, to payment of that portion of the Obligations constituting fees, 

indemnities, expenses and other amounts (including fees and disbursements and other charges of 

counsel payable under Section 11.03 and amounts payable under an Administrative Agency Fee 

Letter (if any)) payable to the Administrative Agent and the Collateral Agent in their respective 

capacities as such;

(ii) second, to payment of that portion of the Obligations constituting fees, 

indemnities and other amounts (other than principal and interest) payable to the Lenders 

(including fees and disbursements and other charges of counsel payable under Section 11.03)

arising under the Loan Documents, ratably among them in proportion to the respective amounts 

described in this clause (ii) payable to them;

(iii) third, to payment of that portion of the Obligations constituting accrued 

and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective 

amounts described in this clause (iii) payable to them;

(iv) fourth, to payment of that portion of the Obligations constituting unpaid 

principal of the Loans ratably among the Lenders in proportion to the respective amounts 

described in this clause (iv) payable to them;

(v) fifth, to the payment in full of all other Obligations, in each case ratably 

among the Administrative Agent and the Lenders based upon the respective aggregate amounts of 

all such Obligations owing to them in accordance with the respective amounts thereof then due 

and payable; and

(vi) finally, the balance, if any, after all Obligations have been indefeasibly 

paid in full, to the Borrower or as otherwise required by Law.

ARTICLE VIII

AGENCY

SECTION 8.01 Appointment and Authority. Each Lender hereby irrevocably appoints The 

Bank of New York Mellon to act on its behalf as the Administrative Agent and as the Collateral Agent 

hereunder and under the other Loan Documents and authorizes the Agents to take such actions on its behalf 
79

and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together 

with such actions and powers as are reasonably incidental or related thereto; provided that notwithstanding 

anything in this Article VIII or this Agreement to the contrary, the terms and conditions of the relationship 

between the Initial Lender and the Agents shall be governed by a separate agreement between the Initial 

Lender and the Agents. The Borrower and the Guarantors acknowledge and agree that the Agents are 

Agents of the Lenders and not of the Borrower or the Guarantors. In connection with an assignment of the 

Loans by the Initial Lender, upon the Administrative Agent’s request, the Borrower and the Agents shall 

enter into an Administrative Agency Fee Letter. The provisions of this Article are solely for the benefit of 

the Agents and the Lenders, and the Borrower shall not have rights as a third-party beneficiary of any of 

such provisions. Without limiting the generality of the foregoing, the Agents are hereby expressly 

authorized to (i) execute any and all documents (including releases) with respect to the Collateral and the 

rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions 

of this Agreement and the other Loan Documents and (ii) negotiate, enforce or settle any claim, action or 

proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which 

negotiation, enforcement or settlement will be binding upon each Lender.

SECTION 8.02 Collateral Matters. Each of the Lenders hereby irrevocably appoints and 

authorizes the Collateral Agent to act as the agent of such Lender for purposes of acquiring, holding and 

enforcing any and all Liens on Collateral granted by any of the Credit Parties to secure any of the

Obligations, together with such powers and discretion as are reasonably incidental thereto and to enter into 

and perform the other Loan Documents. 

SECTION 8.03 Removal or Resignation of Administrative Agent. While the Initial Lender 

is a Lender, the Administrative Agent may be removed or give notice of its resignation subject to any 

conditions as separately agreed between the Initial Lender and the Administrative Agent. Any such 

resignation as Administrative Agent pursuant to this Section 8.03 shall also constitute its resignation as the 

Collateral Agent; provided that in the case of any collateral security held by the Collateral Agent on behalf 

of the Lenders under any of the Loan Documents, the retiring or removed Collateral Agent shall continue to 

hold such collateral security until such time as a successor Collateral Agent is appointed. Upon such 

removal or receipt of any such notice of resignation, the Initial Lender shall have the right to appoint a 

successor. After the Initial Lender is no longer a Lender, either Agent may resign at any time by notifying 

the Lenders and the Borrower in writing, and either Agent may be removed at any time with or without 

cause by an instrument or concurrent instruments in writing delivered to the Borrower and such Agent and 

signed by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have 

the right, with the consent of the Borrower (which consent shall not be required during the continuance of 

an Event of Default), to appoint a successor. If no successor shall have been so appointed by the Required 

Lenders (with the consent of the Borrower (which consent shall not be required during the continuance of 

an Event of Default)) and shall have accepted such appointment within 30 days after (i) the retiring Agent 

gives notice of its resignation or (ii) the Required Lenders deliver removal instructions, then the retiring or 

removed Agent may, on behalf of the Lenders (with the consent of the Borrower (which consent shall not 

be required during the continuance of an Event of Default)), appoint a successor Agent which shall be a 

bank with an office in New York, New York, or an Affiliate of any such bank. If no successor Agent has 

been appointed pursuant to the immediately preceding sentence, such Agent’s resignation or removal shall 

become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder 

and/or under any other Loan Document until such time, if any, as the Required Lenders (with the consent of 

the Borrower (which consent shall not be required during the continuance of an Event of Default)) appoint a 

successor Administrative Agent and/or Collateral Agent, as the case may be. Upon the acceptance of its 

appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all 

the rights, powers, privileges and duties of its predecessor Agent, and its predecessor Agent shall be 

discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor 

Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower 
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and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03

shall continue in effect for the benefit of such retiring 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 acting as Agent. 

SECTION 8.04 Exculpatory Provisions.

(a) The Agents shall not have any duties or obligations except those expressly set 

forth herein and in the other Loan Documents or as separately agreed between the Initial Lender and the 

Agents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the 

foregoing:

(i) neither Agent shall be subject to any fiduciary or other implied duties, 

regardless of whether a Default has occurred and is continuing, except that The Bank of New 

York Mellon shall always have a fiduciary duty to Treasury while serving as its Agent in 

accordance with the provisions of the separate writing between The Bank of New York Mellon 

and Treasury;

(ii) neither Agent shall have any duty to take any discretionary action or 

exercise any discretionary powers, except discretionary rights and powers expressly contemplated 

hereby or by the other Loan Documents that such Agent is required to exercise as directed in 

writing by the Required Lenders (or such other number or percentage of the Lenders as shall be 

expressly provided for herein or in the other Loan Documents); and

(iii) except as expressly set forth herein and in the other Loan Documents, 

neither Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any 

information relating to the Borrower or any of the Subsidiaries that is communicated to or 

obtained by the bank serving as Administrative Agent and/or Collateral Agent or any of its 

Affiliates in any capacity.

(b) Neither Agent shall be required to expend or risk its own funds or otherwise 

incur liability in the performance of any of its duties hereunder or under any other Loan Document or in 

the exercise of any of its rights or powers. Notwithstanding anything in any Loan Document to the 

contrary, prior to taking any action under this Agreement or any other Loan Document, each Agent shall 

be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses in 

connection with taking such action. Neither Agent shall 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 Sections 7.01 and 11.02) or in the 

absence of its own gross negligence or willful misconduct as determined by the final non-appealable 

judgment of a court of competent jurisdiction. Notwithstanding the foregoing, no action nor any omission 

to act, taken by either Agent at the direction of the Required Lenders (or such other number of percentage 

of Lenders as shall be expressly provided for herein or in the other Loan Documents) shall constitute 

gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default 

unless and until written notice thereof, conspicuously labeled as a “notice of default” and specifically 

describing such Default, is given to an Agent Responsible Officer by the Borrower or a Lender.

(c) Neither Agent shall be responsible for or have any duty to ascertain or inquire 

into (i) any statement, warranty or representation made in or in connection with this Agreement or any 

other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or 

thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the 

covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any 

Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan 

Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set 
81

forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be 

delivered to the Administrative Agent.

(d) In no event shall either Agent be responsible or liable for any failure or delay in 

the performance of its obligations hereunder or under any other Loan Document arising out of or caused 

by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, 

epidemics, 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 such Agent shall use reasonable 

efforts which are consistent with accepted practices in the banking industry to resume performance as 

soon as practicable under the circumstances).

(e) Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each 

Agent may also rely upon any statement made to it orally or by telephone and believed by it in good faith 

to have been made by the proper Person, and shall not incur any liability for relying thereon. Delivery of 

reports, information and documents to an Agent is for informational purposes only and an Agent’s receipt 

of the foregoing will not constitute actual or constructive knowledge or notice of any information 

contained therein or determinable from information contained therein, including the Borrower’s 

compliance with any of its covenants hereunder. Each 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 reliance on the advice of any such counsel, accountants or 

experts. Any funds held by an Agent shall, unless otherwise agreed in writing with the Borrower, be held 

uninvested in a non-interest bearing account.

(f) Neither Agent shall have any obligation to calculate or confirm the calculation of 

any financial covenant contained herein.

(g) Notwithstanding anything to the contrary in any Loan Document, neither Agent 

shall be responsible for the existence, genuineness or value of any of the Collateral; for filing any 

financing or continuation statements or recording any documents or instruments in any public office or 

otherwise perfecting or maintaining the perfection of any security interest in the Collateral (except, in the 

case of possessory Collateral, for the Collateral Agent maintaining possession of any such Collateral 

received by it in accordance with the terms of the Loan Documents); 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 any grantor to the 

Collateral; for insuring the Collateral; or for the payment of taxes, charges or assessments on the 

Collateral. The Collateral Agent agrees that it will check any possessory Collateral received by it against 

any itemized list in the Pledge and Security Agreement of Collateral to be delivered to it in accordance 

with the Pledge and Security Agreement.

SECTION 8.05 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall 

not incur any liability for relying upon, any notice, request, certificate, opinion, consent, statement, 

instrument, document or other writing believed by it in good faith to be genuine and to have been signed 

or sent by the proper Person. Each Agent may also rely upon any statement made to it orally or by 

telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any 

liability for relying thereon. Delivery of reports, information and documents to an Agent is for 

informational purposes only and an Agent’s receipt of the foregoing will not constitute actual or 

constructive knowledge or notice of any information contained therein or determinable from information 

contained therein, including the Borrower’s compliance with any of its covenants hereunder. Each Agent 
82

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.

SECTION 8.06 Delegation of Duties. Each Agent may perform any and all its duties and 

exercise its rights and powers by or through any one or more sub-agents or attorneys appointed by it and 

will not be responsible for the misconduct or negligence of any agent appointed with due care. Each 

Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or 

through their respective Related Parties. 

SECTION 8.07 Non-Reliance on Agents and Other Lenders. Each Lender (other than 

the Initial Lender) acknowledges that it has, independently and without reliance upon the Administrative 

Agent or any other Lender or any of their Related Parties 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 (other than the Initial Lender) also acknowledges that it will, independently and without 

reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 other Loan Document or 

any related agreement or any document furnished hereunder or thereunder.

SECTION 8.08 Administrative Agent May File Proofs of Claim. In case of the pendency 

of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit 

Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and 

payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative 

Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) 

by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and 

unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such 

other documents as may be necessary or advisable in order to have the claims of the Lenders and 

the Agents (including any claim for the reasonable compensation, expenses, disbursements and 

advances of the Lenders and the Agents and their respective agents and counsel and all other 

amounts due the Lenders and the Agents under Section 11.03) allowed in such judicial 

proceeding; and

(b) to collect and receive any monies 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 Lender to make such payments to the Administrative 

Agent and, in the event that the Administrative Agent shall consent to the making of such payments 

directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable 

compensation, expenses, disbursements and advances of the Agents and their respective agents and 

counsel, and any other amounts due the Agents under the Loan Documents. Nothing contained herein 

shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on 

behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the 

Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the 

claim of any Lender in any such proceeding.
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ARTICLE IX

GUARANTEE

SECTION 9.01 Guarantee of the Obligations. Each Guarantor jointly and severally hereby 

irrevocably and unconditionally guarantees to the Secured Parties, the due and punctual payment in full and 

performance of all Obligations (or such lesser amount as agreed by the Required Lenders in their sole 

discretion with respect to Obligations owed to the Lenders) when the same shall become due or required to 

be performed, whether at stated maturity, by required prepayment, declaration, acceleration, performance, 

demand or otherwise (including amounts that would become and any performance that would have been 

required to be taken due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy 

Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”).

SECTION 9.02 Payment or Performance by a Guarantor. Each Guarantor hereby jointly 

and severally agrees, in furtherance of the foregoing and the other terms of this Article IX and not in 

limitation of any other right which the Secured Parties may have at law or in equity against any Guarantor 

by virtue hereof, that upon the failure of the Borrower to pay or perform any of the Guaranteed Obligations 

when and as the same shall become due or required to be performed, whether at stated maturity, by required 

prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but 

for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), 

such Guarantor will pay, or cause to be paid, in cash, or perform, or cause to be performed, to the Secured 

Parties an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due 

as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for 

the Borrower’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such 

Guaranteed Obligations, whether or not a claim is allowed against the Borrower for such interest in the 

related bankruptcy case) and all other Guaranteed Obligations then owed or required to be performed to the 

Secured Parties as aforesaid.

SECTION 9.03 Liability of Guarantors Absolute. Each Guarantor agrees that its 

obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by 

any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than 

payment and performance in full of the Guaranteed Obligations. In furtherance of the foregoing and 

without limiting the generality thereof, each Guarantor agrees as follows:

(a) this Guarantee is a guarantee of payment and performance when due and not 

merely of collection;

(b) either Agent and any of the other Secured Parties may enforce this Guarantee 

upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the 

Borrower and the Secured Parties with respect to the existence of such Event of Default;

(c) a separate action or actions may be brought and prosecuted against such 

Guarantor whether or not any action is brought against the Borrower or any other Guarantors and whether 

or not Borrower or such Guarantors are joined in any such action or actions;

(d) payment or performance by any Guarantor of a portion, but not all, of the 

Guaranteed Obligations shall in no way limit, affect, modify or abridge any other Guarantor’s liability for 

any portion of the Guaranteed Obligations which has not been paid or performed; 

(e) the Required Lenders, upon such terms as they deem appropriate, without notice 

or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, 
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limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time 

may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, 

manner or terms of payment or performance of the Guaranteed Obligations; (ii) settle, compromise, 

release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the 

Guaranteed Obligations or subordinate the payment of the same to the payment of any other obligations; 

(iii) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or 

modify, with or without consideration, any security for payment or performance of the Guaranteed 

Obligations, any other guarantees of the Guaranteed Obligations, or any other obligation of any Person 

(including any other Guarantor) with respect to the Guaranteed Obligations; and (iv) enforce its rights and 

remedies even though such action may operate to impair or extinguish any right of reimbursement or 

subrogation or other right or remedy of any Guarantor against the Borrower or any security for the 

Guaranteed Obligations; and

(f) this Guarantee and the obligations of each Guarantor hereunder shall be legal, 

valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or 

termination for any reason (other than payment or performance in full of the Guaranteed Obligations), 

including any claim of waiver, release, surrender, alteration or compromise, 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 any of the Guaranteed Obligations, any impossibility in the performance 

of any of the Guaranteed Obligations, or otherwise. Without limiting the generality of the foregoing, 

except for the payment and performance in full of the Guaranteed Obligations and to the fullest extent 

permitted by Applicable Law, the obligations of each Guarantor hereunder shall not be discharged or 

impaired or otherwise affected by: (i) any failure, delay or omission to assert or enforce or agreement or 

election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or 

otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with 

respect to the Guaranteed Obligations, or with respect to any security for the payment and performance of 

the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to 

departure from, any of the terms or provisions hereof or any other Loan Document; (iii) the Guaranteed

Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or 

unenforceable in any respect; (iv) the Lender’s consent to the change, reorganization or termination of the 

corporate structure or existence of the Borrower or any of its Subsidiaries and to any corresponding 

restructuring of the Guaranteed Obligations; (v) the release of, or any impairment of or failure to perfect 

or continue perfection of or protect a security interest in, any collateral which secures any of the 

Guaranteed Obligations; (vi) any defenses, set-offs or counterclaims which the Borrower or any 

Guarantor may allege or assert against either Agent or the Lenders in respect of the Guaranteed 

Obligations, including failure of consideration, lack of authority, validity or enforceability, breach of 

warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (vii) any 

change in the corporate existence, structure or ownership of any Credit Party, or any insolvency, 

bankruptcy, reorganization, examinership or other similar proceeding affecting any Credit Party or its 

assets or any resulting release or discharge of any of the Guaranteed Obligations; (viii) the fact that any 

Person that, pursuant to the Loan Documents, was required to become a party hereto may not have 

executed or is not effectually bound by this Agreement, whether or not this fact is known to the Secured 

Parties; (ix) any action permitted or authorized hereunder; (x) any other circumstance, or any existence of 

or reliance on any representation by the Agents, any Secured Party or any other Person, that might 

otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower, any Guarantor or any 

other guarantor or surety; and (xi) any other event or circumstance that might in any manner vary the risk 

of any Guarantor as an obligor in respect of the Guaranteed Obligations.

SECTION 9.04 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of 

the Lender: (a) any right to require the Lender, as a condition of payment or performance by such 

Guarantor, to (i) proceed against Borrower, any Guarantor or any other Person; (ii) proceed against or 
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exhaust any security in favor of the Lender; or (iii) pursue any other remedy in the power of the Agents or 

Secured Parties whatsoever or (b) presentment to, demand for payment or performance from and protest to 

the Borrower or any Guarantor or notice of acceptance; and (c) any defenses or benefits that may be derived 

from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may 

conflict with the terms hereof. The Agents and the other Secured Parties may, at their election, foreclose on 

any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment 

of any such security in lieu of foreclosure or exercise any other right or remedy available to them against 

the Borrower or any other Credit Party without affecting or impairing in any way the liability of any 

Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full. To the fullest 

extent permitted by Applicable Law, each Credit Party waives any defense arising out of any such election 

even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of 

reimbursement or subrogation or other right or remedy of such Credit Party against the Borrower or any 

other Credit Party, as the case may be, or any security.

SECTION 9.05 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed 

Obligations shall have been paid in full, each Guarantor hereby waives any claim, right or remedy, direct or 

indirect, that such Guarantor now has or may hereafter have against the Borrower or any other Guarantor or 

any of its assets in connection with this Guarantee or the performance by such Guarantor of its obligations 

hereunder, including without limitation (a) any right of subrogation, reimbursement or indemnification that 

such Guarantor now has or may hereafter have against the Borrower with respect to the Guaranteed 

Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that the Agents or the

Secured Parties now has or may hereafter have against the Borrower, and (c) any benefit of, and any right to 

participate in, any collateral or security now or hereafter held by the Agents or the Secured Parties. In 

addition, until the Guaranteed Obligations shall have been paid in full, each Guarantor shall withhold 

exercise of any right of contribution such Guarantor may have against any other guarantor (including any 

other Guarantor) of the Guaranteed Obligations. If any amount shall be paid to any Guarantor on account 

of any such subrogation, reimbursement, indemnification or contribution rights at any time when all 

Guaranteed Obligations shall not have been finally and paid in full, such amount shall be held in trust for 

the Secured Parties and shall forthwith be paid over to the Secured Parties to be credited and applied against 

the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.

SECTION 9.06 Subordination. Any Indebtedness of the Borrower or any Guarantor now 

or hereafter and all rights of indemnity, contribution or subrogation under Applicable Law or otherwise held 

by any Guarantor (the “Obligee Guarantor”) are hereby subordinated in right of payment or performance to 

the Guaranteed Obligations until the Guaranteed Obligations is paid and performed in full. Any amount in 

respect of such indebtedness or rights collected or received by the Obligee Guarantor after an Event of 

Default has occurred and is continuing shall be held in trust for the Secured Parties and shall forthwith be 

paid over to the Secured Parties to be credited and applied against the Guaranteed Obligations but without 

affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other 

provision hereof.

SECTION 9.07 Continuing Guarantee. This Guarantee is a continuing guarantee and shall 

remain in effect until all of the Guaranteed Obligations shall have been paid and performed in full. Each 

Guarantor hereby irrevocably waives any right to revoke this Guarantee as to future transactions giving rise 

to any Guaranteed Obligations.

SECTION 9.08 Financial Condition of the Borrower. The Loans may be made to the 

Borrower without notice to or authorization from any Guarantor regardless of the financial or other 

condition of the Borrower at the time of such grant. Each Guarantor has adequate means to obtain 

information from the Borrower on a continuing basis concerning the financial condition of the Borrower 

and its ability to perform its obligations under the Loan Documents, and each Guarantor assumes the 
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responsibility for being and keeping informed of the financial condition of the Borrower and of all 

circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations.

SECTION 9.09 Reinstatement. In the event that all or any portion of the Guaranteed 

Obligations are paid by the Borrower or any Guarantor, the obligations of any other Guarantor hereunder 

shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or 

any part of such payment(s) are rescinded or recovered directly or indirectly from the Secured Parties as a 

preference, fraudulent transfer or otherwise must be so recovered or returned, and any such payments and 

amounts which are so rescinded, recovered or returned shall constitute Guaranteed Obligations for all 

purposes hereunder.

SECTION 9.10 Discharge of Guarantees. If, in compliance with the terms and provisions 

of the Loan Documents, (x) all of the Equity Interests of any Guarantor that is a Subsidiary of the Parent or 

any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or 

consolidation) to any Person (other than to the Parent or to any other Subsidiary of Parent), the Guarantee of 

such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be 

discharged and released without any further action by any beneficiary or any other Person effective as of the 

time of such asset sale or (y) a Guarantor becomes an Excluded Subsidiary (other than as a result of a 

Guarantor becoming a non-Wholly Owned Subsidiary), the Borrower may request the release of the 

Guarantee of such Guarantor, whereupon the Guarantee of such Guarantor shall be discharged and released.

ARTICLE X

CARES ACT REQUIREMENTS

Notwithstanding anything in this Agreement to the contrary, the Credit Parties, on behalf of 

themselves and their Affiliates, represent, warrant, and agree with the Lenders that:

SECTION 10.01 CARES Act Compliance. Each Credit Party and its Subsidiaries are in 

compliance, and will at all times comply, with all applicable requirements under Title IV of the CARES 

Act, including any applicable requirements pertaining to the Borrower’s eligibility to receive the Loans. 

The Parent, the Borrower and their Subsidiaries will provide any information requested by the Initial 

Lender or Agents to assess the Borrower’s compliance with applicable requirements under Title IV of the 

CARES Act, its obligations under this Article X or its eligibility to receive the Loans under the CARES 

Act. The Borrower is not a “covered entity” as defined in Section 4019 of the CARES Act. 

SECTION 10.02 Dividends and Buybacks

(a) Until the date that is twelve (12) months after the date on which the Loans are no 

longer outstanding, neither any Borrower Air Carrier nor any of its Affiliates (other than an Affiliate that 

is a natural person) shall, in any transaction, purchase an equity security of any Borrower Air Carrier or of 

any direct or indirect parent company of a Borrower Air Carrier or of any Subsidiary of the Parent that, in 

each case, is listed on a national securities exchange, except to the extent required under a contractual 

obligation in effect as of the date of enactment of the CARES Act.

(b) Until the date that is twelve (12) months after the date on which the Loans are no 

longer outstanding, no Borrower Air Carrier shall pay dividends, or make any other capital distributions, 

with respect to the common stock of any Borrower Air Carrier.

SECTION 10.03 Maintenance of Employment Levels. Until September 30, 2020, each 

Borrower Air Carrier shall maintain its employment levels as of March 24, 2020, to the extent practicable, 
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and in any case shall not reduce its employment levels by more than ten percent (10%) from the levels on 

March 24, 2020.

SECTION 10.04 United States Business. Each Borrower Air Carrier is created or 

organized in the United States or under the laws of the United States and has significant operations in and a 

majority of its employees based in the United States.

SECTION 10.05 Limitations on Certain Compensation.

(a) Beginning on the Closing Date, and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, each Borrower Air Carrier and its Affiliates shall 

not pay any of each Borrower Air Carrier’s Corporate Officers or Employees whose Total Compensation 

exceeded $425,000 in calendar year 2019 or the Subsequent Reference Period (other than an Employee 

whose compensation is determined through an existing collective bargaining agreement entered into 

before March 1, 2020):

(i) Total Compensation which exceeds, during any twelve (12) consecutive 

months of the period beginning on the Closing Date and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, the Total Compensation the Corporate 

Officer or Employee received in calendar year 2019 or the Subsequent Reference Period; or

(ii) Severance Pay or Other Benefits in connection with a termination of 

employment with any Borrower Air Carrier which exceed twice the maximum Total Compensation 

received by such Corporate Officer or Employee in calendar year 2019 or the Subsequent Reference 

Period.

(b) Beginning on the Closing Date, and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, each Borrower Air Carrier and its Affiliates shall 

not pay any of each Borrower Air Carrier’s Corporate Officers or Employees whose Total Compensation 

exceeded $3,000,000 in calendar year 2019 or the Subsequent Reference Period, Total Compensation

which exceeds, during any twelve (12) consecutive months of such period, in excess of the sum of:

(i) $3,000,000; and

(ii) Fifty percent (50%) of the excess over $3,000,000 of the Total 

Compensation received by such Corporate Officer or Employee in calendar year 2019 or the 

Subsequent Reference Period.

(c) For purposes of determining applicable amounts under this Section with respect 

to any Corporate Officer or Employee who was employed by any Borrower Air Carrier or any of their 

Affiliates for less than all of calendar year 2019, the amount of Total Compensation in calendar year 2019 

shall mean such Corporate Officer’s or Employee’s Total Compensation on an annualized basis.

SECTION 10.06 Continuation of Certain Air Service. Until March 1, 2022, each 

Borrower Air Carrier shall comply with any applicable requirement issued by the Secretary of 

Transportation under section 4005 of the CARES Act to maintain scheduled air transportation service to 

any point served by any Borrower Air Carrier before March 1, 2020. The Borrower acknowledges that 

neither Treasury, nor any other actor, department, or agency of the Federal Government, shall condition the 

issuance of any loan under this Loan Agreement on the Borrower’s implementation of measures to enter 

into negotiations with the certified bargaining representative of a craft or class of employees of the 
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Borrower Air Carrier under the Railway Labor Act (45 U.S.C. 151 et seq.) or the National Labor Relations 

Act (29 U.S.C. 151 et seq.), regarding pay or other terms and conditions of employment.

SECTION 10.07 Treasury Access. Provide Treasury, the Treasury Inspector General, the 

Special Inspector General for Pandemic Recovery, and such other entities as authorized by Treasury timely 

and unrestricted access to all documents, papers, or other records, including electronic records, of the 

Borrower related to the Loans, to enable Treasury, the Treasury Inspector General, and the Special 

Inspector General for Pandemic Recovery to make audits, examinations, and otherwise evaluate the 

Borrower’s compliance with the terms of this Agreement. This right also includes timely and reasonable 

access to the Borrower’s and its Affiliates’ personnel for the purpose of interview and discussion related to 

such documents.

SECTION 10.08 Additional Defined Terms. As used in this Article, the following terms 

have the meanings specified below:

“Borrower Air Carrier” means, collectively, the Borrower, its Affiliates that are Air 

Carriers, and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding 

anything to the contrary herein, for purposes of this Article X, an “Affiliate” of the Borrower shall not 

include any Person(s) that become affiliated with the Borrower solely by virtue of the consummation of a 

Change of Control transaction resulting in repayment of the Loans in full.

“Corporate Officer” means, with respect to any Borrower Air Carrier, its president; any 

vice president in charge of a principal business unit, division, or function (such as sales, administration or 

finance); any other officer who performs a policy-making function; or any other person who performs 

similar policy making functions for the Borrower Air Carrier. Executive officers of subsidiaries or 

parents of any Borrower Air Carrier may be deemed Corporate Officers of the Borrower Air Carrier if 

they perform such policy-making functions for the Borrower Air Carrier. 

“Employee” has the meaning given to the term in section 2 of the National Labor 

Relations Act (29 U.S.C. 152 and includes any individual employed by an employer subject to the 

Railway Labor Act (45 U.S.C. 151 et seq.), and for the avoidance of doubt includes all individuals who 

are employed by the Borrower Air Carrier who are not Corporate Officers.

“Severance Pay or Other Benefits” means any severance payment or other similar 

benefits, including cash payments, health care benefits, perquisites, the enhancement or acceleration of 

the payment or vesting of any payment or benefit or any other in-kind benefit payable (whether in lump 

sum or over time, including after March 24, 2022) by any Borrower Air Carrier or its Affiliates to a 

Corporate Officer or Employee in connection with any termination of such Corporate Officer’s or 

Employee’s employment (including, without limitation, resignation, severance, retirement, or constructive 

termination), which shall be determined and calculated in respect of any Employee or Corporate Officer 

of the Borrower Air Carrier in the manner prescribed in 17 CFR 229.402(j) (without regard to its 

limitation to the five (5) most highly compensated executives and using the actual date of termination of 

employment rather than the last business day of the Borrower Air Carrier’s last completed fiscal year as 

the trigger event).

“Subsequent Reference Period” means (i) for a Corporate Officer or Employee whose 

employment with the Borrower Air Carrier or an Affiliate started during 2019 or later, the twelve (12) 

month period starting from the end of the month in which the officer or employee commenced 

employment, if such officer’s or employee’s total compensation exceeds $425,000 (or $3,000,000) during 

such period and (ii) for a Corporate Officer or Employee whose Total Compensation first exceeds 

$425,000 during a 12-month period ending after 2019, the 12-month period starting from the end of the 
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month in which the Corporate Officer’s or Employee’s Total Compensation first exceeded $425,000 (or 

$3,000,000).

“Total Compensation” means compensation including salary, wages, bonuses, awards of 

stock, and any other financial benefits provided by the Borrower Air Carrier or an Affiliate, as applicable, 

which shall be determined and calculated for the 2019 calendar year or any applicable twelve (12)-month 

period in respect of any Employee or Corporate Officer of the Borrower Air Carrier in the manner 

prescribed under paragraph e.5 of the award term in 2 CFR part 170, App. A, but excluding any 

Severance Pay or Other Benefits in connection with a termination of employment. 

ARTICLE XI

MISCELLANEOUS

SECTION 11.01 Notices; Public Information. 

(a) Notices Generally. Except in the case of notices and other communications 

expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices 

and other communications provided for herein shall be in writing in English and shall be delivered by 

hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email as 

follows:

(i) if to a Credit Party, to the following:

Hawaiian Airlines, Inc.

Attn: Shannon L. Okinaka 

Executive Vice President & Chief Financial Officer

Phone: 

Fax: 808-840-8326

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819

Email: 

With a copy to:

Hawaiian Airlines, Inc.

Attn: Aaron J. Alter

Executive Vice President & Chief Legal Officer 

Phone: 

Fax: 808-840-8369 

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819 

Email: 

(ii) if to the Administrative Agent or the Collateral Agent, to The Bank of 

New York Mellon at 240 Greenwich Street, 7th Floor, New York, NY 10286, Attention of Joanna 

Shapiro, Managing Director (Telephone No. 212-815-4949; Email:

joanna.g.shapiro@bnymellon.com with a copy to UST.Cares.Program@bnymellon.com); 

(iii) if to Treasury, as the Initial Lender, to The Department of the Treasury of 

the United States at 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Attention of 

Assistant General Counsel (Banking and Finance) (Telephone No. 202-622-0283; Email: 

eric.froman@treasury.gov); and
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(iv) if to any other Lender, to it at its address (or facsimile number or email 

address) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be 

deemed to have been given when received. Notices delivered through electronic communications, to the 

extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

(b) Electronic Communications. Notices and other communications to the Lenders 

hereunder may be delivered or furnished by electronic communication (including e-mail, FpML, and 

Internet or intranet websites) pursuant to procedures approved by the Lenders and reasonably acceptable 

to the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant 

to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices 

under such Article by electronic communication. The Administrative Agent, the Collateral Agent, the 

Parent or the Borrower may, in its discretion, agree to accept notices and other communications to it 

hereunder by electronic communications pursuant to procedures approved by it; provided that approval of 

such procedures may be limited to particular notices or communications.

Unless the Administrative Agent, the Collateral Agent or a Lender otherwise prescribes,

(i) notices and other communications sent to an e-mail address shall be deemed received upon the 

sender’s receipt of an acknowledgement from the intended recipient (such as by return e-mail or other 

written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website 

shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as 

described in the foregoing clause (i), of notification that such notice or communication is available and 

identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, 

email or other communication is not sent during the normal business hours of the recipient, such notice or 

communication shall be deemed to have been sent at the opening of business on the next Business Day for 

the recipient.

(c) Change of Address, etc. Any party hereto may change its address or facsimile 

number for notices and other communications hereunder by notice to the other parties hereto.

(d) Platform.

(i) The Borrower and the Lenders agree that the Administrative Agent may, 

but shall not be obligated to, make the Communications (as defined below) available to the other 

Lenders by posting the Communications on the Platform.

(ii) The Platform is provided “as is” and “as available.” The Agent Parties 

(as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability 

for errors or omissions in the Communications. No warranty of any kind, express, implied or 

statutory, including any warranty of merchantability, fitness for a particular purpose, noninfringement of third-party rights or freedom from viruses or other code defects, is made by any 

Agent Party in connection with the Communications or the Platform. In no event shall the 

Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any 

liability to the Credit Parties, any Lender or any other Person or entity for damages of any kind, 

including direct or indirect, special, incidental or consequential damages, losses or expenses 

(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative 

Agent’s transmission of communications through the Platform. “Communications” means, 

collectively, any notice, demand, communication, information, document or other material 

provided by or on behalf of the Credit Parties pursuant to any Loan Document or the transactions 
91

contemplated therein that is distributed to the Administrative Agent or any Lender by means of 

electronic communications pursuant to this Section, including through the Platform.

(e) Public Information. The Borrower hereby acknowledges 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. The Borrower hereby agrees that it will use commercially reasonable efforts to 

identify that portion of the materials and information provided by or on behalf of the Borrower hereunder 

and under the other Loan Documents (collectively, “Borrower Materials”) that may be distributed to the 

Public Lenders and that (i) 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; (ii) 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 11.12); (iii) all Borrower Materials marked 

“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side 

Information;” and (iv) 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”. Each Public Lender will designate one or more representatives that shall be 

permitted to receive information that is not designated as being available for Public Lenders. 

Notwithstanding the foregoing, financial statements and related documentation, in each case, provided 

pursuant to Section 5.01(a) or 5.01(b) shall be deemed to be marked “PUBLIC”, unless the Parent notifies 

the Administrative Agent promptly that any such document contains material non-public information. 

SECTION 11.02 Waivers; Amendments.

(a) No Waiver; Remedies Cumulative; Enforcement. No failure or delay by the 

Administrative Agent, the Collateral Agent or any Lender in exercising any right, remedy, power or 

privilege hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any 

single or partial exercise of any such right, remedy, power or privilege, or any abandonment or 

discontinuance of steps to enforce such a right remedy, power or privilege, preclude any other or further 

exercise thereof or the exercise of any other right remedy, power or privilege. The rights, remedies, 

powers and privileges of the Administrative Agent, the Collateral Agent and the Lenders hereunder and 

under the Loan Documents are cumulative and are not exclusive of any rights, remedies, powers or 

privileges that any such Person would otherwise have. 

Notwithstanding anything to the contrary contained herein or in any other Loan 

Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents 

against the Credit Parties shall be vested exclusively in, and all actions and proceedings at law in 

connection with such enforcement shall be instituted and maintained exclusively by, (i) so long as the 

Initial Lender is a Lender, either the Initial Lender or, at the Initial’s Lender’s option, the Administrative 

Agent in accordance with Section 7.01 for the benefit of all the Lenders and (ii) if the Initial Lender is no 

longer a Lender, the Required Lenders or the Administrative Agent (acting at the direction of the 

Required Lenders) in accordance with Section 7.01 for the benefit of all the Lenders; provided that the 

foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and 

remedies that inure to its benefit (solely in its capacities as Administrative Agent and as Collateral Agent) 

hereunder and under the other Loan Documents, (ii) any Lender from exercising setoff rights in 

accordance with Section 11.08 (subject to the terms of Section 2.13) or (iii) any Lender from filing proofs 

of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative 
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to a Credit Party under any Debtor Relief Law; provided, further, that if at any time there is no Person 

acting as Administrative Agent hereunder and under the other Loan Documents, then (x) the Required 

Lenders shall have the rights otherwise provided to the Administrative Agent pursuant to Section 7.01

and (y) in addition to the matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to 

Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights or remedies 

available to it and as authorized by the Required Lenders.

(b) Amendments, Etc. Except as otherwise expressly set forth in this Agreement 

(including Section 2.10 and Section 8.01), no amendment or waiver of any provision of this Agreement or 

any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective 

unless in writing executed by the Borrower and the Required Lenders, and acknowledged by the 

Administrative Agent, or by the Borrower and the Administrative Agent with the consent of the Required 

Lenders, and each such waiver or consent shall be effective only in the specific instance and for the 

specific purpose for which given; provided that no such amendment, waiver or consent shall:

(i) extend or increase any Commitment of any Lender without the written 

consent of such Lender;

(ii) reduce the principal of, or rate of interest specified herein on, any Loan, or 

any fees or other amounts payable hereunder or under any other Loan Document, without the 

written consent of each Lender directly and adversely affected thereby (provided that only the 

consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” 

or to waive the obligation of the Borrower to pay interest at the Default Rate or (y) to amend any 

financial covenant (or any defined term directly or indirectly used therein), even if the effect of 

such amendment would be to reduce the rate of interest on any Loan or other Obligation or to 

reduce any fee payable hereunder);

(iii) postpone any date scheduled for any payment of principal of, or interest 

on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, 

or reduce the amount of, waive or excuse any such payment, without the written consent of each 

Lender directly and adversely affected thereby;

(iv) change Section 2.12(b) or Section 2.13 in a manner that would alter the 

pro rata sharing of payments required thereby without the written consent of each Lender directly 

and adversely affected thereby; 

(v) waive any condition set forth in Section 4.01 without the written consent 

of the Initial Lender; or

(vi) change any provision of this Section or the percentage in the definition of 

“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders 

required to amend, waive or otherwise modify any rights hereunder or make any determination or 

grant any consent hereunder, without the written consent of each Lender; 

provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the 

rights or duties hereunder or under any other Loan Document of either of the Agents, unless in writing 

executed by such Agent, in each case in addition to the Borrower and the Lenders required above.

In addition, notwithstanding anything in this Section to the contrary, (i) if the Borrower 

shall have identified an obvious error or any error or omission of a technical nature, in each case, in any 

provision of the Loan Documents, then, upon the delivery of a certificate of a Responsible Officer of the 
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Borrower to the Administrative Agent identifying such error and directing the Administrative Agent to 

execute an amendment to correct such error, the Administrative Agent and the Borrower shall be 

permitted to amend such provision, and, in each case, 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 to the Administrative Agent within ten (10) Business Days following 

receipt of notice thereof and (ii) that any Security Document may be amended, supplemented or otherwise 

modified with the consent of the applicable Grantor (as defined in the Pledge and Security Agreement) 

and the Administrative Agent to add assets (or categories of assets) to the Collateral covered by such 

Security Document, as contemplated by the definition of Additional Collateral, or to remove any assets or 

categories of assets (including after-acquired assets of that category) from the Collateral covered by such 

Security Document to the extent the release thereof is permitted by Section 6.17(b)(iii).

SECTION 11.03 Expenses; Indemnity; Damage Waiver.

(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket 

expenses incurred by the Initial Lender, the Administrative Agent, the Collateral Agent and their

Affiliates (including the reasonable fees, charges and disbursements of any counsel for the Initial Lender,

the Administrative Agent or the Collateral Agent), and shall pay all fees and time charges and 

disbursements for attorneys who may be employees of the Administrative Agent or the Collateral Agent, 

in connection with the preparation, negotiation, execution, delivery and administration of this Agreement, 

the Loan Documents, any other agreements or documents executed in connection herewith or therewith or 

any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the 

transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses 

incurred by the Administrative Agent, the Collateral Agent or any Lender (including the fees, charges and 

disbursements of any counsel for the Administrative Agent, the Collateral Agent or any Lender), and shall 

pay all fees and time charges for attorneys who may be employees of the Administrative Agent, the 

Collateral Agent or any Lender, in connection with the enforcement or protection of its rights (A) in 

connection with this Agreement and the Loan Documents, any other agreements or documents executed 

in connection herewith or therewith, 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 its rights under this Section, or (B) in connection with the Loans made hereunder, including all 

such out-of-pocket expenses incurred during any workout, restructuring, negotiations or enforcement in 

respect of this Agreement, the Loan Documents and other agreements or documents executed in 

connection herewith or therewith.

(b) Indemnification by the Borrower. The Borrower shall indemnify the 

Administrative Agent and Collateral Agent (and any sub-agents 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 losses, claims, damages, liabilities, obligations, 

penalties, fines, settlements, judgments, disbursements and related costs and related expenses (including 

the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold 

harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be 

employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any 

Person (including the Parent) arising out of, in connection with, or as a result of (i) the execution or 

delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated 

hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or 

thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the 

use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous 

Materials on or from any property owned or operated by the Parent or any of its Subsidiaries, or any 

Environmental Liability related in any way to the Parent or any of its Subsidiaries, or (iv) any actual or 

prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based 
94

on contract, tort or any other theory, whether brought by a third party or by the Parent, and regardless of 

whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee 

other than the Initial Lender, be available to the extent that such losses, claims, damages, liabilities or 

related 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. This paragraph (b)

shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. 

arising from any non-Tax claim.

(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails 

to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the 

Administrative Agent or Collateral Agent (or any sub-agents thereof) or any Related Party of any of the 

foregoing, each Lender (other than the Initial Lender) severally agrees to pay to the Administrative Agent 

or Collateral Agent (or any such sub-agents) or such Related Party, as the case may be, such Lender’s pro 

rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is 

sought based on each Lender’s Applicable Percentage at such time) of such unpaid amount (including any 

such unpaid amount in respect of a claim asserted by such Lender); 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 or Collateral Agent (or any such sub-agents), or against 

any Related Party of any of the foregoing acting for the Administrative Agent or Collateral Agent (or any 

such sub-agents) in connection with such capacity. The obligations of the Lenders under this paragraph

(c) are subject to the provisions of Section 2.12(e).

(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by 

Applicable Law, no Credit Party shall assert, and each hereby waives, any claim against any Indemnitee, 

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, any other Loan 

Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or 

thereby, any Loan, or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above 

shall be liable for any damages arising from the use by unintended recipients of any information or other 

materials distributed by it through telecommunications, electronic or other information transmission 

systems in connection with this Agreement or the other Loan Documents or the transactions contemplated 

hereby or thereby.

(e) Payments. All amounts due under this Section shall be payable not later than 

five (5) days after demand therefor; provided that the terms of this Section shall not apply to the Initial 

Lender.

(f) Survival. Each party’s obligations under this Section shall survive the 

termination of the Loan Documents and payment of the obligations hereunder and the resignation or 

removal of the Administrative Agent or the Collateral Agent.

SECTION 11.04 Successors and Assigns.

(a) Successors and Assigns Generally. 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 the Borrower may not assign or otherwise transfer any of its rights or 

obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and 

any other attempted assignment or transfer by any party hereto shall be null and void), and no Lender may 

assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in 

accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance 

with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security 
95

interest subject to the restrictions of paragraph (e) of this Section. 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 and, to the extent expressly contemplated hereby, the Related Parties of each of the 

Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of 

this Agreement.

(b) Assignments by Lenders. Any Lender may at any time assign to one or more 

Eligible 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); provided that any such assignment by any Lender (other than 

the Initial Lender) shall be subject to the following conditions:

(i) Minimum Amounts.

(A) in the case of an assignment of the entire remaining amount of 

the assigning Lender’s Loans at the time owing to it or contemporaneous assignments to 

and/or by related Approved Funds (determined after giving effect to such assignments) 

that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the 

aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an 

Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in paragraph (b)(i)(A) of this Section, 

the principal outstanding balance of the Loans of the assigning Lender subject to each 

such assignment (determined as of the date the Assignment and Assumption with respect 

to such assignment is delivered to the Administrative Agent or, if “Trade Date” is 

specified in the Assignment and Assumption, as of the Trade Date) shall not be less than 

$5,000,000, unless each of the Administrative Agent and, so long as no Default or Event 

of Default has occurred and is continuing, the Borrower otherwise consents (each such 

consent not to be unreasonably withheld or delayed).

(ii) Proportionate Amounts. 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 with respect to the Loans assigned.

(iii) Required Consents. No consent shall be required for any assignment by 

the Initial Lender. The consent of the Borrower (such consent not to be unreasonably withheld, 

delayed or conditioned) shall be required for any assignment by any Lender other than the Initial 

Lender unless (x) a Default or Event of Default has occurred and is continuing at the time of such 

assignment, or (y) such assignment is to a Lender or an Affiliate of a Lender; provided that the 

Borrower shall be deemed to have consented to any such assignment unless it shall object thereto 

by written notice to the Administrative Agent within five (5) Business Days after having received 

notice thereof.

(iv) Assignment and Assumption. The parties to each assignment shall 

execute and deliver to the Administrative Agent an Assignment and Assumption, together with a 

processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole 

discretion, elect to waive such processing and recordation fee in the case of any assignment. The 

assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative 

Questionnaire.
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(v) No Assignment to Certain Persons. No such assignment shall be made 

to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

(vi) No Assignment to Natural Persons. No such assignment shall be made 

to a natural person (or a holding company, investment vehicle or trust for, or owned and operated 

for the primary benefit of, a natural person).

Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this 

Section, from and after the effective date specified in each Assignment and Assumption, the assignee 

thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such 

Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the 

assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and 

Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment 

and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such 

Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 11.03

with respect to facts and circumstances occurring prior to the effective date of such assignment. Any 

assignment or transfer by a Lender other than the Initial Lender of rights or obligations under this 

Agreement that does not comply with this paragraph 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.

(c) Register. The Administrative Agent, acting solely for this purpose as an agent of 

the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to 

it and a register for the recordation of the names and addresses of the Lenders, and the principal amounts 

(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 Administrative Agent, the Collateral 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. 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.

(d) Participations. Any Lender may at any time, without the consent of, or notice to, 

the Borrower or the Administrative Agent, sell participations to any Person (other than a Competitor, a

natural person, or a holding company, investment vehicle or trust for, or owned and operated for the 

primary benefit of, a natural person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) 

(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement 

(including all or a portion of the Loans owing to it); provided that (i) such Lender’s obligations under this 

Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties 

hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the 

Collateral Agent and Lenders shall continue to deal solely and directly with such Lender in connection 

with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender 

shall be responsible for the indemnity under Section 11.03(b) with respect to any payments made by such 

Lender to its Participant(s).

