a41-indenture






                                         Execution Version                               Allegiant Travel Company                 as Issuer                   and          the Guarantors party hereto                                    INDENTURE         Dated as of October 7, 2020                                             Wilmington Trust, National Association        as Trustee and Collateral Agent                                                       





 






                               TABLE OF CONTENTS                                                                             Page   ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE ................................. 1        Section 1.1. Definitions................................................................................................... 1        Section 1.2. Other Definitions ...................................................................................... 34        Section 1.3. Rules of Construction ............................................................................... 34   ARTICLE II. THE NOTES .......................................................................................................... 35        Section 2.1. Form and Dating ....................................................................................... 35        Section 2.2. Execution and Authentication ................................................................... 35        Section 2.3. Registrar and Paying Agent ...................................................................... 36        Section 2.4. Paying Agent to Hold Money in Trust ...................................................... 36        Section 2.5. Holder Lists ............................................................................................... 36        Section 2.6. Transfer and Exchange ............................................................................. 37        Section 2.7. Replacement Notes ................................................................................... 50        Section 2.8. Outstanding Notes ..................................................................................... 50        Section 2.9. Treasury Notes .......................................................................................... 50        Section 2.10. Temporary Notes ...................................................................................... 50        Section 2.11. Cancellation .............................................................................................. 51        Section 2.12. Defaulted Interest ...................................................................................... 51        Section 2.13. Further Issuances ...................................................................................... 51        Section 2.14. No Reissuance of Notes ............................................................................ 51   ARTICLE III. REDEMPTION ..................................................................................................... 52        Section 3.1. Notice to Trustee ....................................................................................... 52        Section 3.2. Selection of Notes to Be Redeemed or Purchased .................................... 52        Section 3.3. Notice of Redemption ............................................................................... 52        Section 3.4. Effect of Notice of Redemption ................................................................ 53        Section 3.5. Deposit of Redemption or Purchase Price ................................................ 54        Section 3.6. Notes Redeemed or Purchased in Part ...................................................... 54        Section 3.7. Optional Redemption. ............................................................................... 54        Section 3.8. Mandatory Redemption. ........................................................................... 54   ARTICLE IV. COVENANTS ...................................................................................................... 54        Section 4.1. Payment of Principal and Interest ............................................................. 54        Section 4.2. SEC Reports .............................................................................................. 55        Section 4.3. Compliance Certificate; Special Interest .................................................. 55        Section 4.4. Stay, Extension and Usury Laws .............................................................. 56        Section 4.5. Corporate Existence .................................................................................. 56                                         i   





 






         Section 4.6. Restricted Payments .................................................................................. 56        Section 4.7. Incurrence of Indebtedness and Issuance of Preferred Stock ................... 61        Section 4.8. Limitation on Liens ................................................................................... 65        Section 4.9. Additional Guarantors ............................................................................... 66        Section 4.10. Designation of Restricted and Unrestricted Subsidiaries.......................... 66        Section 4.11. Transactions with Affiliates ...................................................................... 67        Section 4.12. Offer to Repurchase Notes Upon a Change of Control ............................ 69        Section 4.13. Offer to Repurchase Notes Upon an Asset Sale ....................................... 70        Section 4.14. Dispositions of Loyalty Program and Brand IP Assets ............................ 72        Section 4.15. Dispositions of Collateral to Unrestricted Subsidiaries for              Replacement of First Lien Debt ............................................................................ 72   ARTICLE V. SUCCESSORS ....................................................................................................... 72        Section 5.1. When Company May Merge, Etc ............................................................. 72        Section 5.2. Successor Corporation Substituted ........................................................... 74   ARTICLE VI. DEFAULTS AND REMEDIES ........................................................................... 74        Section 6.1. Events of Default ...................................................................................... 74        Section 6.2. Acceleration .............................................................................................. 75        Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee ........... 76        Section 6.4. Trustee May File Proofs of Claim ............................................................ 77        Section 6.5. Trustee May Enforce Claims Without Possession of Notes ..................... 78        Section 6.6. Application of Money Collected ............................................................... 78        Section 6.7. Limitation on Suits .................................................................................... 79        Section 6.8. Unconditional Right of Holders to Receive Principal and Interest........... 79        Section 6.9. Restoration of Rights and Remedies ......................................................... 79        Section 6.10. Rights and Remedies Cumulative ............................................................. 80        Section 6.11. Delay or Omission Not Waiver................................................................. 80        Section 6.12. Control by Holders .................................................................................... 80        Section 6.13. Waiver of Past Defaults ............................................................................ 81        Section 6.14. Undertaking for Costs ............................................................................... 81        Section 6.15. Administrative Agent ................................................................................ 81   ARTICLE VII. TRUSTEE............................................................................................................ 81        Section 7.1. Duties of Trustee. ...................................................................................... 81        Section 7.2. Rights of Trustee ....................................................................................... 83        Section 7.3. Individual Rights of Trustee ..................................................................... 84        Section 7.4. Trustee’s Disclaimer ................................................................................. 84        Section 7.5. Notice of Defaults ..................................................................................... 84        Section 7.6. Compensation and Indemnity ................................................................... 85        Section 7.7. Replacement of Trustee ............................................................................ 85     





 






         Section 7.8. Successor Trustee by Merger, etc. ............................................................ 86        Section 7.9. Eligibility; Disqualification ...................................................................... 87        Section 7.10. Limitation on Duty of Trustee in Respect of Collateral ........................... 87   ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE .................................. 87        Section 8.1. Satisfaction and Discharge of Indenture ................................................... 87        Section 8.2. Application of Trust Funds; Indemnification. .......................................... 88        Section 8.3. Legal Defeasance of Notes ....................................................................... 89        Section 8.4. Covenant Defeasance ................................................................................ 90        Section 8.5. Repayment to Company ............................................................................ 91        Section 8.6. Reinstatement ............................................................................................ 91   ARTICLE IX. AMENDMENTS AND WAIVERS ..................................................................... 92        Section 9.1. Without Consent of Holders ..................................................................... 92        Section 9.2. With Consent of Holders .......................................................................... 93        Section 9.3. Limitations ................................................................................................ 93        Section 9.4. Revocation and Effect of Consents ........................................................... 95        Section 9.5. Notation on or Exchange of Notes ............................................................ 95        Section 9.6. Trustee Protected ...................................................................................... 95   ARTICLE X. NOTE GUARANTEES ......................................................................................... 95        Section 10.1. Guarantees................................................................................................. 96        Section 10.2. Right of Contribution ................................................................................ 98        Section 10.3. No Subrogation ......................................................................................... 98        Section 10.4. Limitation of Guarantor’s Liability .......................................................... 98        Section 10.5. Release of Guarantor................................................................................. 98   ARTICLE XI. COLLATERAL .................................................................................................. 100        Section 11.1. Security Interest ...................................................................................... 100        Section 11.2. Lien Sharing and Priority Confirmation ................................................. 100        Section 11.3. Release of Collateral ............................................................................... 101        Section 11.4. Amendment of Collateral Documents .................................................... 101        Section 11.5. Limitation of Duty of Trustee in Respect of Collateral .......................... 102        Section 11.6. Maintenance of Collateral ....................................................................... 103        Section 11.7. Additional Collateral; After-Acquired Property ..................................... 103        Section 11.8. Mortgaged Properties .............................................................................. 103        Section 11.9. Further Assurances.................................................................................. 106   ARTICLE XII. MISCELLANEOUS .......................................................................................... 106        Section 12.1. Notices .................................................................................................... 106        Section 12.2. Certificate and Opinion as to Conditions Precedent ............................... 107     





 






                Section 12.3. Statements Required in Certificate or Opinion ....................................... 107  Section 12.4. Rules by Trustee and Agents .................................................................. 108  Section 12.5. Legal Holidays ........................................................................................ 108  Section 12.6. No Recourse Against Others ................................................................... 108  Section 12.7. Counterparts ............................................................................................ 108  Section 12.8. Governing Law; Jurisdiction; Jury Trial Waiver .................................... 108  Section 12.9. No Adverse Interpretation of Other Agreements .................................... 109  Section 12.10. Successors ............................................................................................... 109  Section 12.11. Severability ............................................................................................. 109  Section 12.12. Table of Contents, Headings, Etc ........................................................... 109  Section 12.13. Force Majeure ......................................................................................... 110  Section 12.14. U.S.A. Patriot Act ................................................................................... 110                  





 






                                       EXHIBITS   Exhibit A   FORM OF NOTE  Exhibit B   FORM OF CERTIFICATE OF TRANSFER  Exhibit C   FORM OF CERTIFICATE OF EXCHANGE  Exhibit D   FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED              INVESTOR  Exhibit E   FORM OF SUPPLEMENTAL INDENTURE                                              i   





 






               Indenture dated  as  of October  7,  2020 between  ALLEGIANT  TRAVEL  COMPANY, a company incorporated under the laws of Nevada (the “Company”), the Guarantors  (as defined herein) party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, a  national banking association, as trustee (in such capacity, the “Trustee”) and collateral agent (in  such capacity, the “Collateral Agent”).               Each party agrees as follows for the benefit of the other party and for the equal and  ratable benefit  of the Holders  of the Company’s 8.500% Senior Secured Notes  due 2024  (the  “Notes”).                                    ARTICLE I.                DEFINITIONS AND INCORPORATION BY REFERENCE         Section 1.1. Definitions.      “144A  Global  Note”  means  a  Global  Note  substantially  in  the  form  of  Exhibit  A  hereto  bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf  of,  and  registered  in  the  name  of,  the  Depositary  or  its  nominee  that  will  be  issued  in  a  denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule  144A.      “Account  Control  Agreement” shall mean each three-party security  and  control  agreement  entered into by any grantor under the Collateral Documents, the Collateral Agent and a financial  institution which maintains one or more deposit accounts or securities accounts that have been  pledged to the Collateral Agent as Collateral under this Indenture and the Collateral Documents or  under any Loan Document, in each case giving the Collateral Agent control over the applicable  account and in form and substance reasonably satisfactory to the Collateral Agent and as the same  may be amended, restated, modified, supplemented, extended or amended and restated from time  to time.      “Acquired Debt” means, with respect to any specified Person:         (1)   Indebtedness, Disqualified Stock or preferred stock of any other Person existing at              the time such other Person is merged, consolidated or amalgamated with or into              such  specified  Person,  or  became  a  Subsidiary  of  such  specified  Person,  to  the              extent such Indebtedness is incurred or such Disqualified Stock or preferred stock              is issued in connection with, or in contemplation of, such other Person merging,              consolidating  or  amalgamating  with  or  into,  or becoming  a  Subsidiary  of,  such              specified Person; and         (2)   Indebtedness secured by a Lien encumbering any asset acquired by such specified              Person.       “Additional Notes” means additional Notes (other than the Initial Notes) issued under this  Indenture in accordance with Section 2.2 and subject to Section 4.7 hereof, as part of the same  series as the Initial Notes.                                          1   





 






      “Affiliate” of any specified Person means any other Person directly or indirectly controlling or  controlled by or under direct or indirect common control with such specified Person.  For purposes  of this definition, “control,” as used with respect to any Person, means the possession, directly or  indirectly, of the power to direct or cause the direction of the management or policies of such  Person,  whether  through  the  ownership  of  voting  securities,  by  agreement  or  otherwise.   For  purposes of this definition, the terms “controlling,” “controlled by” and “under common control  with” have correlative meanings.  No Person (other than the Company or any Subsidiary of the  Company) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified  Receivables  Transaction  will  be  deemed  to  be  an  Affiliate  of  the  Company  or  any  of  its  Subsidiaries solely  by reason  of such  Investment.  A specified Person shall not  be deemed to  control another Person solely because such specified Person has the right to determine the aircraft  flights operated by such other Person under a code sharing, capacity purchase or similar agreement.      “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.       “Aircraft Assets” means (x) aircraft, airframes, engines, spare engines, propellers, parts and  other operating assets and pre-delivery payments relating to any of the foregoing (other than Spare  Parts); and (y) leases relating to any of the items in the foregoing clause (x).      “Aircraft  Related  Equipment”  means  aircraft (including  engines,  airframes,  propellers  and  appliances), engines, propellers, spare parts, aircraft parts, simulators and other training devices,  quick engine change kits, passenger loading bridges or other flight or ground equipment and other  operating assets,  including  any  modifications  and  improvements  with  respect  to  any  such  equipment.      “Aircraft Related Facilities” means (i) airport terminal facilities, including, without limitation,  baggage systems, loading bridges and related equipment, building, infrastructure and maintenance  facilities, tooling facilities, club rooms, apron, fueling systems or facilities, signage/image systems,  administrative offices, information technology systems and security systems, (ii) airline support  facilities,  including, without  limitation,  cargo,  catering,  mail,  ground  service  equipment,  ramp  control,  deicing,  hangars,  aircraft  parts/storage,  training,  office  and  reservations  facilities  and  (iii) all equipment and tooling used in connection with the foregoing.      “Applicable Premium” means, only to the extent positive, the excess of (1) the sum of the  present values of the remaining scheduled payments of principal and interest on the Notes to be  redeemed (excluding  accrued  and  unpaid  interest  to  the  redemption  date)  discounted  to  the  redemption  date on a semiannual  basis (assuming  a 360-day year consisting  of twelve 30-day  months) at the Treasury Rate plus 50 basis points, over (2) 100% of the principal amount of such  Notes.      “Applicable  Procedures”  means,  with  respect  to  any  notice,  transfer,  exchange,  or  other  transaction for or with respect to beneficial interests in any Global Note, the rules and procedures  of the Depositary, Euroclear and Clearstream that apply to such notice, transfer, exchange or other  transaction.       “Asset Sale” means any Disposition (excluding any Disposition of Cash Equivalents), to the  extent that the aggregate Net Proceeds of all such Dispositions, together with all Recovery Events,                                         2   





 






   without giving effect to the dollar thresholds in the definition thereof, during any fiscal year exceed  $1.0 million; provided, however, that the following items shall not be deemed to be Asset Sales:         (1)   the Disposition of obsolete or worn out property in the ordinary course of business;         (2)   the Disposition of equipment or real property to the extent that (i) such property is              exchanged for credit against the purchase price of similar replacement property or              (ii) the  proceeds  of  such  Disposition  are  reasonably  promptly  applied  to  the              purchase price of such replacement property;         (3)   the Disposition of property by any Subsidiary to the Company or to any Guarantor;         (4)   Dispositions permitted pursuant to Article V;          (5)   leases, licenses, subleases or sublicenses granted in the ordinary course of business              and on ordinary commercial terms that do not interfere in any material respect with              the business of the Company and its Subsidiaries;         (6)   Dispositions of intellectual property rights that are no longer used or useful in the              business of the Company and its Subsidiaries;         (7)   the discount, write-off or Disposition of accounts receivables overdue by more than              180 days, in each case in the ordinary course of business; and         (8)   Restricted Payments permitted by Section 4.6.       “Banking  Product  Obligations”  means,  as  applied  to  any  Person,  any  direct  or  indirect  liability, contingent or otherwise, of such Person in respect of any treasury, depository and cash  management services, netting services and automated clearing house transfers of funds services,  including  obligations  for  the  payment  of  fees,  interest,  charges,  expenses,  attorneys’  fees  and  disbursements  in  connection  therewith.   Treasury,  depository  and  cash  management  services,  netting  services  and  automated  clearing  house  transfers  of  funds  services  include,  without  limitation:  corporate purchasing, fleet and travel credit card and prepaid card programs, electronic  check processing, electronic receipt services, lockbox services, cash consolidation, concentration,  positioning and investing, fraud prevention services, and disbursement services.      “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief  of debtors.      “Beneficial Owner” has  the meaning  assigned to such term in  Rule 13d-3 and Rule 13d-5  under  the  Exchange  Act,  except  that  in calculating  the  beneficial  ownership  of  any  particular  “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be  deemed to have beneficial ownership of all securities that such “person” has the right to acquire  by conversion or  exercise of other securities,  whether such right  is  currently exercisable or is  exercisable only after the passage of time.      “Board of Directors” means:                                         3   





 






         (1)   with  respect  to  a  corporation,  the  board  of  directors  of  the  corporation  or  any              committee thereof duly authorized to act on behalf of such board of directors;         (2)   with respect to a partnership, the Board of Directors of the general partner of the              partnership;         (3)   with respect to  a limited liability company, the managing member or members,              manager  or  managers  or  any  controlling  committee  of  managing  members  or              managers thereof; and         (4)   with respect to any other Person, the board or committee of such Person serving a              similar function.      “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant  Secretary  of  the  Company  to  have  been  adopted  by  the  Board  of  Directors  or  pursuant  to  authorization  by  the  Board  of  Directors  and  to  be  in  full  force  and  effect  on  the  date  of  the  certificate and delivered to the Trustee.      “Brand IP” means the brand intellectual property assets of the Company and its Restricted  Subsidiaries.      “Business Day” means, unless otherwise provided by Board Resolution, Officer’s Certificate  or supplemental indenture hereto, any day except a Saturday, Sunday or a legal holiday in The  City of New York, New York (or in connection with any payment, the place of payment) on which  banking institutions or the Trustee are authorized or required by law, regulation or executive order  to close.      “Capital Lease Obligation” means, at the time any determination is to be made, the amount of  the liability in respect of a lease that would at that time be required to be capitalized and reflected  as a liability on a balance sheet prepared in accordance with GAAP, and the Scheduled Maturity  thereof shall be the date of the last payment of rent or any other amount due under such lease prior  to the first date upon which such lease may be prepaid by the lessee without payment of a penalty.  For the avoidance of doubt, Capital Lease Obligations shall not include operating leases that, prior  to January 1, 2019, would not be accounted for as a Capital Lease Obligation on the Company’s  consolidated balance sheet.      “Capital Stock” means:         (1)   in the case of a corporation, corporate stock;         (2)   in  the  case  of  an  association  or  business  entity,  any  and  all  shares,  interests,              participations, rights or other equivalents (however designated) of corporate stock;         (3)   in  the  case  of  a  partnership  or  limited  liability  company,  partnership  interests              (whether general or limited) or membership interests; and         (4)   any other interest or participation that confers on a Person the right to receive a              share of the profits and losses of, or distributions of assets of, the issuing Person,                                         4   





 