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 Section 11.02(b)(i) through (v) that affects such 

Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 

2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under 
97

Section 2.16(g) (it being understood that the documentation required under Section 2.16(g) shall be 

delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its 

interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees 

to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this 

Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.16, with 

respect to any participation, than its participating Lender would have been entitled to receive, except to 

the extent such entitlement to receive a greater payment results from a Change in Law that occurs after 

the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the 

Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the 

provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each 

Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that 

such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a 

participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 the Loan Documents (the 

“Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of 

the Participant Register (including the identity of any Participant or any information relating to a 

Participant’s interest in any loans or its other obligations under any Loan Document) to any Person except 

to the extent that such disclosure is necessary to establish that such 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 shall treat each Person whose name is 

recorded in the Participant Register as the owner of such participation for all purposes of this Agreement 

notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its 

capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest 

in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any 

pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or 

assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee 

or assignee for such Lender as a party hereto.

SECTION 11.05 Survival. All covenants, agreements, representations and warranties 

made by any Credit Party herein and in any Loan Document or other documents delivered in connection 

herewith or therewith or pursuant hereto or thereto shall be considered to have been relied upon by the other 

parties hereto and shall survive the execution and delivery hereof and thereof and the making of the 

Borrowings hereunder, regardless of any investigation made by any such other party or on its behalf and 

notwithstanding that the Administrative Agent, the Collateral Agent or any Lender may have had notice or 

knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long 

as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied and so long as the 

Commitments have not expired or been terminated. The provisions of Sections 2.14, 2.15, 11.03, 11.15 and 

Article VIII shall survive and remain in full force and effect regardless of the consummation of the 

transactions contemplated hereby, the payment in full of the Obligations, the expiration or termination of 

the Commitments or the termination of this Agreement or any provision hereof.

SECTION 11.06 Counterparts; Integration; Effectiveness; Electronic Execution.

(a) Counterparts; Integration; Effectiveness. This Agreement may be executed in 

counterparts (and by different parties hereto in different counterparts), each of which shall constitute an 

original, but all of which when taken together shall constitute a single contract. This Agreement and the 

other Loan Documents, constitute the entire contract among the parties relating to the subject matter 

hereof and supersede any and all previous agreements and understandings, oral or written, relating to the 
98

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 that, when taken together, bear the signatures of each of the other parties 

hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in 

electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of 

this Agreement.

(b) Electronic Execution. The words “execution,” “signed,” “signature,” and words 

of like import in this Agreement and in any Assignment and Assumption shall be deemed to include 

electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal 

effect, validity or enforceability as a manually executed signature or the use of a paper-based 

recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, 

including the Federal Electronic Signatures in Global and National Commerce Act, the New York State 

Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic 

Transactions Act. Notwithstanding anything herein to the contrary, delivery of an executed counterpart of 

a signature page of this Agreement by telecopy or other electronic means, or confirmation of the 

execution of this Agreement on behalf of a party by an email from an authorized signatory of such party

shall be effective as delivery of a manually executed counterpart of this Agreement. 

SECTION 11.07 Severability. If any provision of this Agreement or the other Loan 

Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the 

remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired 

thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or 

unenforceable provisions with valid provisions the economic effect of which comes as close as possible to 

that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular 

jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 

SECTION 11.08 Right of Setoff. If an Event of Default shall have occurred and be 

continuing, each Lender, and each of their respective Affiliates is hereby authorized at any time and from 

time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits 

(general or special, time or demand, provisional or final, in whatever currency) at any time held, and other 

obligations (in whatever currency) at any time owing, by such Lender or any such Affiliate, to or for the 

credit or the account of the Borrower against any and all of the due and unpaid Obligations of the Borrower 

now or hereafter existing under this Agreement or any other Loan Document to such Lender or its 

respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand 

under this Agreement or any other Loan Document and although such obligations of the Borrower may be 

contingent or unmatured or are owed to a branch office or Affiliate of such Lender different from the 

branch office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each 

Lender and their respective Affiliates under this Section are in addition to other rights and remedies 

(including other rights of setoff) that such Lender or its respective Affiliates may have. Each Lender (other 

than the Initial Lender) agrees to notify the Borrower and the Administrative Agent promptly after any such 

setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff 

and application.

SECTION 11.09 Governing Law; Jurisdiction; Etc.

(a) Governing Law. This Agreement and the other Loan Documents will be 

governed by and construed in accordance with the federal law of the United States if and to the extent 

such law is applicable, and otherwise in accordance with the law of the State of New York applicable to 

contracts made and to be performed entirely within such State.
99

(b) Jurisdiction and Venue. Each of the Credit Parties and each Lender agrees (a) to 

submit to the exclusive jurisdiction and venue of the United States District Court for the District of 

Columbia for any civil action, suit or proceeding arising out of or relating to this Agreement, the Loan 

Documents, or the transactions contemplated hereby or thereby.

(c) Service of Process. Each party hereto irrevocably consents to service of process 

in the manner provided for notices in Section 11.01. Nothing in this Agreement will affect the right of 

any party hereto to serve process in any other manner permitted by Applicable Law.

SECTION 11.10 Waiver of Jury Trial. To the extent permitted by Applicable Law, each 

Credit Party and each Lender hereby unconditionally waives trial by jury in any civil legal action or 

proceeding relating to this Agreement, the Loan Documents or the transactions contemplated hereby or 

thereby.

SECTION 11.11 Headings. Article and Section headings and the Table of Contents used 

herein are for convenience of reference only, are not part of this Agreement and shall not affect the 

construction of, or be taken into consideration in interpreting, this Agreement.

SECTION 11.12 Treatment of Certain Information; Confidentiality. Each of the Agents

and the Lenders (other than the Initial Lender) agree to maintain the confidentiality of the Information (as 

defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (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); (b) to the extent required 

or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related 

Parties (including any self-regulatory authority, such as the National Association of Insurance 

Commissioners); (c) to the extent required by Applicable Laws or by any subpoena or similar legal process; 

(d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any 

other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document 

or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions 

substantially the same as (or no less restrictive than) those of this Section, to (i) any assignee of or 

Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this 

Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other 

transaction under which payments are to be made by reference to the Borrower and its obligations, this 

Agreement or payments hereunder; provided that, in each case under this clause (f)(ii), such actual or 

prospective party is not a Competitor; (g) on a confidential basis to (i) any rating agency in connection with 

rating the Borrower or its Subsidiaries or the Loans or (ii) the CUSIP Service Bureau or any similar agency 

in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans; (h) with the 

consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a 

result of a breach of this Section, or (y) becomes available to either Agent, any Lender or any of their 

respective Affiliates on a nonconfidential basis from a source other than the Borrower who did not acquire 

such information as a result of a breach of this Section. 

For purposes of this Section, “Information” means all information received from the 

Parent or any of its Subsidiaries relating to the Parent 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 Parent or any of its Subsidiaries; provided that, in the 

case of information received from the Parent or any of its Subsidiaries after the date hereof, such 

information is clearly identified at the time of delivery as confidential. Any Person required to maintain 

the confidentiality of Information as provided in this Section shall be considered to have complied with 

its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality 

of such Information as such Person would accord to its own confidential information.
100

SECTION 11.13 Money Laundering; Sanctions. The Borrower shall provide to the 

Administrative Agent, the Collateral Agent, and the Lenders information and documentation that the 

Lenders may reasonably request that identifies the Borrower and its Affiliates, which information may 

include the name and address of the Borrower and its Affiliates and other information regarding beneficial 

ownership of the Borrower and its Affiliates that will allow the Lenders to ensure compliance with 

Sanctions and the AML Laws. For purposes of determining whether or not a representation with respect to 

any indirect ownership is true or a covenant is being complied with under this Section 11.13, the Borrower 

shall not be required to make any investigation into (i) the ownership of publicly traded stock or other 

publicly traded securities or (ii) the ownership of assets by a collective investment fund that holds assets for 

employee benefit plans or retirement arrangements.

SECTION 11.14 Interest Rate Limitation. Notwithstanding anything herein to the 

contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other 

amounts that are treated as interest on such Loan under Applicable Law (collectively, “charges”), shall 

exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, 

received or reserved by the Lender holding such Loan in accordance with Applicable Law, the rate of 

interest payable in respect of such Loan hereunder, together with all charges payable in respect thereof, 

shall be limited to the Maximum Rate. To the extent lawful, the interest and charges that would have been 

paid in respect of such Loan but were not paid as a result of the operation of this Section shall be cumulated 

and the interest and charges payable to such Lender in respect of other Loans or periods shall be increased 

(but not above the amount collectible at the Maximum Rate therefor) until such cumulated amount, together 

with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment, shall have 

been received by such Lender. Any amount collected by such Lender that exceeds the maximum amount 

collectible at the Maximum Rate shall be applied to the reduction of the principal balance of such Loan or 

refunded to the Borrower so that at no time shall the interest and charges paid or payable in respect of such 

Loan exceed the maximum amount collectible at the Maximum Rate. 

SECTION 11.15 Payments Set Aside. To the extent that any payment by or on behalf of 

the Borrower is made to the Administrative Agent or any Lender, or any Lender exercises its right of setoff, 

and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to 

be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the 

Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, 

in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such 

recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in 

full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each 

Lender (other than the Initial Lender) severally agrees to pay to the Administrative Agent upon demand its 

applicable share (without duplication) of any amount so recovered from or repaid by the Administrative 

Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per 

annum equal to the Federal Funds Effective Rate from time to time in effect.

SECTION 11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects 

of each transaction contemplated hereby (including in connection with any amendment, waiver or other 

modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and 

acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or agency relationship 

between any Credit Party and any of their respective Subsidiaries and the Administrative Agent, the 

Collateral Agent or any Lender is intended to be or has been created in respect of the transactions 

contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative Agent,

the Collateral Agent, or any Lender has advised or is advising any Credit Party or any of their respective 

Subsidiaries on other matters, (ii) the lending and other services regarding this Agreement provided by the 

Administrative Agent, the Collateral Agent and the Lenders are arm’s-length commercial transactions 

between Credit Parties and their Affiliates, on the one hand, and the Administrative Agent, the Collateral 
101

Agent and the Lenders, on the other hand, (iii) the Credit Parties have consulted their own legal, accounting, 

regulatory and tax advisors to the extent that they has deemed appropriate and (iv) the Credit Parties are

capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions 

contemplated hereby and by the other Loan Documents; and (b) (i) the Administrative Agent, the Collateral 

Agent and the Lenders each is and has been acting solely as a principal and, except as expressly agreed in 

writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary 

for the Credit Parties or any of their respective Affiliates, or any other Person; (ii) none of the 

Administrative Agent, the Collateral Agent and the Lenders has any obligation to the Credit Parties or any 

of their respective Affiliates with respect to the transactions contemplated hereby except those obligations 

expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the 

Collateral Agent and the Lenders and their respective Affiliates may be engaged, in a broad range of 

transactions that involve interests that differ from those of the Credit Parties and their respective Affiliates, 

and none of the Administrative Agent, the Collateral Agent and the Lenders has any obligation to disclose 

any of such interests to the Credit Parties or any of their respective Affiliates. To the fullest extent 

permitted by Law, the Credit Parties hereby waive and release any claims that they may have against any of 

the Administrative Agent, the Collateral Agent and the Lenders with respect to any breach or alleged breach 

of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

SECTION 11.17 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or 

understanding among the parties, each party hereto (including each Credit Party) acknowledges that any 

liability arising under a Loan Document of any Credit Party that is an Affected Financial Institution, 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: (a) the 

application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such 

liabilities arising under any Loan Documents which may be payable to it by any Credit Party that is an 

Affected Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including (i) a 

reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such 

liability into shares or other instruments of ownership in such Affected Financial Institution, its parent 

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 any Loan Document, or (iii) the variation of the terms of such liability in connection with the 

exercise of the write-down and conversion powers of the applicable Resolution Authority.

[Signature pages follow.]
[Signature Page to Loan and Guarantee Agreement – Hawaiian Airlines]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly 

executed by their respective authorized officers as of the day and year first above written.

HAWAIIAN AIRLINES, INC.

By_________________________

Name: Shannon L. Okinaka

Title: Executive Vice President & Chief Financial 

Officer

HAWAIIAN HOLDINGS, INC.

By_________________________

Name: Peter Ingram

Title: President & Chief Executive Officer
[Signature Page to Loan and Guarantee Agreement – Hawaiian Airlines]

THE BANK OF NEW YORK MELLON,

as Administrative Agent

By_________________________

Name: Bret S. Derman

Title: Vice President

THE BANK OF NEW YORK MELLON,

as Collateral Agent 

By_________________________

Name: Bret S. Derman

Title: Vice President 
[Signature Page to Loan and Guarantee Agreement – Hawaiian Airlines]

UNITED STATES DEPARTMENT OF THE 

TREASURY, as the Initial Lender

By_________________________

Name:

Title:
EXECUTION VERSION 

 

LOAN AND GUARANTEE AGREEMENT 

dated as of 

September 25, 2020 

among 

HAWAIIAN AIRLINES, INC., as Borrower, 

the Guarantors party hereto from time to time, 

THE UNITED STATES DEPARTMENT OF THE TREASURY, 

and 

THE BANK OF NEW YORK MELLON, 

as Administrative Agent and Collateral Agent 

__________ 
i 

TABLE OF CONTENTS 

Page 

ARTICLE I 

DEFINITIONS

SECTION 1.01 Defined Terms ............................................................................................................ 1

SECTION 1.02 Terms Generally ....................................................................................................... 35

SECTION 1.03 Accounting Terms; Changes in GAAP..................................................................... 35

SECTION 1.04 Rates ......................................................................................................................... 36

SECTION 1.05 Divisions ................................................................................................................... 36

ARTICLE II 

COMMITMENTS AND BORROWINGS

SECTION 2.01 Commitments ........................................................................................................... 36

SECTION 2.02 Loans and Borrowings .............................................................................................. 36

SECTION 2.03 Borrowing Requests ................................................................................................. 37

SECTION 2.04 [Reserved] ................................................................................................................. 37

SECTION 2.05 [Reserved] ................................................................................................................. 37

SECTION 2.06 Prepayments ............................................................................................................. 37

SECTION 2.07 Reduction and Termination of Commitments .......................................................... 39

SECTION 2.08 Repayment of Loans ................................................................................................. 39

SECTION 2.09 Interest ...................................................................................................................... 39

SECTION 2.10 Benchmark Replacement Setting .............................................................................. 40

SECTION 2.11 Evidence of Debt ...................................................................................................... 41

SECTION 2.12 Payments Generally .................................................................................................. 41

SECTION 2.13 Sharing of Payments ................................................................................................. 42

SECTION 2.14 Compensation for Losses.......................................................................................... 43

SECTION 2.15 Increased Costs ......................................................................................................... 43

SECTION 2.16 Taxes......................................................................................................................... 44

SECTION 2.17 [Reserved] ................................................................................................................. 48

SECTION 2.18 [Reserved] ................................................................................................................. 48

SECTION 2.19 Mitigation Obligations; Replacement of Lenders ..................................................... 48

ARTICLE III 

REPRESENTATIONS AND WARRANTIES

SECTION 3.01 Existence, Qualification and Power .......................................................................... 49

SECTION 3.02 Authorization; No Contravention ............................................................................. 49

SECTION 3.03 Governmental Authorization; Other Consents ......................................................... 49

SECTION 3.04 Execution and Delivery; Binding Effect .................................................................. 49

SECTION 3.05 Financial Statements; No Material Adverse Change ................................................ 50

SECTION 3.06 Litigation .................................................................................................................. 50

SECTION 3.07 Contractual Obligations; No Default ........................................................................ 50

SECTION 3.08 Property .................................................................................................................... 50

SECTION 3.09 Taxes......................................................................................................................... 50
ii 

SECTION 3.10 Disclosure ................................................................................................................. 51

SECTION 3.11 Compliance with Laws ............................................................................................. 51

SECTION 3.12 ERISA Compliance .................................................................................................. 51

SECTION 3.13 Environmental Matters ............................................................................................. 52

SECTION 3.14 Investment Company Act ......................................................................................... 52

SECTION 3.15 Sanctions; Export Controls; Anti-Corruption; AML Laws ...................................... 52

SECTION 3.16 Solvency ................................................................................................................... 53

SECTION 3.17 Subsidiaries ............................................................................................................... 53

SECTION 3.18 Senior Indebtedness .................................................................................................. 53

SECTION 3.19 Insurance Matters ..................................................................................................... 53

SECTION 3.20 Labor Matters ........................................................................................................... 53

SECTION 3.21 Insolvency Proceedings ............................................................................................ 53

SECTION 3.22 Margin Regulations .................................................................................................. 53

SECTION 3.23 Liens ......................................................................................................................... 54

SECTION 3.24 Perfected Security Interests ...................................................................................... 54

SECTION 3.25 US Citizenship .......................................................................................................... 54

SECTION 3.26 Air Carrier Status ...................................................................................................... 54

SECTION 3.27 Cybersecurity ............................................................................................................ 54

SECTION 3.28 Loyalty Program Agreements ................................................................................... 54

ARTICLE IV 

CONDITIONS

SECTION 4.01 Closing Date and Initial Borrowing .......................................................................... 55

SECTION 4.02 Each Borrowing ........................................................................................................ 57

ARTICLE V 

AFFIRMATIVE COVENANTS

SECTION 5.01 Financial Statements ................................................................................................. 58

SECTION 5.02 Certificates; Other Information ................................................................................ 59

SECTION 5.03 Notices ...................................................................................................................... 61

SECTION 5.04 Preservation of Existence, Etc. ................................................................................. 61

SECTION 5.05 Maintenance of Properties ........................................................................................ 61

SECTION 5.06 Maintenance of Insurance ......................................................................................... 62

SECTION 5.07 Payment of Obligations ............................................................................................ 62

SECTION 5.08 Compliance with Laws ............................................................................................. 62

SECTION 5.09 Environmental Matters ............................................................................................. 62

SECTION 5.10 Books and Records ................................................................................................... 62

SECTION 5.11 Inspection Rights ...................................................................................................... 62

SECTION 5.12 Sanctions; Export Controls; Anti-Corruption Laws and AML Laws ....................... 63

SECTION 5.13 Guarantors; Additional Collateral ............................................................................ 63

SECTION 5.14 Post-Closing Matters ................................................................................................ 64

SECTION 5.15 Further Assurances ................................................................................................... 64

SECTION 5.16 Delivery of Appraisals .............................................................................................. 64

SECTION 5.17 Ratings ...................................................................................................................... 64

SECTION 5.18 Regulatory Matters ................................................................................................... 64

SECTION 5.19 Loyalty Programs; Loyalty Program Agreements .................................................... 65

SECTION 5.20 Collections; Accounts; Payments ............................................................................. 65
iii 

ARTICLE VI 

NEGATIVE COVENANTS

SECTION 6.01 [Reserved]. ................................................................................................................ 66

SECTION 6.02 Liens ......................................................................................................................... 66

SECTION 6.03 Fundamental Changes............................................................................................... 66

SECTION 6.04 Dispositions .............................................................................................................. 67

SECTION 6.05 Restricted Payments ................................................................................................. 69

SECTION 6.06 Investments ............................................................................................................... 70

SECTION 6.07 Transactions with Affiliates ...................................................................................... 71

SECTION 6.08 [Reserved] ................................................................................................................. 72

SECTION 6.09 [Reserved] ................................................................................................................. 72

SECTION 6.10 Changes in Nature of Business ................................................................................. 72

SECTION 6.11 Sanctions; AML Laws .............................................................................................. 72

SECTION 6.12 Amendments to Organizational Documents ............................................................. 72

SECTION 6.13 [Reserved] ................................................................................................................. 72

SECTION 6.14 Prepayments of Junior Indebtedness ........................................................................ 72

SECTION 6.15 Lobbying ................................................................................................................... 72

SECTION 6.16 Use of Proceeds ........................................................................................................ 72

SECTION 6.17 Financial Covenants ................................................................................................. 73

ARTICLE VII 

EVENTS OF DEFAULT

SECTION 7.01 Events of Default ...................................................................................................... 74

SECTION 7.02 Application of Payments .......................................................................................... 77

ARTICLE VIII 

AGENCY

SECTION 8.01 Appointment and Authority ...................................................................................... 78

SECTION 8.02 Collateral Matters. .................................................................................................... 78

SECTION 8.03 Removal or Resignation of Administrative Agent ................................................... 79

SECTION 8.04 Exculpatory Provisions ............................................................................................. 79

SECTION 8.05 Reliance by Agent .................................................................................................... 81

SECTION 8.06 Delegation of Duties ................................................................................................. 81

SECTION 8.07 Non-Reliance on Agents and Other Lenders ............................................................ 81

SECTION 8.08 Administrative Agent May File Proofs of Claim ..................................................... 81

ARTICLE IX

GUARANTEE

SECTION 9.01 Guarantee of the Obligations .................................................................................... 82

SECTION 9.02 Payment or Performance by a Guarantor.................................................................. 82

SECTION 9.03 Liability of Guarantors Absolute .............................................................................. 83

SECTION 9.04 Waivers by Guarantors ............................................................................................. 84

SECTION 9.05 Guarantors’ Rights of Subrogation, Contribution, etc. ............................................. 84
iv 

SECTION 9.06 Subordination ........................................................................................................... 85

SECTION 9.07 Continuing Guarantee ............................................................................................... 85

SECTION 9.08 Financial Condition of the Borrower ........................................................................ 85

SECTION 9.09 Reinstatement ........................................................................................................... 85

SECTION 9.10 Discharge of Guarantees ........................................................................................... 85

ARTICLE X 

CARES ACT REQUIREMENTS

SECTION 10.01 CARES Act Compliance .......................................................................................... 86

SECTION 10.02 Dividends and Buybacks .......................................................................................... 86

SECTION 10.03 Maintenance of Employment Levels ........................................................................ 86

SECTION 10.04 United States Business.............................................................................................. 86

SECTION 10.05 Limitations on Certain Compensation ...................................................................... 86

SECTION 10.06 Continuation of Certain Air Service ......................................................................... 87

SECTION 10.07 Treasury Access ........................................................................................................ 87

SECTION 10.08 Additional Defined Terms ........................................................................................ 87

ARTICLE XI 

MISCELLANEOUS

SECTION 11.01 Notices; Public Information ...................................................................................... 88

SECTION 11.02 Waivers; Amendments ............................................................................................. 91

SECTION 11.03 Expenses; Indemnity; Damage Waiver .................................................................... 92

SECTION 11.04 Successors and Assigns ............................................................................................ 94

SECTION 11.05 Survival..................................................................................................................... 97

SECTION 11.06 Counterparts; Integration; Effectiveness; Electronic Execution ............................... 97

SECTION 11.07 Severability ............................................................................................................... 97

SECTION 11.08 Right of Setoff .......................................................................................................... 98

SECTION 11.09 Governing Law; Jurisdiction; Etc ............................................................................. 98

SECTION 11.10 Waiver of Jury Trial ................................................................................................. 98

SECTION 11.11 Headings ................................................................................................................... 98

SECTION 11.12 Treatment of Certain Information; Confidentiality .................................................. 98

SECTION 11.13 Money Laundering; Sanctions .................................................................................. 99

SECTION 11.14 Interest Rate Limitation ............................................................................................ 99

SECTION 11.15 Payments Set Aside ................................................................................................ 100

SECTION 11.16 No Advisory or Fiduciary Responsibility ............................................................... 100

SECTION 11.17 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ............. 100
v 

SCHEDULES 

SCHEDULE 1.01(a) - Carrier Loyalty Programs 

SCHEDULE 1.01(b) - Loyalty Program Agreements 

SCHEDULE 1.01(c) - Loyalty Subscription Programs 

SCHEDULE 3.05 - Financial Statements 

SCHEDULE 3.17 - Subsidiaries 

SCHEDULE 5.14 - Post-Closing Matters 

SCHEDULE 6.05(i) - Restricted Payments 

SCHEDULE 6.06 - Investments 

SCHEDULE 6.07 - Affiliate Transactions 

EXHIBITS 

EXHIBIT A - Assignment and Assumption 

EXHIBIT B-1 - Form of U.S. Tax Compliance Certificate 

EXHIBIT B-2 - Form of U.S. Tax Compliance Certificate 

EXHIBIT B-3 - Form of U.S. Tax Compliance Certificate 

EXHIBIT B-4 - Form of U.S. Tax Compliance Certificate 

EXHIBIT C - Form of Note 

EXHIBIT D - Form of Direct Agreement 

EXHIBIT E - Form of Borrowing Request 
LOAN AND GUARANTEE AGREEMENT dated as of September 25, 2020 (this 

“Agreement”), among HAWAIIAN AIRLINES, INC., a corporation organized under the laws of 

Delaware (the “Borrower”), HAWAIIAN HOLDINGS, INC., a corporation organized under the laws of 

Delaware (the “Parent”), the Guarantors party hereto from time to time, the UNITED STATES 

DEPARTMENT OF THE TREASURY (“Treasury”) and THE BANK OF NEW YORK MELLON as 

Administrative Agent and Collateral Agent. 

WHEREAS, the Borrower has requested that the Initial Lender (as defined below) extend 

credit as is permissible under the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136 

(Mar. 27, 2020), as the same may be amended form time to time (the “CARES Act”) to the Borrower, and 

the Initial Lender is willing to do so on the terms and conditions set forth herein; and 

WHEREAS, pursuant to Section 4003(h)(1) of the CARES Act, for purposes of the Code 

(as defined below) the Loans (as defined below) shall be treated as indebtedness and as having been 

issued for their aggregate stated principal amount, and the interest payable pursuant to Section 2.09(a) 

shall be treated as qualified stated interest. 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein 

contained, the parties hereto agree as follows: 

ARTICLE I 

DEFINITIONS 

SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the 

meanings specified below: 

“Additional Collateral” shall mean (a) cash and Cash Equivalents pledged to the 

Collateral Agent for the benefit of the Secured Parties under the Security Documents (and subject to an 

account control agreement in form and substance satisfactory to the Appropriate Party), (b) airframes, 

aircraft, engines and Spare Parts, registered, habitually located, or located in a designated location, 

respectively, in the United States and that are eligible for the benefits of Section 1110 of the Bankruptcy 

Code, 11 U.S.C. § 1110 or otherwise acceptable to the Required Lenders (provided that any airframe must 

be less than 20 years old at the time of its designation as Additional Collateral), (c) Route Authorities for 

routes with at least one end point located in the United States and all Slots and Gate Leaseholds related 

from time to time thereto or otherwise acceptable to the Required Lenders, (d) real property, (e) ground 

support equipment, (f) flight simulators and (g) any other assets acceptable to the Required Lenders, and 

all of which assets shall (i) (other than Additional Collateral of the type described in clause (a)) be valued 

by a new Appraisal at the time the Parent designates such assets as Additional Collateral, (ii) as of any 

date of addition of such assets as Collateral, be subject, to the extent purported to be created by the 

applicable Security Document, to a perfected first priority Lien and/or mortgage (or comparable Lien), in 

favor of the Collateral Agent for the benefit of the Secured Parties and otherwise subject only to 

Permitted Liens (excluding those referred to in clause (4) of the definition of “Permitted Lien”), (iii) 

pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to security agreement(s) or 

mortgage(s), as applicable, in a form satisfactory to the Appropriate Party and (iv) at the time of their 

designation as Additional Collateral, be accompanied by a legal opinion in form satisfactory to the 

Appropriate Party; provided that, in accordance with Section 8.06, the Collateral Agent may designate a 

sub-agent to accept the security interest in any Additional Collateral for the benefit of the Secured Parties; 

provided further that, with respect to Additional Collateral of the type described in clauses (c), (d) and (g), 

the Borrower agrees to notify the Collateral Agent as promptly as practicable of any new categories of 

assets which are expected to be designated as Additional Collateral or any new jurisdictions in which any 
2 

asset is to be secured or located; provided further that, with respect to Additional Collateral of the type 

described in clause (d), (e) or (f), (i) such assets are acceptable to the Required Lenders, (ii) the Borrower 

shall have delivered Appraisals acceptable in form and substance to the Required Lenders with respect to 

such assets, (iii) such assets are subject to a loan to value framework acceptable to the Required Lenders, 

(iv) such assets are pledged pursuant to documentation acceptable in form and substance to the Required 

Lenders and (v) the benefits of pledging such assets outweigh the associated cost, burden, difficulty or 

other consequences, as determined by the Required Lenders in their sole discretion; provided further that 

the Aircraft and Engine Assets (as defined in the Pledge and Security Agreement) listed on Schedule 2.1 

of the Pledge and Security Agreement on the Closing Date shall be deemed to be Additional Collateral for 

purposes of 6.17(b). 

“Adjusted LIBO Rate” means, as to any Borrowing for any Interest Period, an interest 

rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for 

such Interest Period divided by (b) one minus the Eurodollar Reserve Percentage. 

“Administrative Account” means the account opened with the Administrative Agent in 

the name of the Initial Lender as notified to the Borrower and the Initial Lender, or such other account as 

the Administrative Agent shall advise the Borrower and each Lender from time to time. 

“Administrative Agency Fee Letter” means any fee letter entered into between the 

Borrower, the Administrative Agent and the Collateral Agent, or with any successor administrative agent 

or collateral agent, in its capacity as administrative agent and in its capacity as collateral agent under any 

of the Loan Documents. 

“Administrative Agent” means The Bank of New York Mellon, in its capacity as 

administrative agent under any of the Loan Documents, or any successor administrative agent. 

“Administrative Questionnaire” means an Administrative Questionnaire in a form 

supplied by or otherwise acceptable to the Administrative Agent. 

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK 

Financial Institution. 

“Affiliate” means any Person that directly or indirectly controls, is controlled by, or is 

under common control with, any other Person. For purposes of this definition, “control” of a Person shall 

mean having the power, directly or indirectly, to direct or cause the direction of the management and 

policies of such Person, whether by ownership of voting equity, by contract, or otherwise. 

“Agent Parties” has the meaning specified in Section 11.01(d)(ii). 

“Agent Responsible Officer” means, when used with respect to an Agent, any vice 

president, assistant vice president, assistant treasurer or trust officer in the corporate trust and agency 

administration of the Agent or any other officer of the Agent customarily performing functions similar to 

those performed by any of the above-designated officers, and, in each case, who shall have direct 

responsibility for the administration of this Agreement and also means, with respect to a particular agency 

matter, any other officer to whom such matter is referred because of his or her knowledge of and 

familiarity with the particular subject. 

“Agents” means any of the Administrative Agent and the Collateral Agent. 

“Agreement” has the meaning specified in introductory paragraph hereof. 
3 

“Air Carrier” has the meaning such term has under Section 40102 of Title 49, United 

States Code. 

“Alternate Base Rate” means, for any day, a rate per annum equal to the highest of (a) the 

Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% 

and (c) the Adjusted LIBO Rate for a one-month term in effect on such day (taking into account any 

LIBO Rate floor under the definition of “Adjusted LIBO Rate”) plus 1.00%. Any change in the Alternate 

Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO 

Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal 

Funds Effective Rate or such Adjusted LIBO Rate, respectively. 

“AML Laws” means (a) the USA Patriot Act of 2001 (Pub. L. No. 107-56), (b) the U.S. 

Money Laundering Control Act of 1986, as amended, (c) the Bank Secrecy Act, 31 U.S.C. sections 5301 

et seq., (d) Laundering of Monetary Instruments, 18 U.S.C. section 1956, (e) Engaging in Monetary 

Transactions in Property Derived from Specified Unlawful Activity, 18 U.S.C. section 1957, (f) the 

Financial Recordkeeping and Reporting of Currency and Foreign Transactions Regulations (Title 31 Part 

103 of the US Code of Federal Regulations), or (g) any other applicable money laundering or financial 

recordkeeping Laws. 

“Applicable Law” means, as to any Person, all applicable Laws binding upon such 

Person or to which such a Person is subject. 

“Applicable Percentage” means, with respect to any Lender, the percentage of the total 

Outstanding Amount of Loans of all Lenders represented by the aggregate Outstanding Amount of Loans 

of such Lender at such time. 

“Applicable Rate” means 2.50%. 

“Appraisal” means any appraisal specifying a value in Dollars (and not a range of 

values), dated as of the delivery thereof, prepared by an Eligible Appraiser that certifies, at the time of 

determination, in reasonable detail the Appraised Value of Eligible Collateral; provided that any 

methodology, form of presentation and all assumptions must be acceptable to the Appropriate Party; 

provided further that the methodology, form of presentation and assumptions in the Appraisal delivered 

on the Closing Date pursuant to Section 4.01(i) shall be satisfactory for any subsequent Appraisal with 

respect to the same category and specific type of Eligible Collateral. 

“Appraised Value” means, as of any date, (a) the specific value in Dollars (and not a 

range of values) of any property constituting Eligible Collateral (other than cash and Cash Equivalents) as 

reflected in the most recent Appraisal, (b) with respect to any cash pledged or being pledged at such time 

as Collateral, 160% of the face amount and (c) with respect to any Cash Equivalents pledged or being 

pledged at such time as Collateral, 100% of the fair market value thereof as determined by the Parent in 

accordance with customary financial market practices determined no earlier than 45 days prior to such 

date; provided that (i) if no Appraisal relating to such Eligible Collateral has been delivered to the 

Collateral Agent prior to such date, the Appraised Value of such Eligible Collateral shall be deemed to be 

zero and (ii) in the case of any such property consisting of ground support equipment, the Appraised 

Value shall be deemed to be 50% of the value set forth in the most recent Appraisal. 

“Appropriate Party” means (i) while the Initial Lender holds any Commitment or Loan, 

the Initial Lender and (ii) if the Initial Lender is no longer a Lender, the Administrative Agent (acting at 

the direction of the Required Lenders). 
4 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, 

(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a 

Lender. 

“Assignment and Assumption” means an assignment and assumption entered into by a 

Lender and an Eligible Assignee (with the consent of any party whose consent is required by 

Section 11.04), and accepted by the Administrative Agent, in substantially the form of Exhibit A or any 

other form approved by the Administrative Agent. 

“Attributable Indebtedness” means, as of any date of determination, (a) in respect of any 

Capitalized Lease Obligations of any Person, the capitalized amount thereof that would appear on a 

balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any 

Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant 

lease that would appear on a balance sheet of such Person prepared as of such date in accordance with 

GAAP if such lease were accounted for as a capital lease. 

“Available Tenor” means, as of any date of determination and with respect to the thencurrent Benchmark, as applicable, any tenor for such Benchmark or payment period for interest 

calculated with reference to such Benchmark, as applicable, that is or may be used for determining the 

length of an Interest Period pursuant to this Agreement as of such date and not including, for the 

avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of 

“Interest Period” pursuant to clause (d) of Section 2.10. 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by an 

applicable Resolution Authority in respect of any liability of any 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 for such EEA Member Country from time to time which is described in the 

EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United 

Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule 

applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms 

or other financial institutions or their affiliates (other than through liquidation, administration or other 

insolvency proceedings). 

“Benchmark” means, initially, USD LIBO Rate; provided that if a Benchmark 

Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement 

Date have occurred with respect to USD LIBO Rate 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 2.10(a).

“Benchmark Replacement” means, for any Available Tenor, the first alternative set 

forth in the order below that can be determined by the Required Lenders for the applicable Benchmark 

Replacement Date: 

(1) the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment; 

(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark

Replacement Adjustment; 

(3) the sum of: (a) the alternate benchmark rate that has been selected by (y) so long as the 

Initial Lender is a Lender, the Initial Lender and (z) otherwise, the Required Lenders 
5 

and the Borrower, in each case, as the replacement for the then-current Benchmark for 

the applicable Corresponding Tenor giving due consideration to (i) any selection or 

recommendation of a replacement benchmark rate or the mechanism for determining 

such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing 

market convention for determining a benchmark rate as a replacement for the thencurrent Benchmark for U.S. dollar-denominated syndicated credit facilities at such time 

and (b) the related Benchmark Replacement Adjustment; 

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a 

screen or other information service that publishes such rate from time to time as selected by the 

Required Lenders in their reasonable discretion and such screen is administratively acceptable as 

determined by the Administrative Agent in its reasonable discretion. If the Benchmark 

Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the 

Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the 

other Loan Documents; provided further that any such Benchmark Replacement shall be 

administratively feasible as determined by the Administrative Agent in its reasonable discretion. 

“Benchmark Replacement Adjustment” means, with respect to any replacement of the 

then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest 

Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement: 

(1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the 

first alternative set forth in the order below that can be determined by the Required 

Lenders: 

(a) the spread adjustment, or method for calculating or determining such spread 

adjustment, (which may be a positive or negative value or zero) as of the 

Reference Time such Benchmark Replacement is first set for such Interest Period 

that has been selected or recommended by the Relevant Governmental Body for 

the replacement of such Benchmark with the applicable Unadjusted Benchmark 

Replacement for the applicable Corresponding Tenor; 

(b) the spread adjustment (which may be a positive or negative value or zero) as of 

the Reference Time such Benchmark Replacement is first set for such Interest 

Period that would apply to the fallback rate for a derivative transaction 

referencing the ISDA Definitions to be effective upon an index cessation event 

with respect to such Benchmark for the applicable Corresponding Tenor; and 

(2) for purposes of clause (3) of the definition of “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 (y) so long as the Initial Lender is 

a Lender, the Initial Lender and (z) otherwise, the Required Lenders and the Borrower, in 

each case, for the applicable Corresponding Tenor giving due consideration to (i) any 

selection or recommendation of a spread adjustment, or method for calculating or determining 

such spread adjustment, for the replacement of such Benchmark with the applicable 

Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable 

Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for 

determining a spread adjustment, or method for calculating or determining such spread 

adjustment, for the replacement of such Benchmark with the applicable Unadjusted 

Benchmark Replacement for U.S. dollar- denominated syndicated credit facilities; 

provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other 

information service that publishes such Benchmark Replacement Adjustment from time to time 
6 

as selected by the Required Lenders in their reasonable discretion and such screen is 

administratively acceptable as determined by the Administrative Agent in its reasonable 

discretion; provided that, any such Benchmark Replacement Adjustment shall be 

administratively feasible as determined by the Administrative Agent in its reasonable discretion. 

“Benchmark Replacement Conforming Changes” means, with respect to any 

Benchmark Replacement, any technical, administrative or operational changes (including changes to the 

definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” 

timing and frequency of determining rates and making payments of interest, timing of borrowing 

requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability 

of breakage provisions, and other technical, administrative or operational matters) that the 

Administrative Agent (after consultation with the Required Lenders) decides may be appropriate to 

reflect the adoption and implementation of such Benchmark Replacement and to permit the 

administration thereof by the Administrative Agent in a manner substantially consistent with market 

practice (or, if the Administrative Agent (after consultation with the Required Lenders) decides that 

adoption of any portion of such market practice is not administratively feasible or if the Administrative 

Agent (after consultation with the Required Lenders) determines that no market practice for the 

administration of such Benchmark Replacement exists, in such other manner of administration as the 

Administrative Agent (after consultation with the Required Lenders) decides is reasonably necessary in 

connection with the administration of this Agreement and the other Loan Documents). The Required 

Lenders shall cooperate in good faith with the Administrative Agent so that the Administrative Agent 

may determine such Benchmark Replacement Conforming Changes. 

“Benchmark Replacement Date” means the earliest to occur of the following events 

with respect to the then-current Benchmark: 

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of 

(a) the date of the public statement or publication of information referenced therein and (b) 

the date on which the administrator of such Benchmark (or the published component used in 

the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of 

such Benchmark (or such component thereof); 

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the 

public statement or publication of information referenced therein; or 

(3) in the case of an Early Opt-in Election, (y) so long as the Initial Lender is a Lender, the sixth 

(6th) Business Day after the date notice of such Early Opt-in Election is provided to the 

Administrative Agent and (z) otherwise, the sixth (6th) Business Day after the date notice of 

such Early Opt-in Election is provided to the Administrative Agent, so long as the 

Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) 

Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, 

written notice of objection to such Early Opt-in Election from Lenders comprising the 

Required Lenders. 

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on 

the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark 

Replacement Date will be deemed to have occurred prior to the Reference Time for such determination 

and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) 

or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth 

therein with respect to all then-current Available Tenors of such Benchmark (or the published 

component used in the calculation thereof). 

“Benchmark Transition Event” means the occurrence of one or more of the 
7 

following events with respect to the then-current Benchmark: 

(1) a public statement or publication of information by or on behalf of the administrator of 

such Benchmark (or the published component used in the calculation thereof) announcing 

that such administrator has ceased or will cease to provide all Available Tenors of such 

Benchmark (or such component thereof), permanently or indefinitely, provided that, at the 

time of such statement or publication, there is no successor administrator that will continue 

to provide any Available Tenor of such Benchmark (or such component thereof); 

(2) a public statement or publication of information by the regulatory supervisor for the 

administrator of such Benchmark (or the published component used in the calculation 

thereof), the Federal Reserve Board, the 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 

(3) a public statement or publication of information by the regulatory supervisor for the 

administrator of such Benchmark (or the published component used in the calculation 

thereof) announcing that all Available Tenors of such Benchmark (or such component 

thereof) are no longer representative. 

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with 

respect to any Benchmark if a public statement or publication of information set forth above has 

occurred with respect to each then-current Available Tenor of such Benchmark (or the published 

component used in the calculation thereof). 

“Benchmark Unavailability Period” means the period (if any) (x) beginning at the time 

that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at 

such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes 

hereunder and under any Loan Document in accordance with Section 2.10 and (y) 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 2.10. 

“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. 

“Blocked Account” means a deposit account in the name of a Credit Party noted as a 

Blocked Account on Schedule 2.1 (as supplemented from time to time) of the Pledge and Security 

Agreement that is, or is otherwise required under the terms thereof to be, subject to an agreement, in form 
8 

and substance satisfactory to the Appropriate Party, establishing Control (as defined in the Pledge and 

Security Agreement) of such account by the Collateral Agent, and any replacement account thereof. 

“Borrower” has the meaning specified in introductory paragraph hereof. 

“Borrower Materials” has the meaning specified in Section 11.01(e). 

“Borrowing” means a borrowing of Loans. 

“Borrowing Request” means a request for a Borrowing in substantially the form of 

Exhibit E or any other form approved by the Administrative Agent. 

“Business Day” means any day on which Treasury and the Federal Reserve Bank of New 

York are both open for business that is not a Saturday, Sunday or other day that is a legal holiday under 

the laws of the State of New York or is a day on which banking institutions in such state are authorized or 

required by Law to close; provided that, when used in connection with a Loan, the term “Business Day” 

means any such day that is also a day on which dealings in Dollar deposits are conducted by and between 

banks in the London interbank market. 

“Capital Markets Offering” means any offering of “securities” (as defined under the 

Securities Act and, including, for the avoidance of doubt, any offering of pass-through certificates by any 

pass-through trust established by the Parent or any of its Subsidiaries) 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). 

“Capitalized Lease Obligations” means, at the time any determination thereof is to be 

made, the amount of the liability in respect of a Capitalized Lease that would at such time be required to 

be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) prepared in 

accordance with GAAP; provided that all leases of such Person that are or would have been treated as 

operating leases for purposes of GAAP prior to the issuance of the ASU shall continue to be accounted 

for as operating leases for purposes of all financial definitions and calculations for purposes of this 

Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding 

the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive 

basis or otherwise) to be treated as capitalized lease obligations for other purposes. 

“Capitalized Leases” means all leases that have been or should be, in accordance with 

GAAP as in effect on the Closing Date, recorded as capitalized leases; provided that for all purposes 

hereunder the amount of obligations under any Capitalized Lease shall be the amount thereof accounted 

for as a liability in accordance with GAAP; provided, further, that all leases of such Person that are or 

would have been treated as operating leases for purposes of GAAP prior to the issuance of the ASU shall 

continue to be accounted for as operating leases for purposes of all financial definitions and calculations 

for purposes of this Agreement (whether or not such operating lease obligations were in effect on such 

date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a 

prospective or retroactive basis or otherwise) to be treated as capitalized lease obligations for other 

purposes. 

“CARES Act” has the meaning specified in the preamble to this Agreement. 
9 

“Carrier Loyalty Programs” means the Loyalty Programs listed on Schedule 1.01(a) and 

any other Loyalty Program that is operated under a Trademark owned by any Credit Party, or that is 

otherwise operated, owned or controlled, directly or indirectly by, or principally associated with, any 

Credit Party or any of its Affiliates, as such program may be in effect from time to time, in each case 

whether now existing or established, arising or acquired in the future and including any successor 

program of such program. The term “Carrier Loyalty Program” shall include the provision, operation and 

promotion of such program. 

“Cash Equivalents” means: 

(a) direct obligations of, or obligations the principal of and interest on which are 

unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such 

obligations are backed by the full faith and credit of the United States of America), in each case maturing 

within one year from the date of acquisition thereof; 

(b) investments in commercial paper maturing within one year from the date of 

acquisition thereof and having, at such date of acquisition, a rating of at least A-2 from S&P or at least P2 from Moody’s; 

(c) investments in certificates of deposit, banker’s acceptances and time 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 commercial bank 

organized under the laws of the United States of America or any State thereof that has a combined capital 

and surplus and undivided profits of not less than $250,000,000; 

(d) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 

under the Investment Company Act of 1940, (ii) are rated AAA and Aaa (or equivalent rating) by at least 

two Credit Rating Agencies and (iii) have portfolio assets of at least $5,000,000,000; 

(e) deposits available for withdrawal on demand with commercial banks organized 

in the United States having capital and surplus in excess of $100,000,000; and 

(f) other short-term liquid investments held by the Parent and the Subsidiaries as of 

the Closing Date in accordance with their normal investment policies and practices for cash management. 

“CCR Certificate” has the meaning specified in Section 6.17(b).

“CCR Certificate Delivery Date” has the meaning specified in Section 6.17(b). 

“CCR Reference Date” has the meaning specified in Section 6.17(b). 

“CFC” means a controlled foreign corporation within the meaning of Section 957 of the 

Code. 

“CFC Holdco” means any Domestic Subsidiary that has no material assets other than 

Equity Interests of one or more Foreign Subsidiaries that are CFCs. 

“Change in Law” means the occurrence, after the date of this Agreement, of any of the 

following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any 

law, rule, regulation or treaty or in the administration, interpretation, implementation or application 

thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or 
10 

directive (whether or not having the force of law) by any Governmental Authority; provided that 

notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer 

Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection 

therewith and (y) all requests, rules, guidelines or directives 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, shall in each case be 

deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. 