                         but excluding from all of the foregoing any debt securities convertible into Capital           Stock, whether or not such debt securities include any right of participation with           Capital Stock.   “Cash Equivalents” means:      (1)   direct  obligations  of,  or  obligations  the  principal  of  and  interest  on  which  are           unconditionally guaranteed by, the United States (or by any agency thereof to the           extent such obligations are backed by the full faith and credit of the United States),           in each case maturing within one year from the date of acquisition thereof;      (2)   direct  obligations  of  state  and  local  government  entities,  in  each  case  maturing           within one year from the date of acquisition thereof, which have a rating of at least           A- (or the equivalent thereof) from S&P or A3 (or the equivalent thereof) from           Moody’s;      (3)   obligations  of  domestic  or  foreign  companies  and  their  subsidiaries  (including,           without limitation, agencies, sponsored enterprises or instrumentalities chartered           by an Act of Congress, which are not backed by the full faith and credit of the           United States), including, without limitation, bills, notes, bonds, debentures, and           mortgage-backed securities, in each case maturing within one year from the date of           acquisition thereof;      (4)   Investments  in  commercial  paper  maturing  within  365  days  from  the  date  of           acquisition thereof and having, at such date of acquisition, a rating of at least A-2           (or  the  equivalent  thereof)  from  S&P  or  P-2  (or  the  equivalent  thereof)  from           Moody’s;      (5)   Investments  in  certificates  of  deposit  (including  Investments  made  through  an           intermediary, such as the certificated deposit account registry service), banker’s           acceptances, time deposits, eurodollar time deposits and overnight bank deposits           maturing within one year from the date of acquisition thereof issued or guaranteed           by or placed with, and money market deposit accounts issued or offered by, any           domestic office of any other commercial bank of recognized standing organized           under the laws of the United States or any State thereof that has a combined capital           and surplus and undivided profits of not less than $100.0 million;      (6)   fully collateralized repurchase agreements with a term of not more than six months           for underlying securities that would otherwise be eligible for investment;      (7)   Investments in an investment company registered under the Investment Company           Act of 1940, as amended, or in pooled accounts or funds offered through mutual           funds, investment advisors, banks and brokerage houses which invest its assets in           obligations  of  the  type  described  in  clauses  (1)  through  (6)  above.  This  could           include, but not be limited to, money market funds or short‐term and intermediate           bonds funds;                                       5                





 






                   (8)   money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7           under the Investment Company Act of 1940, as amended, (B) are rated AAA (or           the equivalent thereof) by S&P and Aaa (or the equivalent thereof) by Moody’s and           (C) have portfolio assets of at least $5.0 billion;      (9)   deposits available for withdrawal on demand with commercial banks organized in           the United States, or any U.S. branch of a bank organized in an OECD country,           having capital and surplus in excess of $100.0 million;      (10)  securities with maturities of one year or less from the date of acquisition issued or           fully guaranteed by any state, commonwealth or territory of the United States, by           any political subdivision or taxing authority of any such state, commonwealth or           territory  or  by  any  foreign  government,  the  securities  of  which  state,           commonwealth,  territory,  political  subdivision,  taxing  authority  or  foreign           government (as the case may be) are rated at least A- by S&P or A3 by Moody’s;           and      (11)  any other securities or pools of securities that are classified under GAAP as cash           equivalents or short-term investments on a balance sheet.   “Change of Control” means the occurrence of any of the following:      (1)   the  sale,  lease,  transfer,  conveyance  or  other  disposition  (other  than  by  way  of           merger  or  consolidation),  in  one  or  a  series  of  related  transactions,  of  all  or           substantially all of the properties  or assets  of the Company and its  Subsidiaries           taken as a whole to any Person (including any “person” (as that term is used in           Section 13(d)(3) of the Exchange Act)); or      (2)   the consummation of any transaction (including, without limitation, any merger or           consolidation), the result of which is that any Person (including any “person” (as           defined  above))  becomes  the  Beneficial  Owner,  directly  or  indirectly,  of  more           than 50% of the Voting Stock of the Company (measured by voting power rather           than number of shares), other than (A) any such transaction where the Voting Stock           of  the  Company  (measured  by  voting  power  rather  than  number  of  shares)           outstanding immediately prior to such transaction constitutes or is converted into           or exchanged for a majority of the outstanding shares of the Voting Stock of such           Person  or  Beneficial  Owner  (measured  by  voting  power  rather  than  number  of           shares) or (B) any sale, transfer, conveyance or other disposition to, or any merger           or consolidation of the Company with or into, any Person (including any “person”           (as  defined  above))  which  owns  or  operates  (directly  or  indirectly  through  a           contractual  arrangement)  a  Permitted  Business  (a  “Permitted  Person”)  or  a           Subsidiary of a Permitted Person, in each case under this clause (B), if immediately           after such transaction no Person (including any “person” (as defined above)) is the           Beneficial Owner, directly or indirectly, of more than 50% of the total Voting Stock           of such Permitted Person (measured by voting power rather than number of shares).    “Clearstream” means Clearstream Banking, S.A.                                      6                





 






      “Closing Date” means the date of original issuance of the Notes.      “Collateral Agent” means Wilmington Trust, National Association, in its capacity as collateral  agent for the benefit of the Noteholders under the Collateral Documents, or any successor thereto.      “Collateral” means all assets that secure obligations under the Credit Agreement and that are  subject or purported to be subject, from time to time, to a Lien under any Collateral Documents.      “Collateral Documents” means, collectively, the Security Agreement, the Spare Parts Security  Agreement, the Trademark Security Agreement, the Deed of Trust, the account control agreements  and  all  other  security  agreements,  pledge  agreements,  collateral  assignments,  mortgages,  instruments or documents that create or purport to create a Lien in favor of the Collateral Agent  for the benefit of the Noteholders, in each case, as amended, supplemented, restated, renewed,  refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, so  long as such agreement, instrument or document shall not have been terminated in accordance with  its terms.      “Company” means Allegiant Travel Company.      “Company Order” means a written order signed in the name of the Company by an Officer.      “Comparable  Treasury  Issue”  means  the  United  States  Treasury  security  selected  by  the  Quotation Agent as having a maturity comparable to the Par Call Date that would be utilized, at  the time of selection and in accordance with customary financial practice, in pricing new issues of  corporate debt securities of comparable maturity to the Par Call Date.      “Comparable  Treasury  Price”  means  with  respect  to  any  redemption  date  for  notes,  the  average of three Reference Treasury Dealer Quotations for such redemption date.      “Consolidated  EBITDA”  means,  with  respect  to  any  specified  Person  for  any  period,  Consolidated EBITDAR of such Person for such period, less the aggregate amount of aircraft rent  expense described in clause (5) of “Fixed Charges” for such period.      “Consolidated EBITDAR” means, with respect to any specified Person for any period, the  Consolidated Net Income of such Person for such period plus, without duplication:         (1)   an amount equal to any extraordinary loss plus any net loss realized by such Person              or any of its Restricted Subsidiaries in connection with any Disposition of assets,              to  the  extent  such  losses  were  deducted  in  computing  such  Consolidated  Net              Income; plus         (2)   provision for taxes based on income or profits of such Person and its Restricted              Subsidiaries, to the extent that such provision for taxes was deducted in computing              such Consolidated Net Income; plus         (3)   the Fixed Charges and expense for subservice arrangements contracted with third              parties to service scheduled flights of such Person and its Restricted Subsidiaries,                                         7   





 






                      to  the  extent  that  such  Fixed  Charges  were  deducted  in  computing  such        Consolidated Net Income; plus   (4)   any  foreign  currency  translation  losses  (including  losses  related  to  currency        remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for        such  period,  to  the  extent  that  such losses  were  deducted  in  computing  such        Consolidated Net Income; plus   (5)   depreciation,  amortization  (including  amortization  of  intangibles  but  excluding        amortization of prepaid cash expenses that were paid in a prior period) and other        non-cash charges and expenses (excluding any such non-cash charge or expense to        the extent that it represents an accrual of or reserve for cash charges or expenses in        any future period or amortization of a prepaid cash charge or expense that was paid        in a prior period) of such Person and its Restricted Subsidiaries to the extent that        such  depreciation,  amortization  and  other  non-cash  charges  or  expenses  were        deducted in computing such Consolidated Net Income; plus   (6)   the amortization of debt discount to the extent that such amortization was deducted        in computing such Consolidated Net Income; plus   (7)   stock  compensation  expense  for  grants  to  any  employee  of  the  Company  or  its        Restricted  Subsidiaries  of  any  Equity  Interests  during  such  period  to  the  extent        deducted in computing such Consolidated Net Income; plus   (8)   any net loss arising from the sale, exchange or other disposition of capital assets by        the Company or its Restricted Subsidiaries (including any fixed assets, whether        tangible or intangible, all inventory sold in conjunction with the disposition of fixed        assets and all securities) to the extent such loss was deducted in computing such        Consolidated Net Income; plus   (9)   any losses actually realized arising under fuel hedging arrangements entered into        prior  to  February  5,  2019  and  any  losses  actually  realized  under  fuel  hedging        arrangements  entered  into  after  February  5,  2019,  in  each  case  to  the  extent        deducted in computing such Consolidated Net Income; plus   (10)  proceeds from business interruption insurance for such period, to the extent not        already included in computing such Consolidated Net Income; plus   (11)  any expenses and charges that are covered by indemnification or reimbursement        provisions  in  connection  with  any  permitted  acquisition,  merger,  disposition,        incurrence of Indebtedness, issuance of Equity Interests or any investment to the        extent (a) actually indemnified or reimbursed and (b) deducted in computing such        Consolidated Net Income; minus   (12)  non-cash items, other than the accrual of revenue in the ordinary course of business,        to the extent such amount increased such Consolidated Net Income; minus                                    8                





 






         (13)  the sum of (i) income tax credits and (ii) Consolidated Interest Income included in              computing such Consolidated Net Income;   in each case of clauses (1) through (13), determined on a consolidated basis in accordance with  GAAP.      “Consolidated  Interest  Income”  means, as  of  any  date  of  determination,  the  sum  of  the  amounts  that  would  appear on  a  consolidated  income  statement  of  the  Company  and  its  consolidated  Restricted  Subsidiaries  as  the  interest  income  of  the  Company  and  its  Restricted  Subsidiaries, determined in accordance with GAAP.      “Consolidated Net Income” means, with respect to any specified Person for any period, the  aggregate of the net income (or loss) of such Person and its Restricted Subsidiaries for such period,  on a consolidated basis (excluding the net income (or loss) of any Unrestricted Subsidiary of such  Person), determined in accordance with GAAP and without any reduction in respect of preferred  stock dividends; provided that:         (1)   all (a) extraordinary, nonrecurring, special or unusual gains and losses or income              or  expenses,  including,  without  limitation,  any  expenses  related  to  a  facilities              closing and any reconstruction, recommissioning or reconfiguration of fixed assets              for alternate uses; any severance or relocation expenses; executive recruiting costs;              restructuring or reorganization costs; curtailments or modifications to pension and              post-retirement  employee  benefit  plans;  (b) any  expenses  (including,  without              limitation, transaction costs, integration or transition costs, financial advisory fees,              accounting  fees,  legal  fees  and  other  similar  advisory  and  consulting  fees  and              related  out-of-pocket  expenses),  cost-savings,  costs  or  charges  incurred  in              connection  with  any  issuance  of  securities  (including the  Notes),  Permitted              Investment, acquisition, disposition, recapitalization or incurrence or repayment of              Indebtedness  permitted  under this  Indenture, including a refinancing  thereof (in              each case whether or not successful); and (c) gains and losses realized in connection              with any sale of assets, the disposition of securities, the early extinguishment of              Indebtedness  or  associated  with  Hedging  Obligations,  together  with  any  related              provision for taxes on any such gain, will be excluded;         (2)   the net income (but not loss) of any Person that is not the specified Person or a              Restricted Subsidiary or that is accounted for by the equity method of accounting              will be included for such period only to the extent of the amount of dividends or              similar distributions paid in cash to the specified Person or a Restricted Subsidiary              of the specified Person;         (3)   the net income (but not loss) of any Restricted Subsidiary will be excluded to the              extent that the declaration or payment of dividends or similar distributions by that              Restricted  Subsidiary  of  that  net  income  is  not  at  the  date  of  determination              permitted without any prior governmental approval (that has not been obtained) or,              directly or indirectly, by operation of the terms of its charter or any agreement,              instrument,  judgment,  decree,  order,  statute,  rule  or  governmental  regulation              applicable to that Restricted Subsidiary or its stockholders;                                         9   





 






         (4)   the cumulative effect of a change in accounting principles on such Person will be              excluded;         (5)   the  effect  of  non-cash  gains  and  losses  of  such  Person  resulting  from  Hedging              Obligations, including attributable to movement in the mark-to-market valuation of              Hedging  Obligations  pursuant  to  Financial  Accounting  Standards  Board              Accounting  Standards  Codification 815 — Derivatives  and  Hedging  will  be              excluded;         (6)   any non-cash compensation expense recorded from grants by such Person of stock              appreciation or similar rights, restricted stock units, restricted stock grants, stock              options or other rights to officers, directors or employees, will be excluded;         (7)   the effect on such Person of any non-cash items resulting from any write-up, write-             down  or  write-off  of  assets  (including  intangible  assets,  goodwill  and  deferred              financing  costs)  in  connection  with  any  acquisition,  disposition,  merger,              consolidation  or  similar  transaction  or  any  other  non-cash  impairment  charges              incurred subsequent to February 5, 2019 resulting from the application of Financial              Accounting  Standards  Board  Accounting  Standards  Codifications 205—             Presentation  of  Financial  Statements,  350—Intangibles — Goodwill  and  Other,              360—Property, Plant and Equipment and 805—Business Combinations (excluding              any such non-cash item to the extent that it represents an accrual of or reserve for              cash  expenditures  in  any  future  period  except  to  the  extent  such  item  is              subsequently reversed), will be excluded; and         (8)   any provision for income tax reflected on such Person’s financial statements for              such period will be excluded to the extent such provision exceeds the actual amount              of  taxes  paid  in  cash  during  such  period  by  such  Person  and  its  consolidated              Subsidiaries.      “Consolidated Total Leverage Ratio” means, as  of any date of determination, the ratio of  (x) the outstanding amount of Indebtedness of the Company and its Restricted Subsidiaries as of  such date (after giving effect to any incurrence or discharge of Indebtedness on such date) to (y)  Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent four  consecutive  fiscal  quarters  ending  prior  to  the  date  of  such  determination  for  which  internal  consolidated  financial  statements  of  the  Company  have  been  or  are  required  to  be  delivered;  provided that any arrangements which could have been accounted for by the Company or any of  its Restricted Subsidiaries as operating leases prior to the adoption by the Company of the new  lease accounting rules (FASB Accounting Standards Update No. 2016-02, Leases (Topic 842))  shall not be considered Indebtedness for purposes of calculating the Consolidated Total Leverage  Ratio.      “continuing” means, with respect to any Default or Event of Default, that such Default or  Event of Default has not been cured or waived.      “Corporate Trust Office” means the office of the Trustee at which at any particular time its  corporate trust business related to this Indenture shall be principally administered, which at the                                         10   





 






   date hereof is set forth in Section 12.1, or such other address as to which the Trustee may give  notice to the Company.      “Credit Agreement” means the Credit and Guaranty Agreement, dated as of February 5, 2019,  among the Company, as borrower, the subsidiaries of the borrower party thereto, as guarantors,  the lenders party thereto, Barclays Bank PLC, as administrative agent, Barclays Bank PLC, as  syndication agent and Barclays Bank PLC, as lead arranger, as amended by the First Amendment  to  Credit  and  Guaranty  Agreement,  dated  as  of  February  13,  2020,  among  the  Company,  as  borrower, the subsidiaries of the borrower party thereto, as guarantors, the lenders party thereto,  Barclays  Bank  PLC,  as  administrative  agent,  Barclays  Bank  PLC,  as  syndication  agent,  and  Barclays Bank PLC, Goldman Sachs Bank and Credit Agricole Corporate and Investment Bank,  as lead arrangers, and as may be further amended, restated, supplemented, modified, renewed,  refunded, replaced or refinanced from time to time.      “Credit Card” means obligations incurred in connection with any agreement or plan relating  to a credit card, debit card, charge card, purchasing card or other similar system.      “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any  successor entity thereto.      “Deed of  Trust” means  the Deed of Trust,  Assignment  of Rents,  Security  Agreement and  Fixture Filing, dated October 7, 2020, made by G4 Properties, LLC, as trustor, to First American  Title Insurance Company, as trustee, for the benefit of Wilmington Trust, National Association, as  beneficiary, and issued pursuant to this Indenture and the Collateral Documents, as the same may  be amended, restated, modified, supplemented, extended or amended and restated from time to  time.      “Default” means any event which is, unless cured or waived, or after notice or passage of time  or both, would be, an Event of Default.      “Definitive Note” means a certificated Note registered in the name of the Holder thereof and  issued in accordance with Section 2.6 hereof, substantially in the form of Exhibit A hereto except  that  such  Note  shall  not  bear  the  Global  Note  Legend  and  shall  not  have  the  “Schedule  of  Exchanges of Interests in the Global Note” attached thereto.      “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global  form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Notes, and  any  and  all  successors  thereto  appointed  as  Depositary  hereunder  and  having  become  such  pursuant to the applicable provision of this Indenture.      “Disposition”  means,  with  respect  to  any  property,  any  sale,  lease,  sale  and  leaseback,  conveyance, transfer or other disposition thereof.  The terms “Dispose” and “Disposed of” shall  have correlative meanings.      “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security  into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder  of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,  pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or                                         11   