“Change of Control” means the occurrence of any of the following: (a) 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, or if the Borrower is a direct or indirect Subsidiary of the Parent, the Parent 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)); (b) 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 or the Parent, as applicable, (measured by voting power rather than number of shares), other 

than (i) any such transaction where the Voting Stock of the Borrower or the Parent, as applicable, 

(measured by voting power rather than number of shares) outstanding immediately prior to such 

transaction constitutes or is converted into or exchanged for at least a majority of the outstanding shares 

of the Voting Stock of such Beneficial Owner (measured by voting power rather than number of shares), 

or (ii) the consummation of any merger or consolidation of the Borrower or the Parent, as applicable, 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); (c) if 

the Borrower is a direct or indirect Subsidiary of the Parent, the Parent ceasing to own, directly or 

indirectly, 100% of the Equity Interests of the Borrower; (d) the adoption of a plan relating to the 

liquidation or dissolution of the Borrower or the Parent or (e) the occurrence of a “change of control”, 

“change in control” or similar event under any Material Indebtedness of the Borrower, the Parent or any 

parent entity of the foregoing.

“Closing Date” means the first date all the conditions precedent in Section 4.01 are 

satisfied. 

“Code” means the Internal Revenue Code of 1986, as amended from time to time. 

“Collateral” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Collateral Account” means any of the Collection Account, the Blocked Account, the 

Payment Account and the Collateral Proceeds Account. 

“Collateral Agent” means The Bank of New York Mellon, in its capacity as collateral 

agent under any of the Loan Documents, or any successor collateral agent. 

“Collateral Cash Flow” means the funds that are deposited into a Collateral Account 

pursuant to the Direct Agreements or directly by a Credit Party. 
11 

“Collateral Coverage Ratio” means, as of any date of determination, the ratio of (i) the 

Appraised Value of the Eligible Collateral as of the date of the Appraisal most recently delivered pursuant 

to Section 5.16 (or in the case of cash and Cash Equivalents, as of such date of determination) to (ii) the 

aggregate principal amount of all Loans and Commitments outstanding as of such date; provided that for 

the purposes of calculating clause (i) above, (x) no more than 25% of the Appraised Value of the Eligible 

Collateral may correspond to ground support equipment and (y) any amounts held in the Blocked 

Account, Payment Account and Collateral Proceeds Account shall not be included; provided further that 

for the purposes of calculating clause (i) above, Loyalty Program Assets (other than any Loyalty 

Subscription Program) shall not be included unless (x) each Material Loyalty Program Agreement has and 

(y) Loyalty Program Agreements representing 90% of Loyalty Program Revenues (excluding revenues 

generated under any Loyalty Subscription Program) in the aggregate over the immediately preceding 

twelve (12) calendar month period then ended have, in each case, an expiration date that is at least six (6) 

months after the Maturity Date. 

“Collateral Proceeds Account” means a deposit account in the name of the Borrower that 

is subject to an agreement in form and substance satisfactory to the Appropriate Party establishing 

Control (as defined in the Pledge and Security Agreement) of such account by the Collateral Agent. 

“Collection Account” means that certain concentration account at Citibank, N.A. in the 

name of a Credit Party, and any replacement account, which, in each case, must be a segregated deposit 

account and subject at all times to an account control agreement in form and substance satisfactory to the 

Appropriate Party. 

“Commitment” means the commitment of the Initial Lender to make Loans in the amount 

of $420,000,000, as such commitment may be reduced or terminated pursuant to Section 2.07. 

“Communications” has the meaning specified in Section 11.01(d)(ii). 

“Competitor” means (i) any Person operating an Air Carrier or a commercial passenger 

air carrier business and (ii) any Affiliate of any Person described in clause (i) (other than any Affiliate of 

such Person as a result of common control by a Governmental Authority or instrumentality thereof and 

any Affiliate of such Person under common control with such Person which Affiliate is not actively 

involved in the management and/or operations of such Person). 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or 

measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. 

“Contingent Payment Event” means any indemnity, termination payment or liquidated 

damages under a Loyalty Program Agreement. 

“Contractual Obligation” means, as to any Person, any provision of any security issued 

by such Person or of any agreement, instrument or other undertaking to which such Person is a party or 

by which it or any of its property is bound. 

“Control” means the possession, directly or indirectly, of the power to direct or cause the 

direction of the management or policies of a Person, whether through the ability to exercise voting power, 

by contract or otherwise. “Controlling” and “Controlled” have meanings analogous thereto. 

“Convertible Indebtedness” means Indebtedness of the Parent that is convertible into 

common Equity Interests of the Parent (and cash in lieu of fractional shares) and/or cash (in an amount 

determined by reference to the price of such common Equity Interests). 
12 

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either 

a tenor (including overnight) or an interest payment period having approximately the same length 

(disregarding business day adjustment) as such Available Tenor.

“Credit Parties” means the Borrower and the Guarantors. 

“Credit Rating” means a rating as determined by a Credit Rating Agency of the Parent’s 

non-credit-enhanced, senior unsecured long-term indebtedness. 

“Credit Rating Agency” means a nationally recognized credit rating agency that evaluates 

the financial condition of issuers of debt instruments and then assigns a rating that reflects its assessment 

of the issuer’s ability to make debt payments. 

“Currency” means miles, points or other units that are a medium of exchange constituting 

a convertible, virtual and private currency that is tradable property and that can be sold or issued to 

Persons. 

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate 

(which will include a lookback) being established by the Required Lenders in accordance with the 

conventions for this rate selected or recommended by the Relevant Governmental Body for determining 

“Daily Simple SOFR” for business loans; provided, that if the Administrative Agent decides that any such 

convention is not administratively feasible for the Administrative Agent, then the Required Lenders may 

establish another convention in its reasonable discretion, subject to the determination by the 

Administrative Agent of the administrative feasibility of such convention. 

“Debt Service Amount” means, as of any DSCR Determination Date or any other date of 

determination, the sum of all accrued interest on the Loans and any other Indebtedness secured by Liens 

on the Collateral in respect of the most recently ended DSCR Test Period. 

“Debt Service Coverage Ratio” means, as of any DSCR Determination Date or any other 

date of determination, the ratio of (a) the aggregate amount of Collateral Cash Flow received during the 

relevant DSCR Test Period that has been deposited into a Collateral Account (and for the avoidance of 

doubt, excluding any amounts on deposit in a Collateral Account in respect of prior periods) to (b) the 

Debt Service Amount for such DSCR Test Period; provided, however, that for (i) the first calendar 

quarter ending after the Closing Date, such ratio shall be calculated for the one calendar quarter ending on 

such date, (ii) the second calendar quarter ending after the Closing Date, such ratio shall be calculated for 

the two calendar quarters ending on such date and (iii) the third calendar quarter ending after the Closing 

Date, such ratio shall be calculated for the three calendar quarters ending on such date. 

“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and 

all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, 

rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States 

or other applicable jurisdictions from time to time in effect. 

“Default” means any event or condition that constitutes an Event of Default or that, with 

the giving of any notice, the passage of time, or both, would be an Event of Default. 

“Default Rate” means an interest rate (before as well as after judgment) equal to the 

applicable interest rate plus 2.00% per annum. 
13 

“Direct Agreements” means those certain Loyalty Partner Direct Agreements entered into 

by and among the applicable Credit Party, the Collateral Agent, the Initial Lender and the applicable 

counterparty to the Material Loyalty Program Agreements, substantially in the form of Exhibit D hereto. 

“Disposition” or “Dispose” means the sale, transfer (including through a plan of 

division), license, lease or other disposition of any property by any Person (including (i) any sale and 

leaseback transaction, any issuance of Equity Interests by a Subsidiary of such Person, (ii) with respect to 

Intellectual Property, any covenant not to sue, release, abandonment, lapse, forfeiture, dedication to the 

public or other similar disposition of Intellectual Property and (iii) with respect to any Personal Data, any 

deletion, de-identification, purging or other similar disposition of Personal Data), including any sale, 

assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or 

any rights and claims associated therewith. 

“Disqualified Equity Interest” means any Equity Interest that, by its terms (or the terms 

of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or 

upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely 

for Equity Interests that are not Disqualified Equity Interests), pursuant to a sinking fund obligation or 

otherwise (except as a result of a change of control or asset sale so long as any rights of the holders 

thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior 

repayment in full of the Loans and all other Obligations that are accrued and payable and the termination 

of the Commitments), (b) is redeemable at the option of the holder thereof, in whole or in part, 

(c) provides for scheduled payments of dividends in cash, or (d) is or becomes convertible into or 

exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity 

Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity Date; provided that 

if such Equity Interests are issued pursuant to a plan for the benefit of employees of the Parent or any 

Subsidiary or by any such plan to such employees, such Equity Interests shall not constitute Disqualified 

Equity Interests solely because they may be required to be repurchased by the Parent or its Subsidiaries in 

order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s 

termination, death or disability. 

“Dollar” and “$” mean lawful money of the United States. 

“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the 

United States of America, any state thereof, or the District of Columbia. 

“DOT” means the U.S. Department of Transportation. 

“DSCR Determination Date” means the fifth Business Day following the last day of each 

March, June, September and December (beginning with December 2020). 

“DSCR Test Period” means, at any DSCR Determination Date or other date of 

determination, the period of twelve (12) calendar months ending on the last day of the calendar month 

ending immediately prior to such date. 

“DSCR Trigger Event” has the meaning specified in Section 6.17(c)(ii) 

“Early Opt-in Election” means, if the then-current Benchmark is USD LIBO Rate, the 

occurrence of: 

(1) (x) so long as the Initial Lender is a Lender, the Initial Lender and (y) otherwise, the 

Required Lenders, in each case notifying to the Administrative Agent that the Initial 
14 

Lender or the Required Lenders have determined that at least five currently outstanding 

U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of 

amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR 

or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit 

facilities are identified in such notice and are publicly available for review), and 

(2) (x) so long as the Initial Lender is a Lender, the election by the Initial Lender and (y) 

otherwise, the joint election by the Required Lenders and the Borrower to trigger a fallback 

from USD LIBO Rate and, in each case, the provision to the Administrative Agent and the 

other Lenders of written notice of such election. 

“EEA Financial Institution” means (a) any credit institution or investment firm 

established in any EEA Member Country that is subject to the supervision of an EEA Resolution 

Authority, (b) any entity established in an EEA Member Country that is a parent of an institution 

described in clause (a) of this definition, or (c) any financial institution established in an EEA Member 

Country that is a subsidiary of an institution described in clauses (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. 

“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 Appraiser” means (a) with respect to aircraft or engines: Morten Beyer & 

Agnew, International Bureau of Aviation, Ascend Worldwide Group, ICF International Inc., BK 

Associates, Inc., Aircraft Information Services Inc., AVITAS, Inc., PAC Appraisal Inc., Aviation 

Specialists Group, Aviation Asset Management Inc. or IBA Group Ltd., (b) with respect to slots, gates or 

routes: Morten Beyer & Agnew, ICF International Inc., PAC Appraisal Inc. or BK Associates, Inc., (c) 

with respect to parts, Morten Beyer & Agnew, ICF International Inc., Sage-Popovich, Inc., PAC 

Appraisal Inc., Aviation Asset Management Inc. or Alton Aviation Consultancy LLC, (d) with respect to 

any other type of property, Deloitte & Touche LLP, Andersen Tax LLC, BBC Aviation Enterprises 

Aviation Advisors Group, LLC, PricewaterhouseCoopers, CBRE Group Inc. and Jones Lang LaSalle 

Incorporated, and (e) any independent appraisal firm appointed by the Borrower and acceptable to the 

Appropriate Party. 

“Eligible Assignee” means any Person that meets the requirements to be an assignee 

under Section 11.04(b)(iii), 11.04(b)(v) and 11.04(b)(vi) (subject to such consents, if any, as may be 

required under Section 11.04(b)(iii)); provided that no Competitor shall be an Eligible Assignee. 

“Eligible Collateral” means, as of any date, all Collateral on which the Collateral Agent 

has, as of such date, to the extent purported to be created by the applicable Security Document, a valid 

and perfected first priority Lien and/or mortgage (or comparable Lien) for the benefit of the Secured 

Parties and which is otherwise subject only to Permitted Liens and satisfies the requirements set out in the 

Loan Documents for such type of Collateral. 

“Environmental Laws” means any and all federal, state, local, and foreign statutes, Laws, 

regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, 

licenses, agreements or governmental restrictions, including all common law, relating to pollution or the 

protection of health, safety or the environment or the release of any materials into the environment, 
15 

including those related to Hazardous Materials, air emissions, discharges to waste or public systems and 

health and safety matters. 

“Environmental Liability” means any liability or obligation, contingent or otherwise 

(including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), 

directly or indirectly, resulting from or based upon (a) violation of any Environmental Law, (b) the 

generation, use, handling, transportation, storage, treatment, disposal or permitting or arranging for the 

disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or 

threatened release of any Hazardous Materials or (e) any contract, agreement or other consensual 

arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. 

“Equity Interests” means, as to any Person, all of the shares of capital stock of (or other 

ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase 

or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) 

such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other 

ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition 

from such Person of such shares (or such other interests), and all of the other ownership or profit interests 

in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, 

and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of 

determination (other than Convertible Indebtedness or any other debt security that is convertible into or 

exchangeable for Equity Interests of such Person and the Warrants). 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, 

and the rules and regulations promulgated thereunder. 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under 

common control with any Credit Party within the meaning of Section 414(b) or (c) of the Code (and 

Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code or 

Section 302 of ERISA). 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the 

failure by any Credit Party or any ERISA Affiliate to meet all applicable requirements under the Pension 

Funding Rules or the filing of an application for the waiver of the minimum funding standards under the 

Pension Funding Rules; (c) the incurrence by any Credit Party or any ERISA Affiliate of any liability 

pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan 

within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by any Credit 

Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in 

reorganization or insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent 

to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, 

Section 4041 of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; 

(g) any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, 

or the appointment of a trustee to administer, any Pension Plan; (h) the determination that any Pension 

Plan is in at-risk status (within the meaning of Section 430 of the Code or Section 303 of ERISA) or that a 

Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the Code or 

Section 305 of ERISA); (i) the imposition or incurrence of any liability under Title IV of ERISA, other 

than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or 

any ERISA Affiliate; (j) the engagement by any Credit Party or any ERISA Affiliate in a transaction that 

could be subject to Section 4069 or Section 4212(c) of ERISA; (k) the imposition of a lien upon any 

Credit Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA; or (l) the making of an 

amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) 

of the Code. 
16 

“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. 

“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the 

reserve percentage in effect on such day, whether or not applicable to any Lender, under regulations 

issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement 

(including any emergency, special, supplemental or other marginal reserve requirement) with respect to 

eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D). The Adjusted 

LIBO Rate for each outstanding Loan shall be adjusted automatically as of the effective date of any 

change in the Eurodollar Reserve Percentage. 

“Event of Default” has the meaning specified in Article VII. 

“Excluded Assets” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Excluded Subsidiary” means any Subsidiary of the Parent (other than the Borrower) that 

(i) is not wholly-owned, directly or indirectly, by the Parent, (ii) is a captive insurance company, (iii) is an 

Immaterial Subsidiary, (iv) is a Receivables Subsidiary or (v) is a Foreign Subsidiary or a CFC Holdco 

existing on the Closing Date; provided that, notwithstanding the foregoing, a Subsidiary will not be an 

Excluded Subsidiary if it (x) owns assets of the type that would be included in the Collateral, (y) owns 

individually, or in the aggregate with other Subsidiaries (including any Subsidiary that would otherwise 

qualify as an Excluded Subsidiary), a majority of the Equity Interests of any Subsidiary that owns any 

assets of the type that would be included in the Collateral or is party to any agreements that constitute (or 

would constitute) Collateral or (z) guarantees Material Indebtedness of the Parent or any of its 

Subsidiaries (other than any acquired Subsidiary that guarantees assumed Indebtedness of a Person 

acquired pursuant to an acquisition permitted under this Agreement that is existing at the time of such 

acquisition or investment; provided that such Indebtedness was not created in contemplation of or in 

connection with such acquisition and the amount of such Indebtedness is not increased). 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a 

Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or 

measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, 

(i) imposed as a result of such Recipient being organized under the laws of, or having its principal office 

or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax 

(or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, 

U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with 

respect to an applicable interest in a Loan pursuant to a law in effect on the date on which (i) such Lender 

acquires such interest in the Loans (other than pursuant to an assignment request by the Borrower under 

Section 2.19(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, 

pursuant to Section 2.16, amounts with respect to such Taxes were payable either to such Lender’s 

assignor immediately before such Lender became a party hereto or to such Lender immediately before it 

changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with 

Section 2.16(g) and (d) any withholding Taxes imposed under FATCA. 

“Export Control Laws” means any applicable export control Laws including the 

International Traffic in Arms Regulations (22 C.F.R. 120 et seq.) and the Export Administration 

Regulations (15 C.F.R. 730 et seq.). 

“FAA” means the United States Federal Aviation Administration and any successor 

thereto. 
17 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this 

Agreement (or any amended or successor version that is substantively comparable and not materially 

more onerous to comply with), any current or future regulations or official interpretations thereof, any 

agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory 

legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention 

among Governmental Authorities and implementing such Sections of the Code. 

“FCPA” has the meaning specified in Section 3.15(b). 

“Federal Funds Effective Rate” means, for any day, the greater of (a) the rate calculated 

by the Federal Reserve Bank of New York based on such day’s Federal funds transactions by depositary 

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 and (b) 0%. 

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System 

of the United States. 

“Finance Entity” means any Person created or formed by or at the direction of the Parent 

or any of its Subsidiaries for the purpose of financing aircraft and aircraft related assets and related predelivery payment obligations of Parent or such Subsidiaries that; provided, that, such (i) Person holds no 

material assets other than the aircraft or aircraft related assets to be financed or assets pursuant to which 

related pre-delivery payment obligations arise, (ii) financing is in the ordinary course of business of the 

Parent and its Subsidiaries or otherwise customary for airlines based in the United States and (iii) Person 

holds no assets constituting, or otherwise intended to be included in, Collateral. 

“Financial Officer” means, as to any Person, the chief financial officer, principal 

accounting officer, treasurer or controller of such Person. 

“Fitch” means Fitch Ratings and any successor to its rating agency business. 

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as 

of the execution of this Agreement, the modification, amendment or renewal of this Agreement or 

otherwise) with respect to USD LIBO Rate. As of the Closing Date, the Floor shall be 0%. 

“Foreign Lender” means any Lender that is not a U.S. Person. 

“Foreign Plan” means any employee pension benefit plan, program, policy, arrangement 

or agreement maintained or contributed to by the Parent or any Subsidiary with respect to employees 

employed outside the United States (other than any governmental arrangement). 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary. 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in 

making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of 

credit in the ordinary course of its activities. 

“GAAP” means, subject to Section 1.03, United States generally accepted accounting 

principles as in effect from time to time; provided that if at any time any change in GAAP would affect 

the computation of any financial ratio or financial requirement, or compliance with any covenant, set 

forth in any Loan Document, the Required Lenders and the Borrower will negotiate in good faith to 
18 

amend such ratio, requirement or covenant to preserve the original intent thereof in light of such change 

in GAAP (subject to the approval of the Required Lenders); provided that until so amended, (a) such 

ratio, requirement or covenant will continue to be computed in accordance with GAAP prior to such 

change therein and (b) the Borrower will provide to the Administrative Agent and the Lenders 

reconciliation statements to the extent requested. 

“Gate Leasehold” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Governmental Authority” means the government of the United States of America or any 

other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, 

instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, 

judicial, taxing, regulatory or administrative powers or functions of or pertaining to government 

(including any supra-national bodies such as the European Union or the European Central Bank). 

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such 

Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation 

payable or performable by another Person (the “primary obligor”) in any manner, whether directly or 

indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or 

advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to 

purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such 

Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, 

(iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or 

level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such 

Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the 

obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to 

protect such obligee against loss in respect thereof (in whole or in part) or (b) any Lien on any assets of 

such Person securing any Indebtedness or other obligation of any other Person, whether or not such 

Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any 

holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not 

include endorsements for collection or deposit in the ordinary course of business. The amount of any 

Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related 

primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or 

determinable, the maximum reasonably anticipated liability in respect thereof as determined by the 

guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning. 

“Guaranteed Obligations” has the meaning specified in Section 9.01. 

“Guarantor” means the Parent and each other Guarantor listed on the signature page to 

this Agreement and any other Person that Guarantees the Obligations under this Agreement and any other 

Loan Document. 

“Hazardous Materials” means 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 other substances or wastes of any nature regulated under or with respect to which liability or 

standards of conduct are imposed pursuant to any Environmental Law. 

“Immaterial Subsidiaries” means one or more Subsidiaries, for which (a) the assets of all 

such Subsidiaries constitute, in the aggregate, no more than 7.50% of the total assets of the Parent and its 

Subsidiaries on a consolidated basis (determined as of the last day of the most recent fiscal quarter of 
19 

Parent for which financial statements are available), and (b) the revenues of all such Subsidiaries account 

for, in the aggregate, no more than 7.50% of the total revenues of the Parent and its Subsidiaries on a 

consolidated basis for the four (4) fiscal quarter period ending on the last day of the most recent fiscal 

quarter of Parent for which financial statements are available; provided that (x) a Subsidiary will not be 

an Immaterial Subsidiary if it (i) directly or indirectly guarantees, or pledges any property or assets to 

secure, any Obligations, (ii) owns any assets of the type that are intended to be included in the Collateral 

or is party to any agreements that constitute (or would constitute) Collateral or (iii) owns a majority of the 

Equity Interests of any Subsidiary that owns any assets of the type that are intended to be included in the 

Collateral or is party to any agreements that constitute (or would constitute) Collateral and (y) the 

Borrower shall not be an Immaterial Subsidiary. 

“Indebtedness” means, as to any Person at a particular time, without duplication, all of 

the following, whether or not included as indebtedness or liabilities in accordance with GAAP: 

(a) all obligations of such Person for borrowed money and all obligations of such 

Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; 

(b) all direct or contingent obligations of such Person arising under (i) letters of 

credit (including standby and commercial), bankers’ acceptances and bank guaranties and (ii) surety 

bonds, performance bonds and similar instruments issued or created by or for the account of such Person; 

(c) net obligations of such Person under any Swap Contract; 

(d) all obligations of such Person to pay the deferred purchase price of property or 

services (other than trade accounts payable in the ordinary course of business); 

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property 

owned or being purchased by such Person (including indebtedness arising under conditional sales or other 

title retention agreements), whether or not such indebtedness shall have been assumed by such Person or 

is limited in recourse; 

(f) all Attributable Indebtedness; 

(g) all obligations of such Person in respect of Disqualified Equity Interests; and 

(h) all Guarantees of such Person in respect of any of the foregoing. 

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership 

or joint venture (other than a joint venture that is itself a corporation or limited liability company) in 

which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made 

non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date 

shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any 

Indebtedness of any Person for purposes of clause (e) that is expressly made non-recourse or limitedrecourse (limited solely to the assets securing such Indebtedness) to such Person shall be deemed to be 

equal to the lesser of (i) the aggregate principal amount of such Indebtedness and (ii) the fair market value 

of the property encumbered thereby as determined by such Person in good faith. 

“Indemnified Taxes” means (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 (a), Other Taxes. 
20 

“Indemnitee” has the meaning specified in Section 11.03(b). 

“Information” has the meaning specified in Section 11.12. 

“Initial Lender” means Treasury or its designees (but, for the avoidance of doubt, 

excluding any assignee of the Loans). 

“Intellectual Property” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Interest Payment Date” means the first Business Day following the 14th day of each 

March, June, September and December (beginning with September 15, 2021), and the Maturity Date. 

“Interest Period” means, as to any Borrowing, (a) for the initial Interest Period, the period 

commencing on the date of such Borrowing and ending on the next succeeding Interest Payment Date and 

(b) for each Interest Period thereafter, the period commencing on the last day of the next preceding 

Interest Period and ending on the next succeeding Interest Payment Date. 

“International Registry” has the meaning assigned to such term in the Pledge and 

Security Agreement. 

“Interpolated Rate” means, at any time, the rate per annum determined by the 

Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be 

equal to the rate that results from interpolating on a linear basis between: (a) the rate as displayed on the 

Bloomberg “LIBOR01” screen page (or any successor or replacement screen on such service; in each 

case the “Screen Rate”) for the longest period (for which that Screen Rate is available) that is shorter than 

three (3) months and (b) the Screen Rate for the shortest period (for which that Screen Rate is available) 

that is equal to or exceeds three (3) months, in each case, at approximately 11:00 a.m., London time, two 

(2) Business Days prior to the commencement of such Interest Period. 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by 

such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other 

securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of 

debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another 

Person, including any partnership or joint venture interest in such other Person and any arrangement 

pursuant to which the investor incurs Indebtedness of the type referred to in clause (h) of the definition of 

“Indebtedness” in respect of such other Person, or (c) the purchase or other acquisition (in one transaction 

or a series of transactions) of all or substantially all of the property and assets or business of another 

Person or assets constituting a business unit, line of business or division of such Person. For purposes of 

covenant compliance, the amount of any Investment shall be the amount actually invested, without 

adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any 

returns or distributions of capital or repayment of principal actually received in case by such Person with 

respect thereto. 

“IP Licenses” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“IRS” means the United States Internal Revenue Service. 

“ISDA Definitions” means the 2006 ISDA Definitions published by the International 

Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time 
21 

to time, or any successor definitional booklet for interest rate derivatives published from time to time by 

the International Swaps and Derivatives Association, Inc. or such successor thereto. 

“IT Systems” has the meaning specified in Section 3.27. 

“Laws” means, collectively, all international, foreign, federal, state and local statutes, 

treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or 

authorities, including the interpretation or administration thereof by any Governmental Authority charged 

with the enforcement, interpretation or administration thereof, and all applicable administrative orders, 

directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental 

Authority, in each case whether or not having the force of law.

“Lenders” means the Initial Lender and any other Person that shall have become party 

hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party 

hereto pursuant to an Assignment and Assumption. 

“LIBO Rate” means, the greater of (a) the rate appearing on the Bloomberg “LIBOR01” 

screen page (or any successor or replacement screen on such service) at approximately 11:00 a.m., 

London time, two (2) Business Days prior to the commencement of such Interest Period, as the rate for 

dollar deposits with a maturity of three (3) months; provided that (i) if such rate is not available at such 

time for any reason, then the “LIBO Rate” shall be the Interpolated Rate, and (ii) if the Interpolated Rate 

is not available (except as set forth in Section 2.10), the “LIBO Rate” shall be the LIBO Rate for the 

immediately preceding Interest Period, two (2) Business Days prior to the commencement of such Interest 

Period and (b) 0%. 

“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit 

arrangement, encumbrance, lien (statutory or other), charge, any option or other agreement to sell or give 

a security interest in an asset, or preference, priority, or other security interest or preferential arrangement 

of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any 

easement, right of way or other encumbrance on title to real property, and any financing lease having 

substantially the same economic effect as any of the foregoing). 

“Liquidity” means the sum of (i) all unrestricted cash and Cash Equivalents of Parent and 

its Subsidiaries, (ii) cash or Cash Equivalents of the Parent and its Subsidiaries restricted in favor of the 

Obligations or in connection with the Payroll Support Program Agreement (other than any amounts held 

in the Blocked Account, Payment Account and Collateral Proceeds Account), (iii) the aggregate principal 

amount committed and available to be drawn by the Parent and its Subsidiaries (taking into account all 

borrowing base limitations or other restrictions) under all revolving credit facilities of the Parent and its 

Subsidiaries, (iv) any remaining aggregate principal amount committed and available to be drawn (taking 

into account any applicable restrictions) by the Parent and its Subsidiaries in respect of the Loans and (v) 

the scheduled net proceeds (after giving effect to any expected repayment of existing Indebtedness using 

such proceeds) of any Capital Markets Offering of the Parent or any of its 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 a loan made by a Lender to the Borrower pursuant to this Agreement. 

“Loan Application Form” means the application form and any related materials submitted 

by the Borrower to the Initial Lender in connection with an application for the Loans under Division A, 

Title IV, Subtitle A of the CARES Act. 
22 

“Loan Documents” means, collectively, this Agreement, any Security Document, any 

promissory notes issued pursuant to Section 2.11(b) and any other documents entered into in connection 

herewith (including an Administrative Agency Fee Letter, if any). 

“Loyalty Program” means (a) any frequent flyer program, co-branded card program or 

any other program (whether now existing or established, arising or acquired in the future) that grants 

members in such program or co-branded cardholders Currency based on such member’s or co-branded 

cardholder’s purchasing or other behavior and that entitles a member or co-branded cardholder to accrue, 

redeem or otherwise exploit such Currency for a benefit or reward, including flights, priority access, 

lounge or “club” access, discounts, upgrades (including in seat or class) or other goods or services or (b) 

any Loyalty Subscription Program. 

“Loyalty Program Agreement” means each contract, agreement, transaction or other 

undertaking described on Schedule 1.01(b) and any other current or future contract, agreement, 

transaction or other undertaking between any Credit Party (or any of its Affiliates, as applicable) and a 

Loyalty Program Participant entered into connection with any Carrier Loyalty Program, including any 

card marketing agreement with respect to credit cards co-branded by a Credit Party and a Loyalty 

Program Participant and any card network agreement, and any amendment, supplement or modification 

thereto, but excluding all reciprocal passenger Currency accrual and redemption agreements with other 

Air Carriers. 

“Loyalty Program Assets” has the meaning assigned to such term in the Pledge and 

Security Agreement. 

“Loyalty Program Data” means all data (whether or not constituting Personal Data) 

Processed in connection with, or generated or produced in the course of the operation of, any Carrier 

Loyalty Program, but, with respect to Personal Data, solely to the extent Processed, generated or 

produced regarding Loyalty Program Members as Loyalty Program Members, including all such data 

consisting of (a) a list of all Loyalty Program Members and (b)data concerning each Loyalty Program 

Member as a member of any of the Carrier Loyalty Programs, including such Loyalty Program Member’s 

(i) name, mailing address, email address, date of birth, gender and phone number and other identifiers, (ii) 

communication and promotion opt-ins and opt-outs, (iii) financial information and transaction histories, 

(iv) total miles and awards, (v) third-party engagement history and customer experience, (vi) accrual and 

redemption activity, (vii) member tier and status designations and member tier and status activity and 

qualifications, (viii) internet or network activity (including information regarding interaction with a 

website), (ix) profile preferences, (x) login information, (xi) Loyalty Program Member spend activity, 

(xii) geolocation data and (xiii) any inferences drawn or enrichments created from any of the foregoing. 

Loyalty Program Data also includes any Proceeds relating to any of the foregoing (other than any such 

Proceeds to the extent arising from a Credit Party’s non-Loyalty Program operations). For the avoidance 

of doubt, the definition of “Loyalty Program Data” does not impose an obligation on any Credit Party to 

collect any data inconsistent with its past or current practices. 

“Loyalty Program Intellectual Property” has the meaning assigned to such term in the 

Pledge and Security Agreement. 

“Loyalty Program Member” means, as of any date, any individual who is an applicant or 

member of any Carrier Loyalty Program (or a legal guardian of such applicant or member). 

“Loyalty Program Participant” means (a) a financial institution or other Person that is a 

party to any card agreement with a Credit Party or (b) any other Person (i) to which a Credit Party or any 

of its Affiliates sells, leases or otherwise transfers Currency in connection with any Carrier Loyalty 
23 

Program, including partner airline, co-branded card, hotel and car rental partners, (ii) that provides goods, 

services or other consideration to Loyalty Program Members in exchange for, or redemption of, Currency 

or (iii) that, in connection with the provision of goods, services or other consideration by such Person to 

Loyalty Program Members or the use of the services of such Person by Loyalty Program Members, such 

Person offers Currency to such Loyalty Program Members or provides any Credit Party (or any Affiliate 

thereof) with sufficient information so that such Credit Party (or any Affiliate thereof) may post Currency 

to such Loyalty Program Members’ accounts. 

“Loyalty Program Revenue” means all payments received by, or otherwise required to be 

paid to, the Credit Parties (and their Affiliates), and all other amounts the Credit Parties are entitled to, 

under the Loyalty Program Agreements and any Loyalty Subscription Program. 

“Loyalty Revenue Advance Transaction” means (i) any Pre-paid Currency Purchase or 

(ii) any other transaction between any Credit Party and a counterparty to a Loyalty Program Agreement 

providing for the advance of cash that is expected to be paid from or set off against future payments 

otherwise required to be made by the counterparty to such Credit Party. 

“Loyalty Subscription Program” means any program (whether now existing or 

established, arising or acquired in the future) that grants members in such program access to discounted 

goods or services in exchange for a periodic cash payment. The Loyalty Subscription Programs in 

existence as of the Closing Date are listed on Schedule 1.01(c) of this Agreement. 

“Margin Stock” means margin stock within the meaning of Regulations T, U and X. 

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse 

effect on, the operations, business, properties, liabilities (actual or contingent), condition (financial or 

otherwise) or prospects of the Parent and its Subsidiaries taken as a whole; or (b) a material adverse effect 

on (i) the ability of the Borrower or any Credit Party to perform its Obligations, (ii) the legality, validity, 

binding effect or enforceability against the Borrower or any Credit Party of any Loan Document to which 

it is a party or the validity, perfection and first priority of the Liens on the Collateral in favor of the 

Collateral Agent taken as a whole or with respect to a substantial portion of the Collateral, (iii) the rights, 

remedies and benefits available to, or conferred upon, the Lenders or the Agents under any Loan 

Documents, (iv) the ability of the Borrower or any Credit Party to perform its obligations under any 

Material Loyalty Program Agreement, (v) the legality, validity, binding effect or enforceability against 

the Borrower or any Credit Party of any Material Loyalty Program Agreement or (vi) the business and 

operations of any Carrier Loyalty Program, in each case, taken as a whole; provided that the impacts of 

the COVID-19 disease outbreak will be disregarded for purposes of clauses (a) and (b)(vi) of this 

definition to the extent (i) publicly disclosed in any SEC filing of the Parent or otherwise provided to the 

Initial Lender prior to the Closing Date and (ii) the scope of such adverse effect is no greater than that 

which has been disclosed as of the Closing Date. 

“Material Indebtedness” means Indebtedness of the Parent or any of its Subsidiaries 

(other than the Loans) outstanding under the same agreement in a principal amount exceeding 

$50,000,000. 

“Material Loyalty Program Agreements” means (a) each Loyalty Program Agreement 

identified as a Material Loyalty Program Agreement as set forth on Schedule 1.01(b), as updated from 

time to time pursuant to the terms of the Pledge and Security Agreement and (b) any other Loyalty 

Program Agreements between a Credit Party and a Loyalty Program Participant such that, at all times, the 

Credit Parties have identified to Lender Loyalty Program Agreements then in full force and effect and 
24 

generating not less than 90% of aggregate Loyalty Program Revenue (excluding revenues generated 

under any Loyalty Subscription Program). 

“Material Modification” means any amendment or waiver of, or modification or 

supplement to, any term or condition of a Loyalty Program Agreement agreed to, executed or effected on 

or after the Closing Date, which: 

(a) extends, waives, delays or contractually or structurally subordinates one or more 

payments due to any Credit Party with respect to such Loyalty Program Agreement; 

(b) reduces the rate or amount of payments due to any Credit Party with respect to 

such Loyalty Program Agreement or reduces the frequency or timing of payments due to any Credit 

Party; 

(c) gives any Person other than Credit Parties party to such Loyalty Program 

Agreement additional or improved termination rights with respect to such Loyalty Program Agreement; 

(d) shortens the term of such Loyalty Program Agreement (other than in connection 

with the replacement of such Loyalty Program Agreement with another Loyalty Program Agreement on 

terms at least as favorable to the Lenders, as determined by the Appropriate Party in its reasonable 

discretion (or in the case of the Initial Lender, its sole discretion)) or expands or improves any 

counterparty’s rights or remedies following a termination; 

(e) limits, or requires or results in the limitation of (x) the right or ability of any 

Credit Party, any of its Affiliates, any of its or their successors or assigns or the Collateral Agent to, or to 

authorized others to, use, exploit, share or transfer the Loyalty Program Intellectual Property or the IP 

Licenses included in the Collateral (other than third-party Intellectual Property that ceases to be required 

or useful for the conduct of any Carrier Loyalty Program as currently conducted and as currently 

contemplated to be conducted) or (y) the right or ability of any Credit Party, any of its Affiliates, any of 

its or their successors or assigns or the Collateral Agent to, or to authorized others to, Process any Loyalty 

Program Data, including such amendment, waiver, modification or supplement that removes or narrows, 

or requires or results in the removal or narrowing of any disclosure to individuals existing as of the date 

hereof regarding the potential future transfer, sharing or disclosure of Loyalty Program Data, in each case 

other than pursuant to a change required under applicable Law; or 

(f) imposes new financial obligations on any Credit Party under such Loyalty 

Program Agreement, 

in each case, to the extent such amendment, waiver, modification or supplement would reasonably be 

expected to (1) be materially adverse to the Lenders or any Secured Party (as defined in the Pledge and 

Security Agreement) or (2) result in a Material Adverse Effect; provided that any amendment to a 

Loyalty Program Agreement that (i) shortens the scheduled maturity or term thereof (other than changes 

that are permitted under (d) above), (ii) amends, modifies or otherwise changes the calculation or rate of 

fees, expenses, guarantee payments or termination payments due and owing thereunder, including 

changes to interchange rates, in each case as defined in the applicable Loyalty Program Agreement and 

any other term related to the calculation of fees related to the purchase of the applicable Currency, and in 

a manner materially reducing the amount owed to the Credit Parties, (iii) changes the contractual 

subordination of payments thereunder in a manner materially adverse to the Lenders, reduces the 

frequency of payments thereunder or permits payments due to the applicable Credit Parties to be 

deposited to an account other than the Collection Account, (iv) changes the amendment standards 

applicable to such Loyalty Program Agreement in a manner that would reasonably be expected to result in 
25 

a Material Adverse Effect, (v) materially impairs the rights of the Collateral Agent or the Initial Lender to 

enforce or consent to amendments to any provisions of a Loyalty Program Agreement in accordance 

therewith, or (vi) constitutes an action set forth in clause (e) shall be deemed to result in a Material 

Adverse Effect and shall be considered a Material Modification. 

“Material Subsidiary” means any Subsidiary that is not an Immaterial Subsidiary. 

“Maturity Date” means June 30, 2024 (except that, if such date is not a Business Day, the 

Maturity Date shall be the preceding Business Day); provided that to the extent either (x) any Material 

Loyalty Program Agreement (other than Material Loyalty Program Agreements that have been replaced 

as permitted under this Agreement) or (y) Loyalty Program Agreements representing 90% of Loyalty 

Program Revenues (excluding revenues generated under any Loyalty Subscription Program) in the 

aggregate over the immediately preceding twelve (12) calendar month period then ended, in each case, 

expires prior to such date, the Maturity Date shall be the date that is six (6) months prior to the earliest 

such expiration date. 

“Maximum Rate” has the meaning specified in Section 11.14. 

“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency 

business. 

“Multiemployer Plan” means any employee benefit plan of the type described in 

Section 4001(a)(3) of ERISA, to which any Credit Party or any ERISA Affiliate makes or is obligated to 

make contributions, during the preceding five (5) plan years has made or been obligated to make 

contributions, or has any liability. 

“Multiple Employer Plan” means a Plan with respect to which any Credit Party or any 

ERISA Affiliate is a contributing sponsor, and that has two (2) or more contributing sponsors at least two 

(2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA. 

“Net Proceeds” means in connection with any Disposition, Recovery Event or Contingent 

Payment Event, the aggregate cash and Cash Equivalents received by the Parent or any of its Subsidiaries 

in respect of a Disposition of Collateral (including, without limitation, any cash or Cash Equivalents 

received in respect of or upon the Disposition of any non-cash consideration received in any such 

Disposition of Collateral) or Recovery Event or Contingent Payment Event, net of the direct costs and 

expenses relating to such Disposition and incurred by the Parent or a Subsidiary (including the sale or 

disposition of such non-cash consideration) or any such Recovery Event or Contingent Payment Event, 

including, without limitation, legal, accounting and investment banking fees, and sales commissions, and 

any relocation expenses incurred as a result of the Disposition, Recovery Event or Contingent Payment 

Event, taxes paid or reasonably estimated to be payable as a result of the Disposition, Recovery Event or 

Contingent Payment Event, in each case, after taking into account any available tax credits or deductions 

and any tax sharing arrangements. 

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver 

or amendment that (a) requires the approval of all or all affected Lenders in accordance with the terms of 

Section 11.02 and (b) has been approved by the Required Lenders. 

“Note” means the promissory note executed by the Borrower pursuant to Section 2.11(b). 

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and 

duties of, each Credit Party arising under any Loan Document or otherwise with respect to any Loan, 
26 

whether direct or indirect (including those acquired by assumption), absolute or contingent, due or 

required to be performed, or to become due or to be performed, now existing or hereafter arising and 

including interest and fees that accrue after the commencement by or against any Credit Party or any 

Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in 

such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. 

Without limiting the foregoing, the Obligations include (a) the obligation to pay principal, interest, 

charges, expenses, fees, indemnities and other amounts payable by the Borrower or any other Credit Party 

under any Loan Document, (b) the obligation of any Credit Party to reimburse any amount in respect of 

any of the foregoing that the Lenders, in each case in their sole discretion, may elect to pay or advance on 

behalf of any Credit Party and (c) the obligation of any Credit Party or any of its Subsidiaries to take any 

action or refrain from taking any action as required by the covenants and other provisions contained in 

this Agreement and any other Loan Document. 

“Obligee Guarantor” has the meaning specified in Section 9.06. 

“Organizational Documents” means (a) as to any corporation, the charter or certificate or 

articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect 

to any non-U.S. jurisdiction), (b) as to any limited liability company, the certificate or articles of 

formation or organization and operating or limited liability agreement and (c) as to any partnership, joint 

venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement 

of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in 

connection with its formation or organization with the applicable Governmental Authority in the 

jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or 

organization of such entity. 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a 

result of a present or former connection between such Recipient and the jurisdiction imposing such Tax 

(other than connections arising from such Recipient having executed, delivered, become a party to, 

performed its obligations under, received payments under, received or perfected a security interest under, 

engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an 

interest in the Loans or Loan Document). 

“Other Taxes” means all present or future stamp, court or documentary, intangible, 

recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, 

performance, enforcement or registration of, from the receipt or perfection of a security interest under, or 

otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes 

imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)). 

“Outstanding Amount” means, with respect to Loans on any date, the aggregate 

outstanding principal amount thereof after giving effect to any borrowings and prepayments or 

repayments of Loans occurring on such date. 

“Parent” has the meaning specified in introductory paragraph hereof. 

“Participant” has the meaning specified in Section 11.04(d). 

“Participant Register” has the meaning specified in Section 11.04(d). 

“Payment Account” has the meaning specified in Section 5.20(b). 
27 

“Payment Event” means (a), the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.50 to 1.00 (including if the Debt Service Coverage Ratio is 

less than or equal to 1.25 to 1.00), or (b) an Event of Default or Term Trigger Event has occurred. A 

Payment Event shall be deemed continuing until (i) with respect to clause (a), the Debt Service Coverage 

Ratio is greater than 1.50 to 1.00 on a DSCR Determination Date or (ii) such Event of Default or Term 

Trigger Event shall no longer be continuing. 

“Payroll Support Program Agreement” means that certain Payroll Support Program 

Agreement dated as of April 22, 2020, between the Borrower and Treasury. 

“PBGC” means the Pension Benefit Guaranty Corporation. 

“Pension Act” means the Pension Protection Act of 2006. 

“Pension Funding Rules” means the rules of the Code and ERISA (as modified by the 

CARES Act) regarding minimum funding standards and minimum required contributions (including any 

installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in, with respect to 

plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 

of ERISA, each as in effect prior to the Pension Act and, thereafter, Sections 412, 430, 431, 432 and 436 

of the Code and Sections 302, 303, 304 and 305 of ERISA. 

“Pension Plan” means any employee pension benefit plan (including a Multiple 

Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by any Credit 

Party or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum 

funding standards under Section 412 of the Code. 

“Perfection Requirement” has the meaning specified in the Pledge and Security 

Agreement. 

“Permitted Bond Hedge Transaction” means any call or capped call option (or 

substantively equivalent derivative transaction) on the Parent’s common Equity Interests purchased by the 

Parent in connection with the issuance of any Convertible Indebtedness; provided that the purchase price 

for such Permitted Bond Hedge Transaction does not exceed the net proceeds received by the Parent from 

the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge 

Transaction. 

“Permitted Business” means any business that is the same as, or reasonably related, 

ancillary, supportive or complementary to, the business in which the Parent and its Subsidiaries are 

engaged on the date of this Agreement. 

“Permitted Liens” means: 

(1) Liens created for the benefit of (or to secure the payment and performance of) the 

Obligations or any Guaranteed Obligations; 

(2) Liens for taxes, assessments or governmental charges or claims that are not yet 

delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and 

diligently concluded; provided that any reserve or other appropriate provision as is required in conformity 

with GAAP has been made therefor; 
28 

(3) Liens imposed by law, including carriers’, vendors’, materialmen’s, warehousemen’s, 

landlord’s, mechanics’ repairmen’s, employees’ or other like Liens, in each case, incurred in the ordinary 

course of business; 

(4) Liens arising by operation of law in connection with judgments, attachments or awards 

which do not constitute an Event of Default hereunder; 

(5) (A) any overdrafts and related liabilities arising from treasury, netting, depository and 

cash management services or in connection with any automated clearing house transfers of funds, in each 

case as it relates to cash or Cash Equivalents, if any, and (B) Liens arising by operation of law or that are 

contractual rights of set-off in favor of the depository bank or securities intermediary in respect of any 

deposit or securities accounts pledged in favor of the Collateral Agent; provided that, such Liens shall be 

subordinated to the Liens securing the Obligations (other than the Liens relating to amounts and 

indemnities owed in connection with the maintenance of such account); 

(6) [reserved]; 

(7) [reserved]; 

(8) to the extent applicable, salvage or similar rights of insurers, in each case as it relates to 

Collateral; 

(9) any licenses or sublicenses (x) granted on a non-exclusive basis to customers or service 

providers in the ordinary course of business or to business partners in the ordinary course of business in a 

manner and subject to terms consistent with past practice or (y) granted pursuant to any Loyalty Program 

Agreement in full force and effect as of the Closing Date, any successor agreement thereto or any new 

Loyalty Program Agreement, in each case that is included in the Collateral (provided that any such grant 

pursuant to such new or successor agreement is made in the ordinary course of business in a manner and 

subject to terms substantially similar with those of the predecessor Loyalty Program Agreement or with 

any Loyalty Program Agreement in full force and effect as of the Closing Date, as the case may be); 

(10) to the extent constituting Liens on Collateral, Dispositions permitted pursuant to Section 

6.04 (b), (d)(2), (e), (f) or (h); and 

(11) Liens expressly permitted by the Pledge and Security Agreement.