 






   asset sale), is convertible or exchangeable for Indebtedness or Disqualified Stock, or is redeemable  at the option of the holder of the Capital Stock, in whole or in part (other than as a result of a  change of control or asset sale), on or prior to the date that is 91 days after the date on which the  Notes mature.  Notwithstanding the preceding sentence, any Capital Stock that would constitute  Disqualified Stock solely because the holders of the Capital Stock have the right to require the  Company or any Restricted Subsidiary to repurchase such Capital Stock upon the occurrence of a  change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital  Stock provide that the Company or such Restricted Subsidiary may not repurchase or redeem any  such Capital Stock pursuant to such provisions unless such repurchase or redemption complies  with Section 4.6.  The amount of Disqualified Stock deemed to be outstanding at any time for  purposes  of this  Indenture will  be  the  maximum  amount  that  the  Company  and  its  Restricted  Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory  redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.      “Dollars” and “$” means the currency of The United States of America.      “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire  Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital  Stock).      “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.       “Exchange Act” means the Securities Exchange Act of 1934, as amended.      “Excluded Property” has the meaning given to such term in the Security Agreement.      “Excluded Contributions” means net cash proceeds received by the Company after February  5, 2019 from:         (1)   contributions to its common equity capital (other than from any Subsidiary); or         (2)   the sale (other than to  a Subsidiary or to  any management equity plan or stock              option plan or any other management or employee benefit plan or agreement of the              Company or any Subsidiary) of Qualifying Equity Interests,   in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed  on or around the date such capital contributions are made or the date such Equity Interests are sold,  as the case may be.  Excluded Contributions will not be considered to be net proceeds of Qualifying  Equity Interests for purposes of Section 4.6(a).      “Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries (other  than Indebtedness incurred under clauses (1) or (3) of the definition of Permitted Debt) in existence  on the Closing Date until such amounts are repaid.      “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated  willing seller in a transaction not involving distress or necessity of either party, determined in good  faith by an officer of the Company; provided that any such officer shall be permitted to consider  the  circumstances  existing  at  such  time  (including,  without  limitation,  economic  or  other                                         12   





 






   conditions affecting the United States airline industry generally and any relevant legal compulsion,  judicial proceeding or administrative order or the possibility thereof) in  determining such Fair  Market Value in connection with such transaction.      “First  Lien  Debt”  means  any  Pari  Passu  Debt  of  the  Company  or  any  of  its  Restricted  Subsidiaries that is or will be secured by a Lien on the Collateral on a pari passu basis with the  Senior Secured Obligations pursuant to an intercreditor agreement.      “First  Lien  Leverage  Ratio”  means,  as  of  any  date  of  determination,  the  ratio  of (x) the  outstanding amount of the Senior Secured Obligations together with any other First Lien Debt to  (y) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent four  consecutive  fiscal  quarters  ending  prior  to  the  date  of such  determination  for  which  internal  consolidated  financial  statements  of  the  Company  have  been  or  are  required  to  be  delivered;  provided, that:         (1)   if,  since  the  beginning  of  such  period,  the  Company  or  any  of  its  Restricted              Subsidiaries shall have made any sales, transfers or other dispositions of any assets              (other than Aircraft Assets) where the Fair Market Value of such assets exceeds              $10.0 million  (a  “Sale”),  the  Consolidated  EBITDA  for  such  period  shall  be              reduced by an amount equal to the Consolidated EBITDA (if positive) attributable              to the assets that are the subject of such Sale for such period or increased by an              amount equal to the Consolidated EBITDA (if negative) attributable thereto for              such period;         (2)   if,  since  the  beginning  of  such  period,  the Company  or  any  of  its  Restricted              Subsidiaries  (by  merger,  consolidation  or  otherwise)  shall  have  made  any              acquisition or purchase of any assets (other than Aircraft Assets) where the Fair              Market  Value  of  any  such  assets  exceeds  $10.0 million  (a  “Purchase”) or  any              Permitted Investment (including any Permitted Investment occurring in connection              with  a  transaction  causing  a  calculation  to  be  made  hereunder),  Consolidated              EBITDA for such period shall be calculated after giving pro forma effect thereto as              if such Purchase or Permitted Investment occurred on the first day of such period;              and         (3)   if, since the beginning of such period, any Person became a Restricted Subsidiary              or  was  merged  or  consolidated  with  or  into  the  Company  or  any  Restricted              Subsidiary, and since the beginning of such period such Person shall have made              any Sale, Purchase or Permitted Investment that would have required an adjustment              pursuant  to  clause (1)  or  (2) above  if  made  by  the  Company  or  a  Restricted              Subsidiary  of  the  Company  since  the  beginning  of  such  period,  Consolidated              EBITDA for such period shall be calculated after giving pro forma effect thereto as              if such Sale, Purchase or Permitted Investment occurred on the first day of such              period.      For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase,  Permitted Investment or other transaction, or the amount of income or earnings relating thereto,                                          13   





 






   the pro forma calculations in respect thereof shall be as determined in good faith by a responsible  financial or accounting officer of the Company.      “Fixed Charge Coverage Ratio” means the ratio of (x) the Consolidated EBITDAR of the  Company and its Restricted Subsidiaries plus the Consolidated Interest Income for the most recent  four consecutive fiscal quarters ending prior to the date of such determination for which internal  consolidated financial statements of the Company have been or are required to be delivered to (y)  the sum of all Fixed Charges of the Company and its Restricted Subsidiaries for such period.  If  the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases,  redeems, defeases or otherwise discharges any Indebtedness (other than ordinary working capital  borrowings) or issues, repurchases or redeems Disqualified Stock or preferred stock subsequent to  the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated  and on or prior to  the date on which the  event  for which the calculation of the Fixed Charge  Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge Coverage Ratio will be  calculated  giving  pro  forma  effect  (as  determined  in  good  faith  by  a  responsible  financial  or  accounting  officer  of  the  Company)  to  such  incurrence,  assumption,  guarantee,  repayment,  repurchase,  redemption,  defeasance  or  other  discharge  of  Indebtedness,  or  such  issuance,  repurchase or redemption of Disqualified Stock or preferred stock, and the use of the proceeds  therefrom, as if the same had occurred at the beginning of the applicable four-quarter reference  period.      In addition, for purposes of calculating the Fixed Charge Coverage Ratio:         (1)   acquisitions  that  have  been  made  by  the  Company  or  any  of  its  Restricted              Subsidiaries, including through mergers or consolidations, or any Person or any of              its  Restricted  Subsidiaries  acquired  by  the  Company  or  any  of  its  Restricted              Subsidiaries,  and  including  all  related  financing  transactions  and  including              increases in ownership of Restricted Subsidiaries, during the four-quarter reference              period or subsequent to such reference period and on or prior to the Calculation              Date, or that are to be made on the Calculation Date, will be given pro forma effect              (as determined in good faith by a responsible financial or accounting officer of the              Company and including any operating expense reductions for such period resulting              from such acquisition that have been realized or for which all of the material steps              necessary for realization have been taken) as if they had occurred on the first day              of the four-quarter reference period;         (2)   the Consolidated EBITDAR attributable to discontinued operations, as determined              in accordance with GAAP, and operations or businesses (and ownership interests              therein) disposed of prior to the Calculation Date, will be excluded;         (3)   the  Fixed  Charges attributable  to  discontinued  operations,  as  determined  in              accordance  with  GAAP,  and  operations  or  businesses  (and  ownership  interests              therein) disposed of prior to the Calculation Date, will be excluded, but only to the              extent that the obligations giving rise to such Fixed Charges will not be obligations              of  the  Company  or  any  of  its  Restricted  Subsidiaries  following  the  Calculation              Date;                                          14   





 






         (4)   any Person that is a Restricted Subsidiary on the Calculation Date will be deemed              to have been a Restricted Subsidiary at all times during such four-quarter period;         (5)   any  Person  that  is  not  a  Restricted  Subsidiary  on  the  Calculation  Date  will  be              deemed not  to  have been a Restricted Subsidiary at  any time during such four-             quarter period; and         (6)   if any Indebtedness bears a floating rate of interest, the interest expense on such              Indebtedness will be calculated as if the rate in effect on the Calculation Date had              been  the  applicable  rate  for  the  entire  period  (taking  into  account  any  Hedging              Obligation  applicable  to  such  Indebtedness if  such  Hedging  Obligation  has  a              remaining term as at the Calculation Date in excess of 12 months).      “Fixed Charges” means, with respect to any specified Person for any period, the sum, without  duplication, of         (1)   the consolidated interest expense (net of interest income) of such Person and its              Restricted Subsidiaries for such period to the extent that such interest expense is              payable in cash (and such interest income is receivable in cash); plus         (2)   the  interest  component  of  Capital  Lease  Obligations  of  such  Person and  its              Restricted Subsidiaries for such period to the extent that such interest component              is related to lease payments payable in cash; plus         (3)   any interest expense actually paid in cash for such period by such specified Person              on Indebtedness of another Person that is guaranteed by such specified Person or              one of its Restricted Subsidiaries or secured by a Lien on assets of such specified              Person or one of its Restricted Subsidiaries; plus         (4)   the product of (a) all cash dividends accrued on any series of preferred stock of              such Person or any of its Restricted Subsidiaries for such period, other than to the              Company  or  a  Restricted  Subsidiary  of  the  Company,  times  (b) a  fraction,  the              numerator of which is one and the denominator of which is one minus the then              current  combined  federal,  state  and  local  statutory  tax  rate  of  such  Person,              expressed  as  a  decimal,  in  each  case,  determined  on  a  consolidated  basis  in              accordance with GAAP; plus         (5)   the aircraft rent expense of such Person and its Restricted Subsidiaries for such              period to the extent that such aircraft rent expense is payable in cash,       all as determined on a consolidated basis in accordance with GAAP.       “GAAP” means generally accepted accounting principles in the United States of America,  which are in effect from time to time, including those set forth in the opinions and pronouncements  of the Accounting Principles Board of the American Institute of Certified Public Accountants,  statements  and  pronouncements  of  the  Financial  Accounting  Standards  Board,  such  other  statements by such other entity as have been approved by a significant segment of the accounting  profession and the rules and regulations of the SEC governing the inclusion of financial statements                                         15   





 






   in  periodic reports required to  be  filed pursuant  to  Section 13 of the Exchange Act,  including  opinions and pronouncements in staff accounting bulletins and similar written statements from the  accounting staff of the SEC; provided that GAAP shall be construed as not to give effect to changes  to lease accounting rules effective January 1, 2019.      “Global Note Legend” means the legend set forth in Section 2.6(f)(2) hereof, which is required  to be placed on all Global Notes issued under this Indenture.      “Global Notes” means, individually and collectively, each of the Restricted Global Notes and  the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the  Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global  Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached  thereto, issued in accordance with Section 2.1, 2.6(a), 2.6(b)(3), 2.6(b)(4), 2.6(d)(1), 2.6(d)(2) or  2.6(d)(3) hereof.      “Government Securities” means direct obligations of, or obligations guaranteed by, the United  States of America, and the payment for which the United States pledges its full faith and credit  and which are not callable or redeemable at the issuer’s option.      “Grantor” means (i) the Company and (ii) any Guarantor that may from time to time provide  a security interest in Collateral pursuant to the Collateral Documents.      “Guarantee” means a guarantee (other than (i) by endorsement of negotiable instruments for  collection  or  (ii) customary  contractual  indemnities,  in  each  case  in  the ordinary  course  of  business), direct or indirect, in any manner including, without limitation, by way of a pledge of  assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part  of any Indebtedness of another Person (whether arising by virtue of partnership arrangements, or  by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to  maintain financial statement conditions).      “Guarantor” means any Restricted Subsidiary of the Company that guarantees the Notes in  accordance with the provisions of this Indenture, and their respective successors and assigns, in  each  case,  until the  Note  Guarantee  of  such  Person  has  been  released  in  accordance  with  the  provisions of this Indenture.      “Guarantor  Obligations”  means  the  due  and  punctual  payment,  of  the  principal  of  (and  premium, if any) and interest (including, in case of default, interest on principal and, to the extent  permitted by applicable law, on overdue interest and including any additional interest required to  be paid according to the terms of the Notes), if any, on the Notes, when and as the same shall  become due and payable, whether at Stated Maturity, upon redemption, upon acceleration, upon  tender for repayment at the option of any holder or otherwise, according to the terms thereof and  of this Indenture and all other obligations of the Company with respect to the Notes to the holder  or the Trustee thereunder.      “Hedging Obligations” means, with respect to any Person, all obligations and liabilities of  such Person under:                                          16   





 






         (1)   interest rate swap agreements, interest rate cap agreements and interest rate collar              agreements;         (2)   other agreements or arrangements designed to manage interest rates or interest rate              risk; and         (3)   other  agreements  or  arrangements  designed  to  protect  such  Person  against              fluctuations in currency exchange rates, fuel prices or other commodity prices, but              excluding  (x) clauses  in  purchase  agreements  and  maintenance  agreements              pertaining to future prices and (y) fuel purchase agreements and fuel sales that are              for physical delivery of the relevant commodity.      “Holder” or “Noteholder” means a Person in whose name a Note is registered.      “Immaterial Subsidiaries” shall mean one or more Subsidiaries, for which (a) the assets of all  such Subsidiaries constitute, in the aggregate, no more than 1.0% of the total assets of the Company  and its Subsidiaries on a consolidated basis (determined as of the last day of the most recent fiscal  quarter of the Company for which financial statements are available pursuant to Section 4.2), and  (b) the revenues of all such Subsidiaries account for, in the aggregate, no more than 1.0% of the  total revenues of the Company and its Subsidiaries on a consolidated basis for the twelve-month  period ending on the last day of the most recent fiscal quarter of the Company for which financial  statements are available pursuant to Section 4.2; provided that a Subsidiary will not be considered  to be an Immaterial Subsidiary if it directly or indirectly guarantees, or pledges any property or  assets to secure, any Senior Secured Obligations, any other First Lien Debt or any Junior Lien  Debt.      “Indebtedness” means, with respect to any specified Person, any indebtedness of such Person  (excluding accrued expenses and trade payables), whether or not contingent:         (1)   in respect of borrowed money;         (2)   evidenced by bonds, notes, debentures or similar instruments or letters of credit (or              reimbursement agreements in respect thereof but excluding letters of credit that              have been fully cash collateralized);         (3)   in respect of banker’s acceptances;         (4)   representing Capital Lease Obligations;         (5)   representing the balance deferred and unpaid of the purchase price of any property              or  services  due  more  than  six  months  after  such  property  is  acquired  or  such              services are completed, but excluding in any event trade payables arising in the              ordinary course of business; or         (6)   representing any Hedging Obligations,      if  and  to  the extent  any  of  the  preceding  items  (other  than  letters  of  credit  and  Hedging  Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in                                         17   





 






   accordance with GAAP In addition, the term “Indebtedness” includes all Indebtedness of others  secured  by  a  Lien  on  any  asset  of  the  specified  Person  (whether  or  not  such  Indebtedness  is  assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the  specified Person of any Indebtedness of any other Person.  Indebtedness shall be calculated without  giving  effect  to  the  effects  of  Financial  Accounting  Standards  Board  Accounting  Standards  Codification 815—Derivatives and Hedging and related interpretations to the extent such effects  would  otherwise  increase or  decrease  an  amount  of  Indebtedness  for  any  purpose  under this  Indenture as a result of accounting for any embedded derivatives created by the terms of such  Indebtedness.      Notwithstanding  the  foregoing,  none  of  the  following  will  constitute Indebtedness:   (a) Banking Product Obligations, (b) obligations in respect of the pre-purchase of frequent flyer  miles,  (c) maintenance  deferral  agreements,  (d) an  amount  recorded  as  indebtedness  in  the  Company’s  financial  statements  solely  by  operation  of Financial  Accounting  Standards  Board  Accounting Standards Codification 840-40-55 or any successor provision of GAAP  but  which  does not otherwise constitute Indebtedness as defined hereinabove, (e) a deferral of pre-delivery  payments  relating  to  the  purchases  of  Aircraft  Assets,  (f) obligations  under  flyer  miles  participation agreements and (g) air traffic liability.      “Indenture” means this Indenture as amended or supplemented from time to time.      “Indirect Participant” means a Person who holds a beneficial interest in a Global Note through  a Participant.      “Initial  Notes” means  the first  $150.0 million  aggregate principal amount  of Notes  issued  under this Indenture on the date hereof.      “Initial Purchaser” means Barclays Capital Inc.      “Institutional  Accredited Investor” means an institution that is  an “accredited investor”  as  defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.      “Interest Payment Date” has the meaning set forth in Exhibit A attached hereto.      “Intercreditor Agreement” means (i) the intercreditor agreement among Barclays Bank PLC,  as  administrative  agent  under  the  Credit  Agreement  and  the  other  Loan  Documents,  and  the  Trustee and the Collateral Agent, as a Senior Priority Representative, and the other parties from  time  to  time  party  thereto,  dated  as  of  the  Closing  Date,  as  it  may  be  amended,  restated,  supplemented or otherwise modified from time to time in accordance with the indenture or (ii) any  replacement or other intercreditor agreement that contains terms not materially less favorable to  Noteholders than the intercreditor agreement referred to in clause (i).      “Investments” means, with respect to any Person, all direct or indirect investments made from  and after the Closing Date by such Person in other Persons (including Affiliates) in the forms of  loans (including Guarantees), capital contributions or advances (but excluding advance and pre- delivery payments and deposits for goods and services and similar advances to officers, employees  and  consultants  made  in  the  ordinary  course  of  business),  purchases  or  other  acquisitions  for  consideration of Indebtedness, Equity Interests or other securities of other Persons, together with                                         18   





 






   all items that are or would be classified as investments on a balance sheet prepared in accordance  with GAAP; provided that a Completion Guarantee will not constitute an “Investment”.  If the  Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity  Interests of any direct or indirect Restricted Subsidiary of the Company after the Closing Date  such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted  Subsidiary of the Company, the Company will be deemed to have made an Investment on the date  of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in  such Subsidiary that were not sold or disposed of in an amount determined as provided in Section  4.6(b)(15). Notwithstanding the foregoing, any Equity Interests retained by the Company or any  of  its  Subsidiaries  after  a  disposition  or  dividend  of  assets  or  Capital  Stock  of  any  Person  in  connection with any partial “spin-off” of a Subsidiary or similar transactions shall not be deemed  to be an Investment.  The acquisition by the Company or any Restricted Subsidiary of the Company  after the Closing Date of a Person that holds an Investment in a third Person will be deemed to be  an Investment by the Company or such Restricted Subsidiary in such third Person in an amount  equal to the Fair Market Value of the Investments held by the acquired Person in such third Person  in an amount determined as provided in Section 4.6(b)(15).  Except as otherwise provided above  or in this Indenture, the amount of an Investment will be determined at the time the Investment is  made and without giving effect to subsequent changes in value.      “Junior  Lien  Debt”  means  any  Indebtedness  of  the  Company  or  any  of  its  Restricted  Subsidiaries that is or will be secured by a Lien on the Collateral on a basis that is junior to the  Notes and the Note Guarantees pursuant to an intercreditor agreement.      “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest  or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or  otherwise perfected under applicable law, including any conditional sale or other title retention  agreement,  any  option  or  other  agreement  to  sell  or  give  a  security  interest  in  and,  except  in  connection  with  any  Qualified Receivables  Transaction,  any  agreement  to  give  any  financing  statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.      “Liquidity” has the meaning ascribed to it in the Credit Agreement.      “Loan Documents” means the Credit Agreement, the collateral documents in connection with  the Credit Agreement, any intercreditor agreement in connection with the Credit Agreement and  any other instrument or agreement (which is designated as a Loan Document therein) executed  and delivered by the Company or a Guarantor to the administrative agent or any lender under the  Credit Agreement, in each case, as the same may be amended, restated, modified, supplemented,  extended or amended and restated from time to time.      “Loyalty Program” means the assets of the myAllegiantTM rewards program, including the co- branded credit card loyalty program, or any similar program.      “Material Adverse Effect” means a material adverse effect on (a) the consolidated business,  operations or financial condition of the Company and its Restricted Subsidiaries, taken as a whole,  (b) the validity or enforceability of any of this Indenture and the Collateral Documents or the rights  or remedies of the Collateral Agent or the Noteholders thereunder or (c) the ability of the Company  and the Guarantors, collectively, to pay the Senior Secured Obligations.                                         19   