“Permitted Refinancing” means with respect to any Person, any refinancings, renewals, 

or extensions of any Indebtedness of such Person so long as: (a) such refinancings, renewals, or 

extensions do not result in an increase in the principal amount of the Indebtedness so refinanced, renewed, 

or extended, other than by the amount of premiums paid thereon and the fees and expenses incurred in 

connection therewith and by the amount of unfunded commitments with respect thereto; (b) such 

refinancings, renewals, or extensions do not result in a shortening of the average weighted maturity 

(measured as of the refinancing, renewal, or extension) of the Indebtedness so refinanced, renewed, or 

extended, nor are they on terms or conditions that, taken as a whole, are or could reasonably be expected 

to be materially adverse to the interests of the Lenders; (c) if the Indebtedness that is refinanced, renewed, 

or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the 

refinancing, renewal, or extension must include subordination terms and conditions that are at least as 

favorable to the Lenders as those that were applicable to the refinanced, renewed, or extended 

Indebtedness; (d) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person 

that is liable on account of the Obligations other than those Persons which were obligated with respect to 

the Indebtedness that was refinanced, renewed, or extended and (e) to the extent the Indebtedness that is 
29 

refinanced, renewed, or extended is unsecured, the Indebtedness resulting from such refinancing, renewal 

or extension must be unsecured. 

“Person” means any natural person, corporation, limited liability company, trust, joint 

venture, association, company, partnership, Governmental Authority or other entity. 

“Personal Data” means any information or data that identifies, relates to, describes, is 

reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a 

particular consumer or household, or any other data or information that constitutes personal data, 

personally identifiable information, personal information or a similar defined term under any Privacy Law 

or any policy of a Credit Party or any of its Affiliates relating to privacy or the Loyalty Program Data. 

“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, 

maintained for employees of the Parent or any Subsidiary, or any such plan to which the Parent or any 

Subsidiary is required to contribute on behalf of any of its employees or with respect to which any Credit 

Party has any liability. 

“Platform” means Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar 

electronic transmission system. 

“Pledge and Security Agreement” means the Pledge and Security Agreement executed 

and delivered by the Borrower and each Guarantor on the Closing Date in form and substance acceptable 

to the Initial Lender and the Collateral Agent, as it may be amended, supplemented, restated or otherwise 

modified from time to time. For the avoidance of doubt, the terms of the “Pledge and Security 

Agreement” shall include the terms of all Applicable Annexes (as defined in the Pledge and Security 

Agreement). 

“Pre-paid Currency Purchases” means the sale, lease or other transfer by any Credit Party 

or any Subsidiary of a Credit Party of pre-paid Currency to a counterparty of a Loyalty Program 

Agreement. 

“Prepayment Notice” means a notice by the Borrower to prepay Loans, which shall be in 

such form as the Appropriate Party may approve. 

“Prime Rate” means the rate of interest per annum 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 Required Lenders) or any similar release by the 

Federal Reserve Board (as determined by the Required Lenders). Any change in the Prime Rate shall 

take effect at the opening of business on the day such change is publicly announced or quoted as being 

effective. 

“Privacy Law” means all Applicable Laws worldwide relating to the Processing, privacy 

or security of Personal Data and all regulations issued thereunder, including, to the extent applicable, the 

EU General Data Protection Regulation (EU) 2016/679 (and all Laws implementing it), Section 5 of the 

Federal Trade Commission Act, the California Consumer Privacy Act, the Children’s Online Privacy 

Protection Act, Title V, Subtitle A of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq. (and the rules 

and regulations promulgated thereunder), state data breach notification Laws, state data security Laws, 

and any Law concerning requirements for website and mobile application privacy policies and practices, 
30 

or any outbound communications (including e-mail marketing, telemarketing and text messaging), 

tracking and marketing. 

“Proceeds” means “proceeds,” as defined in Article 9 of the UCC. 

“Processed”, “Processing” or “Process”, with respect to data (including Loyalty Program 

Data), means collected, accessed, recorded, acquired, stored, organized, altered, adapted, retrieved, 

disclosed, used, disposed, erased, disclosed, destructed, transferred or otherwise processed; in each case, 

whether or not by automated means. 

“PSP Warrant Agreement” means that certain warrant agreement, dated as of April 22, 

2020 between the Parent and Treasury. 

“Public Lender” has the meaning specified in Section 11.01(e). 

“Receivables Subsidiary” means (x) a Wholly-Owned Subsidiary of the Parent formed 

for the purpose of and which engages in no activities other than in connection with the financing or 

securitization of accounts receivables (a) no portion of the Indebtedness or any other obligations 

(contingent or otherwise) of which (1) is guaranteed by the Parent by any Subsidiary of the Parent, and 

excluding any guarantees of obligations (other than the principal of, and interest on, Indebtedness) 

pursuant to Standard Securitization Undertakings, (2) is recourse to or obligates the Parent or any 

Subsidiary of the Parent in any way other than pursuant to Standard Securitization Undertakings or (3) 

subjects any property or asset of the Parent or any Subsidiary of the Parent (other than accounts 

receivable and related assets) or any property or asset of the type that is intended to be include in the 

Collateral, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant 

to Standard Securitization Undertakings, (b) with which neither the Parent nor any Subsidiary of the 

Parent (other than another Receivables Subsidiary) has any material contract, agreement, arrangement or 

understanding (other than pursuant to the related financing of accounts receivable) other than on terms no 

less favorable to the Parent or such Subsidiary than those that might be obtained at the time from Persons 

who are not Affiliates of the Parent and (c) with which neither the Parent nor any Subsidiary of the Parent 

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 or (y) any Subsidiary of a Receivables Subsidiary. For the avoidance of doubt, the Parent and any 

Subsidiary of the Parent may enter into Standard Securitization Undertakings for the benefit of a 

Receivables Subsidiary. 

“Recipient” means (a) the Administrative Agent, (b) the Collateral Agent or (c) any 

Lender, as applicable. 

“Recovery Event” means any settlement of or payment in respect of any property or 

casualty insurance claim or any condemnation proceeding relating to any Collateral or any Event of Loss 

(as defined in the Pledge and Security Agreement). 

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if 

such Benchmark is USD LIBO Rate, 11:00 a.m. (London time) on the day that is two London banking 

days preceding the date of such setting, and (2) if such Benchmark is not USD LIBO Rate, the time 

determined by the Required Lenders in their reasonable discretion, provided that such time is determined 

to be administratively feasible by the Administrative Agent. 

“Register” has the meaning specified in Section 11.04(c). 
31 

“Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof. 

“Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof. 

“Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof. 

“Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time 

to time and all official rulings and interpretations thereunder or thereof. 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the 

partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and 

representatives of such Person and of such Person’s Affiliates.

“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve 

Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the 

Federal Reserve Bank of New York, or any successor thereto. 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other 

than events for which the thirty (30)-day notice period has been waived. 

“Required Filings” shall have the meaning specified in the Pledge and Security 

Agreement. 

“Required Lenders” means, at any time, Lenders having Loans representing more than 

50% of the aggregate Outstanding Amount of Loans of all Lenders at such time. 

“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK 

Financial Institution, a UK Resolution Authority. 

“Responsible Officer” means (a) the chief executive officer, president, executive vice 

president or a Financial Officer of the Borrower or such Credit Party, as applicable, (b) solely for 

purposes of the delivery of incumbency certificates and certified Organizational Documents and 

resolutions pursuant to Section 4.01, any vice president, secretary or assistant secretary of the Borrower or 

such Credit Party and (c) solely for purposes of Borrowing Requests, prepayment notices and notices for 

Commitment terminations or reductions given pursuant to Article II, any other officer or employee of the 

Borrower so designated from time to time by one of the officers described in clause (a) in a notice to the 

Administrative Agent (together with evidence of the authority and capacity of each such Person to so act 

in form and substance satisfactory to the Administrative Agent). Any document delivered hereunder that 

is signed by a Responsible Officer of the a Credit Party shall be conclusively presumed to have been 

authorized by all necessary corporate, partnership or other action on the part of such Credit Party and such 

Responsible Officer shall be conclusively presumed to have acted on behalf of such Credit Party. 

“Restricted Payment” means any dividend or other distribution (whether in cash, 

securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in 

cash, securities or other property), including any sinking fund or similar deposit, on account of the 

purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or 

on account of any return of capital to such Person’s shareholders, partners or members (or the equivalent 

Persons thereof). 
32 

“Route Authority” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“S&P” means S&P Global Ratings, and any successor to its rating agency business. 

“Sanctioned Country” has the meaning specified in Section 3.15(a). 

“Sanctioned Person” has the meaning specified in Section 3.15(a). 

“Sanctions” has the meaning specified in Section 3.15(a). 

“Screen Rate” has the meaning specified in the definition of the term “Interpolated Rate”. 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority 

succeeding to any of its principal functions. 

“Secured Parties” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Securities Act” means the Securities Act of 1933, as amended. 

“Security Document” means the Pledge and Security Agreement and any security or 

pledge agreement, mortgage, hypothecation or other agreement, instrument or document relating to 

collateral for the Loans (including any short form agreements, supplements, control agreements, collateral 

access agreements and registrations executed or made) that may exist at any time and from time to time, 

as amended from time to time. 

“Slot” has the meaning assigned to such term in the Pledge and Security Agreement. 

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured 

overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR 

Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately 

succeeding Business Day. 

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor 

administrator of the secured overnight financing rate). 

“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. 

“Solvent” means, as to any Person as of any date of determination, that on such date 

(a) the fair value of the property of such Person is greater than the total amount of liabilities, including 

contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the 

amount that will be required to pay the probable liability of such Person on its debts as they become 

absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or 

liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such 

Person is not engaged in a business or a transaction, and is not about to engage in a business or a 

transaction, for which such Person’s property would constitute an unreasonably small capital. The 

amount of any contingent liability at any time shall be computed as the amount that, in light of all of the 

facts and circumstances existing at such time, represents the amount that can reasonably be expected to 
33 

become an actual or matured liability. For the avoidance of doubt, a Person shall not fail to be Solvent on 

any date solely as a result of such person’s audit having a “going concern” or like qualification, exception 

or explanatory paragraph or any qualification, exception or explanatory paragraph as to the scope of such 

audit solely due to the COVID-19 disease outbreak. 

“Spare Parts” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Standard Securitization Undertakings” means all representations, warranties, covenants, 

indemnities, performance Guarantees and servicing obligations entered into by the Parent or any 

Subsidiary (other than a Receivables Subsidiary), which are customary in connection with any financing 

of accounts receivable. 

“Subsidiary” of a Person means a corporation, partnership, limited liability company, 

association or joint venture or other business entity of which a majority of the Equity Interests having 

ordinary voting power for the election of directors or other governing body (other than securities or 

interests having such power only by reason of the happening of a contingency) are at the time owned or 

the management of which is controlled, directly, or indirectly through one or more intermediaries, by such 

Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer 

to a Subsidiary or Subsidiaries of the Parent. 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit 

derivative transactions, forward rate transactions, commodity swaps, commodity options, forward 

commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or 

options or forward bond or forward bond price or forward bond index transactions, interest rate options, 

forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency 

swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other 

similar transactions or any combination of any of the foregoing (including any options to enter into any of 

the foregoing), whether or not any such transaction is governed by or subject to any master agreement, 

and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms 

and conditions of, or governed by, any form of master agreement published by the International Swaps 

and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other 

master agreement (any such master agreement, together with any related schedules, a “Master 

Agreement”), including any such obligations or liabilities under any Master Agreement. 

“Swap Termination Value” means, as to any one or more Swap Contracts, after taking 

into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, 

(a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) 

determined in accordance therewith, such termination value(s), and (b) for any date prior to the date 

referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap 

Contracts, as determined based upon one or more mid-market or other readily available quotations 

provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate 

of a Lender). 

“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a socalled synthetic, off-balance sheet or tax retention lease or (b) an agreement for the use or possession of 

property creating obligations that do not appear on the balance sheet of such Person but, upon the 

insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person 

(without regard to accounting treatment). 
34 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, 

withholdings (including backup withholding), assessments, fees or other charges imposed by any 

Governmental Authority, including any interest, additions to tax or penalties applicable thereto. 

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable 

Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by 

the Relevant Governmental Body. 

“Term Trigger Event” has the meaning specified in Section 2.06(b). 

“Trade Date” means the date on which an assigning Lender enters into a binding 

agreement to sell and assign all or a portion of its rights and obligations under this Agreement to another 

Person. 

“Trade Secrets” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Trademark” has the meaning assigned to such term in the Pledge and Security 

Agreement. 

“Treasury” has the meaning specified in the preamble to this Agreement. 

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under 

the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential 

Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from 

time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain 

credit institutions and investment firms, and certain affiliates of such credit institutions or investment 

firms. 

“UK Resolution Authority” 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. 

“Uniform Commercial Code” and “UCC” means the Uniform Commercial Code as in 

effect from time to time in the State of New York or, when the context implies, the Uniform Commercial 

Code as in effect from time to time in any other applicable jurisdiction. 

“United States” and “U.S.” mean the United States of America. 

“USD LIBO Rate” means the LIBO Rate for U.S. dollars. 

“U.S. Person” means any Person that is a “United States Person” as defined in 

Section 7701(a)(30) of the Code. 

“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(g). 

“Voting Stock” of any specified Person as of any date means the equity interests of such 

Person that is at the time entitled to vote in the election of the board of directors of such Person. 
35 

“Warrant Agreement” means the warrant agreement, dated as of the date hereof between 

the Parent and Treasury, pursuant to which the Parent agrees to issue Warrants to Treasury upon each 

Borrowing. 

“Warrants” means, collectively, those certain warrants issued to Treasury under the 

Warrant Agreement or the PSP Warrant Agreement. 

“Wholly-Owned” means, as to a Subsidiary of a Person, a Subsidiary of such Person all 

of the outstanding Equity Interests of which (other than (a) director’s qualifying shares and (b) shares 

issued to foreign nationals to the extent required by Applicable Law) are owned by such Person and/or by 

one or more Wholly-Owned Subsidiaries of such Person. 

“Withholding Agent” means the Borrower and the Administrative Agent or other person 

making or transferring to any Lender any payment on behalf of the Borrower. 

“Write-Down and Conversion Powers” means, (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 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 such 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 power. 

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.” The word “or” is not exclusive. The 

word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) 

otherwise, to a year of three hundred sixty-five (365) days. 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, supplemented 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 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, (e) any reference to any law or regulation herein shall, unless 

otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to 

time, and (f) 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. 

SECTION 1.03 Accounting Terms; Changes in GAAP. 

(a) Accounting Terms. Except as otherwise expressly provided herein, all accounting 

terms not otherwise defined herein shall be construed in conformity with GAAP. Financial statements 

and other information required to be delivered by the Parent to the Lenders pursuant to Sections 5.01(a) 
36 

and 5.01(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. 

Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the 

computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries 

shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of 

FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. 

(b) Changes in GAAP. If the Borrower notifies the Administrative Agent (who will 

forward such notification to the Lenders) 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, the Required Lenders 

shall have notified the Borrower (with a copy to the Administrative Agent) of their objection to such 

amendment or such provision shall have been amended in accordance herewith. 

SECTION 1.04 Rates. The Administrative Agent does not warrant or accept responsibility 

for, and shall not have any liability with respect to, the administration, submission or any other matter 

related to the rates in the definition of “LIBO Rate” or with respect to any comparable or successor rate 

thereto. 

SECTION 1.05 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. 

ARTICLE II 

COMMITMENTS AND BORROWINGS 

SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, the 

Initial Lender agrees to make the Loans to the Borrower in one or more installments on or after the Closing 

Date in an aggregate principal amount not to exceed the Initial Lender’s Commitment. Amounts borrowed 

under this Section 2.01 and repaid or prepaid may not be reborrowed. 

SECTION 2.02 Loans and Borrowings. 

(a) Borrowings. The Borrower shall request the initial Borrowing of the Loans on 

the Closing Date and may request one or more subsequent Borrowings of the Loans; provided that the 

Borrower shall request no more than three (3) total Borrowings. 

(b) Minimum Amounts. Each Borrowing shall be in an aggregate amount of 

$45,000,000 or a larger multiple of $5,000,000; provided that the final Borrowing may be in an amount 

equal to the aggregate remaining outstanding Commitment available to the Borrower under the terms and 

conditions of this Agreement. 
37 

(c) Funding of Borrowings. Each Lender shall make the amount of each Borrowing 

to be made by it hereunder available to the Administrative Agent by wire transfer of immediately 

available funds to the Administrative Account not later than 12:00 noon (New York City time) on the 

proposed date thereof. The Administrative Agent will make all such funds so received available to the 

Borrower in like funds, by wire transfer of such funds in accordance with the instructions provided in the 

applicable Borrowing Request; provided that if all such requested funds are not received by the 

Administrative Agent by 12:00 noon (New York City time) on the proposed date for such Borrowing, the 

Administrative Agent shall distribute such funds on the next succeeding Business Day. 

SECTION 2.03 Borrowing Requests. 

(a) Notice by Borrower. In order to request a Borrowing, the Borrower shall notify 

the Administrative Agent of such request in writing not later than 11:00 a.m. (New York City time) (i) 

with respect to the initial Borrowing under this Agreement, three (3) Business Days prior to the date of 

the requested Borrowing and (ii) for each subsequent Borrowing, five (5) Business Days before such 

Borrowing. Each such notice shall be irrevocable and shall be in the form of a written Borrowing 

Request, appropriately completed and signed by a Responsible Officer of the Borrower. The 

Administrative Agent shall promptly advise the applicable Lenders of any Borrowing Request given 

pursuant to this Section 2.03(a) (and the contents thereof), and of each Lender’s portion of the requested 

Borrowing. 

(b) Content of Borrowing Requests. Each Borrowing Request for a Borrowing 

pursuant to this Section shall specify the following information in compliance with Section 2.02: (i) the 

aggregate amount of the requested Borrowing; (ii) the date of such Borrowing (which shall be a Business 

Day); and (iii) the location and number of the Borrower’s account to which funds are to be disbursed. 

SECTION 2.04 [Reserved]. 

SECTION 2.05 [Reserved]. 

SECTION 2.06 Prepayments. 

(a) Optional Prepayments. The Borrower may, upon written notice to the 

Administrative Agent, at any time and from time to time prepay the Loans in whole or in part without 

premium or penalty, subject to the requirements of this Section. Partial prepayments of the Loans shall be 

in a minimum aggregate principal amount of $1,000,000 or a whole multiple of $100,000 in excess 

thereof. Notwithstanding anything herein to the contrary, the Borrower may at any time elect to prepay 

the loans with funds contained in the Collateral Proceeds Account. 

(b) Mandatory Prepayments. 

(i) Dispositions of Collateral. Within three (3) Business Days of the receipt 

by the Parent or any of its Subsidiaries of any Net Proceeds from a Disposition of Collateral not 

permitted by Section 6.04, the Borrower shall prepay the Loans in an amount equal to 100% of 

such Net Proceeds. 

(ii) Recovery Events. Within three (3) Business Days of the receipt by the 

Parent or any of its Subsidiaries of any Net Proceeds from a Recovery Event in respect of Collateral, 

the Borrower shall prepay the Loans in an amount equal to 100% of such Net Proceeds; provided 

that with respect to Collateral consisting of airframes, aircraft, engines and Spare Parts, the 

Borrower may deposit such Net Proceeds into the Collateral Proceeds Account for such purpose 
38 

and thereafter such Net Proceeds shall be applied (to the extent not otherwise applied pursuant to 

the immediately succeeding proviso) to prepay the Loans; provided further that (I) the Borrower 

may use such Net Proceeds to (A) replace the assets which are the subject of such Recovery Event 

with assets that are of the same type of Collateral or (B) repair the assets which are the subject of 

such Recovery Event, in each case, within 270 days after such deposit is made, (II) all such Net 

Proceeds amount may, at the option of the Borrower at any time, be applied to repay the Loans, 

and (III) upon the occurrence of an Event of Default, the amount of any such deposit may be applied 

by the Administrative Agent to repay the Loans. 

(iii) Certain Debt Issuances. Immediately upon receipt by the Parent or any of 

its Subsidiaries of any proceeds from the incurrence of any Indebtedness that is secured by Liens 

on the Collateral (other than Permitted Liens), the Borrower shall prepay the Loans in an amount 

equal to 100% of any such proceeds from any such Indebtedness. 

(iv) Contingent Payment Events. Within three (3) Business Days of the receipt 

by the Parent or any of its Subsidiaries of any Net Proceeds from a Contingent Payment Event 

under a Loyalty Program Agreement, which Net Proceeds, together with the aggregate amount of 

Net Proceeds previously received from Contingent Payment Events, are in excess of $5,000,000, 

the Borrower shall prepay the Loans in an amount equal to 100% of such Net Proceeds. 

(v) Loyalty Revenue Advance Transactions. Within three (3) Business Days 

of the receipt by the Parent or any of its Subsidiaries of any Net Proceeds from a Loyalty Revenue 

Advance Transaction, which Net Proceeds, together with the aggregate amount of Net Proceeds 

previously received from Loyalty Revenue Advance Transactions during the term of this 

Agreement, are in excess of an amount equal to the greater of (x) $10,000,000 and (y) 10% of the 

aggregate amount of Collateral Cash Flow received during the most recently ended DSCR Test 

Period that has been deposited into a Collateral Account, the Borrower shall prepay the Loans in 

an amount equal to 100% of such excess Net Proceeds. 

(vi) Payment Events. 

(A) The Loans shall be required to be repaid if the Debt Service 

Coverage Ratio with respect to any DSCR Determination Date is less than 1.50 to 1.00 or 

1.25 to 1.00, as the case may be, as set forth in Section 6.17(c). 

(B) After the occurrence and during the continuation of an Event of

Default, the Loans shall be repaid in an amount equal to 100% of all Loyalty Program 

Revenue received thereafter, and the Parent and the Subsidiaries shall ACH or wire 

transfer daily such Loyalty Program Revenue to the Payment Account (from the 

Collection Account or otherwise) with all such amounts deposited into the Payment 

Account to be applied to the prepayment of any Loans then outstanding. 

(C) If at any time (x) any Material Loyalty Program Agreement has a

remaining term of less than two (2) years or (y) Loyalty Program Agreements 

representing 90% of Loyalty Program Revenues (excluding revenues generated under any 

Loyalty Subscription Program) in the aggregate over the immediately preceding twelve 

(12) calendar month period then ended have remaining terms of less than two (2) years (a 

“Term Trigger Event”) and such Term Trigger Event is continuing, then the Loans shall 

be repaid in an amount equal to 100% of all Loyalty Program Revenue received 

thereafter, and the Parent and the Subsidiaries shall ACH or wire transfer daily such 

Loyalty Program Revenue to the Payment Account (from the Collection Account or 
39 

otherwise) with all such amounts deposited into the Payment Account to be applied to the 

prepayment of any Loans then outstanding. 

(vii) Change of Control. Immediately upon the occurrence of a Change of 

Control, the Borrower shall prepay the Loans in an amount equal to 100% of the aggregate 

outstanding principal amount of Loans. 

(c) Notices. Each such notice pursuant to this Section shall be in the form of a 

written Prepayment Notice, appropriately completed and signed by a Responsible Officer of the 

Borrower, and must be received by the Administrative Agent not later than 11:00 a.m. (New York City 

time) three (3) Business Days before the date of prepayment (which delivery may initially be by 

electronic communication including fax or email and shall be followed by an original authentic 

counterpart thereof). Each Prepayment Notice shall specify (x) the prepayment date and (y) the principal 

amount of the Loans or portion thereof to be prepaid. Each Prepayment Notice shall be irrevocable. 

(d) Payments. Any prepayment of the Loans pursuant to this SECTION 2.06 shall 

be accompanied by accrued interest on the principal amount prepaid as set forth in SECTION 2.09(c). 

SECTION 2.07 Reduction and Termination of Commitments. The Initial Lender’s

Commitment shall (x) automatically and permanently be reduced by the amount of any Borrowing of a Loan 

and (y) automatically and permanently terminate on March 26, 2021. The Borrower may, upon not less than 

three (3) Business Days’ notice to the Initial Lender and the Administrative Agent, terminate the Commitment 

or, from time to time, reduce the Commitment. Any such reduction in the Commitment shall be in an amount 

equal to $1,000,000 or a whole multiple thereof, and shall permanently reduce the Commitment. 

SECTION 2.08 Repayment of Loans. The Borrower shall repay to the Administrative Agent 

for the ratable account of the Lenders the aggregate principal amount of all Loans outstanding on the Maturity 

Date. 

SECTION 2.09 Interest. 

(a) Interest Rates. Subject to paragraph (b) of this Section, the Loans shall bear 

interest at a rate per annum equal to the Adjusted LIBO Rate plus the Applicable Rate. 

(b) Default Interest. If any amount payable by the Borrower under this Agreement 

or any other Loan Document (including principal of any Loan, interest, fees and other amount) is not paid 

when due, whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear 

interest at a rate per annum equal to the applicable Default Rate. Upon the request of the Required 

Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all 

Loans outstanding hereunder at a rate per annum equal to the applicable Default Rate. 

(c) Payment Dates. Accrued interest on each Loan shall be payable in arrears on or 

before 12:00 noon (New York City time) on each Interest Payment Date applicable thereto and at such 

other times as may be specified herein; provided that (i) interest accrued pursuant to paragraph (b) of this 

Section shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan 

(including mandatory prepayments under Section 2.06(b)), accrued interest on the principal amount 

repaid or prepaid shall be payable on the date of such repayment or prepayment. 

(d) Interest Computation. All interest hereunder shall be computed on the basis of a 

year of three hundred sixty (360) days and shall be payable for the actual number of days elapsed 
40 

(including the first day but excluding the last day). The Adjusted LIBO Rate shall be determined by the 

Administrative Agent, and such determination shall be conclusive absent manifest error. 

SECTION 2.10 Benchmark Replacement Setting. 

(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in 

any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, 

and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any 

setting of the then-current Benchmark, as notified by the Required Lenders to the Administrative Agent in 

writing, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the 

definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark 

Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in 

respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or 

further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a 

Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark 

Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such 

Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark 

setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of 

such Benchmark Replacement is provided to the Lenders and the Administrative Agent by the Required 

Lenders without any amendment to, or further action or consent of any other party to, this Agreement or 

any other Loan Document, so long as the Administrative Agent has not received, by such time, written 

notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. 

(b) Benchmark Replacement Conforming Changes. In connection with the 

implementation of a Benchmark Replacement, the Administrative Agent (after consultation with the 

Required Lenders) will have the right to make Benchmark Replacement Conforming Changes from time 

to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any 

amendments implementing such Benchmark Replacement Conforming Changes will become effective 

without any further action or consent of any other party to this Agreement or any other Loan Document. 

(c) Notices; Standards for Decisions and Determinations. The Initial Lender or the 

Required Lenders, as the case may be, will promptly notify the Administrative Agent, which will then 

promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or 

an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the 

implementation of any Benchmark Replacement, (iii) the removal or reinstatement of any tenor of a 

Benchmark pursuant to clause (d) below and (iv) the commencement or conclusion of any Benchmark 

Unavailability Period. The Administrative Agent will promptly notify the Borrower and the Lenders of 

the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or 

election that may be made by any Lender (or group of Lenders) or the Administrative Agent, if 

applicable, pursuant to this Section 2.10 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 2.10. Notwithstanding anything in this Agreement to the contrary, the Administrative Agent does 

not warrant or accept any responsibility for, and shall not have any liability with respect to, any 

determination made by it in connection with the adoption of Benchmark Replacement Conforming 

Changes or for the impact of such Benchmark Replacement Conforming Changes, nor for the failure to 

adopt any Benchmark Replacement Conforming Changes due to the failure of the Required Lenders to 

cooperate in good faith in connection with the determination of any Benchmark Replacement Conforming 

Changes. 
41 

(d) 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 or USD 

LIBO Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other 

information service that publishes such rate from time to time as selected by the Administrative Agent in 

its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has 

provided a public statement or publication of information announcing that any tenor for such Benchmark 

is or will be no longer representative, then the definition of “Interest Period” may be modified for any 

Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if 

a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or 

information service for a Benchmark (including a Benchmark Replacement) used by the Administrative 

Agent or (B) is not, or is no longer, subject to an announcement that it is or will no longer be 

representative for a Benchmark (including a Benchmark Replacement), then the definition of “Interest 

Period” may be modified for all Benchmark settings at or after such time to reinstate such previously 

removed tenor. 

(e) Benchmark Unavailability Period. During any Benchmark Unavailability Period, 

all calculations of interest by reference to a LIBO Rate hereunder shall instead be made by reference to 

the Alternate Base Rate. 

SECTION 2.11 Evidence of Debt. 

(a) Maintenance of Records. The Administrative Agent shall maintain the Register 

in accordance with Section 11.04(c). The entries made in the records maintained pursuant to this 

paragraph (a) shall be prima facie evidence absent manifest error of the existence and amounts of the 

obligations recorded therein. Any failure of the Administrative Agent to maintain such records or make 

any entry therein or any error therein shall not in any manner affect the obligations of the Borrower under 

this Agreement and the other Loan Documents. 

(b) Promissory Notes. The Borrower shall prepare, execute and deliver to such 

Lender a promissory note of the Borrower payable to such Lender (or, if requested by such Lender, to 

such Lender and its registered assigns) and a form attached as Exhibit C hereto, which shall evidence such 

Lender’s Loan. 

SECTION 2.12 Payments Generally. 

(a) Payments by Borrower. All payments to be made by the Borrower hereunder and 

the other Loan Documents shall be made without condition or deduction for any counterclaim, defense, 

recoupment or setoff. Except as otherwise expressly provided herein, all such payments shall be made to 

the Administrative Agent, for the account of the respective Lenders to which such payment is owed, to 

the Administrative Account in immediately available funds not later than 12:00 noon (New York City 

time) on the date specified herein. All amounts received by a Lender or the Administrative Agent after 

such time on any date shall be deemed to have been received on the next succeeding Business Day and 

any applicable interest or fees shall continue to accrue. The Administrative Agent will promptly 

distribute to each Lender its ratable share (or other applicable share as provided herein) of such payment 

in like funds as received by wire transfer to such Lender’s applicable lending office (or otherwise 

distribute such payment in like funds as received to the Person or Persons entitled thereto as provided 

herein). If any payment to be made by the Borrower shall fall due on a day that is not a Business Day, 

payment shall be made on the next succeeding Business Day and such extension of time shall be reflected 

in computing interest or fees, as the case may be; provided that, if such next succeeding Business Day 
42 

would fall after the Maturity Date, payment shall be made on the immediately preceding Business Day. 

Except as otherwise expressly provided herein, all payments hereunder or under any other Loan 

Document shall be made in Dollars. 

(b) Application of Insufficient Payments. Subject to Section 7.02, if at any time 

insufficient funds are received by and available to the Lenders or the Administrative Agent to pay fully all 

amounts of principal, interest, fees and other amounts then due hereunder, such funds shall be applied 

(i) first, to pay interest, fees and other amounts then due hereunder, ratably among the parties entitled 

thereto in accordance with the amounts of interest, fees and other amounts then due to such parties, and 

(ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in accordance 

with the amounts of principal then due to such parties. 

(c) Presumptions by Administrative Agent. 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, but shall not be obligated to, 

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. Notwithstanding the foregoing, the 

Administrative Agent is not required to make any payment to the Lenders until it is in possession of 

cleared funds from the Borrower. 

(d) Deductions by Administrative Agent. If any Lender (other than the Initial 

Lender) shall fail to make any payment required to be made by it pursuant to Section 2.13 or 11.03(c), 

then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, 

(i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for 

the benefit of the Administrative Agent to satisfy such Lender’s obligations to the Administrative Agent 

until all such unsatisfied obligations are fully paid or (ii) hold any such amounts in a segregated account 

as cash collateral for, and for application to, any future funding obligations of such Lender under any such 

Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative 

Agent in its discretion. 

(e) Several Obligations of Lenders. The obligations of the Lenders hereunder to 

make Loans and to make payments pursuant to Section 11.03(c) are several and not joint. The failure of 

any Lender to make any Loan or to make any such payment on any date required hereunder shall not 

relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be 

responsible for the failure of any other Lender to so make its Loan or to make its payment under 

Section 11.03(c). 

SECTION 2.13 Sharing of Payments. If any Lender shall, by exercising any right of setoff 

or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or 

other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate 

amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share 

thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the 

Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and 

such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the 
43 

benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount 

of principal of and accrued interest on their respective Loans and other amounts owing them; provided that: 

(i) if any such participations are purchased and all or any portion of the 

payment giving rise thereto is recovered, such participations shall be rescinded and the purchase 

price restored to the extent of such recovery, without interest; and 

(ii) the provisions of this paragraph shall not be construed to apply to (x) any 

payment made by the Borrower pursuant to and in accordance with the express terms of this 

Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or 

sale of a participation in any of its Loans to any assignee or participant, other than to the 

Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). 

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under 

Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may 

exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully 

as if such Lender were a direct creditor of the Borrower in the amount of such participation. 

SECTION 2.14 Compensation for Losses. In the event of (a) the payment of any principal 

of the Loans other than on the last day of an Interest Period (including as a result of an Event of Default), 

(b) the failure to borrow or prepay the Loans (or any portion thereof) on the date specified in any notice 

delivered pursuant hereto, or (c) the assignment of the Loans (or any portion thereof) other than on the last 

day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to 

Section 2.19(b), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and 

expense attributable to such event. Such loss, cost or expense to any Lender shall be deemed to include an 

amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have 

accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that 

would have been applicable to such Loan, for the period from the date of such event to the last day of the 

then current Interest Period therefor (or, in the case of a failure to borrow, for the date that would have been 

the applicable Interest Period), over (ii) the amount of interest that would accrue on such principal amount 

for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such 

period, for dollar deposits of a comparable amount and period from other banks in the London interbank 

eurodollar market. 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 

promptly after receipt thereof. 

SECTION 2.15 Increased Costs. 

(a) Increased Costs Generally. If any Change in Law shall: 

(i) 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 or participated in by, any Lender (except any reserve 

requirement reflected in the Adjusted LIBO Rate); 

(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, 

(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and 

(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or 

other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or 
44 

(iii) impose on any Lender or the London interbank market any other 

condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such 

Lender; 

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient 

of making or maintaining any Loan or to reduce the amount of any sum received or receivable by such 

Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon 

request of such Lender or other Recipient, the Borrower will pay to such Lender or other Recipient, as the 

case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as 

the case may be, for such additional costs incurred or reduction suffered. 

(b) [Reserved]. 

(c) Certificates for Reimbursement. 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) of this Section and delivered to the Borrower, shall be conclusive absent 

manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate 

within ten (10) days after receipt thereof. 

(d) Delay in Requests. Failure or delay on the part of any Lender to demand 

compensation pursuant to this Section 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 for any increased costs incurred or reductions suffered more than nine (9) months 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 (except that, if the Change in 

Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to 

above shall be extended to include the period of retroactive effect thereof). 

SECTION 2.16 Taxes. 

(a) Defined Terms. For purposes of this Section, the term “Applicable Law” 

includes FATCA. 

(b) Payments Free of Taxes. Any and all payments by or on account of any 

obligation of the Borrower under any Loan Document shall be made without deduction or withholding for 

any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the good faith 

discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from 

any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to 

make such deduction or withholding and shall timely pay the full amount deducted or withheld to the 

relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified 

Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or 

withholding has been made (including such deductions and withholdings applicable to additional sums 

payable under this Section) the applicable Recipient receives an amount equal to the sum it would have 

received had no such deduction or withholding been made. Borrower acknowledges and agrees that, 

absent a Change in Law, Borrower is not required to withhold or deduct from any such payments to the 

Initial Lender on account of any U.S. federal withholding taxes or Taxes imposed pursuant to FATCA. 

(c) Payment of Other Taxes by Borrower. The Borrower shall timely pay to the 

relevant Governmental Authority in accordance with Applicable Law, or at the option of the Initial 

Lender, the Required Lenders or the Administrative Agent timely reimburse it for the payment of, any 

Other Taxes. 
45 

(d) Indemnification by Borrower. The Borrower shall indemnify each Recipient, 

within thirty (30) days after demand therefor, for the full amount of any Indemnified Taxes (including 

Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable 

or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and 

any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified 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 (with a copy to the 

Administrative Agent if such Lender is not the Initial Lender), or by the Administrative Agent on its own 

behalf or on behalf of a Lender, shall be conclusive absent manifest error. 

(e) Indemnification by the Lenders. Each Lender (other than the Initial Lender) shall 

severally indemnify the Administrative Agent, within thirty (30) days after demand therefor, for (i) any 

Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already 

indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of 

the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions 

of Section 11.04(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes 

attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in 

connection with any Loan Document, and any reasonable expenses arising therefrom or with respect 

thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant 

Governmental Authority. A certificate as to the amount of such payment or liability delivered to any such 

Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender (other than 

the Initial Lender) hereby authorizes the Administrative Agent to set off and apply any and all amounts at 

any time owing to such Lender under any Loan Document or otherwise payable by the Administrative 

Agent to such Lender from any other source against any amount due to the Administrative Agent under 

this paragraph (e). 

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by the 

Borrower to a Governmental Authority pursuant to this Section, 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, a copy of the return reporting such payment or other evidence of such payment 

reasonably satisfactory to the Administrative Agent. 

(g) Status of Lenders. (i) Any Lender (other than the Initial Lender) that is entitled 

to an exemption from or reduction of withholding Tax with respect to payments made under any Loan 

Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably 

requested by the Borrower or the Administrative Agent, such properly completed and executed 

documentation reasonably requested by the Borrower (or, if such Lender is not the Initial Lender, the 

Administrative Agent) as will permit such payments to be made without withholding or at a reduced rate 

of withholding. In addition, any Lender (other than the Initial Lender), if reasonably requested by the 

Borrower (or the Administrative Agent), shall deliver such other documentation prescribed by Applicable 

Law or reasonably requested by the Borrower (or the Administrative Agent) as will enable the Borrower 

(or the Administrative Agent) to determine whether or not such Lender is subject to backup withholding 

or information reporting requirements. Notwithstanding anything to the contrary in the preceding two 

sentences, the completion, execution and submission of such documentation (other than such 

documentation set forth in paragraphs (g)(ii)(A), (ii)(B) and (ii)(D) of this Section) shall not be required if 

in the Lender’s reasonable judgment such completion, execution or submission would subject such 

Lender to any material unreimbursed cost or expense or would materially prejudice the legal or 

commercial position of such Lender. 

(ii) Without limiting the generality of the foregoing, 
46 

(A) any Lender (other than the Initial Lender) that is a U.S. Person 

shall deliver to the Borrower and the Administrative Agent on or about the date on which 

such Lender becomes a Lender under this Agreement (and from time to time thereafter 

upon the reasonable request of the Borrower or the Administrative Agent), executed 

copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup 

withholding tax; 

(B) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrower and the Administrative Agent (in such number of copies as 

shall be requested by the recipient) on or prior to the date on which such Foreign Lender 

becomes a Lender under this Agreement (and from time to time thereafter upon the 

reasonable request of the Borrower or the Administrative Agent), whichever of the 

following is applicable: 

(1) in the case of a Foreign Lender claiming the benefits of 

an income tax treaty to which the United States is a party (x) with respect to 

payments of interest under any Loan Document, executed copies of IRS 

Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or 

reduction of, U.S. federal withholding Tax pursuant to the “interest” article of 

such tax treaty and (y) with respect to any other applicable payments under any 

Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an 

exemption from, or reduction of, U.S. federal withholding Tax pursuant to the 

“business profits” or “other income” article of such tax treaty; 

(2) executed copies of IRS Form W-8ECI (or any successor 

forms) and, in the case of an Agent, a withholding certificate that satisfies the 

requirements of Treasury Regulation Sections 1.1441-1(b)(2)(iv) and 1.1441-

1(e)(3)(v) as applicable to a U.S. branch that has agreed to be treated as a U.S. 

Person for withholding tax purposes; 

(3) in the case of a Foreign Lender claiming the benefits of 

the exemption for portfolio interest under Section 881(c) of the Code, (x) a 

certificate substantially in the form of Exhibit B-1 to the effect that such Foreign 

Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a 

“10 percent shareholder” of the Borrower within the meaning of 

Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to 

the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax 

Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS 

Form W-8BEN-E; or 

(4) to the extent a Foreign Lender is not the beneficial 

owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance

Certificate substantially in the form of Exhibit B-2 or Exhibit B-3, IRS Form W9, and/or other certification documents from each beneficial owner, as applicable; 

provided that if the Foreign Lender is a partnership and one or more direct or 

indirect partners of such Foreign Lender are claiming the portfolio interest 

exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate 

substantially in the form of Exhibit B-4 on behalf of each such direct and indirect 

partner; 
47 

(C) any Foreign Lender shall, to the extent it is legally entitled to do 

so, deliver to the Borrower and the Administrative Agent (in such number of copies as 

shall be requested by the recipient) on or about the date on which such Foreign Lender 

becomes a Lender under this Agreement (and from time to time thereafter upon the 

reasonable request of the Borrower or the Administrative Agent), executed copies of any 

other form prescribed by Applicable Law as a basis for claiming exemption from or a 

reduction in U.S. federal withholding Tax, duly completed, together with such 

supplementary documentation as may be prescribed by Applicable Law to permit the 

Borrower or the Administrative Agent to determine the withholding or deduction 

required to be made; and 

(D) if a payment made to a Lender (other than the Initial Lender) 

under any Loan Document would be subject to U.S. federal withholding Tax imposed by 

FATCA if such Lender were to fail to comply with the applicable reporting requirements 

of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as 

applicable), such Lender shall deliver to the Borrower and the Administrative Agent at 

the time or times prescribed by law and at such time or times reasonably requested by the 

Borrower or the Administrative Agent such documentation prescribed by Applicable Law 

(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional 

documentation reasonably requested by the Borrower or the Administrative Agent as may 

be necessary for the Borrower and the Administrative Agent to comply with their 

obligations under FATCA and to determine that such Lender has complied with such 

Lender’s obligations under FATCA or to determine the amount, if any, to deduct and 

withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall 

include any amendments made to FATCA after the date of this Agreement. 

Each Lender agrees that if any form or certification it previously delivered expires or 

becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify 

the Borrower and the Administrative Agent in writing of its legal inability to do so. Notwithstanding 

anything to the contrary in this Agreement, the Initial Lender shall be entitled to the benefits of this 

Section 2.16 and all related provisions under this Agreement without regard to whether it provides any 

documentation described in Section 2.16(g). 

(h) Treatment of Certain Refunds. If any party determines, in its sole discretion 

exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified 

pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall 

pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity 

payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-ofpocket expenses (including Taxes) of such indemnified party and without interest (other than any interest 

paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, 

upon the request of such indemnified party, shall repay to such indemnified party the amount paid over 

pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant 

Governmental Authority) in the event that such indemnified party is required to repay such refund to such 

Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will 

the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph 

(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than 

the indemnified party would have been in if the Tax subject to indemnification and giving rise to such 

refund had not been deducted, withheld or otherwise imposed and the indemnification payments or 

additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed 

to require any indemnified party to make available its Tax returns (or any other information relating to its 

Taxes that it deems confidential) to the indemnifying party or any other Person. 
48 

(i) Survival. Each party’s obligations under this Section shall survive the 

resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement 

of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all 

obligations under any Loan Document. 

SECTION 2.17 [Reserved]. 

SECTION 2.18 [Reserved]. 

SECTION 2.19 Mitigation Obligations; Replacement of Lenders. 

(a) Designation of a Different Lending Office. If any Lender requests compensation 

under Section 2.15, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any 

Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such 

Lender shall (at the request of the Borrower) use reasonable efforts to designate a different lending office 

for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of 

its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment 

(i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.16, as the case may be, in the 

future, 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. 

(b) Replacement of Lenders. If any Lender requests compensation under 

Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any 

Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16 and, in 

each case, such Lender has declined or is unable to designate a different lending office in accordance with 

paragraph (a) of this Section, or if any Lender is a Non-Consenting Lender, then the Borrower may, at its 

sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to 

assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and 

consents required by, Section 11.04), all of its interests, rights (other than its existing rights to payments 

pursuant to Section 2.15 or Section 2.16) and obligations under this Agreement and the related Loan 

Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another 

Lender, if a Lender accepts such assignment); provided that: 

(i) the Borrower shall have paid to the Administrative Agent the assignment 

fee (if any) specified in Section 11.04;

(ii) such 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 

payable to it hereunder and under the other Loan Documents (including any amounts under 

Section 2.14) from the assignee (to the extent of such outstanding principal and accrued interest 

and fees) or the Borrower (in the case of all other amounts); 

(iii) in the case of any such assignment resulting from a claim for 

compensation under Section 2.15 or payments required to be made pursuant to Section 2.16, such 

assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment does not conflict with Applicable Law; and 
49 

(v) in the case of any assignment resulting from a Lender becoming a NonConsenting Lender, the applicable assignee shall have consented to the applicable amendment, 

waiver or consent. 

A Lender shall not be required to make any such assignment or delegation if, prior 

thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to 

require such assignment and delegation cease to apply. 

ARTICLE III 

REPRESENTATIONS AND WARRANTIES 

The Credit Parties represent and warrant to the Administrative Agent, the Collateral 

Agent and the Lenders on the Closing Date and on the date of each Borrowing that: 

SECTION 3.01 Existence, Qualification and Power. Each of the Credit Parties and their 

respective Material Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good 

standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power 

and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or 

lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan 

Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good 

standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the 

conduct of its business requires such qualification or license, except, in each case referred to in clause 

(a) (other than with respect to any Credit Party), (b)(i) or (c), to the extent that failure to do so could not 

reasonably be expected to have a Material Adverse Effect. 

SECTION 3.02 Authorization; No Contravention. The execution, delivery and 

performance by each Credit Party of each Loan Document to which it is party have been duly authorized by 

all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of its 

Organizational Documents, (b) conflict with or result in any breach or contravention of, or the creation of 

any Lien under, or require any payment to be made under (i) any material Contractual Obligation to which 

each Credit Party is a party or affecting each Credit Party or the material properties of any Credit Party or 

(ii) any material order, injunction, writ or decree of any Governmental Authority or any arbitral award to 

which any Credit Party or its property is subject or (c) violate any Law, except to the extent such violation 

could not reasonably be expected to have a Material Adverse Effect. 

SECTION 3.03 Governmental Authorization; Other Consents. No approval, consent, 

exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any 

other Person is necessary or required in connection with the execution, delivery or performance by, or 

enforcement against, each Credit Party of this Agreement or any other Loan Document, except for (i) such 

approvals, consents, exemptions, authorizations, actions or notices that have been duly obtained, taken or 

made and in full force and effect and (ii) filings and consents contemplated by the Security Documents or 

Section 5.14. 

SECTION 3.04 Execution and Delivery; Binding Effect. This Agreement has been, and 

each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each 

Credit Party. This Agreement constitutes, and each other Loan Document when so delivered will 

constitute, a legal, valid and binding obligation of each Credit Party, enforceable against each Credit Party 

in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, 

reorganization, receivership, moratorium or other Laws affecting creditors’ rights generally and by general 

principles of equity. 
50 

SECTION 3.05 Financial Statements; No Material Adverse Change. 

(a) Financial Statements. The financial statements described in Schedule 3.05 were 

prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as 

otherwise expressly noted therein, and fairly present in all material respects the financial condition of the 

Parent and its Subsidiaries as of the date thereof and their results of operations and cash flows for the 

period covered thereby in accordance with GAAP consistently applied throughout the period covered 

thereby, except as otherwise expressly noted therein. 

(b) No Material Adverse Change. Since the date of the most recent audited balance 

sheet included in the financial statements described in Schedule 3.05, there has been no event or 

circumstance that, either individually or in the aggregate, has had or could reasonably be expected to have 

a Material Adverse Effect. 

SECTION 3.06 Litigation. Except for those matters which have been publicly disclosed in 

any SEC filing of the Parent filed prior to the Closing Date, there are no actions, suits, proceedings, claims, 

disputes or investigations pending or, to the knowledge of any Credit Party, threatened, at Law, in equity, in 

arbitration or before any Governmental Authority, by or against any Credit Party or any of its Subsidiaries 

or against any of their properties or revenues that (a) either individually or in the aggregate could 

reasonably be expected to have a Material Adverse Effect or (b) purport to affect or pertain to this 

Agreement or any other Loan Document or any of the transactions contemplated hereby. 

SECTION 3.07 Contractual Obligations; No Default. None of the Credit Parties and their 

respective Subsidiaries is in default under or with respect to any Contractual Obligation that, either 

individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No 

Default has occurred and is continuing or would result from the consummation of the transactions 

contemplated by this Agreement or any other Loan Document. 

SECTION 3.08 Property. 

(a) Ownership of Properties and Collateral. Each of the Credit Parties and their 

respective Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests 

in, all real property necessary or used in the ordinary conduct of its business, except for such defects in 

title that, either individually or in the aggregate, could not reasonably be expected to have a Material 

Adverse Effect. Each Credit Party has good title to the Collateral owned by it, free and clear of all Liens 

other than Permitted Liens. 

(b) Intellectual Property and Personal Data. Each of the Credit Parties and their 

respective Subsidiaries owns, licenses or possesses the valid and enforceable right to use all of the 

material Intellectual Property and data (including Personal Data) that is used in or necessary for the 

operation of each Carrier Loyalty Program. The use of Loyalty Program Intellectual Property and the 

Loyalty Program Data by the Credit Parties and the conduct of the Carrier Loyalty Programs as currently 

conducted do not materially infringe upon, misappropriate, dilute or otherwise violate any Privacy Law 

nor any rights held by any other Person. No claim or litigation regarding any of the foregoing, or 

challenging the ownership, validity or enforceability of any Loyalty Program Intellectual Property is 

pending or, to the knowledge of any of the Credit Parties, threatened that could reasonably be expected to 

be material to any of the Credit Parties, and to the knowledge of the Credit Parties, there is no basis for 

any such claim. 

SECTION 3.09 Taxes. The Credit Parties and their respective Subsidiaries have filed all 

federal, state and other tax returns and reports required to be filed, and have paid all federal, state and other 
51 

taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, 

income or assets otherwise due and payable, except (a) Taxes that are being contested in good faith by 

appropriate proceedings diligently conducted and for which adequate reserves are being maintained in 

accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected to 

have a Material Adverse Effect. 

SECTION 3.10 Disclosure. (a) The Credit Parties and their respective Subsidiaries have 

disclosed to the Administrative Agent, the Collateral Agent and the Lenders all agreements, instruments and 

corporate or other restrictions to which they are subject, and all other matters known to them, that, either 

individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. The Loan 

Application Form, reports, financial statements, certificates and other written information (other than 

projected or pro forma financial information) furnished by or on behalf of the Credit Parties and their 

respective Subsidiaries to any 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), taken as a whole, do not contain any material 

misstatement of fact or omit to state any material fact necessary to make the statements therein (when taken 

as a whole), in the light of the circumstances under which they were made, not misleading; provided that, 

with respect to projected or pro forma financial information, the Credit Parties represent only that such 

information was prepared in good faith based upon assumptions believed to be reasonable at the time of 

preparation and delivery (it being understood that such projected information may vary from actual results 

and that such variances may be material) and (b) as of the Closing Date, the information included in the 

Beneficial Ownership Certification is true and correct in all respects. 

SECTION 3.11 Compliance with Laws. Each of the Credit Parties and their respective 

Subsidiaries is in compliance with the requirements of all Laws (including Environmental Laws and 

Privacy Laws) and all orders, writs, injunctions and decrees applicable to it or to its properties, except in 

such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested 

in good faith by appropriate proceedings diligently conducted or (b) the failure to so comply, either 

individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 

SECTION 3.12 ERISA Compliance. 

(a) Except as could not reasonably be expected, either individually or in the 

aggregate, to have a Material Adverse Effect, (i) each Plan is in compliance with the applicable provisions 

of ERISA, the Code and other federal or state Laws and (ii) each Plan that is intended to be a qualified 

plan under Section 401(a) of the Code has received a favorable determination letter, opinion letter or 

advisory letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of 

the Code and the trust related thereto has been determined by the IRS to be exempt from federal income 

tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by 

the IRS, and, to the knowledge of any Credit Party, nothing has occurred that would prevent or cause the 

loss of such tax-qualified status. 

(b) There are no pending or, to the knowledge of any Credit Party, threatened or 

contemplated claims, actions or lawsuits, or action by any Governmental Authority, with respect to any 

Plan that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse 

Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with 

respect to any Plan that, either individually or in the aggregate, has had or could reasonably be expected 

to have a Material Adverse Effect. 

(c) No ERISA Event has occurred, and neither any Credit Party nor any ERISA 

Affiliate is aware of any fact, event or circumstance that, either individually or in the aggregate, could 
52 

reasonably be expected to constitute or result in an ERISA Event that, either individually or in the 

aggregate, has had or could reasonably be expected to have a Material Adverse Effect. 

(d) Except as would not reasonably be expected to have individually or in the 

aggregate, a Material Adverse Effect, the present value of all accrued benefits under each Pension Plan 

(based on those assumptions used to fund such Pension Plan) did not, as of the last annual valuation date 

prior to the date on which this representation is made or deemed made, exceed the value of the assets of 

such Pension Plan allocable to such accrued benefits by a material amount. 

(e) To the extent applicable, each Foreign Plan has been maintained in compliance 

with its terms and with the requirements of any and all applicable requirements of Law and has been 

maintained, where required, in good standing with applicable regulatory authorities, except to the extent 

that the failure so to comply could not reasonably be expected, either individually or in the aggregate, to 

have a Material Adverse Effect. Neither the Parent nor any Subsidiary has incurred any obligation in 

connection with the termination of or withdrawal from any Foreign Plan that, either individually or in the 

aggregate, would reasonably be expected to have individually or in the aggregate, a Material Adverse 

Effect. Except as would not reasonably be expected to have individually or in the aggregate, a Material 

Adverse Effect, the present value of the accrued benefit liabilities (whether or not vested) under each 

Foreign Plan that is funded, determined as of the end of the most recently ended fiscal year of the Parent 

or Subsidiary, as applicable, on the basis of actuarial assumptions, each of which is reasonable, did not 

exceed the current value of the property of such Foreign Plan by a material amount, and for each Foreign 

Plan that is not funded, the obligations of such Foreign Plan are properly accrued. 

SECTION 3.13 Environmental Matters. Except with respect to any matters that, either 

individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, none 

of the Credit Parties and their respective Subsidiaries (a) has failed to comply with any Environmental Law 

or to obtain, maintain or comply with any permit, license or other approval required under any 

Environmental Law, (b) knows of any basis for any permit, license or other approval required under any 

Environmental Law to be revoked, canceled, limited, terminated, modified, appealed or otherwise 

challenged, (c) has or could reasonably be expected to become subject to any Environmental Liability, 

(d) has received notice of any claim, complaint, proceeding, investigation or inquiry with respect to any 

Environmental Liability (and no such claim, complaint, proceeding, investigation or inquiry is pending or, 

to the knowledge of the Parent, is threatened or contemplated) or (e) knows of any facts, events or 

circumstances that could give rise to any basis for any Environmental Liability with respect thereto. 

SECTION 3.14 Investment Company Act. None of the Credit Parties is an “investment 

company” as defined in, or subject to regulation under, the Investment Company Act of 1940. 

SECTION 3.15 Sanctions; Export Controls; Anti-Corruption; AML Laws. 

(a) None of the Credit Parties and their respective Subsidiaries and no director, 

officer, or affiliate of the foregoing is a Person that is: (i) the subject of any sanctions administered or 

enforced by the United States (including, but not limited to, those administered by the U.S. Department of 

the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department 

of Commerce’s Bureau of Industry and Security) (“Sanctions”), (ii) organized or resident in a country or 

territory that is the subject of country-wide or region-wide Sanctions (including, currently, Crimea, Cuba, 

Iran, North Korea, and Syria) (each a “Sanctioned Country”) or located in a Sanctioned Country except to 

the extent authorized under Sanctions or (iii) a Person with whom dealings are restricted or prohibited by 

Sanctions as a result of a relationship of ownership or control with a Person listed in (i) or (ii) (each of (i), 

(ii) and (iii) is a “Sanctioned Person”). 
53 

(b) For the period beginning eight (8) years prior to the date hereof, each of the 

Credit Parties and their respective Subsidiaries and their respective directors, officers and employees and, 

to the knowledge of the Credit Parties, such respective affiliates, have been, in all material respects, in 

compliance with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations 

thereunder (the “FCPA”) and any other applicable anti-bribery or anti-corruption laws and regulations 

(collectively with the FCPA, the “Anticorruption Laws”) and all applicable Sanctions, Export Control 

Laws, and AML Laws. 

SECTION 3.16 Solvency. The Borrower and its Subsidiaries are Solvent on a consolidated 

basis after giving effect to the borrowing of the Loans. 

SECTION 3.17 Subsidiaries. Schedule 3.17 sets forth the name of, and the ownership 

interests of the Parent and each of its Subsidiaries and indicates which of such Subsidiaries are Excluded 

Subsidiaries as of the date hereof. 

SECTION 3.18 Senior Indebtedness. The Loans, the Obligations and the Guaranteed 

Obligations constitute “senior indebtedness” (or any other similar or comparable term) under and as defined 

in the documentation governing any Indebtedness of the Credit Parties that is subordinated in right of 

payment to any other Indebtedness thereof. 

SECTION 3.19 Insurance Matters. The properties of the Credit Parties are insured 

pursuant to Section 5.06 hereof. Each insurance policy required to be maintained by the Credit Parties 

pursuant to Section 5.06 is in full force and effect and all premiums in respect thereof that are due and 

payable have been paid. 

SECTION 3.20 Labor Matters. Except as would not reasonably be expected to have 

individually or in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or 

other material labor disputes against any Credit Party or any of its Subsidiary thereof pending or, to the 

knowledge of the Credit Parties, threatened, (b) the Credit Parties and their respective Subsidiaries have 

complied with all applicable federal, state, local and foreign Laws relating to the employment (or 

termination thereof), the hours worked by and payments made to employees of the Parent and its 

Subsidiaries comply with the Fair Labor Standards Act and any other applicable federal, state, local or 

foreign Law dealing with such matters and (c) all payments due from the Credit Parties and their respective 

Subsidiaries, or for which any claim may be made against the Credit Parties and their respective 

Subsidiaries, on account of wages and employee health and welfare insurance and other benefits, have been 

paid or properly accrued in accordance with GAAP as a liability on the books of the Parent or such 

Subsidiary. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair 

employment practices charges or any other claims or complaints against the Credit Parties or their 

respective Subsidiaries pending or, to the knowledge of the Credit Parties, threatened to be filed with any 

Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to 

the employment or termination of employment of any employee of the Credit Parties and their respective 

Subsidiaries that would, individually or in the aggregate, be reasonably expected to result in a Material 

Adverse Effect. 

SECTION 3.21 Insolvency Proceedings. None of the Credit Parties has taken, and none of 

the Credit Parties is currently evaluating taking, any action to seek relief or commence proceedings under 

any Debtor Relief Law in any applicable jurisdiction. 

SECTION 3.22 Margin Regulations. The Borrower is not engaged and will not engage, 

principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or 

extending credit for the purpose of purchasing or carrying Margin Stock, and no part of the proceeds of any 
54 

Borrowing hereunder will be used to buy or carry any Margin Stock. Following the application of the 

proceeds of each Borrowing, not more than 25% of the value of the assets (either of the Borrower only or of 

the Borrower and its Subsidiaries on a consolidated basis) will be Margin Stock. 

SECTION 3.23 Liens. There are no Liens of any nature whatsoever on any Collateral other 

than Liens permitted under SECTION 6.02 hereof. 

SECTION 3.24 Perfected Security Interests. 

(a) As of the Closing Date (or such later date as permitted under Section 5.14) and as 

of the date of each Borrowing, the Security Documents, taken as a whole, are effective to create in favor 

of the Collateral Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority 

security interest in all of the Collateral to the extent purported to be created thereby. 

(b) As of the Closing Date (or such later date as permitted under Section 5.14) and as 

of the date of each Borrowing, each Credit Party has or shall have satisfied the Perfection Requirement 

with respect to the Collateral. 

SECTION 3.25 US Citizenship. The Borrower is a “citizen of the United States” as 

defined in Section 40102(a)(15) of Title 49 and as that statutory provision has been interpreted by the DOT 

pursuant to its policies. 

SECTION 3.26 Air Carrier Status. The Borrower is an “air carrier” within the meaning of 

Section 40102 of Title 49, holds a certificate under Section 41102 of Title 49 and, during the time period 

from April 1, 2019 to September 30, 2019, derived more than 50% of its air transportation revenue from the 

transportation of passengers. The Borrower holds an air carrier operating certificate issued pursuant to 

Chapter 447 of Title 49. The Borrower 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 do so, either individually or in the aggregate, could not reasonably be expected to 

have a Material Adverse Effect. 

SECTION 3.27 Cybersecurity. Except as could not reasonably be expected, either 

individually or in the aggregate, to have a Material Adverse Effect, the information technology assets, 

equipment, systems, networks, software, hardware, and the computers, websites, applications and databases 

used by or on behalf of the Credit Parties in connection with any of the Carrier Loyalty Programs 

(collectively, “IT Systems”) (i) are adequate for the operation of the Carrier Loyalty Programs as currently 

conducted, and (ii) are free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and 

other corruptants. Except as could not reasonably be expected, either individually or in the aggregate, to 

have a Material Adverse Effect, (i) the Credit Parties have implemented and maintained commercially 

reasonable (taking into account the nature, scope and sensitivity of the information) policies, procedures, 

and safeguards designed to maintain and protect all Loyalty Program Data and confidential information 

(including Trade Secrets) included in the Collateral and the integrity, continuous operation, redundancy and 

security of all IT Systems and data and (ii) there have been no breaches, cyberattacks (including 

ransomware attacks) or unauthorized uses of or accesses to the IT Systems or any Loyalty Program Data, 

Trade Secrets or confidential information stored therein or processed thereby, except for those that have 

been fully remedied. 

SECTION 3.28 Loyalty Program Agreements. The Credit Parties have delivered or made 

available to the Initial Lender complete and correct copies of each of the Material Loyalty Program 

Agreements. Each of the Material Loyalty Program Agreements is in full force and effect and except as 
55 

could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, 

none of the Credit Parties has knowledge of or has received notice of (i) any breach, (ii) change in law or 

(iii) force majeure event, in the case of (ii) and (iii) as defined under the applicable Material Loyalty 

Program Agreement, that would prevent such Credit Party and/or the applicable counterparty from 

performing its respective obligations under such Material Loyalty Program Agreement. 

ARTICLE IV 

CONDITIONS 

SECTION 4.01 Closing Date and Initial Borrowing. The effectiveness of this Agreement 

and the funding of the initial Borrowing hereunder are subject to the satisfaction (or waiver in accordance 

with Section 11.02) of the following conditions (and, in the case of each document specified in this Section 

to be received by the Initial Lender (and the applicable Agent or Agents), such document shall be in form 

and substance satisfactory to the Initial Lender and/or the applicable Agent or Agents): 

(a) Executed Counterparts. The Initial Lender and the Agents shall have received 

from each party hereto a counterpart of this Agreement, any Security Documents to which it is a 

party and the Note, each signed on behalf of such party. Notwithstanding anything herein to the 

contrary, delivery of an executed counterpart of a signature page of this Agreement or any 

Security Documents by telecopy or other electronic means, or confirmation of the execution of 

this Agreement on behalf of a party by an email from an authorized signatory of such party shall 

be effective as delivery of a manually executed counterpart of this Agreement. 

(b) Certificates. The Initial Lender and any applicable Agent shall have received 

such customary certificates of resolutions or other action, incumbency certificates and/or other 

certificates of Responsible Officers of the Credit Parties as the Lenders may require evidencing 

the identity, authority and capacity of each Responsible Officer thereof authorized to act as a 

Responsible Officer in connection with the Loan Documents; 

(c) Organizational Documents. The Initial Lender shall have received customary 

resolutions or evidence of corporate authorization, secretary’s certificates and such other 

documents and certificates (including Organizational Documents and good standing certificates) 

as the Initial Lender may request relating to the organization, existence and good standing of each 

Credit Party and any other legal matters relating to the Credit Parties, the Loan Documents or the 

transactions contemplated thereby. 

(d) Opinion of Counsel to Credit Parties. The Initial Lender and the applicable 

Agent or Agents shall have received all opinions of counsel (including any additional opinions of 

counsel as required under any Security Document) to the Credit Parties that is acceptable to the 

Initial Lender, addressed to the Initial Lender and the applicable Agent or Agents and dated the 

Closing Date, in form and substance satisfactory to the Initial Lender and the applicable Agent 

(and the Parent hereby instructs such counsel to deliver such opinions to such Persons). 

(e) Beneficial Ownership Regulation Information. At least five (5) days prior to the 

Closing Date, the Borrower shall deliver to the Initial Lender a Beneficial Ownership 

Certification. 

(f) Expenses. The Borrower shall have paid all reasonable fees, expenses (including 

the fees and expenses of legal counsel) and other amounts due to the Initial Lender, the 

Administrative Agent and the Collateral Agent (to the extent that statements for such expenses 
56 

shall have been delivered to the Borrower on or prior to the Closing Date); provided that such 

expenses payable by the Borrower may be offset against the proceeds of the Loans funded on the 

Closing Date. 

(g) Officer’s Certificate. The Initial Lender shall have received a certificate 

executed by a Responsible Officer of the Parent and the Borrower confirming (i) that the 

representations and warranties contained in Article III of this Agreement are true and correct on 

and as of the Closing Date, (ii) that the information provided in the Loan Application Form 

submitted by the Borrower was true and correct on and as of the date of delivery thereof, (iii) the 

satisfaction of such condition and (iv) that no Default or Event of Default exists or will result 

from the borrowing of the Loans on the Closing Date. 

(h) Other Documents. The Initial Lender and the Agents shall have received such 

other documents as it may request. 

(i) Appraisals. The Initial Lender shall have received Appraisals satisfactory in 

form and substance and performed by an Eligible Appraiser dated as of a date no earlier than 

thirty (30) days prior to the Closing Date. 

(j) Security Interests. Each Credit Party shall have, and caused its Subsidiaries to, 

take any action and execute and deliver, or cause to be executed and delivered, any agreement, 

document or instrument required in order to create a valid, perfected first priority security interest 

in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties (including 

delivery of UCC financing statements in appropriate form for filing under the UCC and of the 

Intellectual Property security agreements included in the Required Filings and entering into 

control agreements). Each Credit Party shall have satisfied, and caused its Subsidiaries to satisfy, 

the Perfection Requirement with respect to the Collateral. In addition, the Credit Parties shall 

have delivered a completed Perfection Certificate (as defined in the Pledge and Security 

Agreement). 

(k) Consents and Authorizations. Each Credit Party shall have obtained all consents 

and authorizations from Governmental Authorities and all consents of other Persons (including 

shareholder approvals, if applicable) that are necessary or advisable in connection with this 

Agreement, any Loan Document, any of the transactions contemplated hereby or thereby or the 

continuing operations of the Credit Parties and each of the foregoing shall be in full force and 

effect and in form and substance satisfactory to the Initial Lender. 

(l) Lien Searches. The Initial Lender shall have received (i) UCC, Intellectual 

Property and other lien searches conducted in the jurisdictions and offices where liens on material 

assets of the Credit Parties are required to be filed or recorded and (ii) to the extent Collateral 

consists of (x) Aircraft and Engine Assets (as defined in the Pledge and Security Agreement), 

aircraft registry lien searches conducted with the FAA and the International Registry, and (y) 

Spare Part Assets (as defined in the Pledge and Security Agreement), registry lien searches 

conducted with the FAA (with reference to each Designated Spare Parts Location set forth on 

Schedule 2.1 of the Pledge and Security Agreement), in each case, reflecting the absence of Liens 

on the assets of the Credit Parties, other than Permitted Liens or Liens to be discharged on or 

prior to the Closing Date pursuant to documentation satisfactory to the Initial Lender. 

(m) Collateral Coverage Ratio. On the Closing Date (and after giving pro forma 

effect to any Borrowings on such date), the Collateral Coverage Ratio shall not be less than 2.0 to 

1.0. 
57 

(n) Solvency Certificate. The Initial Lender shall have received a certificate of the 

chief financial officer or treasurer (or other comparable officer) of the Parent certifying that the 

Borrower and its Subsidiaries (taken as a whole) are, and will be immediately after giving effect 

to any Loans borrowed on the Closing Date, Solvent. 

(o) Warrant Agreement. Treasury and the Parent shall have entered into the Warrant 

Agreement. 

(p) Loyalty Revenue Advance Transactions. On the Closing Date, the aggregate 

outstanding balance of Loyalty Revenue Advance Transactions shall not exceed an aggregate 

amount equal to $15,000,000. 

(q) Control Agreements. The Initial Lender and the Collateral Agent shall have 

received fully executed copies of account control agreements in form and substance satisfactory 

to the Initial Lender with respect to the Collateral Accounts. 

(r) [Reserved]. 

(s) Loyalty Partner Direct Agreements. The Initial Lender and the Collateral Agent 

shall have received duly executed Direct Agreements from the counterparties to each Material 

Loyalty Program Agreement in effect on the Closing Date substantially in the form of Exhibit D 

hereto. 

(t) Other Matters. Since June 29, 2020, (i) there has been no event or circumstance 

that, either individually or in the aggregate, has had or could reasonably be expected to have a 

Material Adverse Effect and (ii) none of the Credit Parties has made a Disposition (including any 

sale of Currency) of any assets of the type that would be included in the Collateral had this 

Agreement been in effect at such time other than as would have been permitted under Section 

6.04(b), (d), (e) or (h). 

SECTION 4.02 Each Borrowing. The funding by the Lenders of each Borrowing 

(including the Borrowing to be requested on the Closing Date) is additionally subject to the satisfaction of 

the following conditions: 

(a) the Administrative Agent shall have received a written Borrowing Request in 

accordance with the requirements of Section 2.03(a), with a copy to the Initial Lender (solely to 

the extent the Initial Lender is a Lender at the time of such Borrowing); 

(b) the representations and warranties of the Credit Parties set forth in this 

Agreement and in any other Loan Document shall be true and correct in all material respects (or, 

in the case of any such representation or warranty already qualified by materiality, in all respects) 

on and as of the date of such Borrowing (or, in the case of any such representation or warranty 

expressly stated to have been made as of a specific date, as of such specific date); 

(c) no Default shall have occurred and be continuing or would result from such 

Borrowing or from the application of proceeds thereof; 

(d) on the date of the funding of such Borrowing (and after giving pro forma effect 

thereto and the pledge of any Additional Collateral), the Collateral Coverage Ratio shall not be 

less than 2.0 to 1.0 as evidenced by a certificate of a Responsible Officer of the Parent; 
58 

(e) [reserved]; 

(f) the Initial Lender shall have received satisfactory evidence that (x) each Material 

Loyalty Program Agreement has and (y) Loyalty Program Agreements representing 90% of 

Loyalty Program Revenues (excluding revenues generated under any Loyalty Subscription 

Program) in the aggregate over the immediately preceding twelve (12) calendar month period 

then ended have, in each case, an expiration date that is at least six (6) months after the Maturity 

Date (without giving effect to the proviso in the definition thereof); 

(g) on the date of such Borrowing, the opinion of the independent public accountants 

(after giving effect to any reissuance or revision of such opinion) on the most recent audited 

consolidated financial statements delivered by the Parent pursuant to Section 5.01(a) shall not 

include a “going concern” qualification under GAAP as in effect on the date of this Agreement 

or, if there is a change in the relevant provisions of GAAP thereafter, any like qualification or 

exception under GAAP after giving effect to such change; and 

(h) on or prior to the date of such Borrowing, each Credit Party shall have satisfied 

the Perfection Requirement with respect to the Collateral.

Each Borrowing Request by the Borrower hereunder and each Borrowing shall be deemed to constitute a 

representation and warranty by the Borrower on and as of the date of the applicable Borrowing as to the 

matters specified in clauses (b) and (c) above in this Section.

ARTICLE V 

AFFIRMATIVE COVENANTS 

Until all the later of (i) the date on which all of the Obligations shall have been paid in 

full and (ii) such later date specified in this Agreement, the Credit Parties covenant and agree with the 

Lenders that: 

SECTION 5.01 Financial Statements. The Parent will furnish to the Administrative Agent 

and each Lender: 

(a) as soon as available, and in any event within ninety (90) days after the end of 

each fiscal year of the Parent (or, if earlier, five (5) days after the date required to be filed with 

the SEC) (commencing with the fiscal year ended prior to the Closing Date), a consolidated 

balance sheet of the Parent and its Subsidiaries as at the end of such fiscal year and the related 

consolidated statements of income or operations, shareholders’ equity and cash flows for such 

fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, 

audited and accompanied by a report and opinion of independent public accountants of nationally 

recognized standing, which report and opinion shall be prepared in accordance with generally 

accepted auditing standards (and shall not be subject to any “going concern” or like qualification 

(other than a qualification solely resulting from (x) the impending maturity of any Indebtedness 

or (y) any prospective or actual default under any financial covenant), exception or explanatory 

paragraph or any qualification, exception or explanatory paragraph as to the scope of such audit) 

to the effect that such consolidated financial statements present fairly in all material respects the 

financial condition, results of operations, shareholders’ equity and cash flows of the Parent and its 

Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; 
59 

(b) as soon as available, but in any event within forty-five (45) days after the end of 

each of the first three (3) fiscal quarters of each fiscal year of the Parent (or, if earlier, five 

(5) days after the date required to be filed with the SEC) (commencing with the first of such fiscal 

quarters ended prior to the Closing Date), a consolidated balance sheet of the Parent and its 

Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or 

operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the 

Parent’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the 

figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding 

portion of the previous fiscal year, certified by a Financial Officer of the Parent as fairly 

presenting in all material respects the financial condition, results of operations, shareholders’ 

equity and cash flows of the Parent and its Subsidiaries on a consolidated basis in accordance 

with GAAP consistently applied, subject only to normal year-end audit adjustments and the 

absence of notes; 

(c) for so long as the Initial Lender is the only Lender, as soon as available, but in 

any event no later than seventy-five (75) days after the beginning of each fiscal year of the Parent, 

forecasts prepared by management of the Parent and a summary of material assumptions used to 

prepare such forecasts, in form satisfactory to the Initial Lender, including projected consolidated 

balance sheets and statements of income or operations and cash flows of the Parent and its 

Subsidiaries on a quarterly basis for such fiscal year; and 

(d) solely at the request of the Appropriate Party (which shall be no more than 

quarterly), at a time mutually agreed with the Appropriate Party and the Parent, participate in a 

conference call for Lenders to discuss the financial condition and results of operations of the 

Parent and its Subsidiaries and any forecasts which have been delivered pursuant to this Section 

5.01. 

SECTION 5.02 Certificates; Other Information. The Parent will deliver to the 

Administrative Agent and each Lender: 

(a) [reserved];

(b) concurrently with the delivery of the financial statements referred to in 

Sections 5.01(a) and (b), a duly completed certificate signed by a Responsible Officer of the 

Parent certifying as to whether a Default has occurred and, if a Default has occurred, specifying 

the details thereof and any action taken or proposed to be taken with respect thereto; 

(c) [reserved]; 

(d) promptly after the furnishing thereof, copies of any notice of default or potential 

default or other material written notice received by the Parent or any Subsidiary from, or furnished by the 

Parent or any Subsidiary to, any holder of Material Indebtedness of the Parent or any Subsidiary; 

(e) promptly after receipt thereof by any Credit Party or any Subsidiary thereof, 

copies of each material notice or other material written correspondence received from the SEC (or 

comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or 

possible investigation or other inquiry by such agency regarding material financial or other 

material operational results of any Credit Party or any Subsidiary thereof; 

(f) [reserved]; 
60 

(g) promptly following any request therefor, (i) such other information regarding the 

operations, business, properties, liabilities (actual or contingent), condition (financial or 

otherwise) or prospects of any Credit Party or any Subsidiary, or compliance with the terms of the 

Loan Documents, as the Administrative Agent, the Initial Lender or any other Lender (acting 

through the Administrative Agent) may from time to time request; or (ii) beneficial ownership 

information and documentation reasonably requested by the Administrative Agent or any Lender 

from time to time for purposes of ensuring compliance with Sanctions and AML Laws. For 

purposes of determining whether or not a representation with respect to any indirect ownership is 

true or a covenant is being complied with under this Section, the Parent shall not be required to 

make any investigation into (i) the ownership of publicly traded stock or other publicly traded 

securities or (ii) the ownership of assets by a collective investment fund that holds assets for 

employee benefit plans or retirement arrangements; 

(h) concurrently with the delivery of the financial statements referred to in 

Sections 5.01(a) and (b), a duly completed certificate signed by a Responsible Officer of the 

Borrower certifying as to its compliance with Article X of this Agreement; 

(i) knowledge or notice of any event or circumstance that has had or is reasonably 

expected to (i) result in a material reduction or suspension of payments under any Material 

Loyalty Program Agreement or any Loyalty Subscription Program or (ii) have a material adverse 

effect on the ability of a Credit Party and/or any counterparty to a Material Loyalty Program 

Agreement to perform its material obligations thereunder; 

(j) certificates with reasonably detailed calculations of the Collateral Coverage Ratio 

on each CCR Certificate Delivery Date and the Debt Service Coverage Ratio on each DSCR 

Determination Date; and 

(k) no later than ten (10) Business Days following the last day of each March, June, 

September and December (commencing December 31, 2020), deliver a certificate of a 

Responsible Officer of the Parent (i) setting forth the name of each new Material Loyalty 

Program Agreement entered into as of such date and each of the parties thereto, (ii) certifying that 

all Loyalty Program Revenue for the immediately preceding calendar quarter were deposited, 

directly or indirectly, into the Collection Account or another Collateral Account (and at least 90% 

of all Loyalty Program Revenues (excluding revenues generated under any Loyalty Subscription 

Program) were deposited directly into a Collateral Account) and (iii) setting forth in reasonable 

detail and in form satisfactory to the Appropriate Party (x) all Loyalty Program Revenues and 

related cash flows for the immediately preceding calendar quarter and (y) for so long as the Initial 

Lender is the only Lender, projected Loyalty Program Revenues for the current calendar quarter. 

Documents required to be delivered pursuant to Section 5.01(a) or (b) or Section 5.02(c), 

(d) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may 

be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on 

which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and 

Retrieval system (EDGAR); or (ii) on which such documents are posted on the Parent’s behalf on an 

Internet or intranet website, if any, to which each Lender and the Administrative Agent have access 

(whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided 

that: (A) upon written request by the Administrative Agent, the Parent shall deliver paper copies of such 

documents to the Administrative Agent or any Lender upon its request to the Parent to deliver such paper 

copies until a written request to cease delivering paper copies is given by the Administrative Agent or 

such Lender and (B) the Parent shall notify the Administrative Agent and each Lender (by facsimile or 

electronic mail) of the posting of any such documents and provide to the Lenders by electronic mail 
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electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no 

obligation to request the delivery of or to maintain paper copies of the documents referred to above. 

SECTION 5.03 Notices. The Parent will promptly notify the Administrative Agent and each 

Lender of: 

(a) promptly after any Responsible Officer of Parent or any of its Subsidiaries 

obtains knowledge thereof, the occurrence of any Default; 

(b) the filing or commencement of any action, suit, investigation or proceeding by or 

before any arbitrator or Governmental Authority against or affecting the Parent or any Controlled 

Affiliate thereof, including pursuant to any applicable Environmental Laws, that could reasonably 

be expected to be adversely determined, and, if so determined, could reasonably be expected to 

have a Material Adverse Effect; 

(c) the occurrence of any ERISA Event that, either individually or together with any 

other ERISA Events, could reasonably be expected to have a Material Adverse Effect;

(d) notice of any action arising under any Environmental Law or of any 

noncompliance by any Credit Party or any Subsidiary with any Environmental Law or any 

permit, approval, license or other authorization required thereunder that, if adversely determined, 

could reasonably be expected to have a Material Adverse Effect;

(e) to the extent not publicly disclosed pursuant to an SEC filing of the Parent, any 

material change in accounting or financial reporting practices by the Parent, any Credit Party or 

any Subsidiary; 

(f) any change in the Credit Ratings from a Credit Rating Agency with negative 

implications, or the cessation by a Credit Rating Agency of, or its intent to cease, rating the 

Borrower’s or the Parent’s debt; and 

(g) any matter or development that has had or could reasonably be expected to have 

a Material Adverse Effect. 

Each notice delivered under this Section shall be accompanied by a statement of a 

Responsible Officer of the Parent setting forth the details of the occurrence requiring such notice and 

stating what action the Parent has taken and proposes to take with respect thereto. 

SECTION 5.04 Preservation of Existence, Etc. Each Credit Party will, and will cause each 

of its Subsidiaries to, (a) preserve, renew and maintain in full force and effect its legal existence and good 

standing under the Laws of the jurisdiction of its organization except in a transaction permitted by 

Section 6.03 or 6.04; (b) take all reasonable action to maintain all rights, licenses, permits, privileges and 

franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do 

so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its 

registered patents, trademarks, trade names and service marks, the non-preservation of which could 

reasonably be expected to have a Material Adverse Effect. 

SECTION 5.05 Maintenance of Properties. Each Credit Party will, and will cause each of 

its Subsidiaries to, (a) 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 
62 

(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 5.06 Maintenance of Insurance. Subject to any additional requirements under 

any Security Document, each Credit Party will maintain with financially sound and reputable insurance 

companies, insurance with respect to its properties and business against loss or damage of the kinds 

customarily insured against by Persons engaged in the same or similar business, of such types and in such 

amounts (after giving effect to any self-insurance reasonable and customary for similarly situated Persons 

engaged in the same or similar businesses as Parent and its Subsidiaries; provided that, insurance in respect 

of Collateral shall be maintained with such third party insurance companies except to the extent expressly 

permitted in the Pledge and Security Agreement) as are customarily carried under similar circumstances by 

such Persons. 

SECTION 5.07 Payment of Obligations. Each Credit Party will pay, discharge or 

otherwise satisfy as the same shall become due and payable, all of its obligations and liabilities, including 

Tax liabilities, except to the extent (a) the same are being contested in good faith by appropriate 

proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by 

the Parent or such Credit Party or (b) the failure to do so could not reasonably be expected to have a 

Material Adverse Effect. 

SECTION 5.08 Compliance with Laws. Each Credit Party will, and will cause each of its 

Subsidiaries to, comply with the requirements of all Laws and all orders, writs, injunctions and decrees 

applicable to it or to its business or property, except to the extent that the failure to do so could not 

reasonably be expected to have a Material Adverse Effect. 

SECTION 5.09 Environmental Matters. Except to the extent that the failure to do so could 

not reasonably be expected to have a Material Adverse Effect, each Credit Party will, and will cause each of 

its Subsidiaries to, (a) comply with all Environmental Laws, (b) obtain, maintain in full force and effect and 

comply with any permits, licenses or approvals required for the facilities or operations of the Parent or any 

of its Subsidiaries, and (c) conduct and complete any investigation, study, sampling or testing, and 

undertake any corrective, cleanup, removal, response, remedial or other action necessary to identify, report, 

remove and clean up all Hazardous Materials present or released at, on, in, under or from any of the 

facilities or real properties of the Parent or any of its Subsidiaries. 

SECTION 5.10 Books and Records. Each Credit Party will maintain proper books of 

record and account, in which full, true and correct entries in conformity with GAAP consistently applied 

shall be made of all financial transactions and matters involving the assets and business of the Parent or 

such Subsidiary, as the case may be. 

SECTION 5.11 Inspection Rights. Each Credit Party will, and, to the extent relevant for 

inspections of Collateral will cause each of its Subsidiaries to, permit representatives, agents and 

independent contractors of the Administrative Agent, the Initial Lender and the Special Inspector General 

for Pandemic Recovery to visit and inspect any of its properties (including all Collateral), to examine its 

corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its 

affairs, finances and accounts with its directors, officers, and independent public accountants, all at the 

reasonable expense of the Parent and at such reasonable times during normal business hours and as often as 

may be reasonably requested; provided that, other than with respect to such visits and inspections during the 

continuation of an Event of Default or by the Initial Lender or the Special Inspector General for Pandemic 

Recovery, (a) only the Administrative Agent (or its representatives, agents and independent contractors) at 

the direction of a Lender may exercise rights under this Section and (b) the Administrative Agent (or its 

representatives, agents and independent contractors) shall not exercise such rights more often than two (2) 
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times during any calendar year; provided, further, that when an Event of Default exists the Administrative 

Agent, any Lender or the Special Inspector General for Pandemic Recovery (or any of their respective 

representatives, agents or independent contractors) may do any of the foregoing under this Section at the 

expense of the Parent and at any time during normal business hours and without advance notice. 

SECTION 5.12 Sanctions; Export Controls; Anti-Corruption Laws and AML Laws. Each 

Credit Party and its Subsidiaries will remain in compliance in all material respects with applicable 

Sanctions, Export Control Laws, Anticorruption Laws, and AML Laws. Until all Obligations have been 

paid in full, neither any Credit Party, any Subsidiary of a Credit Party, nor any director or officer of any 

Credit Party or any Subsidiary of a Credit Party shall become a Sanctioned Person or a Person that is 

organized or resident in a Sanctioned Country or located in a Sanctioned Country except to the extent 

authorized under Sanctions. 

SECTION 5.13 Guarantors; Additional Collateral. 

(a) The Guarantors listed on the signature page to this Agreement hereby Guarantee 

the Guaranteed Obligations as set forth in Article IX. If any Subsidiary (other than an Excluded 

Subsidiary) is formed or acquired after the Closing Date, if any Subsidiary ceases to be an Excluded 

Subsidiary or if required in connection with the addition of Additional Collateral, then the Parent will 

cause such Subsidiary, promptly (in any event, within thirty (30) days of such Subsidiary being formed or 

acquired or of such Subsidiary ceasing to be an Excluded Subsidiary), (i) to become a Guarantor of the 

Loans pursuant to joinder documentation reasonably acceptable to the Appropriate Party and on the terms 

and conditions set forth in Article IX, (ii) to become a party to each applicable Security 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 Collateral Agent for the benefit of the Secured Parties in 

its assets that are of a type that are intended to be included in the Collateral (other than any Excluded 

Assets), subject to and in accordance with the terms, conditions and provisions of the Loan Documents, 

(iii) to satisfy the Perfection Requirement, (iv) to deliver a secretary’s certificate of such Subsidiary, in 

form and substance reasonably acceptable to the Appropriate Party, with appropriate insertions and 

attachments, and (v) to deliver legal opinions relating to the matters described above, which opinions 

shall be in form and substance, and from counsel, satisfactory to the Appropriate Party. 

(b) If the Parent or any Subsidiary desires, or is required pursuant to the terms of this 

Agreement, to add Additional Collateral or, if any Subsidiary acquires any existing Collateral from a 

Grantor (as defined in the Pledge and Security Agreement) that it is required pursuant to the terms of this 

Agreement to maintain as Collateral, in each case, after the Closing Date, the Parent shall, in each case at 

its own expense, promptly (in any event, unless any other time period is specified in this Agreement or 

any other Loan Document, within thirty (30) days of the relevant date) (i) cause any such Subsidiary to 

become a Grantor (to the extent such Subsidiary is not already a Grantor) pursuant to joinder 

documentation acceptable to the Appropriate Party and on the terms and conditions set forth in the 

relevant Security Documents, (ii) cause any such Subsidiary to become a party to each applicable Security 

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 Collateral Agent for the benefit of the 

Secured Parties applicable to such Collateral, in form and substance satisfactory to the Appropriate Party 

(it being understood that in the case of any Additional Collateral of a type, or in a jurisdiction, that has not 

been theretofore included in the Collateral, such Additional Collateral may be subject to such additional 

terms and conditions as requested by the Appropriate Party), (iii) promptly execute and deliver (or cause 

such 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) (including 

to obtain any release or termination of Liens not permitted under the definition of “Additional Collateral” 

in Section 1.01 or under SECTION 6.02 and to satisfy all Perfection Requirements, including the filing of 
64 

UCC financing statements, filings with the FAA and registrations with the International Registry, as 

applicable) in favor of the Collateral Agent for the benefit of the Secured Parties on such assets of the 

Parent or such Subsidiary, as applicable, to secure the Obligations to the extent required under the 

applicable Security Documents or reasonably requested by the Appropriate Party, and to ensure that such 

Collateral shall be subject to no other Liens other than Permitted Liens and (iv) if requested by the 

Appropriate Party, deliver (or cause such Subsidiary to deliver) legal opinions to the Collateral Agent, for 

the benefit of the Secured Parties, relating to the matters described above, which opinions shall be in form 

and substance, and from counsel, satisfactory to the Appropriate Party. 

SECTION 5.14 Post-Closing Matters. As promptly as practicable, and in any event within 

the time periods after the Closing Date specified on Schedule 5.14 or such later date as the Initial Lender 

may agree to in writing in its sole discretion, the Parent shall deliver the documents or take the actions 

specified on Schedule 5.14 that would have been required to be delivered or taken on the Closing Date. 

SECTION 5.15 Further Assurances. In each case subject to the terms, conditions and 

limitations in the Loan Documents, (a) each Credit Party shall remain in compliance with the Perfection 

Requirement with respect to all Collateral (including any assets, rights and properties that (x) become 

Collateral after the Closing Date and (y) any permitted replacement or substitute assets, rights and 

properties thereof (including any Additional Collateral) and (b) each Credit Party shall, promptly and at its 

expense, execute any and all further documents and instruments and take all further actions, that may be 

required or advisable under applicable law or that the Initial Lender, the Administrative Agent or the 

Collateral Agent may request, in order to create, grant, establish, preserve, protect, renew or perfect the 

validity, perfection or first priority of the Liens and security interests created or intended to be created by 

the Security Documents, in each case to the extent required under this Agreement or the Security 

Documents (including with respect to any additions to the Collateral (including any Additional Collateral) 

or replacements, substitutes or proceeds thereof or with respect to any other property or assets hereafter 

acquired by any Credit Party that are of a type that are intended to be included in the Collateral). Promptly 

following the entry by any Credit Party into any Material Loyalty Program Agreement after the Closing 

Date, the Parent will enter into and cause the counterparty to enter into a Direct Agreement substantially in 

the form of Exhibit D hereto. 

SECTION 5.16 Delivery of Appraisals. The Parent shall (1) within ten (10) Business Days 

prior to the last Business Day of March and September of each year, beginning with March 31, 2021 and (2) 

promptly (but in any event within thirty (30) days) following request by the Administrative Agent (acting at 

the direction of the Required Lenders) if an Event of Default has occurred and is occurring, deliver to the 

Administrative Agent one or more Appraisals determining the Appraised Value of the Collateral. In 

addition, on the date upon which any Additional Collateral is pledged as Collateral to the Collateral Agent 

for the benefit of the Secured Parties to secure the Obligations, but only with respect to such Additional 

Collateral, the Parent shall deliver to the Administrative Agent one or more Appraisals determining the 

Appraised Value of such Additional Collateral. 

SECTION 5.17 Ratings. At any time when the Initial Lender is a Lender, the Borrower 

shall, upon request by the Initial Lender, use its reasonable best efforts to obtain a public rating in respect of 

the Loans by any two of S&P, Moody’s and Fitch in connection with any contemplated assignment of, or 

participation in, the Loans. 

SECTION 5.18 Regulatory Matters. 

(a) US Citizenship. The Borrower will at all times maintain its status as a “citizen of 

the United States” as defined in Section 40102(a)(15) of Title 49 and as that statutory provision has been 

interpreted by the DOT pursuant to its policies. 
65 

(b) Air Carrier Status. The Borrower will at all times maintain its status as an “air 

carrier” within the meaning of Section 40102 of Title 49 and holds a certificate under Section 41102 of 

Title 49. The Borrower will at all times possess an air carrier operating certificate issued pursuant to 

Chapter 447 of Title 49. The Borrower will at all times possess 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 do so, either individually or in the aggregate, could not 

reasonably be expected to have a Material Adverse Effect. 

SECTION 5.19 Loyalty Programs; Loyalty Program Agreements. 

(a) Loyalty Programs. The Parent will, and will cause each of its Subsidiaries to, 

take all actions necessary to maintain the existence, business and operations of the Carrier Loyalty 

Programs as in effect on the Closing Date or on terms at least as favorable to the Lenders, as determined 

by the Appropriate Party in its sole discretion, except as otherwise expressly permitted under this 

Agreement. 