 






      “Maturity,” when used with respect to any Note, means the date on which the principal of such  Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by  declaration of acceleration, call for redemption or otherwise.      “Moody’s” means Moody’s Investors Service, Inc.      “Mortgage” means any mortgage, deed of trust and other security document granting a Lien  on any Mortgaged Property of the Company or any Restricted Subsidiary, together with its interest  in such property, to secure the Notes, each in a form reasonably satisfactory to the Collateral Agent.      “Mortgaged Property” means (i) certain owned real property situated in the County of Clark,  State of Nevada, described in the Deed of Trust and subject to the Mortgage evidenced by the  Deed of Trust and (ii) each other parcel of fee owned real property located in the United States  with a book value in excess of $6.0 million and improvements thereto with respect to which a  Mortgage is granted pursuant to Section 11.8.      “Net Proceeds” means the aggregate cash and Cash Equivalents received by the Company or  any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any  cash or Cash Equivalents received in respect of or upon the sale or other disposition of any non- cash consideration received in any Asset Sale) or Recovery Event, net of: (a) the direct costs and  expenses  relating to  such Asset  Sale and incurred by the Company or a Restricted Subsidiary  (including the sale or disposition of such non-cash consideration) or any such Recovery Event,  including,  without  limitation,  legal,  accounting  and  investment  banking fees,  and  sales  commissions, and any relocation expenses incurred as a result of the Asset Sale or Recovery Event,  taxes paid or payable as a result of the Asset Sale or Recovery Event, in each case, after taking  into account any available tax credits or deductions and any tax sharing arrangements; (b) any  reserve for adjustment or indemnification obligations in respect of the sale price of such asset or  assets established in accordance with GAAP; and (c) any portion of the purchase price from an  Asset  Sale  placed  in  escrow  pursuant  to  the  terms  of  such  Asset  Sale  (either  as  a  reserve  for  adjustment of the purchase price, or for satisfaction of indemnities in respect of such Asset Sale)  until the termination of such escrow.      “Non-Recourse Debt” means Indebtedness:         (1)   as to which neither the Company nor any of its Restricted Subsidiaries (a) provides              credit support of any kind (including any undertaking, agreement or instrument that              would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor              or otherwise; and         (2)   as to which the holders of such Indebtedness do not otherwise have recourse to the              stock or assets of the Company or any of its Restricted Subsidiaries (other than the              Equity Interests of an Unrestricted Subsidiary).      “Non-U.S. Person” means a Person who is not a U.S. Person.      “Notes” has the meaning assigned to it in the preamble to this Indenture. The Initial Notes and  any Additional Notes shall be treated as a single class for all purposes under this Indenture, and                                         20   





 






   unless the context otherwise requires, all references to the Notes shall include the Initial Notes and  any Additional Notes.      “Note Guarantee” means any Guarantee of the Notes by a Guarantor.      “OECD” means the Organization for Economic Cooperation and Development.      “Officer”  means  the  Chief  Executive  Officer,  President,  the  Chief  Financial  Officer,  the  Treasurer  or  any  Assistant  Treasurer,  the  Secretary  or  any  Assistant  Secretary,  and  any  Vice  President of the Company.      “Officer’s  Certificate”  means  a  certificate signed  on  behalf  of  the  Company  by  the  Chief  Executive Officer, the Chief Operating Officer, the Chief Financial Officer or any Senior Vice  President of the Company.      “Opinion of Counsel” means a written opinion of legal counsel, who may be counsel to or an  employee of the Company, or other counsel reasonably acceptable to the Trustee, that meets the  requirements of this Indenture.      “Pari Passu Debt” means Indebtedness that ranks equally in right of payment to the Notes, in  the case of the Company, or the Note Guarantees, in the case of the Guarantors (without giving  effect to collateral arrangements).      “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who  has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to  DTC, shall include Euroclear and Clearstream).      “Permitted  Business”  means  any  business  that  is  similar,  or  reasonably  related,  ancillary,  supportive  or  complementary  to,  or  any  reasonable  extension  of  the  business  in  which  the  Company and its Restricted Subsidiaries are engaged on the Closing Date.      “Permitted Investments” means:         (1)   any Investment in the Company or in a Restricted Subsidiary of the Company;         (2)   any Investment in cash, Cash Equivalents and any foreign equivalents;         (3)   any Investment by the Company or any Restricted Subsidiary of the Company in a              Person, if as a result of such Investment:               (a)   such Person becomes a Restricted Subsidiary of the Company; or               (b)   such  Person,  in  one  transaction  or  a  series  of  related  and  substantially                    concurrent transactions, is merged, consolidated or amalgamated with or                    into, or transfers or conveys substantially all of its assets to, or is liquidated                    into, the Company or a Restricted Subsidiary of the Company;                                          21   





 






                (4)   any Investment made as a result of the receipt of non-cash consideration from a        Disposition of assets;   (5)   any acquisition of assets or Capital Stock in exchange for the issuance of Qualifying        Equity Interests;   (6)   any Investments received in compromise or resolution of (a) obligations of trade        creditors  or  customers  that  were  incurred  in  the ordinary  course  of  business,        including pursuant to any plan of reorganization or similar arrangement upon the        bankruptcy  or  insolvency  of  any  trade creditor  or  customer  or  (b) litigation,        arbitration or other disputes;   (7)   Investments represented by Hedging Obligations;   (8)   loans or advances to officers, directors or employees made in the ordinary course        of business in an aggregate principal amount not to exceed $5.0 million;   (9)   redemption or purchase of the Notes in accordance with the terms of this Indenture;   (10)  any Guarantee of Indebtedness permitted by Section 4.7 other than a Guarantee of        Indebtedness of an Affiliate of the Company that is not a Restricted Subsidiary of        the Company;   (11)  any Investment of the Company and its Restricted Subsidiaries existing on, or made        pursuant to binding commitments existing on, the Closing Date and any Investment        consisting of an extension, modification or renewal of any such Investment existing        on,  or  made  pursuant  to  a  binding  commitment  existing  on,  the  Closing  Date;        provided that the amount of any such Investment may be increased (a) as required        by  the  terms  of  such  Investment  as  in  existence  on  the  Closing  Date,  or  (b) as        otherwise permitted under this Indenture;   (12)  Investments or commitments to make Investments acquired after the Closing Date        as a result of the acquisition by the Company or any Restricted Subsidiary of the        Company  of  another  Person,  including  by  way  of  a  merger,  amalgamation  or        consolidation with or into the Company or any of its Restricted Subsidiaries in a        transaction that is not prohibited by Article V after the Closing Date to the extent        that such Investments were not made in contemplation of such acquisition, merger,        amalgamation  or  consolidation  and  were  in  existence  on  the  date  of  such        acquisition, merger, amalgamation or consolidation;   (13)  the  acquisition  by  a  Receivables  Subsidiary  in  connection  with  a  Qualified        Receivables Transaction of Equity Interests of a trust or other Person established        by such Receivables Subsidiary to effect such Qualified Receivables Transaction;        and any other Investment by the Company or a Subsidiary of the Company in a        Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other        Person in connection with a Qualified Receivables Transaction;   (14)  accounts receivable arising in the ordinary course of business;                                   22                





 






                   (15)  Investments consisting of reimbursable extensions of credit; provided that any such           Investment made pursuant to this clause (15) shall not be permitted if unreimbursed           within 90 days of any such extension of credit;      (16)  Investments in connection with making or financing any pre-delivery, progress or           other similar payments relating to the acquisition of Aircraft Related Equipment;      (17)  Investments consisting of payroll advances and advances for business and travel           expenses in the ordinary course of business;      (18)  Investments made by way of any endorsement of negotiable instruments received           in  the ordinary  course  of  business and  presented  to  any  bank  for  collection  or           deposit;      (19)  Investments consisting of stock, obligations or securities received in settlement of           amounts owing to the Company or any Restricted Subsidiary in the ordinary course           of  business or  in  a  distribution  received  in  respect  of  an  Investment  permitted           hereunder;      (20)  Investments in fuel and credit card consortia and in connection with agreements           with respect to fuel consortia, credit card consortia and fuel supply, in each case, in           the ordinary course of business;      (21)  Investments in connection with outsourcing initiatives in the ordinary course of           business;      (22)  Investments in the nature of security deposits or maintenance reserves in connection           with the financing of any Aircraft Asset; and      (23)  guarantees incurred in the ordinary course of business of obligations that do not           constitute Indebtedness of any regional air carrier doing business with the Company           or any of its Restricted Subsidiaries in connection with the regional air carrier’s           business  with  the  Company  or  such  Restricted  Subsidiary;  advances  to  airport           operators of landing fees and other customary airport charges for carriers on behalf           of  which  the  Company  or  any  of  its  Restricted  Subsidiaries  provides  ground           handling services.   “Permitted Liens” means:      (1)   Liens  existing  on the Closing Date and any Liens  created pursuant  to  the Loan           Documents;      (2)   Liens securing Indebtedness permitted to be incurred pursuant to clauses (3), (4),           (12) and (23) of Section 4.7(b), provided that, with respect to clause (23) of Section           4.7(b), such Liens are junior to the Liens of the Collateral Documents and holders           of  such  Indebtedness  (or  their  representatives  or  agents)  are  party  to  the           Intercreditor Agreement and have agreed to be bound by the terms thereof;                                      23                





 






                (3)   Liens for taxes not yet due or which are being contested in good faith by appropriate        proceedings and the Company shall have set aside on its books adequate reserves        with respect thereto in accordance with GAAP;   (4)   carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like        Liens arising in the ordinary course of business and securing obligations that are        not  due  and  payable  or  which  are  being  contested  in  good  faith  by  appropriate        proceedings and the Company shall have set aside on its books adequate reserves        with respect thereto in accordance with GAAP and such contest operates to suspend        collection of the contested obligation, tax, assessment or charge and enforcement        of a Lien;   (5)   pledges and deposits made in the ordinary course of business in compliance with        workmen’s compensation, unemployment insurance and other social security laws        or regulations;   (6)   deposits  to  secure  the  performance  of  bids,  trade  contracts  (other  than  for        Indebtedness), leases (other than Capital Lease Obligations), statutory obligations,        surety and appeal bonds, performance bonds and other obligations of a like nature        incurred in the ordinary course of business;   (7)   Liens attaching solely to cash earnest money deposits in connection with any letter        of intent or purchase agreement in connection with an acquisition permitted under        the terms of this Indenture;   (8)   any  encumbrance  or  restriction  (including,  but  not  limited  to,  put  and  call        agreements)  with  respect  to  Capital  Stock  of  any  joint  venture  or  similar        arrangement pursuant to any joint venture or similar agreement;   (9)   Liens  created  by  landlords  over  leasehold  property  and  zoning  restrictions,        easements,  rights-of-way,  restrictions  on  use  of  real  property  and  other  similar        encumbrances incurred in the ordinary course of business which do not interfere        with the intended use by the Company or any of its Restricted Subsidiaries of such        property;   (10)  Liens  securing  reimbursement  obligations  with  respect  to  commercial  letters  of        credit which encumber  documents  and other property relating  to  such letters of        credit and products and proceeds thereof;   (11)  Liens on insurance proceeds or unearned premiums incurred in the ordinary course        of business in connection with the financing of insurance premiums;   (12)  judgment Liens so long as such Lien is adequately bonded and any appropriate legal        proceedings which may have been duly initiated for the review of such judgment        have not been finally terminated or the period within which such proceedings may        be initiated has not expired;                                    24                





 






         (13)  Liens securing First Lien Debt permitted to be incurred pursuant to Section 4.7(b)              (3)(A) provided that holders of such First Lien Debt (or their representatives or              agents) are party to the Intercreditor Agreement and have agreed to be bound by              the terms thereof;         (14)  Liens securing Junior Lien Debt permitted to be incurred pursuant to Section 4.7(b)              (3)(B) provided that holders of such Junior Lien Debt (or their representatives or              agents) are party to an intercreditor agreement and have agreed to be bound by the              terms thereof;          (15)  Liens on Aircraft Assets in favor of airport authorities; and          (16)  Any  extension,  renewal  or  replacement  (or  successive  extensions,  renewals  or              replacements), in whole or in part, of any Permitted Lien referred to in clauses (1)              through (15) above, inclusive of any Lien existing at the date of the issuance of the              Notes; provided, however, that (i) the obligation secured by such new Lien shall              not extend beyond the property subject to the existing Lien and is not greater in              amount than the obligations secured by the Lien extended, renewed or replaced              (plus an amount in respect of any applicable premium and reasonable financing fees              and related transaction costs).      For purposes of determining compliance with this definition, a Lien need not be incurred solely  by reference to one category of Permitted Liens described in this definition but may be incurred  under any combination of such categories (including in part under one such category and in part  under any other such category).      “Permitted Refinancing Indebtedness” means any Indebtedness (or commitments in respect  thereof) of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net  proceeds of which are used to renew, refund, extend, refinance, replace, defease or discharge other  Indebtedness  of  the  Company  or  any  of  its  Restricted  Subsidiaries  (other  than  intercompany  Indebtedness); provided that:         (1)   the  principal  amount  (or  accreted  value,  if  applicable)  of  such  Permitted              Refinancing  Indebtedness  does  not  exceed  the  original  principal  amount  (or              accreted  value,  if  applicable)  when  initially  incurred  by  the  Company  or  its              Restricted  Subsidiaries  of  the  Indebtedness  renewed,  refunded,  extended,              refinanced,  replaced,  defeased  or  discharged  (plus  all  accrued  interest  on  the              Indebtedness (whether or not capitalized or accreted or payable on a current basis)              and  the  amount  of  all  fees  and  expenses,  including  premiums,  incurred  in              connection therewith (such original principal amount plus such amounts described              above,  collectively,  for  purposes  of  this  clause (1),  the  “preceding  amount”));              provided that with respect to any such Permitted Refinancing Indebtedness that is              refinancing secured Indebtedness and is secured by all or a portion of the same              collateral, the principal amount (or accreted value, if applicable) of such Permitted              Refinancing Indebtedness shall not exceed the greater of the preceding amount and              the  Fair  Market  Value  of  the  assets  securing  such  Permitted  Refinancing              Indebtedness  (which  Fair  Market  Value  may,  at  the  time  of  an  advance                                         25   





 






               commitment,  be  determined  to  be  the  Fair  Market  Value  at  the  time  of  such              commitment or (at the option of the issuer of such Indebtedness) the Fair Market              Value projected for the time of incurrence of such Indebtedness);         (2)   if such Permitted Refinancing  Indebtedness  has  a maturity date that is after the              maturity  date  of the  Notes (with  any  amortization  payment  comprising  such              Permitted Refinancing Indebtedness being treated as maturing on its amortization              date), such Permitted Refinancing Indebtedness has a Weighted Average Life to              Maturity that is (a) equal to or greater than the Weighted Average Life to Maturity              of,  the  Indebtedness  being  renewed,  refunded,  extended,  refinanced,  replaced,              defeased or discharged or (b) more than 60 days after the final maturity date of the              Notes;         (3)   if  the  Indebtedness  being  renewed,  refunded,  extended,  refinanced,  replaced,              defeased  or  discharged  is  subordinated  in  right  of  payment  to the  Notes,  such              Permitted  Refinancing  Indebtedness  is  subordinated  in  right  of  payment  to the              Notes  on  terms  at  least  as  favorable  to  the Holders  as  those  contained  in the              documentation  governing  the  Indebtedness  being  renewed,  refunded,  extended,              refinanced, replaced, defeased or discharged;         (4)   to  the  extent  such  Permitted  Refinancing  Indebtedness  is  secured,  the  Liens              securing such Refinancing Indebtedness have a Lien priority equal or junior to the              Liens securing the Indebtedness being renewed, refunded, extended, refinanced,              replaced, defeased or discharged;          (5)   no Restricted Subsidiary that is not a Guarantor shall be an obligor with respect to              such  Permitted  Refinancing  Indebtedness  unless  such  non-guarantor  Restricted              Subsidiary  was  an  obligor  with  respect  to  the  Indebtedness  being  renewed,              refunded, extended, refinanced, replaced, defeased or discharged; and         (6)   notwithstanding  that  the  Indebtedness  being  renewed,  refunded, refinanced,              extended, replaced, defeased or discharged may have been repaid or discharged by              the Company or any of its Restricted Subsidiaries prior to the date on which the              new  Indebtedness  is  incurred,  Indebtedness  that  otherwise  satisfies  the              requirements  of  this  definition  may  be  designated  as  Permitted  Refinancing              Indebtedness  so  long  as  such  renewal,  refunding,  refinancing,  extension,              replacement, defeasance or discharge occurred not more than 36 months prior to              the date of such incurrence of Permitted Refinancing Indebtedness.      “Person”  means  any  individual,  corporation,  partnership,  joint  venture,  limited  liability  company, association, joint-stock company, trust, unincorporated organization, government or any  agency or political subdivision thereof or any other entity.      “Private Placement Legend” means the legend set forth in Section 2.6(f)(1) hereof to be placed  on all Notes issued under this Indenture except where otherwise permitted by the provisions of this  Indenture.      “QIB” means a “qualified institutional buyer” as defined in Rule 144A.                                         26   





 