(b) Loyalty Program Agreements. The Parent will, and will cause each of its 

Subsidiaries to, take any action permitted under the Material Loyalty Program Agreements and applicable 

law that it, in its reasonable business judgment, determines is advisable, in order to diligently and 

promptly (i) enforce its rights and any remedies available to it under the Material Loyalty Program 

Agreements, (ii) perform its obligations under the Material Loyalty Program Agreements and (iii) use 

reasonable best efforts to cause the applicable counterparties to perform their obligations under the related 

Material Loyalty Program Agreements, including such counterparties’ obligations to make payments to 

and indemnify the applicable Credit Parties in accordance with the terms thereof, in each case except as 

would not (1) be materially adverse to the Lenders or (2) reasonably be expected to result in a Material 

Adverse Effect. 

SECTION 5.20 Collections; Accounts; Payments. 

(a) The Credit Parties shall (x) instruct and use their reasonable best efforts to cause 

counterparties to all Material Loyalty Program Agreements to direct payments of all Loyalty Program 

Revenue into the Collection Account and (y) cause sufficient counterparties to the Loyalty Program 

Agreements to direct payments of Loyalty Program Revenue into the Collection Account (in the case of 

Loyalty Program Revenue generated under any Material Loyalty Program Agreement, pursuant to a 

Direct Agreement) such that during any DSCR Test Period, at least 90% of Loyalty Program Revenue 

(excluding revenues generated under any Loyalty Subscription Program) for such period is deposited 

directly into the Collection Account. Promptly following the entry by any Credit Party into any Material 

Loyalty Program Agreement after the Closing Date, the applicable Credit Party will enter into and cause 

the counterparty to enter into a Direct Agreement with respect to such Material Loyalty Program 

Agreement. To the extent the Parent, any Subsidiary or any of their respective Controlled Affiliates 

receives any payments of Loyalty Program Revenues to an account other than the Collection Account, 

such Person shall ACH or wire transfer as soon as practicable, but in any event within three (3) Business 

Days of receipt, any such amounts to the Collection Account. All amounts in the Collection Account 

shall be conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and the 

Lenders shall have no duty to inquire as to the source of the amounts on deposit in the Collection 

Account. No Credit Party shall revoke, or permit to be revoked, any payment direction included in any 

Direct Agreement other than in connection with a replacement Collection Account (which shall be at a 

depository institution satisfactory to the Appropriate Party). 
66 

(b) Each account control agreement with respect to each Blocked Account shall 

require, after the occurrence and during the continuance of a Payment Event, the ACH or wire transfer no 

less frequently than once per Business Day (unless the Obligations are no longer outstanding), of all 

collected and available funds in such Blocked Account (net of such minimum balance, not to exceed 

$25,000, as may be required to be kept in the subject Blocked Account by the account bank), to an 

account in the name of the Borrower maintained by the Administrative Agent at The Bank of New York 

Mellon (the “Payment Account”) or such other account as directed by the Administrative Agent. The 

Payment Accounts and the Blocked Accounts shall be non-interest bearing accounts. Funds on deposit in 

the Blocked Accounts and the Payment Accounts shall be uninvested. All amounts in the Blocked 

Account shall be conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and 

the Lenders shall have no duty to inquire as to the source of the amounts on deposit in the Blocked 

Account. The Borrower may at any time elect to apply amounts on deposit in the Blocked Account to 

prepay the Loans, by requesting that the Collateral Agent instruct the account bank to withdraw such 

amounts for such prepayment. 

(c) The Payment Account shall at all times be under the sole dominion and control of 

the Collateral Agent and shall be subject to an account control agreement in form and substance 

satisfactory to the Appropriate Party. The Credit Parties hereby acknowledge and agree that (i) the Credit 

Parties have no right of withdrawal from the Payment Account, (ii) the funds on deposit in the Payment 

Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in 

the Payment Account shall be applied to repay the Loans. All amounts in the Payment Account shall be 

conclusively presumed to be Collateral and proceeds of Collateral, and the Agents and the Lenders shall 

have no duty to inquire as to the source of the amounts on deposit in the Payment Account. Upon 

payment in full of the Loans and all Obligations under this Agreement (other than contingent 

indemnification or reimbursement obligations not yet accrued and payable) and termination of the 

Commitments, any remaining amounts in the Payment Account will be released and transferred to a 

deposit account of the Credit Parties as the Borrower shall direct. 

ARTICLE VI 

NEGATIVE COVENANTS 

Until all the later of (i) the date on which all of the Obligations shall have been paid in 

full and (ii) such later date specified in this Agreement, the Credit Parties covenant and agree with the 

Lenders that: 

SECTION 6.01 [Reserved]. 

SECTION 6.02 Liens. Parent will not, and will not permit any of its Subsidiaries to, create, 

incur, assume or suffer to exist any Lien upon any property or assets constituting Collateral, whether now 

owned or hereafter acquired, except for Permitted Liens. 

SECTION 6.03 Fundamental Changes. Parent will not, and will not permit any of its 

Subsidiaries to, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in 

one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or 

hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result 

therefrom: 

(a) any Subsidiary may merge with (i) the Borrower; provided that the Borrower 

shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided 

that (x) when any Wholly-Owned Subsidiary is merging with another Subsidiary, a Wholly-
67 

Owned Subsidiary shall be the continuing or surviving Person and (y) when any Subsidiary that is 

a Credit Party is merging with another Subsidiary, then such other Subsidiary shall be a Credit 

Party; 

(b) any Subsidiary may Dispose of all or substantially all of its assets (upon 

voluntary liquidation or otherwise) to the Parent or to another Subsidiary; provided that (x) if the 

transferor in such a transaction is a Wholly-Owned Subsidiary, then the transferee shall either be 

the Parent or another Wholly-Owned Subsidiary and (y) if the transferor in such a transaction is a 

Credit Party, then the transferee shall be a Credit Party; 

(c) the Parent and its Subsidiaries may make Dispositions permitted by Section 6.04; 

(d) any Investment permitted by Section 6.06 may be structured as a merger, 

consolidation or amalgamation; 

(e) any Subsidiary may dissolve, liquidate or wind up its affairs if it owns no 

material assets, engages in no business and otherwise has no activities other than activities related 

to the maintenance of its existence and good standing; and 

(f) any Subsidiary may Dispose of all or substantially all of its assets (upon 

voluntary liquidation or otherwise), provided that such assets do not constitute all or substantially all of 

the consolidated assets of the Parent and its Subsidiaries. 

SECTION 6.04 Dispositions. Parent will not, and will not permit any of its Subsidiaries to, 

sell or otherwise make any Disposition of Collateral or enter into any agreement to make any sale or other 

Disposition of Collateral (in each case, including, without limitation by way of any sale or other Disposition 

of any Guarantor), except, subject to Article X and so long as no Default shall have occurred and be continuing 

at the time of any action described below, or would result therefrom: 

(a) the Disposition of Collateral expressly permitted under the applicable Security 

Documents; 

(b) any licenses or sublicenses (i) granted on a non-exclusive basis to customers or 

service providers in the ordinary course of business or to business partners in the ordinary course 

of business in a manner and subject to terms consistent with past practice or (ii) granted pursuant 

to any Loyalty Program Agreement in full force and effect as of the Closing Date, any successor 

agreement thereto or any new Loyalty Program Agreement, in each case that is included in the 

Collateral (provided that any such grant pursuant to such new or successor agreement is made in 

the ordinary course of business in a manner and subject to terms substantially similar with those 

of the predecessor Loyalty Program Agreement or with any Loyalty Program Agreement in full 

force and effect as of the Closing Date, as the case may be); 

(c) any abandonment, lapse, forfeiture or dedication to the public, in the ordinary 

course of business, of any Intellectual Property that, in the applicable Credit Party’s reasonable 

good faith judgment, is no longer used and no longer useful in the business of the Borrower or its 

Subsidiaries; 

(d) any (1) deletion, de-identification or purge of any Personal Data that is required 

under applicable Privacy Laws, under any of the Credit Parties’ public-facing privacy policies in 

full force and effect as of the Closing Date or in the ordinary course of business (including in 

connection with terminating inactive Carrier Loyalty Program accounts) pursuant to the 
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applicable Credit Party’s privacy and data retention policies in full force and effect as of the 

Closing Date consistent with past practice, (2) transfer of any Loyalty Program Data to services 

providers for their Processing of such data on behalf of any of the Credit Parties in the ordinary 

course of business, subject to a prohibition on deletion, de-identification and purging, except as 

permitted under clause (1) or (3) transfer of any Loyalty Program Data to a third party in the 

ordinary course of business to the extent such Credit Party also retains a copy of such Loyalty 

Program Data; 

(e) the sale, lease or other transfer any Currency under any Loyalty Program in 

accordance with any Loyalty Program Agreement as in existence on the Closing Date (or any (i) 

permitted successor agreement thereto or (ii) new Loyalty Program Agreement permitted under 

this Agreement, in each case that is included in the Collateral) or subsequently approved by the 

Appropriate Party; 

(f) Loyalty Revenue Advance Transactions in an aggregate amount (together with 

any Loyalty Revenue Advance Transactions outstanding on the Closing Date that remain 

outstanding) not to exceed an amount equal to the greater of (x) $15,000,000 and (y) 15% of the 

aggregate amount of Collateral Cash Flow received during the most recently ended DSCR Test 

Period that has been deposited into a Collateral Account; 

(g) to the extent constituting a Disposition of Collateral, the incurrence of Liens that 

are permitted to be incurred pursuant to Section 6.02; 

(h) to the extent constituting a Disposition of Collateral, (1) the sale or other transfer 

of Currency in the ordinary course of business under the terms of the Loyalty Program 

Agreements and (2) transfers of Currency to Loyalty Program Members in the ordinary course of 

business in accordance with program terms; 

(i) Dispositions of Collateral among the Credit Parties (including any Person that 

shall become a Credit Party simultaneous with such Disposition in the manner contemplated by 

Section 5.13); provided that: 

(i) such Collateral remains at all times subject to a Lien with the same priority 

and level of perfection as was the case immediately prior to such Disposition (and otherwise subject 

only to Permitted Liens) in favor of the Collateral Agent for the benefit of the Secured Parties 

following such Disposition; 

(ii) concurrently therewith, the Credit Parties shall execute any documents and 

take any actions reasonably required to create, grant, establish, preserve or perfect such Lien in 

accordance with the other provisions of this Agreement or the Security Documents; 

(iii) if requested by the Appropriate Party, concurrently therewith the 

Appropriate Party shall receive an opinion of counsel to the applicable Credit Party as to the validity 

and perfection of such Lien on the Collateral, in each case in form and substance satisfactory to the 

Appropriate Party; and 

(iv) concurrently with any Disposition of Collateral to any Person that shall 

become a Credit Party simultaneous with such Disposition in the manner contemplated by Section 

5.13, such Person shall have complied with the requirements of Section 5.13; 
69 

(j) any Disposition of property resulting from an event of loss with respect to any 

aircraft, airframe, engine, spare engine or Spare Parts if the Credit Party is replacing such aircraft, 

airframe, engine, spare engine or Spare Parts in accordance with the terms of the Loan 

Documents; 

(k) any Disposition of Collateral permitted by any of the Security Documents; and 

(l) Dispositions of cash or Cash Equivalents in exchange for other cash or Cash 

Equivalents constituting Collateral and having reasonably equivalent value therefor. 

SECTION 6.05 Restricted Payments. Parent will not, and will not permit any of its 

Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation 

(contingent or otherwise) to do so, except, that, subject to additional restrictions set forth in Article X, so 

long as no Default shall have occurred and be continuing at the time of any action described below or would 

result therefrom:

(a) each Subsidiary may make Restricted Payments to the Parent and any other 

Person that owns an Equity Interest in such Subsidiary, ratably according to their respective 

holdings of such Equity Interests in respect of which such Restricted Payment is being made; 

(b) the Parent and each Subsidiary may declare and make dividend payments or 

other distributions payable solely in common Equity Interests of such Person; 

(c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire 

Equity Interests issued by it with the proceeds received from the substantially concurrent issue of 

new common Equity Interests; 

(d) the Parent and each Subsidiary may pay withholding or similar taxes payable by 

any future, present or former employee, director or officer (or any spouses, former spouses, 

successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in 

connection with any repurchases of Equity Interests or the exercise of stock options; 

(e) 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 Parent or its Subsidiaries to cover withholding tax obligations of such persons in 

respect of such issuance; 

(f) payments of cash, dividends, distributions, advances, common stock or other 

Restricted Payments by the Parent or any of its 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 or (C) the conversion or exchange of 

Indebtedness or hybrid securities into capital stock of any such Person; 

(g) the Parent may make cash payments in connection with any conversion or 

exchange of Convertible Indebtedness in amount equal to the sum of (i) the principal amount of 

such Convertible Indebtedness and (ii) the proceeds of any payments received by the Parent or 
70 

any of its Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted 

Bond Hedge Transaction; 

(h) the Parent may make payments in connection with a Permitted Bond Hedge 

Transaction (i) by delivery of shares of the Parent’s Equity Interests upon net share settlement 

thereof or (ii) by (A) set-off against the related Permitted Bond Hedge Transaction and (B) 

payment of an early termination amount thereof in common Equity Interests of the Parent upon 

any early termination thereof; and 

(i) Restricted Payments not to exceed the amount allowable pursuant to Schedule 

6.05(i). 

SECTION 6.06 Investments. Parent will not, and will not permit any of its Subsidiaries to, 

make any Investments, except:

(a) Investments held by the Parent or such Subsidiary in the form of cash or Cash 

Equivalents; 

(b) (i) Investments in Subsidiaries in existence on the Closing Date, (ii) other 

Investments in existence on the Closing Date and listed in Section I to Schedule 6.06 and (iii) 

other Investments described on Section II of Schedule 6.06, and, in each case, any refinancing, 

refunding, renewal or extension of any such Investment that does not increase the amount thereof; 

(c) advances to officers, directors and employees of the Parent and its Subsidiaries in 

an aggregate amount not exceeding, at any time outstanding, an amount that is customary and 

consistent with past practice, for travel, entertainment, relocation and similar ordinary business 

purposes; 

(d) (x) Investments of the Parent in the Borrower or any other Credit Party, (y) 

Investments of any Subsidiary in the Parent or any other Credit Party and (z) Investments made 

between Subsidiaries that are not Credit Parties; provided that any such Investments made 

pursuant to this clause (d) in the form of intercompany indebtedness incurred by a Credit Party 

and owed to a Subsidiary that is not a Credit Party shall be subordinated to the Obligations and 

the Guaranteed Obligations on customary terms (it being understood and agreed that any 

Investments permitted under this clause (d) in the form of intercompany indebtedness that are not 

already subordinated on such terms as of the Closing Date shall not be required to be so 

subordinated until the date that is thirty (30) days after the Closing Date); 

(e) Investments consisting of extensions of credit in the nature of accounts 

receivable or notes receivable arising from the grant of trade credit in the ordinary course of 

business, and Investments received in satisfaction or partial satisfaction thereof from financially 

troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; 

(f) Investments consisting of the indorsement by the Parent or any Subsidiary of 

negotiable instruments payable to such Person for deposit or collection in the ordinary course of 

business; 

(g) to the extent constituting an Investment, transactions otherwise permitted by 

Sections 6.03 and 6.05; 
71 

(h) any Investments received in compromise or resolution of (i) obligations of trade 

creditors or customers that were incurred in the ordinary course of business of Parent or any of its 

Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the 

bankruptcy or insolvency of any trade creditor or customer or (ii) litigation, arbitration or other 

disputes; 

(i) Investments represented by obligations in respect of Swap Contracts that are not 

speculative in nature and that are entered into to hedge or mitigate risks to which the Parent or 

any of its Subsidiaries has (or will have) actual exposure (other than those in respect of the Equity 

Interests or Indebtedness of the Parent or any of its Subsidiaries); 

(j) accounts receivable arising in the ordinary course of business; 

(k) any guarantee of Indebtedness of Parent or any Subsidiary of Parent, other than 

any guarantee of Indebtedness secured by Liens that would not be permitted under Section 6.02; 

(l) Investments to the extent that payment for such Investment is made with the 

capital stock of the Parent; 

(m) Investments having an aggregate fair market value (measured on the date each 

such Investment was made and without giving effect to subsequent changes in value other than a 

reduction for all returns of principal in cash and capital dividends in cash), when taken together 

with all Investments made pursuant to this clause (n) that are at the time outstanding, not to 

exceed 30% of the total consolidated assets of the Parent and its Subsidiaries at the time of such 

Investment; 

(n) Permitted Bond Hedge Transactions to the extent constituting Investments; and 

(o) Investments in Finance Entities in the ordinary course of business of the Parent 

and its Subsidiaries or that are otherwise customary for airlines based in the United States. 

SECTION 6.07 Transactions with Affiliates. Parent will not, and will not permit any of its 

Subsidiaries to, enter into any transaction of any kind involving aggregate payments or consideration in 

excess of $50,000,000 with any Affiliate of the Parent, whether or not in the ordinary course of business, 

other than on fair and reasonable terms substantially as favorable to the Parent or such Subsidiary as would 

be obtainable by the Parent or such Subsidiary at the time in a comparable arm’s-length transaction with a 

Person other than an Affiliate, subject to delivery of (x) with respect to any transaction or series of related 

transactions involving aggregate consideration in excess of $100,000,000, a certificate of a Responsible 

Officer of the Parent certifying as to compliance with the foregoing and (y) with respect to any transaction 

or series of related transactions involving aggregate consideration in excess of $150,000,000, an opinion as 

to the fairness to the Parent or such Subsidiary of such transaction from a financial point of view issued by 

an accounting, appraisal or investment banking firm of national standing (provided that this clause (y) shall 

not apply to any transaction between or among the Parent or any of its Subsidiaries and any Finance 

Entities); provided that, subject to Article X, the foregoing restriction shall not apply to: 

(a) transactions between or among the Parent and any Wholly-Owned Subsidiaries, 

(b) Restricted Payments permitted by Section 6.05, 

(c) Investments permitted by Section 6.06(b), or (c) or (d), 
72 

(d) transactions described in Schedule 6.07, 

(e) 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 Parent or any of its Subsidiaries in the ordinary course of business and payments 

pursuant thereto, and 

(f) 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 Parent or any of its Subsidiaries.

SECTION 6.08 [Reserved]. 

SECTION 6.09 [Reserved]. 

SECTION 6.10 Changes in Nature of Business. Parent will not, and will not permit any of 

its Subsidiaries to, engage to any material extent in any business other than those businesses conducted by 

the Parent and its Subsidiaries on the date hereof or any business reasonably related or incidental thereto or 

representing a reasonable expansion thereof. 

SECTION 6.11 Sanctions; AML Laws. Parent will not, and will not permit any of its 

Subsidiaries to, directly or knowingly indirectly, use the proceeds of the Loans, or lend, contribute or 

otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person to fund any 

activities or business of or with any Person in a manner that would result in a violation of Sanctions or 

AML Laws by any Person. 

SECTION 6.12 Amendments to Organizational Documents. Parent will not, and will not 

permit any of its Subsidiaries to amend, modify, or grant any waiver or release under or terminate in any 

manner, any Organizational Documents in any manner materially adverse to, or which would impair the 

rights of, the Lenders. 

SECTION 6.13 [Reserved] 

SECTION 6.14 Prepayments of Junior Indebtedness. Parent will not, and will not permit 

any of its Subsidiaries to, make any principal payment on, or redeem, repurchase, defease or otherwise 

acquire or retire for value, in each case prior to any scheduled repayment, sinking fund payment or 

maturity, any Indebtedness secured by junior Liens on the Collateral or that is subordinated in right of 

payment to the Obligations, in each case other than in connection with a Permitted Refinancing of such 

Indebtedness. 

SECTION 6.15 Lobbying. Parent will not, and will not permit any of its Subsidiaries to, 

directly, or to the Parent or such Subsidiary’s knowledge, indirectly, use the proceeds of the Loans, or lend, 

contribute, or otherwise make available such proceeds to any other Person (i) for publicity or propaganda 

purposes designated to support or defeat legislation pending before the U.S. Congress or (ii) to fund any 

activities that would constitute “lobbying activities” as defined under 2 U.S.C. § 1602. The Parent shall, 

and shall cause its subsidiaries to, comply with the provisions of 31 U.S.C. § 1352, as amended, and with 

the regulations at 31 CFR Part 21. 

SECTION 6.16 Use of Proceeds. Parent will not, and will not permit any of its 

Subsidiaries to, use the proceeds of the Loans for any purpose other than for general corporate purposes and 
73 

operating expenses (including payroll, rent, utilities, materials and supplies, repair and maintenance, and 

scheduled interest payments on other Indebtedness incurred before February 15, 2020), in each case in 

compliance with all applicable law to the extent permitted by the CARES Act; provided however that the 

proceeds of the Loans shall not be used for any non-operating expenses (including capital expenses, 

delinquent taxes and payments of principal on other Indebtedness), unless the Parent can demonstrate, to the 

satisfaction of the Initial Lender, that payment of any such non-operating expense is necessary to optimize 

the continued operations of the Parent’s business and does not merely constitute a transfer of risk from an 

existing creditor or investor to the Federal taxpayer.

SECTION 6.17 Financial Covenants.

(a) Liquidity. The Parent will not permit the aggregate amount of Liquidity at the 

close of any Business Day to be less than $300,000,000. 

(b) Collateral Coverage Ratio. 

(i) Within ten (10) Business Days after (x) the last day of March and 

September of each year (beginning with March 2021) or (y) any date on which an Appraisal is 

delivered pursuant to clause (2) of Section 5.16 (each such date in clauses (x) and (y), a “CCR 

Reference Date” and the tenth Business Day after a CCR Reference Date, a “CCR Certificate 

Delivery Date”), the Parent shall deliver to the Administrative Agent a certificate of a Responsible 

Officer of the Parent containing a calculation of the Collateral Coverage Ratio (a “CCR 

Certificate”). 

(ii) If the Collateral Coverage Ratio with respect to any CCR Reference Date 

is less than 1.60 to 1.00, the Borrower shall, no later than ten (10) Business Days after the applicable 

CCR Certificate Delivery Date, (x) prepay any outstanding Loans such that following such 

prepayment, the Collateral Coverage Ratio with respect to such CCR Reference Date, recalculated 

by subtracting any such prepaid portion of the Loans, shall be no less than 1.60 to 1.00 and/or (y) 

designate Additional Collateral as additional Eligible Collateral and comply with Sections 5.13 and 

5.15, collectively, in an amount such that following such designation, the Collateral Coverage Ratio 

with respect to such CCR Reference Date, recalculated by adding such Additional Collateral, shall 

be no less than 1.60 to 1.00. 

(iii) At the Parent’s request, the Lien on any Additional Collateral will be 

released, provided, in each case, that the following conditions are satisfied or waived: (a) no Event 

of Default shall have occurred and be continuing, (b) either (x) after giving effect to such release, 

the Collateral Coverage Ratio is not less than 2.00 to 1.00 (or in the case of a swap or exchange of 

existing Additional Collateral with new Additional Collateral, less than 1.60 to 1.00) or (y) the 

Parent shall prepay or cause to be prepaid the Loans and/or shall designate Eligible Collateral as 

Additional Collateral and comply with Sections 5.13 and 5.15, collectively, in an amount necessary 

to cause the Collateral Coverage Ratio to not be less than 2.00 to 1.00 (or in the case of a swap or 

exchange of existing Additional Collateral with new Additional Collateral, less than 1.60 to 1.00) 

and (c) the Parent shall deliver a certificate executed by a Responsible Officer demonstrating 

compliance with this Section 6.17(b)(iii). 

(c) Debt Service Coverage Ratio. 

(i) On each DSCR Determination Date, the Parent shall deliver to the 

Administrative Agent a certificate of a Responsible Officer of the Parent (x) containing a 

calculation of the Debt Service Coverage Ratio and (ii) certifying that all Loyalty Program Revenue 
74 

for such DSCR Test Period has been deposited, directly or indirectly, into the Collection Account 

or another Collateral Account (and at least 90% of all Loyalty Program Revenues (excluding 

revenues generated under any Loyalty Subscription Program) were deposited directly into a 

Collateral Account); and 

(ii) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than 1.75 to 1.00 (a “DSCR Trigger Event”), then the Parent and the 

Subsidiaries shall cause an amount equal to at least 50% of all Loyalty Program Revenues received 

thereafter to be transferred (as such payments are received) from the Collection Account to a 

Blocked Account to be held for the benefit of the Lenders (which amounts on deposit in the Blocked 

Account may be used to prepay the Loans at the option of the Borrower, upon request to the 

Collateral Agent) until the first DSCR Determination Date on which the Debt Service Coverage 

Ratio is 1.75 to 1.00 or more, whereupon such amounts may be transferred from the Blocked 

Account to the Collection Account following a request to the Collateral Agent; 

(iii) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.50 to 1.00 but greater than 1.25 to 1.00, then (x) all 

amounts then deposited in the Blocked Account shall be applied to prepay the Loans and (y) the 

Parent and the Subsidiaries shall cause an amount equal to at least 50% of all Loyalty Program 

Revenues received thereafter to be transferred (as such payments are received) from the Collection 

Account to the Payment Account with all such amounts deposited into the Payment Account to be 

applied to the prepayment of any Loans then outstanding until the first DSCR Determination Date 

on which the Debt Service Coverage Ratio is greater than 1.50 to 1.00; and 

(iv) if the Debt Service Coverage Ratio with respect to any DSCR 

Determination Date is less than or equal to 1.25 to 1.00, then (x) all amounts then deposited in the 

Blocked Account shall be applied to prepay the Loans and (y) the Parent and the Subsidiaries shall 

cause an amount equal to at least 75% of all Loyalty Program Revenues received thereafter to be 

transferred (as such payments are received) from the Collection Account to the Payment Account 

with all such amounts deposited into the Payment Account to be applied to the prepayment of any 

Loans then outstanding until the first DSCR Determination Date on which the Debt Service 

Coverage Ratio is greater than 1.25 to 1.00. 

ARTICLE VII 

EVENTS OF DEFAULT 

SECTION 7.01 Events of Default. If any of the following events (each, an “Event of 

Default”) shall occur: 

(a) the Borrower shall fail to pay any principal of any Loan when and as the same 

shall become due and payable, whether at the due date thereof or at a date fixed for prepayment 

thereof or otherwise; 

(b) the Borrower shall fail to pay any interest on any Loan, or any fee or any other 

amount (other than an amount referred to in clause (a) of this Section) payable under this 

Agreement or under any other Loan Document, when and as the same shall become due and 

payable, and such failure shall continue unremedied for a period of two (2) or more Business 

Days; 
75 

(c) any representation or warranty made or deemed made by or on behalf of any 

Credit Party, including those made prior to the Closing Date, in or in connection with this 

Agreement, the Loan Application Form or any other Loan Document or any amendment or 

modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, 

certificate, financial statement or other document furnished pursuant to or in connection with this 

Agreement, the Loan Application Form or any other Loan Document or any amendment or 

modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to have been 

incorrect in any material respect (or, in the case of any such representation or warranty under this 

Agreement, the Loan Application Form or any other Loan Document already qualified by 

materiality, such representation or warranty shall prove to have been incorrect) when made or 

deemed made; 

(d) any Credit Party shall fail to observe or perform any covenant, condition or 

agreement contained in Section 5.03(a), 5.04 (with respect to the Borrower’s existence) or in 

Article VI or Article X; 

(e) any Credit Party shall fail to observe or perform any covenant, condition or 

agreement contained in this Agreement or any other Loan Document (other than those specified 

in clause (a), (b) or (d) of this Section) and such failure shall continue unremedied for a period of 

thirty (30) or more days after notice thereof by the Administrative Agent or the Initial Lender to 

the Parent; 

(f) (i) Any Credit Party or any Subsidiary thereof shall fail to make any payment 

when due (whether by scheduled maturity, required prepayment, acceleration, demand, or 

otherwise) in respect of any Material Indebtedness (other than Indebtedness under this 

Agreement) and such failure shall continue after the applicable grace period, if any, specified in 

the agreement or instrument governing such Material Indebtedness; or (ii) any Credit Party or any 

Subsidiary thereof shall fail to observe or perform any other agreement or condition relating to 

any such Indebtedness or contained in any instrument or agreement evidencing, securing or 

relating thereto, or any other event occurs, the effect of which default or other event results in the 

holder or holders or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on 

behalf of such holder or holders or beneficiary or beneficiaries) causing such Indebtedness to 

become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or 

causing an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to 

its stated maturity; provided that this clause (f)(ii) shall not apply to secured Indebtedness that 

becomes due as a result of the voluntary sale or transfer (or disposition of property as a result of a 

casualty or condemnation event) of the property or assets securing such Indebtedness, if such sale 

or transfer is permitted hereunder and under the documents providing for such Indebtedness and 

such Indebtedness is repaid when required under the documents providing for such Indebtedness; 

(g) an involuntary proceeding shall be commenced or an involuntary petition shall be 

filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Party or any 

Material Subsidiary thereof or its debts, or of a substantial part of its assets, under any Debtor 

Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, 

sequestrator, conservator or similar official for any Credit Party or any Material Subsidiary 

thereof or for a substantial part of its assets, and, in any such case, such proceeding or petition 

shall continue undismissed for a period of sixty (60) or more days or an order or decree approving 

or ordering any of the foregoing shall be entered; 

(h) any Credit Party or any Material Subsidiary thereof shall (i) voluntarily 

commence any proceeding or file any petition seeking liquidation, reorganization or other relief 
76 

under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to 

contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of 

this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, 

sequestrator, conservator or similar official for the Parent or any of its Subsidiaries or for a 

substantial part of its assets, (iv) file an answer admitting the material allegations of a petition 

filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors 

or (vi) take any action for the purpose of effecting any of the foregoing; 

(i) any Credit Party or any Material Subsidiary thereof shall become unable, admit 

in writing its inability or fail generally to pay its debts as they become due; 

(j) there is entered against any Credit Party or any Material Subsidiary thereof (i) a 

final judgment or order for the payment of money in an aggregate amount (as to all such 

judgments and orders) exceeding $50,000,000 (to the extent not covered by independent thirdparty insurance as to which the insurer has been notified of such judgment or order and has not 

denied or failed to acknowledge coverage), or (ii) a non-monetary final judgment or order that, 

either individually or in the aggregate, has or could reasonably be expected to have a Material 

Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor 

upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which 

a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in 

effect; 

(k) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan 

that has resulted or could reasonably be expected to result in liability of any Credit Party under 

Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC that, either individually 

or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect; 

(l) [reserved]; 

(m) any material provision of any Loan Document, at any time after its execution and 

delivery and for any reason other than as expressly permitted hereunder or thereunder or 

satisfaction in full of all Obligations, ceases to be in full force and effect; or any Credit Party or 

any other Person who is a party to any Loan Document contests in writing the validity or 

enforceability of any provision of any Loan Document; or any Credit Party denies in writing that 

it has any or further liability or obligation under any Loan Document, or purports in writing to 

revoke, terminate or rescind any Loan Document; 

(n) any Lien purported to be created under any Security Document shall cease to be, 

or shall be asserted in writing by any Credit Party not to be, a legal, valid and perfected Lien on 

any material portion of the Collateral (individually or in the aggregate), with the priority required 

by the applicable Security Documents, except (i) as a result of the sale or other Disposition of the 

applicable Collateral to a Person that is not a Credit Party in a transaction not prohibited under the 

Loan Documents or (ii) as a result of either Agent’s failure to maintain possession of any stock 

certificates, promissory notes or other instruments delivered to it under the Security Documents 

or (iii) as a result of acts or omissions with respect to possessory collateral held by the Collateral 

Agent pursuant to this Agreement; 

(o) any Guarantee of any Obligations by any Credit Party under any Loan Document 

shall cease to be in full force in effect (other than in accordance with the terms of the Loan 

Documents); 
77 

(p) a default or breach by any Credit Party of its material obligations under a 

Material Loyalty Program Agreement beyond any applicable notice and cure periods thereunder; 

(q) an exit from, or a termination or cancellation of, any Carrier Loyalty Program 

(and in the case of any Loyalty Subscription Program, such program as a whole by a Credit Party, 

and not any individual cancellation or termination by a consumer) in effect on the Closing Date or 

any Material Loyalty Program Agreement other than in connection with any replacement 

expressly permitted hereunder; 

(r) any material provision of any Material Loyalty Program Agreement, at any time 

after its execution and delivery and for any reason other than as expressly permitted hereunder or 

thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any 

Credit Party contests in writing the validity or enforceability of any provision of any Material 

Loyalty Program Agreement; or any Credit Party denies in writing that it has any or further 

liability or obligation under any Material Loyalty Program Agreement, or purports in writing to 

revoke, terminate or rescind any Material Loyalty Program Agreement; or 

(s) any Credit Party makes a Material Modification to a Material Loyalty Program 

Agreement without the prior written consent of the Required Lenders. 

then, and in every such event (other than an event described in clause (g) or (h) of this Section), and at 

any time thereafter during the continuance of such event, the Initial Lender may, and the Administrative 

Agent may, and at the request of the Required Lenders or the Initial Lender shall, by notice to the 

Borrower, take any or all of the following actions, at the same or different times: 

(i) declare the Loans then outstanding to be due and payable in whole (or in 

part, in which case any principal not so declared to be due and payable may thereafter be declared 

to be due and payable), and thereupon the principal of the Loans so declared to be due and 

payable, together with accrued interest thereon and all fees and other Obligations of the Credit 

Parties accrued hereunder, shall become due and payable immediately, without presentment, 

demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and 

the other Credit Parties; and 

(ii) exercise on behalf of itself and the Lenders all rights and remedies 

available to it and the Lenders under the Loan Documents and Applicable Law; 

provided that, in case of any event described in clause (g) or (h) of this Section, the principal of the Loans 

then outstanding, together with accrued interest thereon and all fees and other Obligations accrued 

hereunder, shall automatically become due and payable, in each case without presentment, demand, 

protest or other notice of any kind, all of which are hereby waived by the Credit Parties. 

SECTION 7.02 Application of Payments. Notwithstanding anything herein to the contrary, 

following the occurrence and during the continuance of an Event of Default, and notice thereof to the Initial 

Lender and the Administrative Agent by the Borrower or the Required Lenders, all payments received on 

account of the Obligations shall be applied by the Administrative Agent as follows: 

(i) first, to payment of that portion of the Obligations constituting fees, 

indemnities, expenses and other amounts (including fees and disbursements and other charges of 

counsel payable under Section 11.03 and amounts payable under an Administrative Agency Fee 

Letter (if any)) payable to the Administrative Agent and the Collateral Agent in their respective 

capacities as such; 
78 

(ii) second, to payment of that portion of the Obligations constituting fees, 

indemnities and other amounts (other than principal and interest) payable to the Lenders 

(including fees and disbursements and other charges of counsel payable under Section 11.03) 

arising under the Loan Documents, ratably among them in proportion to the respective amounts 

described in this clause (ii) payable to them; 

(iii) third, to payment of that portion of the Obligations constituting accrued 

and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective 

amounts described in this clause (iii) payable to them; 

(iv) fourth, to payment of that portion of the Obligations constituting unpaid 

principal of the Loans ratably among the Lenders in proportion to the respective amounts 

described in this clause (iv) payable to them; 

(v) fifth, to the payment in full of all other Obligations, in each case ratably 

among the Administrative Agent and the Lenders based upon the respective aggregate amounts of 

all such Obligations owing to them in accordance with the respective amounts thereof then due 

and payable; and 

(vi) finally, the balance, if any, after all Obligations have been indefeasibly 

paid in full, to the Borrower or as otherwise required by Law. 

ARTICLE VIII 

AGENCY 

SECTION 8.01 Appointment and Authority. Each Lender hereby irrevocably appoints The 

Bank of New York Mellon to act on its behalf as the Administrative Agent and as the Collateral Agent 

hereunder and under the other Loan Documents and authorizes the Agents to take such actions on its behalf 

and to exercise such powers as are delegated to such Agent by the terms of the Loan Documents, together 

with such actions and powers as are reasonably incidental or related thereto; provided that notwithstanding 

anything in this Article VIII or this Agreement to the contrary, the terms and conditions of the relationship 

between the Initial Lender and the Agents shall be governed by a separate agreement between the Initial 

Lender and the Agents. The Borrower and the Guarantors acknowledge and agree that the Agents are 

Agents of the Lenders and not of the Borrower or the Guarantors. In connection with an assignment of the 

Loans by the Initial Lender, upon the Administrative Agent’s request, the Borrower and the Agents shall 

enter into an Administrative Agency Fee Letter. The provisions of this Article are solely for the benefit of 

the Agents and the Lenders, and the Borrower shall not have rights as a third-party beneficiary of any of 

such provisions. Without limiting the generality of the foregoing, the Agents are hereby expressly 

authorized to (i) execute any and all documents (including releases) with respect to the Collateral and the 

rights of the Secured Parties with respect thereto, as contemplated by and in accordance with the provisions 

of this Agreement and the other Loan Documents and (ii) negotiate, enforce or settle any claim, action or 

proceeding affecting the Lenders in their capacity as such, at the direction of the Required Lenders, which 

negotiation, enforcement or settlement will be binding upon each Lender. 

SECTION 8.02 Collateral Matters. Each of the Lenders hereby irrevocably appoints and 

authorizes the Collateral Agent to act as the agent of such Lender for purposes of acquiring, holding and 

enforcing any and all Liens on Collateral granted by any of the Credit Parties to secure any of the 

Obligations, together with such powers and discretion as are reasonably incidental thereto and to enter into 

and perform the other Loan Documents. 
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SECTION 8.03 Removal or Resignation of Administrative Agent. While the Initial Lender 

is a Lender, the Administrative Agent may be removed or give notice of its resignation subject to any 

conditions as separately agreed between the Initial Lender and the Administrative Agent. Any such 

resignation as Administrative Agent pursuant to this Section 8.03 shall also constitute its resignation as the 

Collateral Agent; provided that in the case of any collateral security held by the Collateral Agent on behalf 

of the Lenders under any of the Loan Documents, the retiring or removed Collateral Agent shall continue to 

hold such collateral security until such time as a successor Collateral Agent is appointed. Upon such 

removal or receipt of any such notice of resignation, the Initial Lender shall have the right to appoint a 

successor. After the Initial Lender is no longer a Lender, either Agent may resign at any time by notifying 

the Lenders and the Borrower in writing, and either Agent may be removed at any time with or without 

cause by an instrument or concurrent instruments in writing delivered to the Borrower and such Agent and 

signed by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have 

the right, with the consent of the Borrower (which consent shall not be required during the continuance of 

an Event of Default), to appoint a successor. If no successor shall have been so appointed by the Required 

Lenders (with the consent of the Borrower (which consent shall not be required during the continuance of 

an Event of Default)) and shall have accepted such appointment within 30 days after (i) the retiring Agent 

gives notice of its resignation or (ii) the Required Lenders deliver removal instructions, then the retiring or 

removed Agent may, on behalf of the Lenders (with the consent of the Borrower (which consent shall not 

be required during the continuance of an Event of Default)), appoint a successor Agent which shall be a 

bank with an office in New York, New York, or an Affiliate of any such bank. If no successor Agent has 

been appointed pursuant to the immediately preceding sentence, such Agent’s resignation or removal shall 

become effective and the Required Lenders shall thereafter perform all the duties of such Agent hereunder 

and/or under any other Loan Document until such time, if any, as the Required Lenders (with the consent of 

the Borrower (which consent shall not be required during the continuance of an Event of Default)) appoint a 

successor Administrative Agent and/or Collateral Agent, as the case may be. Upon the acceptance of its 

appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all 

the rights, powers, privileges and duties of its predecessor Agent, and its predecessor Agent shall be 

discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor 

Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower 

and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 9.03 

shall continue in effect for the benefit of such retiring 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 acting as Agent. 

SECTION 8.04 Exculpatory Provisions. 

(a) The Agents shall not have any duties or obligations except those expressly set 

forth herein and in the other Loan Documents or as separately agreed between the Initial Lender and the 

Agents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the 

foregoing: 

(i) neither Agent shall be subject to any fiduciary or other implied duties, 

regardless of whether a Default has occurred and is continuing, except that The Bank of New 

York Mellon shall always have a fiduciary duty to Treasury while serving as its Agent in 

accordance with the provisions of the separate writing between The Bank of New York Mellon 

and Treasury; 

(ii) neither Agent shall have any duty to take any discretionary action or 

exercise any discretionary powers, except discretionary rights and powers expressly contemplated 

hereby or by the other Loan Documents that such Agent is required to exercise as directed in 

writing by the Required Lenders (or such other number or percentage of the Lenders as shall be 

expressly provided for herein or in the other Loan Documents); and 
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(iii) except as expressly set forth herein and in the other Loan Documents, 

neither Agent shall have any duty to disclose, nor shall it be liable for the failure to disclose, any 

information relating to the Borrower or any of the Subsidiaries that is communicated to or 

obtained by the bank serving as Administrative Agent and/or Collateral Agent or any of its 

Affiliates in any capacity. 

(b) Neither Agent shall be required to expend or risk its own funds or otherwise 

incur liability in the performance of any of its duties hereunder or under any other Loan Document or in 

the exercise of any of its rights or powers. Notwithstanding anything in any Loan Document to the 

contrary, prior to taking any action under this Agreement or any other Loan Document, each Agent shall 

be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses in 

connection with taking such action. Neither Agent shall 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 Sections 7.01 and 11.02) or in the 

absence of its own gross negligence or willful misconduct as determined by the final non-appealable 

judgment of a court of competent jurisdiction. Notwithstanding the foregoing, no action nor any omission 

to act, taken by either Agent at the direction of the Required Lenders (or such other number of percentage 

of Lenders as shall be expressly provided for herein or in the other Loan Documents) shall constitute 

gross negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default 

unless and until written notice thereof, conspicuously labeled as a “notice of default” and specifically 

describing such Default, is given to an Agent Responsible Officer by the Borrower or a Lender. 

(c) Neither Agent shall be responsible for or have any duty to ascertain or inquire 

into (i) any statement, warranty or representation made in or in connection with this Agreement or any 

other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or 

thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the 

covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any 

Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan 

Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set 

forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be 

delivered to the Administrative Agent. 

(d) In no event shall either Agent be responsible or liable for any failure or delay in 

the performance of its obligations hereunder or under any other Loan Document arising out of or caused 

by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, 

epidemics, 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 such Agent shall use reasonable 

efforts which are consistent with accepted practices in the banking industry to resume performance as 

soon as practicable under the circumstances). 

(e) Each 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 in good faith to be genuine and to have been signed or sent by the proper Person. Each 

Agent may also rely upon any statement made to it orally or by telephone and believed by it in good faith 

to have been made by the proper Person, and shall not incur any liability for relying thereon. Delivery of 

reports, information and documents to an Agent is for informational purposes only and an Agent’s receipt 

of the foregoing will not constitute actual or constructive knowledge or notice of any information 

contained therein or determinable from information contained therein, including the Borrower’s 

compliance with any of its covenants hereunder. Each 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 
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liable for any action taken or not taken by it in reliance on the advice of any such counsel, accountants or 

experts. Any funds held by an Agent shall, unless otherwise agreed in writing with the Borrower, be held 

uninvested in a non-interest bearing account. 

(f) Neither Agent shall have any obligation to calculate or confirm the calculation of 

any financial covenant contained herein. 

(g) Notwithstanding anything to the contrary in any Loan Document, neither Agent 

shall be responsible for the existence, genuineness or value of any of the Collateral; for filing any 

financing or continuation statements or recording any documents or instruments in any public office or 

otherwise perfecting or maintaining the perfection of any security interest in the Collateral (except, in the 

case of possessory Collateral, for the Collateral Agent maintaining possession of any such Collateral 

received by it in accordance with the terms of the Loan Documents); 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 any grantor to the 

Collateral; for insuring the Collateral; or for the payment of taxes, charges or assessments on the 

Collateral. The Collateral Agent agrees that it will check any possessory Collateral received by it against 

any itemized list in the Pledge and Security Agreement of Collateral to be delivered to it in accordance 

with the Pledge and Security Agreement. 

SECTION 8.05 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall 

not incur any liability for relying upon, any notice, request, certificate, opinion, consent, statement, 

instrument, document or other writing believed by it in good faith to be genuine and to have been signed 

or sent by the proper Person. Each Agent may also rely upon any statement made to it orally or by 

telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any 

liability for relying thereon. Delivery of reports, information and documents to an Agent is for 

informational purposes only and an Agent’s receipt of the foregoing will not constitute actual or 

constructive knowledge or notice of any information contained therein or determinable from information 

contained therein, including the Borrower’s compliance with any of its covenants hereunder. Each 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. 

SECTION 8.06 Delegation of Duties. Each Agent may perform any and all its duties and 

exercise its rights and powers by or through any one or more sub-agents or attorneys appointed by it and 

will not be responsible for the misconduct or negligence of any agent appointed with due care. Each 

Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers by or 

through their respective Related Parties. 

SECTION 8.07 Non-Reliance on Agents and Other Lenders. Each Lender (other than 

the Initial Lender) acknowledges that it has, independently and without reliance upon the Administrative 

Agent or any other Lender or any of their Related Parties 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 (other than the Initial Lender) also acknowledges that it will, independently and without 

reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 other Loan Document or 

any related agreement or any document furnished hereunder or thereunder. 

SECTION 8.08 Administrative Agent May File Proofs of Claim. In case of the pendency 

of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit 
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Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and 

payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative 

Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) 

by intervention in such proceeding or otherwise: 

(a) to file and prove a claim for the whole amount of the principal and interest owing and 

unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such 

other documents as may be necessary or advisable in order to have the claims of the Lenders and 

the Agents (including any claim for the reasonable compensation, expenses, disbursements and 

advances of the Lenders and the Agents and their respective agents and counsel and all other 

amounts due the Lenders and the Agents under Section 11.03) allowed in such judicial 

proceeding; and 

(b) to collect and receive any monies 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 Lender to make such payments to the Administrative 

Agent and, in the event that the Administrative Agent shall consent to the making of such payments 

directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable 

compensation, expenses, disbursements and advances of the Agents and their respective agents and 

counsel, and any other amounts due the Agents under the Loan Documents. Nothing contained herein 

shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on 

behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the 

Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the 

claim of any Lender in any such proceeding. 

ARTICLE IX 

GUARANTEE 

SECTION 9.01 Guarantee of the Obligations. Each Guarantor jointly and severally hereby 

irrevocably and unconditionally guarantees to the Secured Parties, the due and punctual payment in full and 

performance of all Obligations (or such lesser amount as agreed by the Required Lenders in their sole 

discretion with respect to Obligations owed to the Lenders) when the same shall become due or required to 

be performed, whether at stated maturity, by required prepayment, declaration, acceleration, performance, 

demand or otherwise (including amounts that would become and any performance that would have been 

required to be taken due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy 

Code, 11 U.S.C. § 362(a)) (collectively, the “Guaranteed Obligations”). 

SECTION 9.02 Payment or Performance by a Guarantor. Each Guarantor hereby jointly 

and severally agrees, in furtherance of the foregoing and the other terms of this Article IX and not in 

limitation of any other right which the Secured Parties may have at law or in equity against any Guarantor 

by virtue hereof, that upon the failure of the Borrower to pay or perform any of the Guaranteed Obligations 

when and as the same shall become due or required to be performed, whether at stated maturity, by required 

prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but 

for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), 

such Guarantor will pay, or cause to be paid, in cash, or perform, or cause to be performed, to the Secured 

Parties an amount equal to the sum of the unpaid principal amount of all Guaranteed Obligations then due 

as aforesaid, accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for 

the Borrower’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such 
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Guaranteed Obligations, whether or not a claim is allowed against the Borrower for such interest in the 

related bankruptcy case) and all other Guaranteed Obligations then owed or required to be performed to the 

Secured Parties as aforesaid. 

SECTION 9.03 Liability of Guarantors Absolute. Each Guarantor agrees that its 

obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by 

any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than 

payment and performance in full of the Guaranteed Obligations. In furtherance of the foregoing and 

without limiting the generality thereof, each Guarantor agrees as follows: 

(a) this Guarantee is a guarantee of payment and performance when due and not 

merely of collection; 

(b) either Agent and any of the other Secured Parties may enforce this Guarantee 

upon the occurrence of an Event of Default notwithstanding the existence of any dispute between the 

Borrower and the Secured Parties with respect to the existence of such Event of Default; 

(c) a separate action or actions may be brought and prosecuted against such 

Guarantor whether or not any action is brought against the Borrower or any other Guarantors and whether 

or not Borrower or such Guarantors are joined in any such action or actions; 

(d) payment or performance by any Guarantor of a portion, but not all, of the 

Guaranteed Obligations shall in no way limit, affect, modify or abridge any other Guarantor’s liability for 

any portion of the Guaranteed Obligations which has not been paid or performed; 

(e) the Required Lenders, upon such terms as they deem appropriate, without notice 

or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, 

limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time 

may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, 

manner or terms of payment or performance of the Guaranteed Obligations; (ii) settle, compromise, 

release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the 

Guaranteed Obligations or subordinate the payment of the same to the payment of any other obligations; 

(iii) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or 

modify, with or without consideration, any security for payment or performance of the Guaranteed 

Obligations, any other guarantees of the Guaranteed Obligations, or any other obligation of any Person 

(including any other Guarantor) with respect to the Guaranteed Obligations; and (iv) enforce its rights and 

remedies even though such action may operate to impair or extinguish any right of reimbursement or 

subrogation or other right or remedy of any Guarantor against the Borrower or any security for the 

Guaranteed Obligations; and 

(f) this Guarantee and the obligations of each Guarantor hereunder shall be legal, 

valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or 

termination for any reason (other than payment or performance in full of the Guaranteed Obligations), 

including any claim of waiver, release, surrender, alteration or compromise, 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 any of the Guaranteed Obligations, any impossibility in the performance 

of any of the Guaranteed Obligations, or otherwise. Without limiting the generality of the foregoing, 

except for the payment and performance in full of the Guaranteed Obligations and to the fullest extent 

permitted by Applicable Law, the obligations of each Guarantor hereunder shall not be discharged or 

impaired or otherwise affected by: (i) any failure, delay or omission to assert or enforce or agreement or 

election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or 
84 

otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with 

respect to the Guaranteed Obligations, or with respect to any security for the payment and performance of 

the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to 

departure from, any of the terms or provisions hereof or any other Loan Document; (iii) the Guaranteed 

Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or 

unenforceable in any respect; (iv) the Lender’s consent to the change, reorganization or termination of the 

corporate structure or existence of the Borrower or any of its Subsidiaries and to any corresponding 

restructuring of the Guaranteed Obligations; (v) the release of, or any impairment of or failure to perfect 

or continue perfection of or protect a security interest in, any collateral which secures any of the 

Guaranteed Obligations; (vi) any defenses, set-offs or counterclaims which the Borrower or any 

Guarantor may allege or assert against either Agent or the Lenders in respect of the Guaranteed 

Obligations, including failure of consideration, lack of authority, validity or enforceability, breach of 

warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (vii) any 

change in the corporate existence, structure or ownership of any Credit Party, or any insolvency, 

bankruptcy, reorganization, examinership or other similar proceeding affecting any Credit Party or its 

assets or any resulting release or discharge of any of the Guaranteed Obligations; (viii) the fact that any 

Person that, pursuant to the Loan Documents, was required to become a party hereto may not have 

executed or is not effectually bound by this Agreement, whether or not this fact is known to the Secured 

Parties; (ix) any action permitted or authorized hereunder; (x) any other circumstance, or any existence of 

or reliance on any representation by the Agents, any Secured Party or any other Person, that might 

otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower, any Guarantor or any 

other guarantor or surety; and (xi) any other event or circumstance that might in any manner vary the risk 

of any Guarantor as an obligor in respect of the Guaranteed Obligations. 

SECTION 9.04 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of 

the Lender: (a) any right to require the Lender, as a condition of payment or performance by such 

Guarantor, to (i) proceed against Borrower, any Guarantor or any other Person; (ii) proceed against or 

exhaust any security in favor of the Lender; or (iii) pursue any other remedy in the power of the Agents or 

Secured Parties whatsoever or (b) presentment to, demand for payment or performance from and protest to 

the Borrower or any Guarantor or notice of acceptance; and (c) any defenses or benefits that may be derived 

from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may 

conflict with the terms hereof. The Agents and the other Secured Parties may, at their election, foreclose on 

any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment 

of any such security in lieu of foreclosure or exercise any other right or remedy available to them against 

the Borrower or any other Credit Party without affecting or impairing in any way the liability of any 

Guarantor hereunder except to the extent the Guaranteed Obligations have been paid in full. To the fullest 

extent permitted by Applicable Law, each Credit Party waives any defense arising out of any such election 

even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of 

reimbursement or subrogation or other right or remedy of such Credit Party against the Borrower or any 

other Credit Party, as the case may be, or any security. 

SECTION 9.05 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed 

Obligations shall have been paid in full, each Guarantor hereby waives any claim, right or remedy, direct or 

indirect, that such Guarantor now has or may hereafter have against the Borrower or any other Guarantor or 

any of its assets in connection with this Guarantee or the performance by such Guarantor of its obligations 

hereunder, including without limitation (a) any right of subrogation, reimbursement or indemnification that 

such Guarantor now has or may hereafter have against the Borrower with respect to the Guaranteed 

Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that the Agents or the 

Secured Parties now has or may hereafter have against the Borrower, and (c) any benefit of, and any right to 

participate in, any collateral or security now or hereafter held by the Agents or the Secured Parties. In 

addition, until the Guaranteed Obligations shall have been paid in full, each Guarantor shall withhold 
85 

exercise of any right of contribution such Guarantor may have against any other guarantor (including any 

other Guarantor) of the Guaranteed Obligations. If any amount shall be paid to any Guarantor on account 

of any such subrogation, reimbursement, indemnification or contribution rights at any time when all 

Guaranteed Obligations shall not have been finally and paid in full, such amount shall be held in trust for 

the Secured Parties and shall forthwith be paid over to the Secured Parties to be credited and applied against 

the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof. 

SECTION 9.06 Subordination. Any Indebtedness of the Borrower or any Guarantor now 

or hereafter and all rights of indemnity, contribution or subrogation under Applicable Law or otherwise held 

by any Guarantor (the “Obligee Guarantor”) are hereby subordinated in right of payment or performance to 

the Guaranteed Obligations until the Guaranteed Obligations is paid and performed in full. Any amount in 

respect of such indebtedness or rights collected or received by the Obligee Guarantor after an Event of 

Default has occurred and is continuing shall be held in trust for the Secured Parties and shall forthwith be 

paid over to the Secured Parties to be credited and applied against the Guaranteed Obligations but without 

affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other 

provision hereof. 

SECTION 9.07 Continuing Guarantee. This Guarantee is a continuing guarantee and shall 

remain in effect until all of the Guaranteed Obligations shall have been paid and performed in full. Each 

Guarantor hereby irrevocably waives any right to revoke this Guarantee as to future transactions giving rise 

to any Guaranteed Obligations. 

SECTION 9.08 Financial Condition of the Borrower. The Loans may be made to the 

Borrower without notice to or authorization from any Guarantor regardless of the financial or other 

condition of the Borrower at the time of such grant. Each Guarantor has adequate means to obtain 

information from the Borrower on a continuing basis concerning the financial condition of the Borrower 

and its ability to perform its obligations under the Loan Documents, and each Guarantor assumes the 

responsibility for being and keeping informed of the financial condition of the Borrower and of all 

circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. 

SECTION 9.09 Reinstatement. In the event that all or any portion of the Guaranteed 

Obligations are paid by the Borrower or any Guarantor, the obligations of any other Guarantor hereunder 

shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or 

any part of such payment(s) are rescinded or recovered directly or indirectly from the Secured Parties as a 

preference, fraudulent transfer or otherwise must be so recovered or returned, and any such payments and 

amounts which are so rescinded, recovered or returned shall constitute Guaranteed Obligations for all 

purposes hereunder. 

SECTION 9.10 Discharge of Guarantees. If, in compliance with the terms and provisions 

of the Loan Documents, (x) all of the Equity Interests of any Guarantor that is a Subsidiary of the Parent or 

any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger or 

consolidation) to any Person (other than to the Parent or to any other Subsidiary of Parent), the Guarantee of 

such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be 

discharged and released without any further action by any beneficiary or any other Person effective as of the 

time of such asset sale or (y) a Guarantor becomes an Excluded Subsidiary (other than as a result of a 

Guarantor becoming a non-Wholly Owned Subsidiary), the Borrower may request the release of the 

Guarantee of such Guarantor, whereupon the Guarantee of such Guarantor shall be discharged and released. 

ARTICLE X 

CARES ACT REQUIREMENTS 
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Notwithstanding anything in this Agreement to the contrary, the Credit Parties, on behalf of 

themselves and their Affiliates, represent, warrant, and agree with the Lenders that: 

SECTION 10.01 CARES Act Compliance. Each Credit Party and its Subsidiaries are in 

compliance, and will at all times comply, with all applicable requirements under Title IV of the CARES 

Act, including any applicable requirements pertaining to the Borrower’s eligibility to receive the Loans. 

The Parent, the Borrower and their Subsidiaries will provide any information requested by the Initial 

Lender or Agents to assess the Borrower’s compliance with applicable requirements under Title IV of the 

CARES Act, its obligations under this Article X or its eligibility to receive the Loans under the CARES 

Act. The Borrower is not a “covered entity” as defined in Section 4019 of the CARES Act. 

SECTION 10.02 Dividends and Buybacks 

(a) Until the date that is twelve (12) months after the date on which the Loans are no 

longer outstanding, neither any Borrower Air Carrier nor any of its Affiliates (other than an Affiliate that 

is a natural person) shall, in any transaction, purchase an equity security of any Borrower Air Carrier or of 

any direct or indirect parent company of a Borrower Air Carrier or of any Subsidiary of the Parent that, in 

each case, is listed on a national securities exchange, except to the extent required under a contractual 

obligation in effect as of the date of enactment of the CARES Act. 

(b) Until the date that is twelve (12) months after the date on which the Loans are no 

longer outstanding, no Borrower Air Carrier shall pay dividends, or make any other capital distributions, 

with respect to the common stock of any Borrower Air Carrier. 

SECTION 10.03 Maintenance of Employment Levels. Until September 30, 2020, each 

Borrower Air Carrier shall maintain its employment levels as of March 24, 2020, to the extent practicable, 

and in any case shall not reduce its employment levels by more than ten percent (10%) from the levels on 

March 24, 2020. 

SECTION 10.04 United States Business. Each Borrower Air Carrier is created or 

organized in the United States or under the laws of the United States and has significant operations in and a 

majority of its employees based in the United States. 

SECTION 10.05 Limitations on Certain Compensation. 

(a) Beginning on the Closing Date, and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, each Borrower Air Carrier and its Affiliates shall 

not pay any of each Borrower Air Carrier’s Corporate Officers or Employees whose Total Compensation 

exceeded $425,000 in calendar year 2019 or the Subsequent Reference Period (other than an Employee 

whose compensation is determined through an existing collective bargaining agreement entered into 

before March 1, 2020): 

(i) Total Compensation which exceeds, during any twelve (12) consecutive 

months of the period beginning on the Closing Date and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, the Total Compensation the Corporate 

Officer or Employee received in calendar year 2019 or the Subsequent Reference Period; or 

(ii) Severance Pay or Other Benefits in connection with a termination of 

employment with any Borrower Air Carrier which exceed twice the maximum Total Compensation 

received by such Corporate Officer or Employee in calendar year 2019 or the Subsequent Reference 

Period. 
87 

(b) Beginning on the Closing Date, and ending on the date that is one (1) year after 

the date on which the Loans are no longer outstanding, each Borrower Air Carrier and its Affiliates shall 

not pay any of each Borrower Air Carrier’s Corporate Officers or Employees whose Total Compensation 

exceeded $3,000,000 in calendar year 2019 or the Subsequent Reference Period, Total Compensation 

which exceeds, during any twelve (12) consecutive months of such period, in excess of the sum of: 

(i) $3,000,000; and 

(ii) Fifty percent (50%) of the excess over $3,000,000 of the Total 

Compensation received by such Corporate Officer or Employee in calendar year 2019 or the 

Subsequent Reference Period. 

(c) For purposes of determining applicable amounts under this Section with respect 

to any Corporate Officer or Employee who was employed by any Borrower Air Carrier or any of their 

Affiliates for less than all of calendar year 2019, the amount of Total Compensation in calendar year 2019 

shall mean such Corporate Officer’s or Employee’s Total Compensation on an annualized basis. 

SECTION 10.06 Continuation of Certain Air Service. Until March 1, 2022, each

Borrower Air Carrier shall comply with any applicable requirement issued by the Secretary of 

Transportation under section 4005 of the CARES Act to maintain scheduled air transportation service to 

any point served by any Borrower Air Carrier before March 1, 2020. The Borrower acknowledges that 

neither Treasury, nor any other actor, department, or agency of the Federal Government, shall condition the 

issuance of any loan under this Loan Agreement on the Borrower’s implementation of measures to enter 

into negotiations with the certified bargaining representative of a craft or class of employees of the 

Borrower Air Carrier under the Railway Labor Act (45 U.S.C. 151 et seq.) or the National Labor Relations 

Act (29 U.S.C. 151 et seq.), regarding pay or other terms and conditions of employment. 

SECTION 10.07 Treasury Access. Provide Treasury, the Treasury Inspector General, the 

Special Inspector General for Pandemic Recovery, and such other entities as authorized by Treasury timely 

and unrestricted access to all documents, papers, or other records, including electronic records, of the 

Borrower related to the Loans, to enable Treasury, the Treasury Inspector General, and the Special 

Inspector General for Pandemic Recovery to make audits, examinations, and otherwise evaluate the 

Borrower’s compliance with the terms of this Agreement. This right also includes timely and reasonable 

access to the Borrower’s and its Affiliates’ personnel for the purpose of interview and discussion related to 

such documents. 

SECTION 10.08 Additional Defined Terms. As used in this Article, the following terms 

have the meanings specified below: 

 “Borrower Air Carrier” means, collectively, the Borrower, its Affiliates that are Air 

Carriers, and their respective heirs, executors, administrators, successors, and assigns. Notwithstanding 

anything to the contrary herein, for purposes of this Article X, an “Affiliate” of the Borrower shall not 

include any Person(s) that become affiliated with the Borrower solely by virtue of the consummation of a 

Change of Control transaction resulting in repayment of the Loans in full. 

“Corporate Officer” means, with respect to any Borrower Air Carrier, its president; any 

vice president in charge of a principal business unit, division, or function (such as sales, administration or 

finance); any other officer who performs a policy-making function; or any other person who performs 

similar policy making functions for the Borrower Air Carrier. Executive officers of subsidiaries or 

parents of any Borrower Air Carrier may be deemed Corporate Officers of the Borrower Air Carrier if 

they perform such policy-making functions for the Borrower Air Carrier. 
88 

“Employee” has the meaning given to the term in section 2 of the National Labor 

Relations Act (29 U.S.C. 152 and includes any individual employed by an employer subject to the 

Railway Labor Act (45 U.S.C. 151 et seq.), and for the avoidance of doubt includes all individuals who 

are employed by the Borrower Air Carrier who are not Corporate Officers. 

 “Severance Pay or Other Benefits” means any severance payment or other similar 

benefits, including cash payments, health care benefits, perquisites, the enhancement or acceleration of 

the payment or vesting of any payment or benefit or any other in-kind benefit payable (whether in lump 

sum or over time, including after March 24, 2022) by any Borrower Air Carrier or its Affiliates to a 

Corporate Officer or Employee in connection with any termination of such Corporate Officer’s or 

Employee’s employment (including, without limitation, resignation, severance, retirement, or constructive 

termination), which shall be determined and calculated in respect of any Employee or Corporate Officer 

of the Borrower Air Carrier in the manner prescribed in 17 CFR 229.402(j) (without regard to its 

limitation to the five (5) most highly compensated executives and using the actual date of termination of 

employment rather than the last business day of the Borrower Air Carrier’s last completed fiscal year as 

the trigger event). 

“Subsequent Reference Period” means (i) for a Corporate Officer or Employee whose 

employment with the Borrower Air Carrier or an Affiliate started during 2019 or later, the twelve (12) 

month period starting from the end of the month in which the officer or employee commenced 

employment, if such officer’s or employee’s total compensation exceeds $425,000 (or $3,000,000) during 

such period and (ii) for a Corporate Officer or Employee whose Total Compensation first exceeds 

$425,000 during a 12-month period ending after 2019, the 12-month period starting from the end of the 

month in which the Corporate Officer’s or Employee’s Total Compensation first exceeded $425,000 (or 

$3,000,000). 

“Total Compensation” means compensation including salary, wages, bonuses, awards of 

stock, and any other financial benefits provided by the Borrower Air Carrier or an Affiliate, as applicable, 

which shall be determined and calculated for the 2019 calendar year or any applicable twelve (12)-month 

period in respect of any Employee or Corporate Officer of the Borrower Air Carrier in the manner 

prescribed under paragraph e.5 of the award term in 2 CFR part 170, App. A, but excluding any 

Severance Pay or Other Benefits in connection with a termination of employment. 

ARTICLE XI 

MISCELLANEOUS 

SECTION 11.01 Notices; Public Information. 

(a) Notices Generally. Except in the case of notices and other communications 

expressly permitted to be given by telephone (and except as provided in paragraph (b) below), all notices 

and other communications provided for herein shall be in writing in English and shall be delivered by 

hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email as 

follows: 

(i) if to a Credit Party, to the following: 

Hawaiian Airlines, Inc. 

Attn: Shannon L. Okinaka 

Executive Vice President & Chief Financial Officer 

Phone: 
89 

Fax: 808-840-8326 

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819 

Email: 

With a copy to: 

Hawaiian Airlines, Inc. 

Attn: Aaron J. Alter 

Executive Vice President & Chief Legal Officer 

Phone: 

Fax: 808-840-8369 

Address: 3375 Koapaka Street, Suite G350, Honolulu, Hawaii 96819 

Email: 

(ii) if to the Administrative Agent or the Collateral Agent, to The Bank of 

New York Mellon at 240 Greenwich Street, 7th Floor, New York, NY 10286, Attention of Joanna 

Shapiro, Managing Director (Telephone No. 212-815-4949; Email: 

joanna.g.shapiro@bnymellon.com with a copy to UST.Cares.Program@bnymellon.com); 

(iii) if to Treasury, as the Initial Lender, to The Department of the Treasury of 

the United States at 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220, Attention of 

Assistant General Counsel (Banking and Finance) (Telephone No. 202-622-0283; Email: 

eric.froman@treasury.gov); and 

(iv) if to any other Lender, to it at its address (or facsimile number or email 

address) set forth in its Administrative Questionnaire. 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be 

deemed to have been given when received. Notices delivered through electronic communications, to the 

extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b). 

(b) Electronic Communications. Notices and other communications to the Lenders 

hereunder may be delivered or furnished by electronic communication (including e-mail, FpML, and 

Internet or intranet websites) pursuant to procedures approved by the Lenders and reasonably acceptable 

to the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant 

to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices 

under such Article by electronic communication. The Administrative Agent, the Collateral Agent, the 

Parent or the Borrower may, in its discretion, agree to accept notices and other communications to it 

hereunder by electronic communications pursuant to procedures approved by it; provided that approval of 

such procedures may be limited to particular notices or communications. 

Unless the Administrative Agent, the Collateral Agent or a Lender otherwise prescribes, 

(i) notices and other communications sent to an e-mail address shall be deemed received upon the 

sender’s receipt of an acknowledgement from the intended recipient (such as by return e-mail or other 

written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website 

shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as 

described in the foregoing clause (i), of notification that such notice or communication is available and 

identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, 

email or other communication is not sent during the normal business hours of the recipient, such notice or 

communication shall be deemed to have been sent at the opening of business on the next Business Day for 

the recipient. 
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(c) Change of Address, etc. Any party hereto may change its address or facsimile 

number for notices and other communications hereunder by notice to the other parties hereto. 

(d) Platform. 

(i) The Borrower and the Lenders agree that the Administrative Agent may, 

but shall not be obligated to, make the Communications (as defined below) available to the other 

Lenders by posting the Communications on the Platform. 

(ii) The Platform is provided “as is” and “as available.” The Agent Parties 

(as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability 

for errors or omissions in the Communications. No warranty of any kind, express, implied or 

statutory, including any warranty of merchantability, fitness for a particular purpose, noninfringement of third-party rights or freedom from viruses or other code defects, is made by any 

Agent Party in connection with the Communications or the Platform. In no event shall the 

Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any 

liability to the Credit Parties, any Lender or any other Person or entity for damages of any kind, 

including direct or indirect, special, incidental or consequential damages, losses or expenses 

(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative 

Agent’s transmission of communications through the Platform. “Communications” means, 

collectively, any notice, demand, communication, information, document or other material 

provided by or on behalf of the Credit Parties pursuant to any Loan Document or the transactions 

contemplated therein that is distributed to the Administrative Agent or any Lender by means of 

electronic communications pursuant to this Section, including through the Platform. 

(e) Public Information. The Borrower hereby acknowledges 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. The Borrower hereby agrees that it will use commercially reasonable efforts to 

identify that portion of the materials and information provided by or on behalf of the Borrower hereunder 

and under the other Loan Documents (collectively, “Borrower Materials”) that may be distributed to the 

Public Lenders and that (i) 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; (ii) 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 11.12); (iii) all Borrower Materials marked 

“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side 

Information;” and (iv) 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”. Each Public Lender will designate one or more representatives that shall be 

permitted to receive information that is not designated as being available for Public Lenders. 

Notwithstanding the foregoing, financial statements and related documentation, in each case, provided 

pursuant to Section 5.01(a) or 5.01(b) shall be deemed to be marked “PUBLIC”, unless the Parent notifies 

the Administrative Agent promptly that any such document contains material non-public information. 
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SECTION 11.02 Waivers; Amendments. 

(a) No Waiver; Remedies Cumulative; Enforcement. No failure or delay by the 

Administrative Agent, the Collateral Agent or any Lender in exercising any right, remedy, power or 

privilege hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any 

single or partial exercise of any such right, remedy, power or privilege, or any abandonment or 

discontinuance of steps to enforce such a right remedy, power or privilege, preclude any other or further 

exercise thereof or the exercise of any other right remedy, power or privilege. The rights, remedies, 

powers and privileges of the Administrative Agent, the Collateral Agent and the Lenders hereunder and 

under the Loan Documents are cumulative and are not exclusive of any rights, remedies, powers or 

privileges that any such Person would otherwise have. 

Notwithstanding anything to the contrary contained herein or in any other Loan 

Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents 

against the Credit Parties shall be vested exclusively in, and all actions and proceedings at law in 

connection with such enforcement shall be instituted and maintained exclusively by, (i) so long as the 

Initial Lender is a Lender, either the Initial Lender or, at the Initial’s Lender’s option, the Administrative 

Agent in accordance with Section 7.01 for the benefit of all the Lenders and (ii) if the Initial Lender is no 

longer a Lender, the Required Lenders or the Administrative Agent (acting at the direction of the 

Required Lenders) in accordance with Section 7.01 for the benefit of all the Lenders; provided that the 

foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and 

remedies that inure to its benefit (solely in its capacities as Administrative Agent and as Collateral Agent) 

hereunder and under the other Loan Documents, (ii) any Lender from exercising setoff rights in 

accordance with Section 11.08 (subject to the terms of Section 2.13) or (iii) any Lender from filing proofs 

of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative 

to a Credit Party under any Debtor Relief Law; provided, further, that if at any time there is no Person 

acting as Administrative Agent hereunder and under the other Loan Documents, then (x) the Required 

Lenders shall have the rights otherwise provided to the Administrative Agent pursuant to Section 7.01 

and (y) in addition to the matters set forth in clauses (ii) and (iii) of the preceding proviso and subject to 

Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights or remedies 

available to it and as authorized by the Required Lenders. 

(b) Amendments, Etc. Except as otherwise expressly set forth in this Agreement 

(including Section 2.10 and Section 8.01), no amendment or waiver of any provision of this Agreement or 

any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective 

unless in writing executed by the Borrower and the Required Lenders, and acknowledged by the 

Administrative Agent, or by the Borrower and the Administrative Agent with the consent of the Required 

Lenders, and each such waiver or consent shall be effective only in the specific instance and for the 

specific purpose for which given; provided that no such amendment, waiver or consent shall: 

(i) extend or increase any Commitment of any Lender without the written 

consent of such Lender; 

(ii) reduce the principal of, or rate of interest specified herein on, any Loan, or 

any fees or other amounts payable hereunder or under any other Loan Document, without the 

written consent of each Lender directly and adversely affected thereby (provided that only the 

consent of the Required Lenders shall be necessary (x) to amend the definition of “Default Rate” 

or to waive the obligation of the Borrower to pay interest at the Default Rate or (y) to amend any 

financial covenant (or any defined term directly or indirectly used therein), even if the effect of 

such amendment would be to reduce the rate of interest on any Loan or other Obligation or to 

reduce any fee payable hereunder); 
92 

(iii) postpone any date scheduled for any payment of principal of, or interest 

on, any Loan, or any fees or other amounts payable hereunder or under any other Loan Document, 

or reduce the amount of, waive or excuse any such payment, without the written consent of each 

Lender directly and adversely affected thereby; 

(iv) change Section 2.12(b) or Section 2.13 in a manner that would alter the 

pro rata sharing of payments required thereby without the written consent of each Lender directly 

and adversely affected thereby; 

(v) waive any condition set forth in Section 4.01 without the written consent 

of the Initial Lender; or 

(vi) change any provision of this Section or the percentage in the definition of 

“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders 

required to amend, waive or otherwise modify any rights hereunder or make any determination or 

grant any consent hereunder, without the written consent of each Lender; 

provided, further, that no such amendment, waiver or consent shall amend, modify or otherwise affect the 

rights or duties hereunder or under any other Loan Document of either of the Agents, unless in writing 

executed by such Agent, in each case in addition to the Borrower and the Lenders required above. 

In addition, notwithstanding anything in this Section to the contrary, (i) if the Borrower 

shall have identified an obvious error or any error or omission of a technical nature, in each case, in any 

provision of the Loan Documents, then, upon the delivery of a certificate of a Responsible Officer of the 

Borrower to the Administrative Agent identifying such error and directing the Administrative Agent to 

execute an amendment to correct such error, the Administrative Agent and the Borrower shall be 

permitted to amend such provision, and, in each case, 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 to the Administrative Agent within ten (10) Business Days following 

receipt of notice thereof and (ii) that any Security Document may be amended, supplemented or otherwise 

modified with the consent of the applicable Grantor (as defined in the Pledge and Security Agreement) 

and the Administrative Agent to add assets (or categories of assets) to the Collateral covered by such 

Security Document, as contemplated by the definition of Additional Collateral, or to remove any assets or 

categories of assets (including after-acquired assets of that category) from the Collateral covered by such 

Security Document to the extent the release thereof is permitted by Section 6.17(b)(iii). 

SECTION 11.03 Expenses; Indemnity; Damage Waiver. 

(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket 

expenses incurred by the Initial Lender, the Administrative Agent, the Collateral Agent and their 

Affiliates (including the reasonable fees, charges and disbursements of any counsel for the Initial Lender, 

the Administrative Agent or the Collateral Agent), and shall pay all fees and time charges and 

disbursements for attorneys who may be employees of the Administrative Agent or the Collateral Agent, 

in connection with the preparation, negotiation, execution, delivery and administration of this Agreement, 

the Loan Documents, any other agreements or documents executed in connection herewith or therewith or 

any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the 

transactions contemplated hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses 

incurred by the Administrative Agent, the Collateral Agent or any Lender (including the fees, charges and 

disbursements of any counsel for the Administrative Agent, the Collateral Agent or any Lender), and shall 

pay all fees and time charges for attorneys who may be employees of the Administrative Agent, the 

Collateral Agent or any Lender, in connection with the enforcement or protection of its rights (A) in 
93 

connection with this Agreement and the Loan Documents, any other agreements or documents executed 

in connection herewith or therewith, 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 its rights under this Section, or (B) in connection with the Loans made hereunder, including all 

such out-of-pocket expenses incurred during any workout, restructuring, negotiations or enforcement in 

respect of this Agreement, the Loan Documents and other agreements or documents executed in 

connection herewith or therewith. 

(b) Indemnification by the Borrower. The Borrower shall indemnify the 

Administrative Agent and Collateral Agent (and any sub-agents 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 losses, claims, damages, liabilities, obligations, 

penalties, fines, settlements, judgments, disbursements and related costs and related expenses (including 

the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold 

harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be 

employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any 

Person (including the Parent) arising out of, in connection with, or as a result of (i) the execution or 

delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated 

hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or 

thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the 

use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous 

Materials on or from any property owned or operated by the Parent or any of its Subsidiaries, or any 

Environmental Liability related in any way to the Parent or any of its Subsidiaries, or (iv) any actual or 

prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based 

on contract, tort or any other theory, whether brought by a third party or by the Parent, and regardless of 

whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee 

other than the Initial Lender, be available to the extent that such losses, claims, damages, liabilities or 

related 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. This paragraph (b) 

shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. 

arising from any non-Tax claim. 

(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails 

to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the 

Administrative Agent or Collateral Agent (or any sub-agents thereof) or any Related Party of any of the 

foregoing, each Lender (other than the Initial Lender) severally agrees to pay to the Administrative Agent 

or Collateral Agent (or any such sub-agents) or such Related Party, as the case may be, such Lender’s pro 

rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is 

sought based on each Lender’s Applicable Percentage at such time) of such unpaid amount (including any 

such unpaid amount in respect of a claim asserted by such Lender); 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 or Collateral Agent (or any such sub-agents), or against 

any Related Party of any of the foregoing acting for the Administrative Agent or Collateral Agent (or any 

such sub-agents) in connection with such capacity. The obligations of the Lenders under this paragraph 

(c) are subject to the provisions of Section 2.12(e). 

(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by 

Applicable Law, no Credit Party shall assert, and each hereby waives, any claim against any Indemnitee, 

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, any other Loan 

Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or 
94 

thereby, any Loan, or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above 

shall be liable for any damages arising from the use by unintended recipients of any information or other 

materials distributed by it through telecommunications, electronic or other information transmission 

systems in connection with this Agreement or the other Loan Documents or the transactions contemplated 

hereby or thereby. 

(e) Payments. All amounts due under this Section shall be payable not later than 

five (5) days after demand therefor; provided that the terms of this Section shall not apply to the Initial 

Lender. 

(f) Survival. Each party’s obligations under this Section shall survive the 

termination of the Loan Documents and payment of the obligations hereunder and the resignation or 

removal of the Administrative Agent or the Collateral Agent. 

SECTION 11.04 Successors and Assigns. 

(a) Successors and Assigns Generally. 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 the Borrower may not assign or otherwise transfer any of its rights or 

obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and 

any other attempted assignment or transfer by any party hereto shall be null and void), and no Lender may 

assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in 

accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance 

with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security 

interest subject to the restrictions of paragraph (e) of this Section. 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 and, to the extent expressly contemplated hereby, the Related Parties of each of the 

Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of 

this Agreement. 

(b) Assignments by Lenders. Any Lender may at any time assign to one or more 

Eligible 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); provided that any such assignment by any Lender (other than 

the Initial Lender) shall be subject to the following conditions: 

(i) Minimum Amounts. 

(A) in the case of an assignment of the entire remaining amount of 

the assigning Lender’s Loans at the time owing to it or contemporaneous assignments to 

and/or by related Approved Funds (determined after giving effect to such assignments) 

that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the 

aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an 

Approved Fund, no minimum amount need be assigned; and 

(B) in any case not described in paragraph (b)(i)(A) of this Section, 

the principal outstanding balance of the Loans of the assigning Lender subject to each 

such assignment (determined as of the date the Assignment and Assumption with respect 

to such assignment is delivered to the Administrative Agent or, if “Trade Date” is 

specified in the Assignment and Assumption, as of the Trade Date) shall not be less than 

$5,000,000, unless each of the Administrative Agent and, so long as no Default or Event 
95 

of Default has occurred and is continuing, the Borrower otherwise consents (each such 

consent not to be unreasonably withheld or delayed). 

(ii) Proportionate Amounts. 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 with respect to the Loans assigned. 

(iii) Required Consents. No consent shall be required for any assignment by 

the Initial Lender. The consent of the Borrower (such consent not to be unreasonably withheld, 

delayed or conditioned) shall be required for any assignment by any Lender other than the Initial 

Lender unless (x) a Default or Event of Default has occurred and is continuing at the time of such 

assignment, or (y) such assignment is to a Lender or an Affiliate of a Lender; provided that the 

Borrower shall be deemed to have consented to any such assignment unless it shall object thereto 

by written notice to the Administrative Agent within five (5) Business Days after having received 

notice thereof. 

(iv) Assignment and Assumption. The parties to each assignment shall 

execute and deliver to the Administrative Agent an Assignment and Assumption, together with a 

processing and recordation fee of $3,500; provided that the Administrative Agent may, in its sole 

discretion, elect to waive such processing and recordation fee in the case of any assignment. The 

assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative 

Questionnaire. 

(v) No Assignment to Certain Persons. No such assignment shall be made 

to the Borrower or any of the Borrower’s Affiliates or Subsidiaries. 

(vi) No Assignment to Natural Persons. No such assignment shall be made 

to a natural person (or a holding company, investment vehicle or trust for, or owned and operated 

for the primary benefit of, a natural person). 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c) of this 

Section, from and after the effective date specified in each Assignment and Assumption, the assignee 

thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such 

Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the 

assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and 

Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment 

and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such 

Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Section 11.03 

with respect to facts and circumstances occurring prior to the effective date of such assignment. Any 

assignment or transfer by a Lender other than the Initial Lender of rights or obligations under this 

Agreement that does not comply with this paragraph 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. 

(c) Register. The Administrative Agent, acting solely for this purpose as an agent of 

the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to 

it and a register for the recordation of the names and addresses of the Lenders, and the principal amounts 

(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 Administrative Agent, the Collateral 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 
96 

Agreement. 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. 

(d) Participations. Any Lender may at any time, without the consent of, or notice to, 

the Borrower or the Administrative Agent, sell participations to any Person (other than a Competitor, a 

natural person, or a holding company, investment vehicle or trust for, or owned and operated for the 

primary benefit of, a natural person, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) 

(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement 

(including all or a portion of the Loans owing to it); provided that (i) such Lender’s obligations under this 

Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties 

hereto for the performance of such obligations, and (iii) the Borrower, the Administrative Agent, the 

Collateral Agent and Lenders shall continue to deal solely and directly with such Lender in connection 

with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender 

shall be responsible for the indemnity under Section 11.03(b) with respect to any payments made by such 

Lender to its Participant(s). 

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 Section 11.02(b)(i) through (v) that affects such 

Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 

2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under 

Section 2.16(g) (it being understood that the documentation required under Section 2.16(g) shall be 

delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its 

interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees 

to be subject to the provisions of Section 2.19 as if it were an assignee under paragraph (b) of this 

Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.16, with 

respect to any participation, than its participating Lender would have been entitled to receive, except to 

the extent such entitlement to receive a greater payment results from a Change in Law that occurs after 

the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the 

Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the 

provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each 

Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that 

such Participant agrees to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a 

participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, 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 the Loan Documents (the 

“Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of 

the Participant Register (including the identity of any Participant or any information relating to a 

Participant’s interest in any loans or its other obligations under any Loan Document) to any Person except 

to the extent that such disclosure is necessary to establish that such 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 shall treat each Person whose name is 

recorded in the Participant Register as the owner of such participation for all purposes of this Agreement 

notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its 

capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. 

(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest 

in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any 

pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or 
97 

assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee 

or assignee for such Lender as a party hereto. 

SECTION 11.05 Survival. All covenants, agreements, representations and warranties 

made by any Credit Party herein and in any Loan Document or other documents delivered in connection 

herewith or therewith or pursuant hereto or thereto shall be considered to have been relied upon by the other 

parties hereto and shall survive the execution and delivery hereof and thereof and the making of the 

Borrowings hereunder, regardless of any investigation made by any such other party or on its behalf and 

notwithstanding that the Administrative Agent, the Collateral Agent or any Lender may have had notice or 

knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long 

as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied and so long as the 

Commitments have not expired or been terminated. The provisions of Sections 2.14, 2.15, 11.03, 11.15 and 

Article VIII shall survive and remain in full force and effect regardless of the consummation of the 

transactions contemplated hereby, the payment in full of the Obligations, the expiration or termination of 

the Commitments or the termination of this Agreement or any provision hereof. 

SECTION 11.06 Counterparts; Integration; Effectiveness; Electronic Execution.

(a) Counterparts; Integration; Effectiveness. This Agreement may be executed in 

counterparts (and by different parties hereto in different counterparts), each of which shall constitute an 

original, but all of which when taken together shall constitute a single contract. This Agreement and the 

other Loan Documents, constitute the entire contract among the parties relating to the subject matter 

hereof and supersede 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 that, when taken together, bear the signatures of each of the other parties 

hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in 

electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of 

this Agreement. 

(b) Electronic Execution. The words “execution,” “signed,” “signature,” and words 

of like import in this Agreement and in any Assignment and Assumption shall be deemed to include 

electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal 

effect, validity or enforceability as a manually executed signature or the use of a paper-based 

recordkeeping system, as the case may be, to the extent and as provided for in any Applicable Law, 

including the Federal Electronic Signatures in Global and National Commerce Act, the New York State 

Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic 

Transactions Act. Notwithstanding anything herein to the contrary, delivery of an executed counterpart of 

a signature page of this Agreement by telecopy or other electronic means, or confirmation of the 

execution of this Agreement on behalf of a party by an email from an authorized signatory of such party 

shall be effective as delivery of a manually executed counterpart of this Agreement. 

SECTION 11.07 Severability. If any provision of this Agreement or the other Loan 

Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the 

remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired 

thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or 

unenforceable provisions with valid provisions the economic effect of which comes as close as possible to 

that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular 

jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 
98 

SECTION 11.08 Right of Setoff. If an Event of Default shall have occurred and be 

continuing, each Lender, and each of their respective Affiliates is hereby authorized at any time and from 

time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits 

(general or special, time or demand, provisional or final, in whatever currency) at any time held, and other 

obligations (in whatever currency) at any time owing, by such Lender or any such Affiliate, to or for the 

credit or the account of the Borrower against any and all of the due and unpaid Obligations of the Borrower 

now or hereafter existing under this Agreement or any other Loan Document to such Lender or its 

respective Affiliates, irrespective of whether or not such Lender or Affiliate shall have made any demand 

under this Agreement or any other Loan Document and although such obligations of the Borrower may be 

contingent or unmatured or are owed to a branch office or Affiliate of such Lender different from the 

branch office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each 

Lender and their respective Affiliates under this Section are in addition to other rights and remedies 

(including other rights of setoff) that such Lender or its respective Affiliates may have. Each Lender (other 

than the Initial Lender) agrees to notify the Borrower and the Administrative Agent promptly after any such 

setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff 

and application. 

SECTION 11.09 Governing Law; Jurisdiction; Etc. 

(a) Governing Law. This Agreement and the other Loan Documents will be 

governed by and construed in accordance with the federal law of the United States if and to the extent 

such law is applicable, and otherwise in accordance with the law of the State of New York applicable to 

contracts made and to be performed entirely within such State. 

(b) Jurisdiction and Venue. Each of the Credit Parties and each Lender agrees (a) to 

submit to the exclusive jurisdiction and venue of the United States District Court for the District of 

Columbia for any civil action, suit or proceeding arising out of or relating to this Agreement, the Loan 

Documents, or the transactions contemplated hereby or thereby. 

(c) Service of Process. Each party hereto irrevocably consents to service of process 

in the manner provided for notices in Section 11.01. Nothing in this Agreement will affect the right of 

any party hereto to serve process in any other manner permitted by Applicable Law. 

SECTION 11.10 Waiver of Jury Trial. To the extent permitted by Applicable Law, each 

Credit Party and each Lender hereby unconditionally waives trial by jury in any civil legal action or 

proceeding relating to this Agreement, the Loan Documents or the transactions contemplated hereby or 

thereby. 

SECTION 11.11 Headings. Article and Section headings and the Table of Contents used 

herein are for convenience of reference only, are not part of this Agreement and shall not affect the 

construction of, or be taken into consideration in interpreting, this Agreement. 

SECTION 11.12 Treatment of Certain Information; Confidentiality. Each of the Agents 

and the Lenders (other than the Initial Lender) agree to maintain the confidentiality of the Information (as 

defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (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); (b) to the extent required 

or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related 

Parties (including any self-regulatory authority, such as the National Association of Insurance 

Commissioners); (c) to the extent required by Applicable Laws or by any subpoena or similar legal process; 

(d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any 
99 

other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document 

or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions 

substantially the same as (or no less restrictive than) those of this Section, to (i) any assignee of or 

Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this 

Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other 

transaction under which payments are to be made by reference to the Borrower and its obligations, this 

Agreement or payments hereunder; provided that, in each case under this clause (f)(ii), such actual or 

prospective party is not a Competitor; (g) on a confidential basis to (i) any rating agency in connection with 

rating the Borrower or its Subsidiaries or the Loans or (ii) the CUSIP Service Bureau or any similar agency 

in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans; (h) with the 

consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a 

result of a breach of this Section, or (y) becomes available to either Agent, any Lender or any of their 

respective Affiliates on a nonconfidential basis from a source other than the Borrower who did not acquire 

such information as a result of a breach of this Section. 

For purposes of this Section, “Information” means all information received from the 

Parent or any of its Subsidiaries relating to the Parent 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 Parent or any of its Subsidiaries; provided that, in the 

case of information received from the Parent or any of its Subsidiaries after the date hereof, such 

information is clearly identified at the time of delivery as confidential. Any Person required to maintain 

the confidentiality of Information as provided in this Section shall be considered to have complied with 

its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality 

of such Information as such Person would accord to its own confidential information. 

SECTION 11.13 Money Laundering; Sanctions. The Borrower shall provide to the

Administrative Agent, the Collateral Agent, and the Lenders information and documentation that the 

Lenders may reasonably request that identifies the Borrower and its Affiliates, which information may 

include the name and address of the Borrower and its Affiliates and other information regarding beneficial 

ownership of the Borrower and its Affiliates that will allow the Lenders to ensure compliance with 

Sanctions and the AML Laws. For purposes of determining whether or not a representation with respect to 

any indirect ownership is true or a covenant is being complied with under this Section 11.13, the Borrower 

shall not be required to make any investigation into (i) the ownership of publicly traded stock or other 

publicly traded securities or (ii) the ownership of assets by a collective investment fund that holds assets for 

employee benefit plans or retirement arrangements. 

SECTION 11.14 Interest Rate Limitation. Notwithstanding anything herein to the 

contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other 

amounts that are treated as interest on such Loan under Applicable Law (collectively, “charges”), shall 

exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, 

received or reserved by the Lender holding such Loan in accordance with Applicable Law, the rate of 

interest payable in respect of such Loan hereunder, together with all charges payable in respect thereof, 

shall be limited to the Maximum Rate. To the extent lawful, the interest and charges that would have been 

paid in respect of such Loan but were not paid as a result of the operation of this Section shall be cumulated 

and the interest and charges payable to such Lender in respect of other Loans or periods shall be increased 

(but not above the amount collectible at the Maximum Rate therefor) until such cumulated amount, together 

with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment, shall have 

been received by such Lender. Any amount collected by such Lender that exceeds the maximum amount 

collectible at the Maximum Rate shall be applied to the reduction of the principal balance of such Loan or 

refunded to the Borrower so that at no time shall the interest and charges paid or payable in respect of such 

Loan exceed the maximum amount collectible at the Maximum Rate. 
100 

SECTION 11.15 Payments Set Aside. To the extent that any payment by or on behalf of 

the Borrower is made to the Administrative Agent or any Lender, or any Lender exercises its right of setoff, 

and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to 

be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the 

Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, 

in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such 

recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in 

full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each 

Lender (other than the Initial Lender) severally agrees to pay to the Administrative Agent upon demand its 

applicable share (without duplication) of any amount so recovered from or repaid by the Administrative 

Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per 

annum equal to the Federal Funds Effective Rate from time to time in effect. 