      “Qualified Receivables Transaction” means any transaction or series of transactions entered  into  by  the Company  or  any  of  its  Subsidiaries pursuant  to  which  the  Company  or  any  of  its  Subsidiaries sells,  conveys  or otherwise transfers to  (1) a Receivables  Subsidiary or any other  Person (in the case of a transfer by the Company or any of its Subsidiaries) and (2) any other  Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any  accounts receivable (whether now existing or arising in the future) of the Company or any of its  Subsidiaries, and any assets related thereto including, without limitation, all Equity Interests and  other investments in the Receivables Subsidiary, all collateral securing such accounts receivable,  all  contracts  and  all  Guarantees  or  other  obligations  in  respect  of  such  accounts  receivable,  proceeds  of  such  accounts  receivable  and  other  assets  which  are  customarily  transferred  or  in  respect of which security interests are customarily granted in connection with asset securitization  transactions  involving  accounts  receivable; provided that  the  financing  terms,  covenants,  termination  events  and  other  provisions  (including  collateralization  levels)  thereof  shall  be  on  customary market terms for securitization transactions involving assets such as, or similar to, the  assets  subject  thereto  (as  determined  in  good  faith  by  a  responsible  financial  officer  of  the  Company).      “Qualifying Equity Interests” means Equity Interests of the Company other than Disqualified  Stock.      “Quotation Agent” means the Reference Treasury Dealer appointed by the Company.      “Receivables Subsidiary” means a Subsidiary of the Company which engages in no activities  other than in connection with the financing or securitization of accounts receivable and which is  designated  by  the  Board  of  Directors  of  the  Company  (as  provided  below)  as  a  Receivables  Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of  which (i) is guaranteed by the Company or any Restricted Subsidiary of the Company (other than  comprising a pledge of the Capital Stock or other interests in such Receivables Subsidiary (an  “incidental pledge”), and excluding any Guarantees of obligations (other than the principal of, and  interest  on,  Indebtedness)  pursuant  to  representations,  warranties,  covenants  and  indemnities  entered  into  in  the ordinary  course  of  business in  connection  with  a  Qualified  Receivables  Transaction),  (ii) is  recourse  to  or  obligates  the  Company  or  any  Restricted  Subsidiary  of  the  Company  in  any  way  other  than  through  an  incidental  pledge  or  pursuant  to  representations,  warranties, covenants and indemnities entered into in the ordinary course of business in connection  with a Qualified Receivables Transaction or (iii) subjects any property or asset of the Company or  any Subsidiary of the Company (other than accounts receivable and related assets as provided in  the  definition  of  “Qualified  Receivables  Transaction”),  directly  or  indirectly,  contingently  or  otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants  and indemnities entered into in the ordinary course of business in connection with a Qualified  Receivables Transaction, (b) with which neither the Company nor any Subsidiary of the Company  has any material contract, agreement, arrangement or understanding (other than pursuant to the  Qualified Receivables Transaction) other than (i) on terms no less favorable to the Company or  such Subsidiary than those that might be obtained at the time from Persons who are not Affiliates  of  the  Company,  and  (ii) fees  payable  in  the ordinary  course  of  business in  connection  with  servicing accounts receivable and (c) with which neither the Company nor any Subsidiary of the  Company has any obligation to maintain or preserve such Subsidiary’s financial condition, other  than  a  minimum  capitalization  in  customary  amounts,  or  to  cause  such  Subsidiary  to  achieve                                         27   





 






   certain levels of operating results.  Any such designation by the Board of Directors of the Company  will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the  Board of Directors of the Company giving effect to such designation and an Officer’s Certificate  certifying that such designation complied with the foregoing conditions.      “Recovery Event” means any event that gives rise to the receipt by the Company or any of its  Restricted  Subsidiaries  of  any  insurance  proceeds  or  condemnation  awards in  respect  of  any  equipment, fixed assets or real property (including any improvements thereon) to replace or repair  such  equipment,  fixed  assets  or  real  property; provided, however,  for  purposes  of  determining  whether an  Asset  Sale  Offer would  be  required,  a  Recovery  Event  shall  be  deemed  to  have  occurred only to the extent that the aggregate net cash proceeds of all such events, together with  all Dispositions that constitute Asset Sales without giving effect to the dollar thresholds in the  definition thereof, during any fiscal year exceed $1.0 million.      “Reference  Treasury  Dealer”  means  any  of  Barclays  Capital  Inc.  and  two  other  Primary  Treasury Dealers (defined herein) selected by Barclays Capital Inc.; provided, however, that if any  of the foregoing shall cease to be a primary United States Government securities dealer in New  York City (a “Primary Treasury Dealer”), the Company will substitute therefor another Primary  Treasury Dealer.      “Reference  Treasury  Dealer  Quotations”  means,  with  respect  to  each Reference  Treasury  Dealer and any redemption date, the average, as determined by us, of the bid and asked prices for  the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)  quoted in writing to us by such Reference Treasury Dealer at 5:00 p.m., New York City time, on  the third business day preceding such redemption date.      “Regulation S” means Regulation S promulgated under the Securities Act.      “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto  bearing the Global Note Legend and the Regulation S Global Note Legend and deposited with or  on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination  equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation  S.      “Regulation S Global Note Legend” means the legend set forth in Section 2.6(f)(3) hereof to  be placed on all Regulation S Global Notes issued under this Indenture except where otherwise  permitted by the provisions of this Indenture.      “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having  responsibility for administration of this  Indenture and  also  means, with  respect to  a particular  corporate trust matter, any other officer to whom any corporate trust matter is referred because of  his or her knowledge of and familiarity with a particular subject.      “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.      “Restricted Global Note” means a Global Note bearing the Private Placement Legend.      “Restricted Investment” means an Investment other than a Permitted Investment.                                         28   





 






      “Restricted Period” means the 40-day distribution compliance period as defined in Regulation  S.       “Restricted Subsidiary” of a Person means any Subsidiary of the referent Person that is not an  Unrestricted Subsidiary.      “Rule 144” means Rule 144 promulgated under the Securities Act.      “Rule 144A” means Rule 144A promulgated under the Securities Act.      “Rule 903” means Rule 903 promulgated under the Securities Act.      “Rule 904” means Rule 904 promulgated under the Securities Act.      “S&P” means Standard & Poor’s Ratings Services.      “Scheduled Maturity” means, with respect to any installment of interest or principal on any  series of Indebtedness, the date on which the payment of interest or principal was scheduled to be  paid in the documentation governing such Indebtedness as of the Closing Date, and will not include  any contingent obligations to repay, redeem or repurchase any such interest or principal prior to  the date originally scheduled for the payment thereof.      “SEC” means the U.S. Securities and Exchange Commission.       “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations  of the SEC promulgated thereunder.      “Security Agreement” means the Security Agreement, dated as of the Closing Date, among the  Company and certain subsidiaries of the Company, as grantors, and the Collateral Agent, as the  same may be amended, restated, modified, supplemented, extended or amended and restated from  time to time.      “Secured  Leverage  Ratio”  means,  as  of  any  date  of  determination,  the  ratio  of  (x) the  outstanding amount of the Senior Secured Obligations together with any other Indebtedness of the  Company and its Restricted Subsidiaries secured by the Collateral on a pari passu or a junior basis  to (y) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent  four consecutive fiscal quarters ending prior to the date of such determination for which internal  consolidated  financial  statements  of  the  Company  have  been  or  are  required  to  be  delivered;  provided, that:         (1)   if,  since  the  beginning  of  such  period,  the  Company  or  any  of  its  Restricted              Subsidiaries shall have made any sales, transfers or other dispositions of any assets              (other than Aircraft Assets) where the Fair Market Value of such assets exceeds              $10.0 million  (a  “Sale”),  the  Consolidated  EBITDA  for  such  period  shall  be              reduced by an amount equal to the Consolidated EBITDA (if positive) attributable              to the assets that are the subject of such Sale for such period or increased by an              amount equal to the Consolidated EBITDA (if negative) attributable thereto for              such period;                                         29   





 






         (2)   if,  since  the  beginning  of  such  period,  the  Company  or  any  of  its Restricted              Subsidiaries  (by  merger,  consolidation  or  otherwise)  shall  have  made  any              acquisition or purchase of any assets (other than Aircraft Assets) where the Fair              Market  Value  of  any  such  assets  exceeds  $10.0 million  (a  “Purchase”)  or  any              Permitted Investment (including any Permitted Investment occurring in connection              with  a  transaction  causing  a  calculation  to  be  made  hereunder),  Consolidated              EBITDA for such period shall be calculated after giving pro forma effect thereto as              if such Purchase or Permitted Investment occurred on the first day of such period;              and         (3)   if, since the beginning of such period, any Person became a Restricted Subsidiary              or  was  merged  or  consolidated  with  or  into  the  Company  or  any  Restricted              Subsidiary, and since the beginning of such period such Person shall have made              any Sale, Purchase or Permitted Investment that would have required an adjustment              pursuant  to  clause (1)  or  (2) above  if  made  by  the  Company  or  a  Restricted              Subsidiary  of  the  Company  since  the  beginning  of  such  period, Consolidated              EBITDA for such period shall be calculated after giving pro forma effect thereto as              if such Sale, Purchase or Permitted Investment occurred on the first day of such              period.      For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase,  Permitted Investment or other transaction, or the amount of income or earnings relating thereto,  the pro forma calculations in respect thereof shall be as determined in good faith by a responsible  financial or accounting officer of the Company.      “Senior Priority Representative” has the meaning ascribed to it in the Security Agreement.      “Senior Secured Obligations” means the obligations under the Credit Agreement, the Loan  Documents, this  Indenture, the Collateral  Documents, the Notes, the Note Guarantees  and the  Intercreditor Agreement.       “Senior Unsecured Pari Passu Debt” means Pari Passu Debt that is unsecured.      “Significant Guarantors” means Allegiant Air, LLC, Sunrise Asset Management LLC and  Allegiant Vacations, LLC, and each of their successors and permitted assigns.      “Significant Subsidiary” means any Restricted Subsidiary of the Company that would be a  “significant  subsidiary”  as  defined  in  Article 1,  Rule 1-02  of  Regulation S-X,  promulgated  pursuant to the Securities Act of 1933, as amended, as such Regulation is in effect on the Closing  Date.      “Spare Parts” has the meaning ascribed to it in the Spare Parts Security Agreement.       “Spare Parts Security Agreement” means the Spare Parts Security Agreement, dated as of the  Closing Date, between the Company, as grantor, and the Collateral Agent, as the same may be  amended, restated, modified, supplemented, extended or amended and restated from time to time.                                          30   





 






      “Standard  Securitization  Undertakings”  means  all  representations,  warranties,  covenants,  indemnities, performance Guarantees and servicing obligations entered into by the Company or  any Subsidiary (other than a Receivables Subsidiary), which are customary in connection with any  Qualified Receivables Transaction.      “Stated Maturity” means the date specified in the Notes as the fixed date on which an amount  equal to the principal amount of the Notes is due and payable.      “Subordinated  Debt”  means  any Indebtedness  of  the  Company  or  the  Guarantors  that  is  contractually subordinated in right of payment to the Notes or to the Note Guarantees (excluding  any  intercompany  Indebtedness  between  or  among  the  Company  and  any  of  its  Restricted  Subsidiaries)      “Subsidiary” means, with respect to any Person:         (1)   any corporation, association or other business entity (other than a partnership, joint              venture or limited liability company) of which more than 50% of the total voting              power of shares of Capital Stock entitled (without regard to the occurrence of any              contingency  and  after  giving  effect  to  any  voting agreement  or  stockholders’              agreement  that  effectively  transfers  voting  power)  to  vote  in  the  election  of              directors,  managers  or  trustees  of  the  corporation,  association  or  other  business              entity is at the time of determination owned or controlled, directly or indirectly, by              such  Person  or  one  or  more  of  the  other  Subsidiaries  of  such  Person  (or  a              combination thereof); and         (2)   any  partnership,  joint  venture  or  limited  liability  company  of  which  (a) more              than 50%  of  the  capital  accounts,  distribution  rights,  total equity  and  voting              interests or general and limited partnership interests, as applicable, are owned or              controlled,  directly  or  indirectly,  by  such  Person  or  one  or  more  of  the  other              Subsidiaries  of  such  Person  or  a  combination  thereof,  whether  in  the  form of              membership,  general,  special  or  limited  partnership  interests  or  otherwise  and              (b) such Person or any Subsidiary of such Person is a controlling general partner or              otherwise controls such entity.      “Sunseeker  Project”  means  the  construction  of  a  hotel  and/or  condominium-hotel  on  the  Company  or  one  of  its  Subsidiaries’  owned  real  estate  in  Port  Charlotte,  Florida  and  related  amenities.      “Survey” shall mean a survey of any Mortgaged Property  (and  all improvements  thereon)  which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction  where such Mortgaged Property is located, (ii) dated (or redated) not earlier than nine months prior  to the date of delivery thereof unless there shall have occurred within nine months prior to such  date of delivery any material exterior construction on the site of such Mortgaged Property or any  material easement, right of way or other interest in the Mortgaged Property has been granted or  become effective through operation of law or otherwise with respect to such Mortgaged Property  which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall  be dated (or redated) within a reasonable period after the completion of such construction or if                                         31   





 






   such  construction shall  not  have  been  completed  as  of  such  date  of  delivery,  not  earlier  than  30 days prior to such date of delivery, or after the grant or effectiveness of any such easement,  right of way or other interest in the Mortgaged Property, (iii) certified by the surveyor (in a manner  reasonably acceptable to the Collateral Agent) to the Collateral Agent, and the Title Company,  (iv) complying  in  all  respects  with  the  minimum  detail  requirements  of  the  American  Land  Title Association as such requirements are in effect on the date of preparation of such survey and  (v) sufficient  for  the  Title Company  to  remove  all  standard  survey  exceptions  from  the  title  insurance policy (or commitment) relating to such Mortgaged Property and issue the endorsements  of the type required by Section 11.8 or (b) otherwise reasonably acceptable to the Collateral Agent.      “Trademark Security Agreement” means the Trademark Security Agreement, dated as of the  Closing Date, by and among the Company and Sunrise Asset Management, LLC, as grantors, and  the Collateral Agent, as the same may be amended, restated, modified, supplemented, extended or  amended and restated from time to time.      “Treasury Rate” means, with respect to any redemption date, (1) the yield, under the heading  which represents the average for the immediately preceding week, appearing in the most recently  published statistical release designated “H.15” or any successor publication which is published  weekly by the Board of Governors of the Federal Reserve System and which establishes yields on  actively traded United States Treasury securities adjusted to constant maturity under the caption  “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue  (if no maturity is within three months before or after the maturity date of the Notes to be redeemed,  yields for the two published maturities most closely corresponding to the Comparable Treasury  Issue shall be determined, and the Treasury Rate shall be interpolated or extrapolated from such  yields  on  a  straight-line  basis,  rounding  to  the  nearest  month)  or  (2) if  such  release  (or  any  successor release) is not published during the week preceding the calculation date or does not  contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the  Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed  as  a  percentage  of  its  principal  amount)  equal  to  the  Comparable  Treasury  Price  for  such  redemption date.  The Treasury Rate will be calculated on the third business day preceding the  redemption date, or, in the case of a satisfaction and discharge, on the third business day prior to  the date we deposit the amount required under this Indenture most nearly equal to the period from  the redemption date to the maturity date.      “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and the rules and  regulations thereunder as in effect on the date of this Indenture.      “Trustee”  means  Wilmington  Trust,  National  Association  in  its  capacity  as  such,  until  a  successor replaces it in accordance with the applicable provisions of this Indenture and thereafter  means the successor serving hereunder.      “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable  jurisdiction.      “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required  to bear the Private Placement Legend.                                          32   





 






      “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear  the Private Placement Legend.      “Unrestricted Subsidiary” means (i) Sunseeker Resorts, Inc. and each of its direct and indirect  Subsidiaries so long as such Person meets the requirements set forth in clauses (2) through (5)  below, or (ii) any other Subsidiary of the Company that is designated by the Board of Directors of  the  Company  as  an  Unrestricted  Subsidiary  in  compliance  with Section  4.10 pursuant  to  a  resolution of the Board of Directors, but only if such Subsidiary:         (1)   has no Indebtedness other than Non-Recourse Debt;         (2)   is  not  party  to  any  agreement, contract,  arrangement  or  understanding  with  the              Company or any Restricted Subsidiary of the Company unless the terms of any              such agreement, contract, arrangement or understanding are no less favorable to the              Company or such Restricted Subsidiary than those that might be obtained at the              time from Persons who are not Affiliates of the Company;         (3)   is a Person with respect to which neither the Company nor any of its Restricted              Subsidiaries  has  any  direct  or  indirect  obligation  (a) to  subscribe  for  additional              Equity Interests or (b) to maintain or preserve such Person’s financial condition or              to cause such Person to achieve any specified levels of operating results (other than              a Completion Guarantee);          (4)   has not guaranteed or otherwise directly or indirectly provided credit support for              any Indebtedness of the Company or any of its Restricted Subsidiaries; and           (5) does not own any assets or properties that constitute Collateral.      “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities  Act.      “Voting Stock” of any specified Person as of any date means the Capital Stock of such Person  that is at the time entitled to vote in the election of the Board of Directors of such Person.      “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date,  the number of years obtained by dividing:         (1)   the  sum  of  the  products  obtained  by  multiplying  (a) the  amount  of  each  then              remaining installment, sinking fund, serial maturity or other required payments of              principal, including payment at final maturity, in respect of the Indebtedness, by              (b) the  number  of  years  (calculated  to  the  nearest  one-twelfth)  that  will  elapse              between such date and the making of such payment; by         (2)   the then outstanding principal amount of such Indebtedness.         Section 1.2. Other Definitions.        TERM                                             DEFINED IN SECTION                                         33   





 






                                                                             “Acceleration Event” ..........................................................  6.2        “Asset Sale Offer” ...............................................................  4.13(a)        “Asset Sale Offer Period” ...................................................  4.13(c)        “Asset Sale Purchase Date” ................................................  4.13(c)        “Change of Control Offer” ..................................................  4.12(a)        “Change of Control Payment” ............................................  4.12(a)        “Change of Control Payment Date” ....................................  4.12(a)        “Completion Guarantee” .....................................................  4.11(b)(13)        “DTC” .................................................................................  2.3        “Event of Default” ..............................................................  6.1        “Excess Proceeds” ..............................................................  4.13(b)        “Par Call Date” ...................................................................  3.7(a)        “Paying Agent” ...................................................................  2.3        “Registrar” ..........................................................................  2.3        “Special Interest” ................................................................  4.3(b)        “Title Company” .................................................................  11.8        “Title Policy” ......................................................................  11.8          Section 1.3. Rules of Construction.               Unless the context otherwise requires:               (a)   a term has the meaning assigned to it;               (b)   an accounting term not otherwise defined has the meaning assigned to it in        accordance with GAAP;               (c)   “or” is not exclusive;               (d)   words  in  the  singular  include  the  plural,  and  in  the  plural  include  the        singular; and               (e)   provisions apply to successive events and transactions.                                    ARTICLE II.                                   THE NOTES         Section 2.1. Form and Dating.         (a)   General.  The  Notes  and  the  Trustee’s  certificate  of authentication  will  be  substantially  in  the  form  of  Exhibit  A  hereto.  The  Notes  may  have  notations,  legends  or  endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of  its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples  of $1,000 in excess thereof.               The terms and provisions contained in the Notes will constitute, and are hereby  expressly made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their                                         34   





 






   execution and delivery of this Indenture, expressly agree to such terms and provisions and to be  bound  thereby.  However,  to  the  extent  any  provision  of  any  Note  conflicts  with  the  express  provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.         (b)   Global Notes and Definitive Notes. Notes issued in global form will be substantially  in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of  Exchanges of Interests in the Global Note” attached thereto). Each Global Note will represent such  of the outstanding Notes as will be specified therein and each shall provide that it represents the  aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the  aggregate principal amount of outstanding Notes represented thereby may from time to time be  reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a  Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of  outstanding  Notes  represented  thereby  will  be  made  by  the  Trustee  or  the  Custodian,  at  the  direction of the Trustee, in accordance with instructions given by the Holder thereof as required  by Section 2.6 hereof. Notes issued in definitive form will be substantially in the form of Exhibit  A hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of  Interests in the Global Note” attached thereto).         (c)   Euroclear  and  Clearstream  Procedures  Applicable. The  provisions  of  the  “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of  Euroclear” and  the “General  Terms  and  Conditions  of  Clearstream  Banking” and “Customer  Handbook” of Clearstream will be applicable to transfers of beneficial interests in the Regulation  S Global Note that are held by Participants through Euroclear or Clearstream.         Section 2.2. Execution and Authentication.           At least one Officer must sign the Notes for the Company by manual, facsimile or other  electronic signature.         If an Officer whose signature is on a Note no longer holds that office at the time a Note is  authenticated, the Note will nevertheless be valid.         A Note will not be valid until authenticated by the manual signature of the Trustee. The  signature will be conclusive evidence that the Note has been authenticated under this Indenture.         The Trustee will, upon receipt of a written order of the Company signed by an Officer (an  “Authentication Order”), authenticate Notes for original issue that may be validly issued under  this  Indenture,  including  any  Additional  Notes.  The  aggregate  principal  amount  of  Notes  outstanding at any time may not exceed the aggregate principal amount of Notes authorized for  issuance by the Company pursuant to one or more Authentication Orders, except as provided in  Section 2.7 hereof.         The  Trustee  may  appoint  an  authenticating  agent  acceptable  to  the  Company  to  authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do  so. Each reference in this Indenture to authentication by the Trustee includes authentication by  such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an  Affiliate of the Company.                                         35   





 






         Section 2.3. Registrar and Paying Agent.           The  Company  will  maintain  an  office  or agency  where  Notes  may  be  presented  for  registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be  presented for payment (“Paying Agent”). The Registrar will keep a register of the Notes and of  their transfer and exchange. The Company may appoint one or more co-registrars and one or more  additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying  Agent” includes any additional paying agent. The Company may change any Paying Agent or  Registrar without notice to any Holder. The Company will notify the Trustee in writing of the  name and address of any Agent not a party to this Indenture. If the Company fails to appoint or  maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company  or any of its Subsidiaries may act as Paying Agent or Registrar.         The  Company  initially  appoints  The  Depository  Trust  Company  (“DTC”)  to  act  as  Depositary with respect to the Global Notes.         The Company initially appoints the Trustee to act as the Registrar and Paying Agent and  to act as Custodian with respect to the Global Notes.         Section 2.4. Paying Agent to Hold Money in Trust.           The Company will require each Paying Agent other than the Trustee to agree in writing  that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by  the Paying Agent for the payment of principal of, premium on, if any, or interest, if any, on, the  Notes, and will notify the Trustee of any default by the Company in making any such payment.  While any such default continues, the Trustee may require a Paying Agent to pay all money held  by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held  by  it  to  the  Trustee.  Upon  payment  over  to  the  Trustee,  the  Paying  Agent  (if  other  than  the  Company  or  a  Subsidiary)  will  have  no  further  liability  for  the  money.  If  the  Company  or  a  Subsidiary acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit  of the Holders  all money held  by it as  Paying  Agent.  Upon any bankruptcy or reorganization  proceedings relating to the Company, the Trustee will serve as Paying Agent for the Notes.         Section 2.5. Holder Lists.           The Trustee will preserve in as current a form as is reasonably practicable the most recent  list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the  Company will furnish to the Trustee at least seven Business Days before each Interest Payment  Date and at such other times as the Trustee may request in writing, a list in such form and as of  such date as the Trustee may reasonably require of the names and addresses of Holders.         Section 2.6. Transfer and Exchange.         (a)   Transfer and Exchange of Global Notes. A Global Note may not be transferred  except  as  a  whole  by  the  Depositary  to  a  nominee  of  the  Depositary,  by  a  nominee  of  the  Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any  such nominee to a successor Depositary or a nominee of such successor Depositary. All Global  Notes will be exchanged by the Company for Definitive Notes if:                                         36   





 






               (1)   the Company delivers to the Trustee notice from the Depositary that it is        unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency        registered  under  the  Exchange  Act  and,  in  either  case,  a  successor  Depositary  is  not        appointed by the Company within 90 days after the date of such notice from the Depositary;        or               (2)   the Company executes and delivers an Officer’s Certificate to such effect to        the Trustee; or               (3)   there has  occurred and is  continuing  a Default or Event  of Default with        respect to the Notes and owners of beneficial interests in the Global Note in an amount not        less than a majority of the aggregate outstanding principal amount of such Global Note        have delivered to the Company and the Trustee a notice indicating that the continuation of        the  book-entry  system  through  the  Depositary  is  no  longer  in  the  best  interests  of  the        holders of such beneficial interests; or               (4)   as otherwise agreed by the Company and a holder of a beneficial interest in        a Global Note.         Upon the occurrence of any of the preceding events in subparagraph (1), (2) or (3) above,  Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global  Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.7 and 2.10  hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any  portion thereof, pursuant to this Section 2.6 or Section 2.7 or 2.10 hereof, shall be authenticated  and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged  for another Note other than as provided in this Section 2.6(a), however, beneficial interests in a  Global Note may be transferred and exchanged as provided in Section 2.6(b), (c) or (f) hereof.         (b)   Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and  exchange of beneficial interests in the Global Notes will be effected through the Depositary, in  accordance  with  the  provisions  of  this  Indenture  and  the  Applicable  Procedures.  Beneficial  interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to  those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests  in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as  applicable, as well as one or more of the other following subparagraphs, as applicable:               (1)   Transfer  of  Beneficial  Interests  in  the  Same  Global  Note.  Beneficial        interests in any Restricted Global Note may be transferred to Persons who take delivery        thereof in the form of a beneficial interest in the same Restricted Global Note in accordance        with the transfer restrictions set forth in the Private Placement Legend; provided, however,        that prior to the expiration of the Restricted Period, transfers of beneficial interests in the        Regulation S Global Note may not be made to a U.S. Person or for the account or benefit        of a U.S. Person (other than the Initial Purchaser). Beneficial interests in any Unrestricted        Global  Note may be transferred to  Persons who take delivery thereof in the form  of a        beneficial interest in an Unrestricted Global Note. No written orders or instructions shall        be required to be delivered to the Registrar to effect the transfers described in this Section        2.6(b)(1).                                         37   





 






               (2)   All Other Transfers and Exchanges of Beneficial Interests in Global Notes.        In connection with all transfers and exchanges of beneficial interests that are not subject to        Section  2.6(b)(1)  above,  the  transferor  of  such  beneficial  interest  must  deliver  to  the        Registrar either:                     (A)   both:                           (i)   a written order from a Participant or an Indirect Participant                     given to  the  Depositary  in  accordance  with  the  Applicable  Procedures                     directing  the Depositary  to  credit  or  cause  to  be  credited  a  beneficial                     interest  in  another  Global  Note  in  an  amount  equal  to  the  beneficial                     interest to be transferred or exchanged; and                          (ii)   instructions  given  in  accordance  with  the  Applicable                     Procedures containing information regarding the Participant account to be                     credited with such increase; or                     (B)   both:                           (i)   a written order from a Participant or an Indirect Participant                     given to  the  Depositary  in  accordance  with  the  Applicable  Procedures                     directing  the  Depositary  to  cause  to  be  issued  a  Definitive  Note  in  an                     amount equal to the beneficial interest to be transferred or exchanged; and                          (ii)   instructions  given  by  the  Depositary  to  the  Registrar                     containing information  regarding  the  Person  in  whose  name  such                     Definitive  Note  shall  be registered to  effect  the  transfer  or  exchange                     referred to in (i) above.         Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests  in  Global  Notes  contained  in  this  Indenture  and  the  Notes  or  otherwise  applicable  under the  Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant  to Section 2.6(g) hereof.               (3)         Transfer of Beneficial Interests to Another Restricted Global Note.        A beneficial interest in any Restricted Global Note may be transferred to a Person who        takes delivery thereof in the form of a beneficial interest in another Restricted Global Note        if the transfer complies with the requirements of Section 2.6(b)(2) above and the Registrar        receives the following:                     (A)   if the transferee will take delivery in the form of a beneficial interest              in the 144A Global Note, then the transferor must deliver a certificate in the form              of Exhibit B hereto, including the certifications in item (1) thereof; and                     (B)   if the transferee will take delivery in the form of a beneficial interest              in the Regulation S Global Note, then the transferor must deliver a certificate in              the form of Exhibit B hereto, including the certifications in item (2) thereof.                                         38   





 






               (4)         Transfer and Exchange of Beneficial Interests in a Restricted Global        Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any        Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in        an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the        form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer        complies with the requirements of Section 2.6(b)(2) above and the Registrar receives the        following:                     (A)   if the holder of such beneficial interest in a Restricted Global Note              proposes  to  exchange  such  beneficial  interest  for  a  beneficial  interest  in  an              Unrestricted Global Note, a certificate from such holder in the form of Exhibit C              hereto, including the certifications in item (1)(a) thereof; or                     (B)   if the holder of such beneficial interest in a Restricted Global Note              proposes to transfer such beneficial interest to a Person who shall take delivery              thereof  in  the  form  of  a  beneficial  interest  in  an  Unrestricted  Global  Note,  a              certificate  from  such  holder  in  the  form of  Exhibit  B  hereto,  including  the              certifications in item (4) thereof;               and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so  requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably  acceptable to the Company and the Registrar to the effect that such exchange or transfer is in  compliance with the Securities Act and that the restrictions on transfer contained herein and in the  Private  Placement  Legend  are  no  longer  required  in  order  to  maintain  compliance  with the  Securities Act.         If  any  such  transfer  is  effected  pursuant  to  this  Section  2.6(b)(4)  at  a  time  when  an  Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an  Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or  more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal  amount of beneficial interests transferred pursuant to this Section 2.6(b)(4).               Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or  transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted  Global Note.         (c) Transfer or Exchange of Beneficial Interests for Definitive Notes.               (1)         Beneficial  Interests  in  Restricted  Global  Notes  to  Restricted        Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes        to exchange such beneficial interest for a Restricted Definitive Note or to transfer such        beneficial interest  to  a  Person  who  takes  delivery  thereof  in  the  form  of  a  Restricted        Definitive Note, then, upon receipt by the Registrar of the following documentation:                     (A)   if the holder of such beneficial interest in a Restricted Global Note              proposes to exchange such beneficial interest for a Restricted Definitive Note, a              certificate  from  such  holder  in  the  form  of  Exhibit C hereto,  including  the              certifications in item (2)(a) thereof;                                         39   





 






                     (B)   if such beneficial interest is being transferred to a QIB in accordance              with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including              the certifications in item (1) thereof;                     (C)   if such beneficial interest is being transferred to a Non-U.S. Person              in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to              the  effect  set  forth  in  Exhibit  B  hereto,  including  the  certifications  in  item  (2)              thereof;                     (D)   if  such  beneficial  interest  is  being  transferred  pursuant  to  an              exemption from the registration requirements of the Securities Act in accordance              with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the              certifications in item (3)(a) thereof;                     (E)   if  such  beneficial  interest  is  being  transferred  to  an  Institutional              Accredited Investor in reliance on an exemption from the registration requirements              of the Securities Act other than those listed in subparagraphs (B) through (D) above,              a certificate to the effect set forth in Exhibit B hereto, including the certifications,              certificates and Opinion of Counsel required by item (3) thereof, if applicable; or                     (F)   if such beneficial interest is being transferred to the Company or any              of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including              the certifications in item (3)(b) thereof;               the Trustee shall cause the aggregate principal amount of the applicable Global  Note to be reduced accordingly pursuant to Section 2.6(g) hereof, and the Company shall execute  and  the  Trustee  shall authenticate and  deliver  to  the  Person  designated  in  the  instructions  a  Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a  beneficial interest in a Restricted Global Note pursuant to this Section 2.6(c) shall be registered in  such name or names and in such authorized denomination or denominations as the holder of such  beneficial interest shall instruct the Registrar through instructions from the Depositary and the  Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons  in  whose  names  the  Notes  are  so  registered.  Any  Definitive  Note  issued  in  exchange  for  a  beneficial interest in a Restricted Global Note pursuant to this Section 2.6(c)(1) shall bear the  Private Placement Legend and shall be subject to all restrictions on transfer contained therein.               (2)   Beneficial Interests in Restricted Global Notes to Unrestricted Definitive        Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such        beneficial  interest  for  an  Unrestricted  Definitive  Note  or  may  transfer  such  beneficial        interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive        Note only if the Registrar receives the following:                     (A)   if the holder of such beneficial interest in a Restricted Global Note              proposes to exchange such beneficial interest for an Unrestricted Definitive Note,              a  certificate  from  such  holder  in  the  form  of  Exhibit C hereto,  including  the              certifications in item (1)(b) thereof; or                                          40   





 






                     (B)   if the holder of such beneficial interest in a Restricted Global Note              proposes to transfer such beneficial interest to a Person who shall take delivery              thereof in the form of an Unrestricted Definitive Note, a certificate from such holder              in the form of Exhibit B hereto, including the certifications in item (4) thereof;               and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so  requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably  acceptable to the Company and the Registrar to the effect that such exchange or transfer is in  compliance with the Securities Act and that the restrictions on transfer contained herein and in the  Private  Placement  Legend  are  no  longer  required  in  order  to  maintain  compliance  with the  Securities Act.               (3)  Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive        Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to        exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest        to  a  Person  who  takes  delivery  thereof  in  the  form  of  a  Definitive  Note,  then,  upon        satisfaction of the conditions set forth in Section 2.6(b)(2) hereof, the Trustee will cause        the aggregate principal amount of the applicable Unrestricted Global Note to be reduced        accordingly  pursuant  to  Section  2.6(g)  hereof,  and  the  Company  will  execute  and  the        Trustee  will  authenticate  and  deliver  to  the  Person  designated  in  the  instructions  a        Definitive  Note  in  the  appropriate  principal  amount.  Any  Definitive  Note  issued  in        exchange for a beneficial interest pursuant to this Section 2.6(c)(3) will be registered in        such name or names and in such authorized denomination or denominations as the holder        of such beneficial interest requests through instructions to the Registrar from or through        the Depositary and the Participant or Indirect Participant. The Trustee will deliver such        Definitive Notes to the Persons in whose names the Notes are so registered. Any Definitive        Note issued in exchange for a beneficial interest pursuant to this Section 2.6(c)(3) will not        bear the Private Placement Legend.         (d)   Transfer and Exchange of Definitive Notes for Beneficial Interests.               (1)   Restricted  Definitive  Notes  to  Beneficial  Interests  in  Restricted  Global        Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a        beneficial interest  in  a  Restricted Global  Note  or to  transfer such Restricted Definitive        Notes  to  a  Person  who  takes  delivery  thereof  in  the  form  of  a  beneficial  interest  in  a        Restricted Global Note, then, upon receipt by the Registrar of the following documentation:                     (A)   if  the  Holder  of  such  Restricted  Definitive  Note  proposes  to              exchange  such  Note  for  a  beneficial  interest  in  a  Restricted  Global  Note,  a              certificate  from  such  Holder  in  the  form  of  Exhibit C hereto,  including  the              certifications in item (2)(b) thereof;                     (B)   if such Restricted Definitive Note is being transferred to a QIB in              accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,              including the certifications in item (1) thereof;                                          41   





 






                     (C)   if such Restricted Definitive Note is being transferred to a Non-U.S.              Person  in  an  offshore  transaction  in  accordance  with  Rule  903  or  Rule  904,  a              certificate to the effect set forth in Exhibit B hereto, including the certifications in              item (2) thereof;                     (D)   if such Restricted Definitive Note is being transferred pursuant to an              exemption from the registration requirements of the Securities Act in accordance              with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the              certifications in item (3)(a) thereof;                     (E)   if  such  Restricted  Definitive  Note  is  being  transferred  to  an              Institutional Accredited Investor in reliance on an exemption from the registration              requirements  of the Securities  Act other  than  those  listed  in  subparagraphs  (B)              through (D) above, a certificate to the effect set forth in Exhibit B hereto, including              the certifications, certificates and Opinion of Counsel required by item (3) thereof,              if applicable; or                     (F)   if  such  Restricted  Definitive  Note  is  being  transferred  to  the              Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B              hereto, including the certifications in item (3)(b) thereof;                           the Trustee will cancel the Restricted Definitive Note, increase or              cause to be increased the aggregate principal amount of, in the case of clause (A)              above,  the  appropriate  Restricted  Global  Note,  in  the  case  of  subparagraph  (B)              above, the 144A Global Note, and in the case of clause (C) above, the Regulation              S Global Note.                     (2)   Restricted Definitive Notes to Beneficial Interests in Unrestricted              Global Notes. A Holder of a Restricted Definitive Note may exchange such Note              for a beneficial interest in an Unrestricted Global Note or transfer such Restricted              Definitive Note to a Person who takes delivery thereof in the form of a beneficial              interest in an Unrestricted Global Note only if the Registrar receives the following:                           (A)   if the Holder of such Definitive Notes proposes to exchange                    the  Notes  for  a  beneficial  interest  in  the  Unrestricted  Global  Note,  a                    certificate from such Holder in the form of Exhibit C hereto, including the                    certifications in item (1)(c) thereof; or                           (B)   if the Holder of such Definitive Notes proposes to transfer                    the  Notes  to  a  Person  who  shall  take  delivery  thereof  in  the  form  of  a                    beneficial interest in the Unrestricted Global Note, a certificate from such                    Holder in the form of Exhibit B hereto, including the certifications in item                    (4) thereof;               and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so  requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably  acceptable to the Company and the Registrar to the effect that such exchange or transfer is in  compliance with the Securities Act and that the restrictions on transfer contained herein and in the                                         42   