SECTION 11.16 No Advisory or Fiduciary Responsibility. In connection with all aspects 

of each transaction contemplated hereby (including in connection with any amendment, waiver or other 

modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and 

acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or agency relationship 

between any Credit Party and any of their respective Subsidiaries and the Administrative Agent, the 

Collateral Agent or any Lender is intended to be or has been created in respect of the transactions 

contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative Agent, 

the Collateral Agent, or any Lender has advised or is advising any Credit Party or any of their respective 

Subsidiaries on other matters, (ii) the lending and other services regarding this Agreement provided by the 

Administrative Agent, the Collateral Agent and the Lenders are arm’s-length commercial transactions 

between Credit Parties and their Affiliates, on the one hand, and the Administrative Agent, the Collateral 

Agent and the Lenders, on the other hand, (iii) the Credit Parties have consulted their own legal, accounting, 

regulatory and tax advisors to the extent that they has deemed appropriate and (iv) the Credit Parties are 

capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions 

contemplated hereby and by the other Loan Documents; and (b) (i) the Administrative Agent, the Collateral 

Agent and the Lenders each is and has been acting solely as a principal and, except as expressly agreed in 

writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary 

for the Credit Parties or any of their respective Affiliates, or any other Person; (ii) none of the 

Administrative Agent, the Collateral Agent and the Lenders has any obligation to the Credit Parties or any 

of their respective Affiliates with respect to the transactions contemplated hereby except those obligations 

expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the 

Collateral Agent and the Lenders and their respective Affiliates may be engaged, in a broad range of 

transactions that involve interests that differ from those of the Credit Parties and their respective Affiliates, 

and none of the Administrative Agent, the Collateral Agent and the Lenders has any obligation to disclose 

any of such interests to the Credit Parties or any of their respective Affiliates. To the fullest extent 

permitted by Law, the Credit Parties hereby waive and release any claims that they may have against any of 

the Administrative Agent, the Collateral Agent and the Lenders with respect to any breach or alleged breach 

of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. 

SECTION 11.17 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. 

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or 

understanding among the parties, each party hereto (including each Credit Party) acknowledges that any 

liability arising under a Loan Document of any Credit Party that is an Affected Financial Institution, 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: (a) the 

application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such 

liabilities arising under any Loan Documents which may be payable to it by any Credit Party that is an 

Affected Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including (i) a 
101 

reduction in full or in part or cancellation of any such liability, (ii) a conversion of all, or a portion of, such 

liability into shares or other instruments of ownership in such Affected Financial Institution, its parent 

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 any Loan Document, or (iii) the variation of the terms of such liability in connection with the 

exercise of the write-down and conversion powers of the applicable Resolution Authority. 

[Signature pages follow.] 
[Signature Page to Loan and Guarantee Agreement – Hawaiian Airlines]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by 

their respective authorized officers as of the day and year first above written.

HAWAIIAN AIRLINES, INC.

By_________________________

Name: Shannon L. Okinaka

Title: Executive Vice President & Chief Financial 

Officer

HAWAIIAN HOLDINGS, INC.

By_________________________

Name: Peter Ingram

Title: President & Chief Executive Officer

DocuSign Envelope ID: 4E3E3203-C338-4BE8-91A6-9A0779B6E6CA
 

[Signature Page to Loan and Guarantee Agreement – Hawaiian Airlines] 

THE BANK OF NEW YORK MELLON, 

as Administrative Agent 

By_________________________ 

Name: Bret S. Derman 

Title: Vice President 

THE BANK OF NEW YORK MELLON, 

as Collateral Agent 

By_________________________ 

Name: Bret S. Derman 

Title: Vice President 

SCHEDULE 1.01(a) 

Carrier Loyalty Programs

No. Loyalty Program Description

1. HawaiianMiles Program The HawaiianMiles program is Hawaiian Airlines’ frequent 

flyer loyalty program, which allows customers to earn 

HawaiianMiles every time they (1) fly on Hawaiian Airlines 

or one of its designated airline partners, (2) purchase products 

and services from ground partners, and (3) use their Hawaiian 

Airlines MasterCard. 

2. Premier Club Program The Premier Club Program is an annual subscription program. 

HawaiianMiles members can pay to receive additional 

benefits such as free baggage allowance, priority services and 

bonus miles.
SCHEDULE 1.01(b)

Loyalty Program Agreements 
2 
3 
4 
5 

 

.
6 

 
7 

 
8 

 
9 
10 

 
11 
12 
13 
14 
15 
16 
17 
18 
19 

 

 
20 

 

 
21 
22 
23 
24 
SCHEDULE 1.01(c)

Loyalty Subscription Programs 

No. Loyalty Program Description

1. Premier Club Program The Premier Club Program is an annual subscription program. 

HawaiianMiles members can pay to receive additional 

benefits such as free baggage allowance, priority services and 

bonus miles.
SCHEDULE 3.05

Financial Statements

Please reference the Hawaiian Holdings, Inc.’s latest SEC filings for recent financial statements:

• 10-Q Report (for quarterly period ending on June 30, 2020)

(https://www.sec.gov/Archives/edgar/data/0001172222/000117222220000059/ha20200630.htm)

• 10-K Report (for fiscal year ended December 31, 2019) 

(https://www.sec.gov/Archives/edgar/data/0001172222/000117222220000008/ha12312019x10k.htm)
SCHEDULE 3.17

Subsidiaries

Subsidiary Jurisdiction Owner % 

Ownership

1. Hawaiian Airlines, Inc. Delaware Hawaiian Holdings, Inc. 100%

2. Airline Contract Maintenance 

and Equipment, Inc.* 

Delaware Hawaiian Holdings, Inc. 100%

3. Hawaiian Gifts, LLC* Arizona Hawaiian Holdings, Inc. 100%

4. HA 3049 Ualena Street, 

LLC* 

Delaware Hawaiian Holdings, Inc. 100%

5. Elliott Street Holdings, Inc.* Delaware Hawaiian Holdings, Inc. 100%

6. Hawaiian Airlines Foundation 

(non-profit corporation)* 

Hawaii Hawaiian Airlines, Inc. 100%

7. Aviation Legacy, LLC* Delaware Airline Contract Maintenance 

and Equipment, Inc.

100%

* Denotes Excluded Subsidiaries existing as of the Closing Date which meet the definition of “Immaterial

Subsidiary” in the Loan Agreement.
SCHEDULE 5.14

Post-Closing Matters

Post-closing confirmatory UCC and FAA searches and delivery of file stamped UCC financing statement 

copies and FAA recordations.
SCHEDULE 6.05(i)

Restricted Payments

Restricted Payments not to exceed $ per annum. 
SCHEDULE 6.06

Investments
SCHEDULE 6.07

Affiliate Transactions

1. Transactions between Borrower and Airline Contract Maintenance & Equipment, Inc.. 

(“ACME”), a wholly-owned subsidiary of Parent, in respect of Borrower’s Ohana by Hawaiian 

inter-island service. 
EXHIBIT A

[FORM OF ASSIGNMENT AND ASSUMPTION]

This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the 

Effective Date set forth below and is entered into by and between the Assignor (as defined below) and the 

Assignee (as defined below). Capitalized terms used but not defined herein shall have the meanings given 

to them in the Loan and Guarantee Agreement identified below (as amended, restated, amended and restated, 

supplemented or otherwise modified from time to time, the “Loan and Guarantee Agreement”), receipt of a 

copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in 

Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this 

Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the 

Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in 

accordance with the Standard Terms and Conditions and the Loan and Guarantee Agreement, as of the 

Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights 

and obligations in its capacity as a Lender under the Loan and Guarantee Agreement, any other Loan 

Documents and any other documents or instruments delivered pursuant thereto to the extent related to the 

amount and percentage interest identified below of all of such outstanding rights and obligations of the 

Assignor under the respective facilities identified below (including any guarantees included in such 

facilities), and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of 

action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or 

unknown, arising under or in connection with the Loan and Guarantee Agreement, any other Loan Document 

and any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby 

or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort 

claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and 

obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by 

the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the

“Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly 

provided in this Assignment and Assumption, without representation or warranty by the Assignor.

1. Assignor: _________________________________________ (the “Assignor”)

2. Assignee: _________________________________________ (the “Assignee”)

[Assignee is an [Affiliate][Approved Fund] of [identify Lender]

3. Borrower: _________________________________________

4. Administrative Agent: The Bank of New York Mellon, as the Administrative Agent under the 

Loan and Guarantee Agreement

5. Loan and Guarantee Agreement: The Loan and Guarantee Agreement dated as of _______ among 

[name of the Borrower(s)], the Guarantors party thereto from time to time, the Lenders parties 

thereto, and The Bank of New York Mellon, as Administrative Agent and Collateral Agent 

6. Assigned Interest[s]:
-2-

Assignor Assignee

Aggregate 

Amount of Loans 

for all Lenders1

Amount of 

Loans Assigned8

Percentage 

Assigned of 

Loans2

$ $ %

$ $ %

$ $ %

[7. Trade Date: ______________]3

[Page break]

 1 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and 

the Effective Date.

2 Set forth, to at least 9 decimals, as a percentage of the Loans of all Lenders thereunder. 3 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the 

Trade Date.
-3-

Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND 

WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE 

REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR

[NAME OF ASSIGNOR]

By:_________________________________

Title:

ASSIGNEE

[NAME OF ASSIGNEE]

By:_________________________________

Title:

Accepted:

THE BANK OF NEW YORK MELLON, as 

Administrative Agent

By: _________________________________

Title:

[Consented to:

[NAME OF BORROWER]

By: ________________________________

Title:]

4

 4 To be included only if the consent of the Borrower is required for such Assignment and Assumption by the terms of the Loan and 

Guarantee Agreement. 
-4-

ANNEX 1

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties.

1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and 

beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, 

encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action 

necessary, including to obtain such consent, if any, as required under the Loan and Guarantee Agreement, 

to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated 

hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations 

made in or in connection with the Loan and Guarantee Agreement or any other Loan Document, (ii) the 

execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or 

any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates 

or any other Person obligated in respect of the Loan and Guarantee Agreement or any other Loan 

Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or 

any other Person of any of their respective obligations under any Loan Document.

1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and 

authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and 

to consummate the transactions contemplated hereby and to become a Lender under the Loan and 

Guarantee Agreement, (ii) it meets all the requirements to be an assignee under Section 11.04 of the Loan 

and Guarantee Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and 

after the Effective Date, it shall be bound by the provisions of the Loan and Guarantee Agreement and 

each other Loan Document as a Lender, and, to the extent of the Assigned Interest, shall have the 

obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the 

type represented by the Assigned Interest and either it, or the Person exercising discretion in making its 

decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has 

received a copy of the Loan and Guarantee Agreement, and has received or has been afforded the 

opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01

thereof, as applicable, and such other documents and information as it deems appropriate to make its own 

credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned 

Interest, (vi) it has, independently and without reliance upon the Administrative Agent, the Collateral 

Agent, the Assignor 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 Assignment and Assumption and 

to purchase the Assigned Interest, (vii) if it is not already a Lender under the Loan and Guarantee 

Agreement, attached to the Assignment and Assumption is an Administrative Questionnaire and the 

applicable “know your customer” documentation requested by the Administrative Agent and as required 

by the Loan and Guarantee Agreement and (viii) the Administrative Agent has received a processing and 

recordation fee of $3,500 as of the Effective Date (to the extent required by the Loan and Guarantee 

Agreement, unless waived), (b) agrees that (i) it will, independently and without reliance on the 

Administrative Agent, the Collateral Agent, the Assignor or any other Lender or Agent, and based on 

such documents and information as it shall deem appropriate at the time, continue to make its own credit 

decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance 

with their terms all of the obligations which by the terms of the Loan Documents are required to be 

performed by it as a Lender, including its obligations pursuant to Section 2.16 of the Loan and Guarantee 

Agreement and (c) appoints and authorizes the Administrative Agent and the Collateral Agent to take 

such action on its behalf and to exercise such powers under the Loan and Guarantee Agreement and the 
-5-

other Loan Documents as are delegated to such Agent by the terms thereof, together with such actions and 

powers as are reasonably incidental or related thereto.

2. Payments. From and after the Effective Date, the Administrative Agent shall make 

all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other 

amounts) to the Assignor for amounts that have accrued to but excluding the Effective Date and to the

Assignee for amounts that have accrued from and after the Effective Date. 

3. General Provisions. This Assignment and Assumption shall be binding upon, and 

inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and 

Assumption may be executed in any number of counterparts, which together shall constitute one instrument. 

Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy or 

other electronic means shall be effective as delivery of a manually executed counterpart of this Assignment

and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance 

with, the federal law of the United States if and to the extent such law is applicable, and otherwise in 

accordance with the law of the State of New York applicable to contracts made and to be performed entirely 

within such State.
EXHIBIT B-1

[FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan and Guarantee Agreement dated as of September 

25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to 

time, the “Loan and Guarantee Agreement”), among Hawaiian Airlines, Inc., the Guarantors party thereto 

from time to time, each Lender from time to time party thereto and The Bank of New York Mellon, as 

Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.16 of the Loan and Guarantee Agreement, the 

undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as 

any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a 

“bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” 

of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled 

foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a 

certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing 

this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the 

undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the 

undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly 

completed and currently effective certificate in either the calendar year in which each payment is to be 

made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan and Guarantee Agreement 

and used herein shall have the meanings given to them in the Loan and Guarantee Agreement.

[NAME OF LENDER]

By:_________________________________

Name:

Title:

Date: ________ __, 20[ ]
EXHIBIT B-2

[FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan and Guarantee Agreement dated as of September 

25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to 

time, the “Loan and Guarantee Agreement”), among Hawaiian Airlines, Inc., the Guarantors party thereto 

from time to time, each Lender from time to time party thereto and The Bank of New York Mellon, as 

Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.16 of the Loan and Guarantee Agreement, the 

undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in 

respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of 

Section 881(c)(3)(A) of the Code, (iii) it is not a “10 percent shareholder” of the Borrower within the 

meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related 

to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its nonU.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the 

undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall 

promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such 

Lender with a properly completed and currently effective certificate in either the calendar year in which 

each payment is to be made to the undersigned, or in either of the two calendar years preceding such 

payments.

Unless otherwise defined herein, terms defined in the Loan and Guarantee Agreement

and used herein shall have the meanings given to them in the Loan and Guarantee Agreement.

[NAME OF PARTICIPANT]

By:_________________________________

Name:

Title:

Date: ________ __, 20[ ]
EXHIBIT B-3

[FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan and Guarantee Agreement dated as of September 

25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to 

time, the “Loan and Guarantee Agreement”), among Hawaiian Airlines, Inc., the Guarantors party thereto 

from time to time, each Lender from time to time party thereto and The Bank of New York Mellon, as 

Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.16 of the Loan and Guarantee Agreement, the 

undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is 

providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such 

participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect 

partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary 

course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its 

direct or indirect partners/members is a “10 percent shareholder” of the Borrower within the meaning of 

Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled 

foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY 

accompanied by one of the following forms from each of its partners/members that is claiming the 

portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such 

partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this 

certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the 

undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times 

furnished such Lender with a properly completed and currently effective certificate in either the calendar 

year in which each payment is to be made to the undersigned, or in either of the two calendar years 

preceding such payments.

Unless otherwise defined herein, terms defined in the Loan and Guarantee Agreement

and used herein shall have the meanings given to them in the Loan and Guarantee Agreement.

[NAME OF PARTICIPANT]

By:_________________________________

Name:

Title:

Date: ________ __, 20[ ]
EXHIBIT B-4

[FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Loan and Guarantee Agreement dated as of September 

25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to 

time, the “Loan and Guarantee Agreement”), among Hawaiian Airlines, Inc., the Guarantors party thereto 

from time to time, each Lender from time to time party thereto and The Bank of New York Mellon, as 

Administrative Agent and Collateral Agent.

Pursuant to the provisions of Section 2.16 of the Loan and Guarantee Agreement, the 

undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) 

evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect 

partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such 

Loan(s)), (iii) with respect to the extension of credit pursuant to this Loan and Guarantee Agreement or 

any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a 

“bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or 

business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect 

partners/members is a “10 percent shareholder” of the Borrower within the meaning of 

Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled 

foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS 

Form W-8IMY accompanied by one of the following forms from each of its partners/members that is 

claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an 

IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such 

partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this 

certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the 

undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the 

undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly 

completed and currently effective certificate in either the calendar year in which each payment is to be 

made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Loan and Guarantee Agreement

and used herein shall have the meanings given to them in the Loan and Guarantee Agreement.

[NAME OF LENDER]

By:_________________________________

Name:

Title:

Date: ________ __, 20[ ]
EXHIBIT C

FORM OF NOTE

[New York, New York]

[Date]

FOR VALUE RECEIVED, the undersigned,[insert name of Borrower], a [insert jurisdiction of formation]

[insert type of legal entity] (the “Borrower”), hereby promises to pay to ______________ or its registered 

assigns in accordance with Section 11.04 of the Loan and Guarantee Agreement (as defined below) (the 

“Lender”), in lawful money of the United States of America in immediately available funds at the office of 

the Administrative Agent (such term, and each other capitalized term used but not defined herein, having 

the meaning assigned to it in the Loan and Guarantee Agreement, dated as of September 25, 2020 (as 

amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Loan 

and Guarantee Agreement”), among the Borrower, the Guarantors party thereto from time to time, the 

United States Department of the Treasury, as Initial Lender, the Lenders party thereto from time to time 

and The Bank of New York Mellon, as Administrative Agent and Collateral Agent) (i) on the dates set forth 

in the Loan and Guarantee Agreement, the principal amounts set forth in the Loan and Guarantee 

Agreement with respect to Loans made by the Lender to the Borrower pursuant to the Loan and Guarantee 

Agreement and (ii) on each Interest Payment Date, interest at the rate or rates per annum as provided in the 

Loan and Guarantee Agreement on the unpaid principal amount of all Loans made by the Lender to the 

Borrower pursuant to the Loan and Guarantee Agreement.

The Borrower promises to pay interest, on written demand, on any overdue principal and, to the extent 

permitted by law, overdue interest from their due dates at the rate or rates provided in the Loan and 

Guarantee Agreement.

The Borrower hereby waives (to the extent permitted by applicable law) diligence, presentment, demand, 

protest and notice of any kind whatsoever. Subject to the terms of the Loan and Guarantee Agreement, 

including Section 7.02 thereof, nonexercise by the holder hereof of any of its rights hereunder in any 

particular instance shall not constitute a waiver thereof in that or any subsequent instance.

All borrowings evidenced by this note and all payments and prepayments of the principal hereof and interest 

hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedule attached 

hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part 

hereof, or otherwise recorded by such holder in its internal records; provided, however, that the failure of 

the holder hereof to make such a notation or any error in such notation shall not affect the obligations of 

the Borrower under this note.

This note is one of the Notes referred to in the Loan and Guarantee Agreement that, among other things, 

contains provisions for the acceleration of the maturity hereof upon the happening of certain events, for 

optional and mandatory prepayment of the principal hereof prior to the maturity hereof and for the 

amendment or waiver of certain provisions of the Loan and Guarantee Agreement, all upon the terms and 

conditions therein specified.

THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS 

OF THE LOAN AND GUARANTEE AGREEMENT.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE 

FEDERAL LAW OF THE UNITED STATES IF AND TO THE EXTENT SUCH LAW IS 
APPLICABLE, AND OTHERWISE IN ACCORDANCE WITH THE LAW OF THE STATE OF 

NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY 

WITHIN SUCH STATE.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower has caused this note to be duly executed by its

authorized officer as of the day and year first above written.

[BORROWER]

By:

Name:

Title:
LOANS AND PAYMENTS

Date Amount of Loan

Maturity 

Date

Payments of 

Principal/Interest

Principal 

Balance of 

Note

Name of 

Person 

Making the 

Notation
EXHIBIT D

FORM OF DIRECT AGREEMENT

[See attached.]
Execution Version

LOYALTY PARTNER DIRECT AGREEMENT1

THIS LOYALTY PARTNER DIRECT AGREEMENT (this “Agreement”), dated as of

[●], 2020, is by and between THE BANK OF NEW YORK MELLON, as Collateral Agent for the benefit 

of the Secured Parties (“Collateral Agent”), [●]2

, a [●]3 (together with its successors and assigns, 

“Loyalty Program Partner”), and [●]4, a [●]5 (“Credit Party”). Capitalized terms used herein but not 

defined shall have the meanings ascribed to such terms in the Loan Agreement (as defined below).

WHEREAS, [[Credit Party][●]]

6

, as Borrower, The Bank of New York Mellon, as 

Collateral Agent and as Administrative Agent, and The United States Department of the Treasury, as 

lender (“Treasury”), have entered into that certain Loan and Guarantee Agreement dated as of [●] (the 

“Loan Agreement”), whereby Treasury has agreed to extend credit to Borrower as is permissible under 

the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136 (Mar. 27, 2020), as the same 

may be amended from time to time (the “CARES Act”) subject to the terms and conditions therein;

WHEREAS, Credit Party and Loyalty Program Partner are parties to [●]7, dated as of 

[●], as amended from time to time (the “Loyalty Program Agreement”);

WHEREAS, pursuant to that certain Pledge and Security Agreement, dated as of [●], by 

and between Credit Party, as a Grantor, the other Grantors named therein from time to time and Collateral 

Agent (the “Pledge and Security Agreement”), Credit Party has granted to Collateral Agent, for the 

benefit of the Secured Parties, a security interest in and continuing lien on, among other things, all of its 

right, title and interest in, to and under the Loyalty Program Agreement together with all related Loyalty 

Program Revenues and other related Loyalty Program Assets (as defined in the Pledge and Security 

Agreement) (collectively, the “Loyalty Program Collateral”). For the purposes of this Agreement, 

“Loyalty Program Revenues” shall mean all payments received by, or otherwise required to be paid to, 

Credit Party (and its Affiliates), and all other amounts Credit Party is entitled to, under the Loyalty 

Program Agreement; “Secured Parties” shall mean any lender under the Loan Agreement (including 

Treasury as the Initial Lender), the Administrative Agent and the Collateral Agent;

WHEREAS, it is a condition precedent to the closing of and initial borrowing under the 

Loan Agreement that Credit Party deliver to Treasury or its designee and Collateral Agent this Agreement 

duly executed and delivered by Loyalty Program Partner;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein 

contained, the parties hereto agree as follows:

1. Estoppel. Loyalty Program Partner hereby certifies that as of the date hereof: (a) 

the Loyalty Program Agreement is in full force and effect and has not been modified, supplemented or 

 1 Note: Form to be executed for each Material Loyalty Program Agreement.

2 NTD: Insert name of Loyalty Program Partner.

3 NTD: Insert jurisdiction of incorporation or formation.

4 NTD: Insert the name of the airline entity that is party to the Material Loyalty Program Agreement.

5 NTD: Insert jurisdiction of incorporation or formation.

6 NTD: If Credit Party is not Borrower, insert name of Borrower.

7 NTD: Insert name of the Material Loyalty Program Agreement.
2

amended except as listed in Exhibit A; (b) to its Knowledge, except as set forth in Schedule 1(b) of the 

Disclosure Schedules hereto, there exists no breach, default or event or condition which, with the giving 

of notice or the passage of time, or both, would give Loyalty Program Partner the right to terminate the 

Loyalty Program Agreement, (c) to its Knowledge, except as set forth in Schedule 1(c) of the Disclosure 

Schedules hereto, there exists no breach or default which, with the giving of notice or the passage of time, 

or both, would result in a material suspension of, or reduction in, payments made to Credit Party under 

the Loyalty Program Agreement; and (d) to its Knowledge, except as set forth in Schedule 1(d) of the 

Disclosure Schedules hereto, Loyalty Program Partner has no existing claims, defenses or offsets against 

the full and timely payment and performance of its material obligations under the Loyalty Program 

Agreement. For the purposes of this Agreement, “Knowledge” shall mean the actual knowledge of any 

Responsible Officer of Loyalty Program Partner, responsible for managing or operating the business 

contemplated under the Loyalty Program Agreement. “Responsible Officer” shall mean the chief 

executive officer, president, executive vice president, chief financial officer, principal accounting officer, 

treasurer or controller of Loyalty Program Partner.

2. No Offset. All payments required to be made by Loyalty Program Partner under 

the Loyalty Program Agreement shall be made without any offset, recoupment, abatement, withholding, 

reduction or defense whatsoever, other than (x) with respect to amounts due from the Credit Party under 

the Loyalty Program Agreement and (y) any such rights with respect to amounts incurred by or due to 

Loyalty Program Partner in respect of marketing, promotion, sponsorship, technology or other similar 

expenses in connection with or related to the credit card program offered under the Loyalty Program 

Agreement, in each case (1) solely to the extent expressly permitted under the Loyalty Program 

Agreement or if exercised in the ordinary course of business and in accordance with past or common 

industry practices and (2) expressly excluding any offset for costs, expenses or other amounts that are not 

so related, including any amount in repayment of any amount borrowed by the Credit Party from Loyalty 

Program Partner or its affiliates.

3. Payment Directions. Loyalty Program Partner agrees to remit any and all 

Loyalty Program Revenues as and when required by the Loyalty Program Agreement directly to the 

account specified on Exhibit B8 hereto (“Default Payment Method”) or to such other person, entity or 

account as shall be specified from time to time by Collateral Agent to Loyalty Program Partner in writing

(“Payment Directions”). Until this Agreement terminates in accordance with Section 9(a) hereof, Loyalty 

Program Partner may not remit any Loyalty Program Revenues in accordance with any instructions 

delivered to Loyalty Program Partner by Credit Party or any other Person, unless Collateral Agent so 

instructs Loyalty Program Partner in writing. Collateral Agent will provide Credit Party with notice of 

any Payment Directions or other instructions sent to Loyalty Program Partner pursuant to this Section 3

that direct payments other than in accordance with the Default Payment Method. In no event shall 

Loyalty Program Partner be required to remit the cash value of any services it is required to provide to 

Credit Party in-kind under the Loyalty Program Agreement, unless required pursuant to the terms of the 

Loyalty Program Agreement.

Credit Party acknowledges and agrees that Loyalty Program Partner may unconditionally 

rely on any written notice from Collateral Agent (i) directing payment of Loyalty Program Revenues in 

accordance with the preceding paragraph (such Payment Directions assumed to be continuing until 

Loyalty Program Partner’s receipt of a written notice from Collateral Agent) or (ii) that provides notice 

that an Event of Default has occurred under the Loan Agreement until such time as Collateral Agent 

provides notice to Loyalty Program Partner that such Event of Default has been cured. Credit Party shall 

have no recourse to Loyalty Program Partner in connection with any action or inaction taken by Loyalty 

 8 NTD: Exhibit B to include wiring instructions to the Collection Account.
3

Program Party in reliance on any such notice believed by Loyalty Program Partner in good faith to be 

genuine and signed or presented by the proper party or parties. Collateral Agent shall revoke any such

Payment Directions directing payments other than in accordance with the Default Payment Method

promptly after the receipt of notice from the Required Lenders that any such Event of Default has been 

cured, and following Loyalty Program Partner’s receipt of written notice of such revocation from 

Collateral Agent any additional Loyalty Program Revenues shall be remitted in accordance with the 

Default Payment Method.

Loyalty Program Partner shall have no obligation to review or confirm that actions taken 

pursuant to the Payment Directions or other notice delivered by Collateral Agent to Loyalty Program 

Partner in accordance with this Agreement comply with any other agreement or document to which it is 

not a party. Any Payment Directions shall be subject to receipt by Loyalty Program Partner of IRS Form

W-8 or W-9 as may be reasonably requested by Loyalty Program Partner.

4. Consent to Assignment. Loyalty Program Partner hereby (a) acknowledges that 

Credit Party has provided it with notice that the Secured Parties will enter into the Loan Agreement and

the Pledge and Security Agreement with Credit Party in reliance on, among other things, the execution 

and delivery of this Agreement by Loyalty Program Partner, (b) irrevocably consents to the pledge to

Collateral Agent for the benefit of the Secured Parties of, and the grant to Collateral Agent for the benefit 

of the Secured Parties of, a lien on and security interest in, all right, title and interest of Credit Party in, to 

and under the Loyalty Program Collateral, including all of Credit Party’s rights to receive payment under 

or with respect to the Loyalty Program Agreement and all payments due and to become due thereunder,

and (c) confirms that it has not granted and to its Knowledge, except as set forth in Schedule 4(c) of the 

Disclosure Schedules hereto, has not received notice of any other security interest granted in, to or under 

the Loyalty Program Agreement or the other Loyalty Program Collateral.

5. Assignment to Third Parties; Event of Foreclosure on Collateral. Collateral 

Agent, for the benefit of the Secured Parties, may (i) acquire all right, title and interest of Credit Party in, 

to and under the Loyalty Program Collateral through foreclosure or assignment thereof in lieu of 

foreclosure, and (ii) may subsequently transfer or assign the Loyalty Program Collateral, either in its own 

name or through a nominee, in each such case, subject to Loyalty Program Partner’s prior written consent

(such consent right to be exercised in Loyalty Program Partner’s reasonable business judgment) and in 

any such case, such person or its nominee, or such transferee or assignee, as the case may be, shall 

thereafter be bound by all applicable terms of, and shall have assumed the obligations of Credit Party 

under, the Loyalty Program Agreement and, as applicable, the other Loyalty Program Collateral.

6. Notice and Cure. In the event there is a default by Credit Party under the Loyalty 

Program Agreement that (i) is reasonably likely to result in a material suspension of, or reduction in, 

payments made to Credit Party under the Loyalty Program Agreement or (ii) is reasonably likely to result 

in termination of the Loyalty Program Agreement, Loyalty Program Partner shall forbear and shall not 

exercise any remedies, including, but not limited to, any right to terminate or suspend performance under 

the Loyalty Program Agreement unless and until Loyalty Program Partner has given Collateral Agent

written notice of such default and for a period of 30 days Collateral Agent shall fail to remedy the default 

of Credit Party. If the default cannot reasonably be cured by Collateral Agent within 30 days, then 

Collateral Agent shall have such additional time as it shall reasonably require, so long as it is proceeding 

with reasonable diligence to cure the default, up to a maximum of 90 days from receipt of written notice 

from Loyalty Program Partner of such default.

For any default that cannot be cured without possession of Loyalty Program Collateral,

Collateral Agent shall have the right to postpone and extend the time to cure such default in order to

prosecute and complete a foreclosure or equivalent proceeding and obtain possession of the Loyalty 
4

Program Collateral, up to a maximum of 90 days from receipt of written notice from Loyalty Program 

Partner of such default. If Collateral Agent completes a foreclosure or an equivalent proceeding within 

the foregoing time period, then Loyalty Program Partner shall waive against Collateral Agent and any 

nominee, transferee or assignee of Collateral Agent any noncurable defaults that are personal to Credit 

Party.

Notwithstanding the foregoing, a cure of any default by Collateral Agent shall not 

constitute an assumption by Collateral Agent of the obligations of Credit Party under the Loyalty Program 

Agreement. In addition, in the event that the Loyalty Program Agreement terminates for any reason

(other than (A) as a result of the failure of Collateral Agent to effect a cure or foreclosure within the 90-

day period described above (if applicable), (B) in accordance with Section 9(a)(ii) or (C) upon the 

occurrence of a non-default related event expressly set forth in the Loyalty Program Agreement), or is 

rejected in any bankruptcy or insolvency proceedings of Credit Party prior to expiration of the 90-day 

period described above (if applicable), Loyalty Program Partner shall, subject to Loyalty Program 

Partner’s prior written consent (such consent right to be exercised in Loyalty Program Partner’s 

reasonable business judgment), enter into a new loyalty program agreement with Collateral Agent or its 

nominee, transferee or assignee in connection with an assignment made in accordance with Section 5

hereof, for the benefit of the Secured Parties on the same terms (subject to any necessary conforming 

changes) as the Loyalty Program Agreement between Loyalty Program Partner and Credit Party.

7. [Reserved]

8. No Liability. Except in the case of gross negligence, willful misconduct or as set 

forth in Section 9(i) herein, Loyalty Program Partner acknowledges and agrees that no Secured Party nor 

Collateral Agent, nor any of their respective nominee(s) or assignee(s) shall have any liability or 

obligation to Loyalty Program Partner solely as a result of this Agreement, the Loan Agreement, the 

Pledge and Security Agreement or any other Security Documents. For the avoidance of doubt, none of 

Collateral Agent or the Secured Parties shall be obligated or required to perform any of Credit Party’s 

obligations under the Loyalty Program Agreement except (i) if such obligations are expressly assumed in 

writing by the applicable party or (ii) in connection with the taking of title to the Loyalty Program Assets 

following the completion of a foreclosure action.

Notwithstanding the foregoing, upon the assignment or transfer of the Loyalty Program 

Agreement to any nominee(s) or assignee(s) by Collateral Agent in connection with the exercise of its 

rights and remedies, for the benefit of the Secured Parties, under the Pledge and Security Agreement

during the continuance of an Event of Default under the Loan Agreement, such nominee(s) and/or 

assignee(s) shall be bound by all applicable terms of, and shall have assumed the obligations of Credit 

Party under, the Loyalty Program Agreement and, as applicable, the other Loyalty Program Collateral. 

Unless Collateral Agent (i) assumes the Loyalty Program Agreement in writing pursuant to Section 5, (ii) 

takes title to the Loyalty Program Assets following the completion of a foreclosure action or (iii) enters 

into a replacement agreement pursuant to Section 6, none of the Secured Parties or Collateral Agent shall 

have any personal liability to Loyalty Program Partner under the Loyalty Program Agreement or such 

replacement agreement and Loyalty Program Partner shall have no recourse to the Secured Parties or

Collateral Agent, as applicable, with respect to Credit Party’s obligations under the Loyalty Program 

Agreement or other Loyalty Program Collateral.

9. Miscellaneous

(a) Termination. This Agreement shall not terminate for any reason until (i) all of the 

Obligations under the Loan Documents have been indefeasibly and unconditionally paid in full, (ii) 

expiration of the term of the Loyalty Program Agreement in accordance with its terms or earlier 
5

termination (A) approved by the Lenders in accordance with the Loan Agreement or (B) after expiration 

of the cure period set forth in Section 6 herein, to the extent applicable or (C) by Loyalty Program Partner 

upon the occurrence of a non-default related event expressly set forth in the Loyalty Program Agreement

or (iii) all of the Liens on the Loyalty Program Agreement created under the Loan Agreement are released 

in accordance with the Loan Agreement. Following a payment in full of the Obligations, Collateral Agent 

shall confirm such payment and the termination of this Agreement in writing to Loyalty Program Partner 

promptly upon request by Credit Party or Loyalty Program Partner, at Credit Party’s expense. 

(b) Binding Effect; Counterparts; Entire Agreement. This Agreement shall be 

binding on the parties hereto and their respective successors and assigns. The terms and conditions of the 

Loyalty Program Agreement shall continue to be in effect in accordance with its terms as between the 

Loyalty Program Partner and Credit Party. This Agreement may be executed in counterparts (and by 

different parties hereto in different counterparts) and by manual or electronic signature, each of which 

shall constitute an original, but all of which when taken together shall constitute a single contract. This 

Agreement constitutes the entire contract among the parties hereto relating to the subject matter hereof 

and supersedes any and all previous agreements and understandings, oral or written, relating to the subject 

matter hereof. This Agreement shall become effective when it shall have been executed by each of the 

parties hereto and when Collateral Agent shall have received counterparts hereof that, when taken 

together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a 

signature page of this Agreement in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of 

a manually executed counterpart of this Agreement.

(c) Severability. If any provision of this Agreement is held to be illegal, invalid or 

unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement

shall not be affected or impaired thereby and (ii) Collateral Agent (acting as directed by the Required 

Lenders) and the other parties shall endeavor in good faith negotiations to replace the illegal, invalid or 

unenforceable provisions with valid provisions the economic effect of which comes as close as possible to 

that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular 

jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 

(d) Governing Law; Jurisdiction. This Agreement will be governed by and 

construed in accordance with the federal law of the United States if and to the extent such law is 

applicable, and otherwise in accordance with the laws of the State of New York applicable to contracts 

made and to be performed entirely within such State. Each of the parties agrees to submit to the exclusive 

jurisdiction and venue of the United States District Court for the District of Columbia for any civil action, 

suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or 

thereby.

(e) WAIVER OF JURY TRIAL. To the extent permitted by applicable law, 

each party hereto hereby unconditionally waives trial by jury in any civil legal action or proceeding 

relating to this Agreement or the transactions contemplated hereby or thereby.

(f) Notices; Public Information. 

(i) All notices and other communications provided for herein shall be in 

writing and shall be delivered by hand or overnight courier service, mailed by certified or 

registered mail or sent by facsimile or email (and such delivery by facsimile or email shall not 

constitute notice to Loyalty Program Partner unless provided by Loyalty Program Partner below)

as follows:
6

if to Credit Party:

[Address: [●]

Attention: [●]

Email: [●]

Facsimile: [●]

Telephone: [●]]9

if to Collateral Agent:

The Bank of New York Mellon

Address: 240 Greenwich Street, 7th Floor

New York, NY 10286

Attention: Joanna Shapiro, Managing Director

Email: joanna.g.shapiro@bnymellon.com

Cc: UST.Cares.Program@bnymellon.com

Telephone: 212-815-4949

if to Loyalty Program Partner:

[Address: [●]

Attention: [●]

Email: [●]

Facsimile: [●]

Telephone: [●]]10

(ii) Notices sent by hand or overnight courier service, or mailed by 

certified or registered mail, shall be deemed to have been given when received. Notices 

sent by facsimile or email shall be deemed to have been given when sent to the proper facsimile 

number or email address, as applicable, upon confirmation by the receiving party of receipt 

(whether by an automatic “read receipt” or similar notice). Any party hereto may change its 

address for notices and other communications hereunder by notice to the other parties 

hereto.

(iii) Electronic Communications. Unless Collateral Agent otherwise 

prescribes, (A) notices and other communications sent to an e-mail address shall be deemed 

received upon the sender’s receipt of an acknowledgement from the intended recipient (such as 

by return e-mail or other written acknowledgement), and (B) notices or communications posted to 

an Internet or intranet website shall be deemed received upon the deemed receipt by the intended 

recipient, at its e-mail address as described in the foregoing clause (i), of notification that such 

notice or communication is available and identifying the website address therefor; provided that, 

for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during 

the normal business hours of the recipient, such notice or communication shall be deemed to have 

been sent at the opening of business on the next Business Day for the recipient.

 9 NTD: Credit Party to provide. Please include information of at least one form of electronic delivery (facsimile or 

email).

10 NTD: Loyalty Program Partner to provide. Please include information of at least one form of electronic delivery 

(facsimile or email).
7

(g) Collateral Agent Authority. Collateral Agent has been appointed by the Lenders 

under the Loan Agreement and has the benefit of the rights and protections set forth therein, including 

without limitation, that, notwithstanding any discretion given to it in any Loan Document, Collateral 

Agent need not exercise discretion, but shall act as directed by the Required Lenders.

(h) Exculpation. Collateral Agent, on behalf of the Secured Parties, hereby agrees 

that no officer, director, agent or employee of Loyalty Program Partner or and any of its affiliates shall 

have any liability arising from or related to this Agreement except for liability resulting from intentional 

breach of this Agreement or gross negligence, bad faith or willful misconduct of such person. For the 

avoidance of doubt, this Section 9(h) does not preclude Collateral Agent from initiating a suit for 

injunctive relief in order to enforce this Agreement.

(i) Treatment of Certain Information; Confidentiality. Nothing in this Agreement 

shall be deemed to waive any confidentiality provisions set forth in the Loyalty Program Agreement and 

Credit Party and Loyalty Program Partner agree that any process of dissemination of the terms or 

Information (as defined below) relating to the Loyalty Program Agreement which is treated as 

confidential under the Loyalty Program Agreement shall be subject to the requirements of the Loyalty 

Program Agreement.

Each of Collateral Agent and Credit Party agree to maintain the confidentiality of the 

Information, except that Information may be disclosed (a) to its Affiliates, to its Related Parties and to the 

Secured Parties (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); (b) to 

the extent required or requested by any regulatory authority purporting to have jurisdiction over such 

Person or its Related Parties (including any self-regulatory authority, such as the National Association of 

Insurance Commissioners); (c) to the extent required by Applicable Laws or by any subpoena or similar 

legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder 

or under any Loan Document or any action or proceeding relating to this Agreement or any Loan 

Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing 

provisions substantially the same as (or no less restrictive than) those of this Section, to any nominee, 

transferee or assignee of, or any prospective nominee, transferee or assignee of, any of its rights and 

obligations under this Agreement; (g) with the consent of Loyalty Program Partner or (i) to the extent 

such Information (x) becomes publicly available other than as a result of a breach of this Section, or 

(y) becomes available to either Collateral Agent, Credit Party or any of their respective Affiliates on a 

nonconfidential basis from a source other than Loyalty Program Partner who did not acquire such 

information as a result of a breach of this Section.

For purposes of this Section, “Information” means all information received from Loyalty 

Program Partner or any of its Subsidiaries relating to Loyalty Program Partner or any of its Subsidiaries 

or any of their respective businesses, other than any such information that is available to the Collateral 

Agent or Credit Party on a nonconfidential basis prior to disclosure by Loyalty Program Partner or any of 

its Subsidiaries; provided that, in the case of information received from Loyalty Program Partner or any 

of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as 

confidential.

Any Person required to maintain the confidentiality of Information as provided in this 

Section shall be considered to have complied with its obligation to do so if such Person has exercised the 

same degree of care to maintain the confidentiality of such Information as such Person would accord to its 

own confidential information. In the event of any breach of this Section 9(i), any non-breaching party, in 

addition to any other remedies at law or in equity it may have, shall be entitled to seek injunctive relief.
[Signature Page to Loyalty Program Direct Agreement]

IN WITNESS WHEREOF, the parties hereto are executing this Agreement as of the date above 

first written.

[NAME OF LOYALTY PROGRAM PARTNER]

By_________________________

Name:

Title:
[Signature Page to Loyalty Program Direct Agreement]

[NAME OF CREDIT PARTY]

By_________________________

Name:

Title:
[Signature Page to Loyalty Program Direct Agreement]

THE BANK OF NEW YORK MELLON

as Collateral Agent

By_________________________

Name:

Title:
DISCLOSURE SCHEDULES

Schedule 1(b)

• [●]

Schedule 1(c)

• [●]

Schedule 1(d)

• [●]

Schedule 4(c)

• [●]
EXHIBIT A

Loyalty Program Agreement

Please list the Loyalty Program Agreement and any amendments thereto or assignments thereof as of the 

date of this Agreement.
EXHIBIT B

Collection Account Wiring Instructions
EXHIBIT E

FORM OF BORROWING REQUEST

The Bank of New York Mellon

 as Administrative Agent

Attention: Joanna Shapiro, Managing Director

240 Greenwich Street, 7th Floor 

New York, NY 10286

Telephone: 212-815-4949

Email: joanna.g.shapiro@bnymellon.com

UST.Cares.Program@bnymellon.com

and:

The Department of the Treasury of the United States

Attention: Assistant General Counsel (Banking and Finance)

1500 Pennsylvania Avenue, NW 

Washington, D.C. 20220

Telephone: 202-622-0283

Email: eric.froman@treasury.gov

[●], 202[●]5

Ladies and Gentlemen:

The undersigned, HAWAIIAN AIRLINES, INC., a corporation organized under the laws 

of Delaware (the “Borrower”), refers to the Loan and Guarantee Agreement, dated as of September 

25, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to 

time, the “Loan and Guarantee Agreement”), among the Borrower, HAWAIIAN HOLDINGS, INC., a 

corporation organized under the laws of Delaware (the “Parent”), the Guarantors party thereto from time 

to time, the United States Department of the Treasury as the Initial Lender, the Lenders party thereto from 

time to time and The Bank of New York Mellon as Administrative Agent and Collateral Agent. 

Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in 

the Loan and Guarantee Agreement. This notice constitutes a Borrowing Request pursuant to the Loan 

and Guarantee Agreement, and the Borrower hereby gives you notice pursuant to Sections 2.03(a) and (b) 

of the Loan and Guarantee Agreement that it requests a Borrowing under the Loan and Guarantee 

Agreement, and in connection therewith specifies the following information with respect to the 

Borrowing requested hereby:

(A) The Borrowing shall be denominated in dollars and shall be in an aggregate 

principal amount equal to: $[●],000,000.00

(B) Date of Borrowing (which is a Business Day): [●], 202[●]

(C) Locations and numbers of the accounts to which funds of the requested 

Borrowing are to be disbursed: 

 5 Notice must be received by the Administrative Agent (with a copy to the Initial Lender) by not later than 11:00 a.m. (New York 

City time), three (3) Business Days, with respect to the initial Borrowing, or five (5) Business Days, with respect to each 

subsequent Borrowing, prior to the date of the requested Borrowing. 
(1) To HAWAIIAN AIRLINES, INC.:

Bank Name: [●]

Account Name: [●]

Account Number: [●]

ABA Number: [●]

Amount: $[●]6

(2) To Cleary Gottlieb Steen & Hamilton LLP, as legal counsel to the Initial

Lender, pursuant to Section 4.01(f) of the Loan and Guarantee Agreement:

Bank Name: [●]

Account Name: [●]

Account Number: [●]

ABA Number: [●]

Amount: $[●]7

The undersigned hereby certifies that (a) the representations and warranties of the Credit 

Parties set forth in the Loan and Guarantee Agreement and in each other Loan Document are true and 

correct in all material respects (or, in the case of any such representation or warranty already qualified by 

materiality, in all respects) on and as of the date of the Borrowing requested hereby (or, in the case of any 

such representation or warranty expressly stated to have been made as of a specific date, as of such 

specific date) and on and as of the date of the Borrowing requested hereby, (b) no Default has occurred or 

is continuing or will result from the requested Borrowing or from the application of proceeds thereof, (c) 

this Borrowing Request is made in compliance with the requirements of Sections 2.02 and 2.03 of the 

Loan and Guarantee Agreement and (d) all conditions in Section 4.01 (with respect to the Borrowing on 

the Closing Date only) and 4.02 of the Loan and Guarantee Agreement have been satisfied as of the date 

of the Borrowing requested hereby. 

Delivery of this Borrowing Request may initially be made by electronic communication 

including fax or email and shall be followed by an original authentic counterpart thereof. 

[Remainder of Page Intentionally Left Blank] 

6 Insert amount of initial borrowing less Cleary’s legal expenses.

7 Insert amount of Cleary’s legal expenses.
Very truly yours,

HAWAIIAN AIRLINES, INC.

By8

:

Name: 

Title: 

 8 This Borrowing Request must be signed by a Responsible Officer of the Borrower. As used herein, a Responsible Officer is 

any of the following: (i) the chief executive officer, (ii) the Financial Officer (i.e., Chief Financial Officer, principal accounting 

officer, treasurer or controller), (iii) the president, (iv) the executive vice president or (v) any other officer or employee of the 

Borrower so designated from time to time by one of the aforementioned officers in a notice to the Administrative Agent (together 

with evidence of the authority and capacity of each such Person to so act in form and substance satisfactory to the Administrative 

Agent).