 






   Private  Placement  Legend  are  no  longer  required  in  order  to  maintain  compliance  with the  Securities Act. Upon satisfaction of the conditions of any of the subparagraphs in this Section  2.6(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the  aggregate principal amount of the Unrestricted Global Note.               (3)   Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global        Notes. A  Holder  of  an  Unrestricted  Definitive  Note  may  exchange  such  Note  for  a        beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a        Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted        Global Note at any time. Upon receipt of a request for such an exchange or transfer, the        Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be        increased the aggregate principal amount of one of the Unrestricted Global Notes.               If any such exchange or transfer from a Definitive Note to a beneficial interest is  effected pursuant to subparagraph (2)(B) or (3) above at a time when an Unrestricted Global Note  has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in  accordance with Section 2.2 hereof, the Trustee will authenticate one or more Unrestricted Global  Notes  in  an  aggregate  principal  amount  equal  to  the  principal  amount  of  Definitive  Notes  so  transferred.         (e)   Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a  Holder of  Definitive  Notes  and such  Holder’s  compliance  with  the  provisions  of  this  Section  2.6(e),  the  Registrar  will  register  the  transfer  or  exchange  of  Definitive  Notes.  Prior  to  such  registration  of  transfer  or  exchange,  the  requesting  Holder  must  present  or  surrender  to  the  Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer  in  form  satisfactory  to  the  Registrar  duly  executed  by  such  Holder  or  by  its  attorney,  duly  authorized in writing. In addition, the requesting Holder must provide any additional certifications,  documents and information, as applicable, required pursuant to the following provisions of this  Section 2.6(e).               (1)   Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted        Definitive Note may be  transferred to  and registered in  the name of Persons  who take        delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the        following:                     (A)   if  the  transfer  will  be  made  pursuant  to  Rule  144A,  then  the              transferor must deliver a certificate in the form of Exhibit B hereto, including the              certifications in item (1) thereof;                     (B)   if the transfer will be made pursuant to Rule 903 or Rule 904, then              the transferor must deliver a certificate in the form of Exhibit B hereto, including              the certifications in item (2) thereof; and                     (C)   if the transfer will be made pursuant to any other exemption from              the registration requirements of the Securities Act, then the transferor must deliver              a certificate in the form of Exhibit B hereto, including the certifications, certificates              and Opinion of Counsel required by item (3) thereof, if applicable.                                         43   





 






               (2)   Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted        Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive        Note or transferred to a Person or Persons who take delivery thereof in the form of an        Unrestricted Definitive Note if the Registrar receives the following:                     (A)   if  the  Holder  of  such  Restricted  Definitive  Notes  proposes  to              exchange the Notes  for  an Unrestricted Definitive Note, a certificate from  such              Holder in the form of Exhibit C hereto, including the certifications in item (1)(d)              thereof; or                     (B)   if the Holder of such Restricted Definitive Notes proposes to transfer              the Notes to a Person who shall take delivery thereof in the form of an Unrestricted              Definitive Note, a certificate from such Holder in the form of Exhibit B hereto,              including the certifications in item (4) thereof;               and, in each such case set forth in subparagraphs (A) and (B), if the Registrar so  requests, an Opinion of Counsel in form reasonably acceptable to the Company and the Registrar  to the effect that such exchange or transfer is in compliance with the Securities Act and that the  restrictions  on  transfer  contained  herein  and  in  the  Private  Placement  Legend  are  no  longer  required in order to maintain compliance with the Securities Act.               (3)   Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of        Unrestricted Definitive Notes may transfer the Notes to a Person who takes delivery thereof        in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a        transfer,  the  Registrar  shall  register  the  Unrestricted  Definitive  Notes  pursuant  to  the        instructions from the Holder thereof.         (f)   Legends. The following legends will appear on the face of all Global Notes and  Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable  provisions of this Indenture.                     (1)   Private Placement Legend.                           (A)   Except as permitted by subparagraph (B) below and except                    with  respect  to  a Regulation S Global  Note, each Global  Note and each                    Definitive Note (and all Notes issued in exchange therefor or substitution                    thereof) shall bear the legend in substantially the following form:               “THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER  THE  SECURITIES  ACT  OF  1933,  AS  AMENDED  (THE  “SECURITIES  ACT”),  OR  THE  SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE  NOR  ANY  INTEREST  OR  PARTICIPATION  HEREIN  MAY  BE  OFFERED,  SOLD,  ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF  IN  THE  ABSENCE  OF  SUCH  REGISTRATION  OR  UNLESS  SUCH  TRANSACTION  IS  EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS  NOTE,  BY  ITS  ACCEPTANCE  HEREOF,  AGREES  ON  ITS  OWN  BEHALF  AND  ON  BEHALF  OF  ANY  INVESTOR  ACCOUNT  FOR  WHICH  IT  HAS  PURCHASED  SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR                                         44   





 






   TO  THE  DATE  (THE  “RESALE  RESTRICTION  TERMINATION  DATE”)  THAT  IS  ONE  YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST  DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER  OF  THIS NOTE (OR  ANY  PREDECESSOR  OF  SUCH  SECURITY),  ONLY  (A)  TO  THE  ISSUER  OR  ANY  SUBSIDIARY  THEREOF,  (B)  PURSUANT  TO  A  REGISTRATION  STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,  (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO  RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES  IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE  SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT  OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE  TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS  AND SALES OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS IN COMPLIANCE  WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND  IN  ACCORDANCE  WITH  THE  LAWS  APPLICABLE  TO  SUCH  PURCHASER  IN  THE  JURISDICTION  IN  WHICH  SUCH  PURCHASE  IS  MADE  OR  (E)  PURSUANT  TO  ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF  THE  SECURITIES  ACT,  SUBJECT  TO  THE  ISSUER’S  AND  THE  TRUSTEE’S  RIGHT  PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR  (E)  TO  REQUIRE  THE  DELIVERY  OF  AN  OPINION  OF  COUNSEL,  CERTIFICATION  AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND  WILL  BE  REMOVED  UPON  THE  REQUEST  OF  THE  HOLDER  AFTER  THE  RESALE  RESTRICTION TERMINATION DATE.               EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST  HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO  HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG  AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING  ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN  WILL  NOT  BE  ACTING  ON  BEHALF  OF),  (A)  AN  “EMPLOYEE  BENEFIT  PLAN”  AS  DEFINED  IN  AND  SUBJECT  TO  TITLE  I  OF  THE  U.S.  EMPLOYEE  RETIREMENT  INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (B) A “PLAN” AS DEFINED  IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986,  AS  AMENDED  (THE  “CODE”),  (C)  A  PERSON  INVESTING  “PLAN  ASSETS”  (WITHIN  THE  MEANING  OF  ERISA),  (D)  ANY  ENTITY  WHOSE  UNDERLYING  ASSETS  ARE  DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE “PLAN ASSETS” BY  REASON OF  SUCH EMPLOYEE BENEFIT PLAN’S OR  PLAN’S  INVESTMENT  IN THE  ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS  OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF  ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY  INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER  AN  APPLICABLE  EXEMPTION  OR  EXCEPTION  FROM  THE  PROHIBITIONS  UNDER  SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH  A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR  LAWS OR RULES).”                                          45   





 






                           (B)   Notwithstanding  the  foregoing,  any  Global  Note  or                    Definitive  Note  issued  pursuant  to  subparagraph  (b)(4),  (c)(2),  (c)(3),                    (d)(2), (d)(3), (e)(2) or (e)(3) of this Section 2.6 (and all Notes issued in                    exchange  therefor  or  substitution  thereof)  will  not  bear  the  Private                    Placement Legend.                     (2)   Global  Note  Legend.  Each  Global  Note  will  bear  a  legend  in              substantially the following form:               “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN  THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE  BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO  ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY  MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION  2.6 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE  BUT  NOT  IN  PART  PURSUANT  TO  SECTION  2.6(a)  OF  THE  INDENTURE,  (3)  THIS  GLOBAL  NOTE  MAY  BE  DELIVERED  TO  THE  TRUSTEE  FOR  CANCELLATION  PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY  BE  TRANSFERRED  TO  A  SUCCESSOR  DEPOSITARY  WITH  THE  PRIOR  WRITTEN  CONSENT OF THE COMPANY.               UNLESS  AND  UNTIL  IT  IS  EXCHANGED  IN  WHOLE  OR  IN  PART  FOR  NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS  A  WHOLE  BY  THE  DEPOSITARY  TO  A  NOMINEE  OF  THE  DEPOSITARY  OR  BY  A  NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF  THE  DEPOSITARY  OR  BY  THE  DEPOSITARY  OR  ANY  SUCH  NOMINEE  TO  A  SUCCESSOR  DEPOSITARY  OR  A  NOMINEE  OF  SUCH  SUCCESSOR  DEPOSITARY.  UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE  OF  THE  DEPOSITORY  TRUST  COMPANY  (55  WATER    STREET,  NEW  YORK,  NEW  YORK)  (“DTC”),  TO  THE  COMPANY  OR  ITS  AGENT  FOR  REGISTRATION  OF  TRANSFER,  EXCHANGE  OR  PAYMENT,  AND  ANY  CERTIFICATE  ISSUED  IS  REGISTERED  IN  THE  NAME  OF  CEDE  &  CO.  OR  SUCH  OTHER NAME  AS  MAY  BE  REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT  IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN  AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE  HEREOF  FOR  VALUE  OR  OTHERWISE  BY  OR  TO  ANY  PERSON  IS  WRONGFUL  INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST  HEREIN.”                     (3)   Regulation S Global Note Legend. Each Regulation S Global Note              will bear a legend in substantially the following form:               “THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER  THE  SECURITIES  ACT OF  1933,  AS  AMENDED  (THE  “SECURITIES  ACT”),  OR  THE  SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE  NOR  ANY  INTEREST  OR  PARTICIPATION  HEREIN  MAY  BE  OFFERED,  SOLD,  ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF                                         46   





 






   IN  THE  ABSENCE  OF  SUCH  REGISTRATION  OR  UNLESS  SUCH  TRANSACTION  IS  EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS  NOTE,  BY  ITS  ACCEPTANCE  HEREOF,  AGREES  ON  ITS  OWN  BEHALF  AND  ON  BEHALF  OF  ANY  INVESTOR  ACCOUNT  FOR  WHICH  IT  HAS  PURCHASED  SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR  TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS 40 DAYS  AFTER  THE  LATER  OF  THE  ORIGINAL  ISSUE  DATE  HEREOF  AND  THE  DATE  ON  WHICH  THIS  NOTE   (OR  ANY  PREDECESSOR  OF  SUCH  SECURITY)    WAS  FIRST  OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF  REGULATION S) IN RELIANCE ON REGULATION S, ONLY (A) TO THE ISSUER OR ANY  SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS  BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS  THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE  SECURITIES  ACT,  TO  A  PERSON  IT  REASONABLY  BELIEVES  IS  A  “QUALIFIED  INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT  THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED  INSTITUTIONAL  BUYER  TO  WHOM  NOTICE  IS  GIVEN  THAT  THE  TRANSFER  IS  BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES  OUTSIDE THE UNITED STATES TO NON-U.S. PERSONS IN COMPLIANCE WITH RULE  903  OR  RULE  904  OF  REGULATION  S  UNDER  THE  SECURITIES  ACT  AND  IN  ACCORDANCE  WITH  THE  LAWS  APPLICABLE  TO  SUCH  PURCHASER  IN  THE  JURISDICTION  IN  WHICH  SUCH  PURCHASE  IS  MADE  OR  (E)  PURSUANT  TO  ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF  THE  SECURITIES  ACT,  SUBJECT  TO  THE  ISSUER’S  AND  THE  TRUSTEE’S  RIGHT  PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR  (E)  TO  REQUIRE  THE  DELIVERY  OF  AN  OPINION  OF  COUNSEL,  CERTIFICATION  AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND  WILL  BE  REMOVED  UPON  THE  REQUEST  OF  THE  HOLDER  AFTER  THE  RESALE  RESTRICTION TERMINATION DATE.               BY  ITS  ACQUISITION  HEREOF,  THE  HOLDER  HEREOF  REPRESENTS  THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A  U.S. PERSON, AND IS ACQUIRING THIS   NOTE  IN AN OFFSHORE TRANSACTION IN  ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.               EACH PURCHASER OR TRANSFEREE OF THIS NOTE (OR ANY INTEREST  HEREIN) WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS NOTE TO  HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT (AND FOR SO LONG  AS IT HOLDS A NOTE OR INTEREST THEREIN WILL NOT BE), AND IS NOT ACTING  ON BEHALF OF (AND FOR SO LONG AS IT HOLDS ANY NOTE OR INTEREST THEREIN  WILL  NOT  BE  ACTING  ON  BEHALF  OF),  (A)  AN  “EMPLOYEE  BENEFIT  PLAN”  AS  DEFINED  IN  AND  SUBJECT  TO  TITLE  I  OF  THE  U.S.  EMPLOYEE  RETIREMENT  INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), (B) A “PLAN” AS DEFINED  IN AND SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986,  AS  AMENDED  (THE  “CODE”),  (C) A  PERSON  INVESTING  “PLAN  ASSETS”  (WITHIN  THE  MEANING  OF  ERISA),  (D)  ANY  ENTITY  WHOSE  UNDERLYING  ASSETS  ARE  DEEMED FOR PURPOSES OF ERISA OR THE CODE TO INCLUDE “PLAN ASSETS” BY                                         47   





 






   REASON OF  SUCH EMPLOYEE BENEFIT PLAN’S OR  PLAN’S  INVESTMENT  IN THE  ENTITY OR (E) A GOVERNMENTAL PLAN OR CHURCH PLAN SUBJECT TO ANY LAWS  OR RULES THAT ARE SIMILAR TO THE PROHIBITED TRANSACTION PROVISIONS OF  ERISA OR THE CODE, OR (II) ITS PURCHASE AND HOLDING OF SUCH NOTE (OR ANY  INTEREST THEREIN) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER  AN  APPLICABLE  EXEMPTION  OR  EXCEPTION  FROM  THE  PROHIBITIONS  UNDER  SECTION 406 OF ERISA AND SECTION 4975 OF THE CODE (OR, IN THE CASE OF SUCH  A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SUCH SIMILAR  LAWS OR RULES).”         (g)   Cancellation and/or Adjustment  of  Global  Notes. At such time as  all beneficial  interests in a particular Global Note have been exchanged for Definitive Notes or a particular  Global  Note has  been redeemed, repurchased or canceled in  whole and not  in  part, each such  Global Note will be returned to or retained and canceled by the Trustee in accordance with Section  2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is  exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial  interest in another Global Note or for Definitive Notes, the principal amount of Notes represented  by such Global Note will be reduced accordingly and an endorsement will be made on such Global  Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction;  and  if  the  beneficial  interest  is  being  exchanged  for  or  transferred  to  a  Person  who  will  take  delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note  will be increased accordingly and an endorsement will be made on such Global Note by the Trustee  or by the Depositary at the direction of the Trustee to reflect such increase.         (h)   General Provisions Relating to Transfers and Exchanges.               (1)   To  permit  registrations  of  transfers  and  exchanges,  the  Company  will        execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt        of an Authentication Order in  accordance with  Section 2.2 hereof or  at the Registrar’s        request.               (2)   No service charge will be made to a Holder of a beneficial interest in  a        Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange,        but the Company may require payment of a sum sufficient to cover any transfer tax or        similar governmental charge payable in connection therewith (other than any such transfer        taxes  or  similar  governmental  charge  payable  upon  exchange  or  transfer  pursuant  to        Sections 2.10, 3.6, 3.7, 4.13, and 9.5 hereof).               (3)   The Registrar will not be required to register the transfer of or exchange of        any Note selected for redemption in whole or in part, except the unredeemed portion of        any Note being redeemed in part.               (4)   All  Global  Notes  and  Definitive  Notes  issued  upon  any  registration  of        transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of        the  Company,  evidencing  the  same  debt,  and  entitled  to  the  same  benefits  under  this        Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of        transfer or exchange.                                         48   





 






               (5)   Neither the Registrar nor the Company will be required:                     (A)   to issue, to register the transfer of or to exchange any Notes during              a  period  beginning  at  the  opening  of  business  15  days  before  the  day  of  any              selection of Notes for redemption under Section 3.2 hereof and ending at the close              of business on the day of selection;                     (B)   to  register  the  transfer  of  or  to  exchange  any  Note  selected  for              redemption in whole or in part, except the unredeemed portion of any Note being              redeemed in part; or                     (C)   to register the transfer of or to exchange a Note between a record              date and the next succeeding Interest Payment Date.               (6)   Prior to due presentment for the registration of a transfer of any Note, the        Trustee, any Agent and the Company may deem and treat the Person in whose name any        Note is registered as the absolute owner of such Note for the purpose of receiving payment        of principal of, premium, if any, and interest on, the Notes and for all other purposes, and        none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.               (7)   The  Trustee  will  authenticate  Global  Notes  and  Definitive  Notes  in        accordance with the provisions of Section 2.2 hereof.               (8)   All  certifications,  certificates  and  Opinions  of  Counsel  required  to  be        submitted  to  the  Company  and  the  Registrar  pursuant  to  this  Section  2.6  to  effect  a        registration of transfer or exchange may be submitted by facsimile.               Notwithstanding  anything  to  the  contrary  herein,  neither  the  Trustee  nor  the  Registrar shall be responsible for ascertaining whether any transfer complies with the registration  provisions of or exemptions from the Securities Act or applicable state securities laws.         Section 2.7. Replacement Notes.                 If any mutilated Note is surrendered to the Trustee or the Company and the Trustee  receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company will  issue and the Trustee, upon receipt of an Authentication Order, will authenticate a replacement  Note  if  the  Trustee’s  requirements  are  met.  If  required  by  the  Trustee  or  the  Company,  an  indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee  and the Company to protect the Company, the Trustee, any Agent and any authenticating agent  from any loss that any of them may suffer if a Note is replaced. The Company may charge for its  expenses in replacing a Note.               Every replacement Note is an additional obligation of the Company and will be  entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly  issued hereunder.         Section 2.8. Outstanding Notes.                                          49   





 






               The Notes outstanding at any time are all the Notes authenticated by the Trustee  except for those canceled by it, those delivered to it for cancellation, those reductions in the interest  in  a  Global  Note  effected  by  the  Trustee  in  accordance  with the  provisions  hereof,  and  those  described in this Section 2.8 as not outstanding. Except as set forth in Section 2.9 hereof, a Note  does not cease to be outstanding because the Company or an Affiliate of the Company holds the  Note.               If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be outstanding  unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected  purchaser.               If the principal amount of any Note is considered paid under Section 4.1 hereof, it  ceases to be outstanding and interest on it ceases to accrue.               If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any  thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on  that date, then on and after that date the Notes will be deemed to be no longer outstanding and will  cease to accrue interest.         Section 2.9. Treasury Notes.                In determining whether the Holders of the required principal amount of Notes have  concurred in any direction, waiver or consent, Notes owned by the Company or any Guarantor, or  by any Person directly or indirectly controlling or controlled by or under direct or indirect common  control with the Company or any Guarantor, will be considered as though not outstanding, except  that for the purposes of determining whether the Trustee will be protected in relying on any such  direction,  waiver  or  consent,  only  Notes  that  the  Trustee  knows  are  so  owned  will  be  so  disregarded.         Section 2.10. Temporary Notes.                 Until  certificates representing  Notes  are  ready  for  delivery,  the  Company  may  prepare and the Trustee, upon receipt of an Authentication Order, will authenticate temporary  Notes.  Temporary  Notes  will  be  substantially  in  the  form  of  certificated  Notes  but  may  have  variations that the Company considers appropriate for temporary Notes and as may be reasonably  acceptable to the Trustee. Without unreasonable delay, the Company will prepare and the Trustee  will authenticate definitive Notes in exchange for temporary Notes.               Holders of temporary Notes will be entitled to all of the benefits of this Indenture.         Section 2.11. Cancellation.           The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar  and Paying Agent will forward to the Trustee any Notes surrendered to them for registration of  transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for  registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled  Notes  (subject  to  the  record  retention  requirements  of  the  Exchange  Act  and  the  customary  procedures of the Trustee). Certification of the cancellation of all canceled Notes will be delivered                                         50   





 






   to the Company. The Company may not issue new Notes to replace Notes that it has paid or that  have been delivered to the Trustee for cancellation.         Section 2.12. Defaulted Interest.                 If  the  Company  defaults  in  a  payment  of  interest  on  the  Notes,  it  will  pay  the  defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted  interest, to the Persons who are Holders on a subsequent special record date, in each case at the  rate provided in the Notes and in Section 4.1 hereof. The Company will notify the Trustee in  writing of the amount of defaulted interest proposed to be paid on each Note and the date of the  proposed payment. The Company will fix or cause to be fixed each such special record date and  payment date; provided that no such special record date may be less than 10 days prior to the  related payment date for such defaulted interest. At least 15 days before the special record date,  the Company (or, upon the written request of the Company, the Trustee in the name and at the  expense of the Company) will mail or cause to be mailed to Holders a notice that states the special  record date, the related payment date and the amount of such interest to be paid.         Section 2.13. Further Issuances.                 The  Company  may,  from  time  to  time,  without  notice  to  or  the  consent  of  the  Holders, increase the principal amount of the Notes under this Indenture and issue such increased  principal amount (or any portion thereof), in which case any Additional Notes so issued shall have  the same form and terms (other than the date of issuance and, under certain circumstances, the date  from which interest thereon shall begin to accrue), and shall carry the same right to receive accrued  and unpaid interest, as the Notes previously issued, and such Additional Notes shall form a single  series with the Notes. Any Additional Notes that are not fungible with the Notes for U.S. Federal  income tax purposes must be issued under a separate CUSIP number.         Section 2.14. No Reissuance of Notes.                 The  Company  may  not  reissue  a  Note  that  has  matured,  been  redeemed,  been  purchased by the Company at the Holder’s option upon a Change of Control or otherwise been  canceled, except for registration of transfer, exchange or replacement of such Note.                                                   ARTICLE III.                                  REDEMPTION          Section 3.1. Notice to Trustee.                 If  the  Company  elects  to  redeem  Notes  pursuant  to  the  optional  redemption  provisions of Section 3.7 hereof, it must furnish to the Trustee, at least 30 days but not more than  60 days before a redemption date, an Officer’s Certificate setting forth:               (a)   the clause of this Indenture pursuant to which the redemption shall occur;               (b)   the redemption date;                                         51   





 






               (c)   the principal amount of Notes to be redeemed; and               (d)   the redemption price.               If the redemption price is not known at the time such notice is to be given, the actual  redemption price, calculated as described in the terms of the Notes to be redeemed, shall be set  forth in an Officer’s Certificate of the Company delivered to the Trustee no later than two Business  Days prior to the redemption date.         Section 3.2. Selection of Notes to Be Redeemed or Purchased.                 If less than all the Notes are to be redeemed, the Trustee shall select the Notes to  be redeemed subject to DTC’s Applicable Procedures for Global Notes in any manner that the  Trustee deems fair and appropriate, including by lot, pro rata or other method. The Trustee shall  make the selection at least 30 days but no more than 60 days before the redemption date from  Notes outstanding not previously called for redemption. The Trustee will select the Notes to be  redeemed in principal amounts of $2,000 or integral multiples of $1,000 in excess thereof. If less  than all outstanding Notes are to be redeemed, any selection of Notes to be redeemed shall be  subject to the Applicable Procedures in the case of any Global Note. The Trustee will make the  selection at least 30 days but no more than 60 days before the redemption date from outstanding  Notes not previously called for redemption. Provisions of this Indenture that apply to Notes called  for redemption also apply to portions of Notes called for redemption.         Section 3.3. Notice of Redemption.                 At least 30 days but not more than 60 days before a redemption date, the Company  shall  mail  a  notice  of  redemption  by  first-class  mail  to  each  Holder  whose  Notes  are  to  be  redeemed, except that redemption notices may be mailed more than 60 days prior to a redemption  date if the notice is  issued in  connection with  a  defeasance of the Notes or a satisfaction and  discharge of this Indenture pursuant to Article VIII hereof.         The notice shall identify the Notes to be redeemed and shall state:         (a)   the redemption date;         (b)   the redemption price;         (c)   the name and address of the Paying Agent;         (d)   if any Notes are being redeemed in part, the portion of the principal amount of the  Notes to be redeemed and that, after the redemption date and upon surrender of the Notes, new  Notes in principal amount equal to the unredeemed portion of the original Notes shall be issued in  the name of the Holder thereof upon cancellation of the original Notes;         (e)   that Notes called for redemption must be surrendered to the Paying Agent to collect  the redemption price;                                          52   





 






         (f)   that interest on the Notes called for redemption ceases to accrue on and after the  redemption date unless the Company defaults in the deposit of the redemption price;         (g)   the CUSIP number, if any; and         (h)   any other information as may be required by the terms of the Notes being redeemed.         At  the  Company’s  request,  the  Trustee  shall  give  the  notice  of  redemption  in  the  Company’s name and at its expense; provided, however, that the Company has delivered to the  Trustee, at least 30 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice  date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the  information to be stated in such notice.         Any  such  redemption  may,  at  the  Company’s  discretion,  be  subject  to  one  or  more  conditions precedent, including the consummation of a Change of Control. In addition, if such  redemption or notice is subject to satisfaction of one or more conditions precedent, such notice  shall state that, in the Company’s discretion, the redemption date may be delayed until such time  as any or all such conditions shall be satisfied or waived, or such redemption may not occur and  such notice may be rescinded in the event that any or all such conditions shall not have been  satisfied or waived by the redemption date, or by the redemption date so delayed.         Section 3.4. Effect of Notice of Redemption.           Once  notice  of  redemption  is  mailed  as  provided  in  Section  3.3,  Notes  called  for  redemption become due and payable on the redemption date and at the redemption price. Upon  surrender to the Paying Agent, the Notes shall be paid at the redemption price plus accrued interest,  including Special Interest, if any, to the redemption date. If the redemption notice is given and  funds deposited as  required by Section 3.5, then interest  will cease to  accrue on and after the  redemption date on the Notes or portions of such Notes called for redemption.         Section 3.5. Deposit of Redemption or Purchase Price.           On or before 11:00 a.m., New York City time, on the redemption date, the Company shall  deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,  including Special Interest if any, on all Notes to be redeemed on that date. In the event that any  redemption date is not a Business Day, the Company will pay the redemption price on the next  Business Day without any interest or other payment due to the delay.         Section 3.6. Notes Redeemed or Purchased in Part.           Upon surrender of Notes that are redeemed in part, the Trustee shall authenticate for the  Holder a new Note of the same maturity equal in principal amount to the unredeemed portion of  the Note surrendered.         Section 3.7. Optional Redemption.         (a)   On and after August 5, 2023 (the “Par Call Date”), the Company, at its option, may  redeem the Notes, in whole or in part at any time and from time to time, at a redemption price                                         53   





 






   equal to 100% of the principal amount of the Notes to be redeemed, plus any accrued and unpaid  interest thereon to, but excluding, the redemption date.         (b)   Prior to the Par Call Date, the Company may redeem the Notes, in whole or in part  at any time and from time to time, at a redemption price equal to 100% of the principal amount of  the Notes to be redeemed plus the Applicable Premium, plus any accrued and unpaid interest on  the principal amount being redeemed to, but excluding, the redemption date.  The Company will  notify the Trustee of the calculation of the redemption price and the Trustee will not be responsible  for such calculation.         (c)   Any  redemption  pursuant  to  this  Section  3.7  shall  be  made  pursuant  to  the  provisions of Sections 3.1 through 3.6 hereof.         Section 3.8. Mandatory Redemption.         The  Company  is  not  required  to  make  mandatory  redemption,  sinking  fund  or  other  scheduled payments of principal with respect to the Notes.                                                       ARTICLE IV.                                  COVENANTS         Section 4.1. Payment of Principal and Interest.         The Company covenants and agrees for the benefit of the Holders that it will duly and  punctually pay the principal of and interest, if any, on the on the Notes in accordance with the  terms  of the Notes and this  Indenture.  On or before 11:00  a.m.,  New York City time, on the  applicable payment date, the Company shall deposit with the Paying Agent money sufficient to  pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes  and this Indenture. All references to “interest” in this Indenture shall be deemed to include Special  Interest, if any, that is then due.         Section 4.2. SEC Reports.         Whether or not required by the SEC’s  rules  and regulations, so  long as any Notes are  outstanding,  the  Company  will  furnish  to  the  Trustee,  within 15 days  after  the  time  periods  (including any extensions thereof) specified in the SEC’s rules and regulations:               (1)   all quarterly and annual reports that would be required to be filed with the        SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and               (2)   all  current  reports  that  would  be  required  to  be  filed  with  the  SEC  on        Form 8-K if the Company were required to file such reports.         Reports, information and documents filed by the Company with the SEC via the EDGAR  system will be deemed to have been furnished to the Trustee as of the time such documents are                                         54   





 






   filed via EDGAR. The Trustee shall have no obligation whatsoever to determine whether or not  such information, documents or reports have been filed pursuant to the EDGAR filing system (or  its successor) have occurred.         In addition, for so long as any Notes remain outstanding, at any time the Company is not  required to file the reports required by the preceding paragraphs with the SEC, the Company will  furnish to the Holders and to prospective investors, upon their written request, the information  required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.         Delivery of any reports, information and documents to the Trustee will be for informational  purposes only, and the Trustee’s receipt thereof shall not constitute constructive notice of any  information contained therein or determinable from information contained therein, including the  Company’s  compliance  with  any  of  its  covenants  under  this  Indenture  or  documents  related  thereto.         Section 4.3. Compliance Certificate; Special Interest.         (a)   The Company shall deliver to the Trustee, within the time periods specified under  the Credit Agreement, an Officer’s Certificate demonstrating in reasonable detail compliance with  the covenant under Section 6.08 of the Credit Agreement as of the end of the preceding fiscal  quarter.          (b)   If (1) the Company fails to deliver the Officer’s  Certificate required by Section  4.3(a) within  the  time  period  prescribed  by Section  4.3(a) or  (2)  such  Officer’s  Certificate  demonstrates that the Consolidated Total Leverage Ratio is more than the ratio permitted under  the Credit Agreement at the time or the Liquidity is less than the minimum amount required under  the Credit Agreement at the time, then the Company will pay additional interest on all outstanding  Notes (“Special Interest”) in an amount equal to 2.0% per annum of the principal amount of such  Notes, commencing on the earlier of (x) the date on which the Company was required to deliver  such Officer’s Certificate in accordance with this Section 4.3 and (y) the date the Company delivers  an Officer’s Certificate demonstrating such Consolidated Total Leverage Ratio or such Liquidity  was not in compliance with the Credit Agreement, and continuing until the Company delivers to  the  Trustee  an  Officer’s  Certificate  demonstrating  in  reasonable  detail  compliance  with  the  Consolidated Total Leverage Ratio or the Liquidity required by the Credit Agreement. Special  Interest payable pursuant to the provisions of this Section 4.3 will be calculated and paid in the  same manner as regular interest is calculated and paid under this Indenture.         Section 4.4. Stay, Extension and Usury Laws.         The Company covenants (to the extent that it may lawfully do so) that it will not at any  time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any  stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may  affect the covenants or the performance of this Indenture or the Notes; and the Company (to the  extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and  covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any  power herein granted to the Trustee, but will suffer and permit the execution of every such power  as though no such law has been enacted.                                         55   





 






         Section 4.5. Corporate Existence.         Subject  to  Article V, the Company will do or cause to  be done all things  necessary to  preserve and keep in full force and effect its corporate existence and rights (charter and statutory);  provided, however, that the Company shall not be required to preserve any such right if the Board  of Directors shall determine that the preservation thereof is no longer desirable in the conduct of  the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not  adverse in any material respect to the Holders.         Section 4.6. Restricted Payments         (a)   The Company shall not, and shall not permit any of its Restricted Subsidiaries to,  directly or indirectly:               (1)   declare or pay any dividend or make any other payment or distribution on        account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,        without limitation, any payment in connection with any merger or consolidation involving        the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the        Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such        (other than (x) dividends, distributions or payments payable in Qualifying Equity Interests        or  in  the  case  of  preferred  stock  of  the  Company,  an  increase  in  the  liquidation  value        thereof,  and  (y) dividends,  distributions  or  payments  payable  to  the  Company  or  a        Restricted Subsidiary of the Company);               (2)   purchase,  redeem  or  otherwise  acquire  or  retire  for  value  any  Equity        Interests of the Company;               (3)   make any voluntary payment on or with respect to, or purchase, redeem,        defease or otherwise acquire or retire for value (collectively, for purposes of this clause (3),        a “purchase”) any Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated        Debt (excluding any intercompany Indebtedness between or among the Company and any        of its Restricted Subsidiaries); or               (4)   make any Restricted Investment, (all such payments and other actions set        forth in these clauses (1) through (4) above being collectively referred to as “Restricted        Payments”),   unless, at the time of and after giving effect to such Restricted Payment:  (a) no Default of Event  of Default has occurred and is continuing, (b) the Company would, at the time of such Restricted  Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at  the beginning of the applicable four-quarter period, have been permitted to incur at least U.S.$1.00  of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section  4.7(a); and (c) such Restricted Payment, together with the aggregate amount of all other Restricted  Payments (other  than  Restricted  Investments)  made  by  the  Company  and  its  Restricted  Subsidiaries since February 5, 2019 and together with Restricted Investments outstanding at the  time of giving effect to such Restricted Payment (excluding, in each case, Restricted Payments  permitted by clauses (2) through (17) of Section 4.6(b)), is less than the sum, without duplication,  of:                                         56   





 






                            (A)   50% of the Consolidated Net Income of the Company for the period        (taken as one accounting period) from October 1, 2018 to the end of the Company’s        most recently ended fiscal quarter for which financial statements are available at        the time of such Restricted Payment; plus               (B)   100% of the aggregate net cash proceeds and the Fair Market Value        of non-cash consideration received by the Company, in each case, as a contribution        to its common equity capital or from the issue or sale of Qualifying Equity Interests        (other than Qualifying Equity Interests sold to a Subsidiary of the Company, and        excluding Excluded Contributions); plus               (C)   100% of the aggregate net cash proceeds and the Fair Market Value        of non-cash consideration received by the Company or a Restricted Subsidiary of        the Company from the issue or sale of convertible or exchangeable Disqualified        Stock of the Company or a Restricted Subsidiary of the Company or convertible or        exchangeable  debt  securities  of  the  Company  or  a  Restricted  Subsidiary  of  the        Company (regardless of when issued or sold) or in connection with the conversion        or exchange thereof, in each case that have been converted into or exchanged after        February  5,  2019  for  Qualifying  Equity  Interests  (other  than  Qualifying  Equity        Interests and convertible or exchangeable Disqualified Stock or debt securities sold        to a Subsidiary of the Company); plus               (D)   to  the  extent  that  any  Restricted  Investment  that  was  made  after        February 5, 2019 is (a) sold for cash or otherwise cancelled, liquidated or repaid for        cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of        the  Company,  the  initial  amount  of  such  Restricted  Investment  (or,  if  less,  the        amount of cash received upon repayment or sale); plus               (E)   to  the  extent  that  any  Unrestricted  Subsidiary  of  the  Company        designated as such on or after  February 5, 2019 is  redesignated as a Restricted        Subsidiary after February 5, 2019, the greater of (i) the Fair Market Value of the        Company’s  Restricted  Investment  in  such  Subsidiary  as  of  the  date  of  such        redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary        was originally designated as an Unrestricted Subsidiary after February 5, 2019; plus               (F)   100%  of  any  dividends  received  in  cash  by  the  Company  or  a        Restricted Subsidiary of the Company after February 5, 2019 from an Unrestricted        Subsidiary (other than any Unrestricted Subsidiary to the extent the Investment in        such Unrestricted Subsidiary constituted a Permitted Investment) of the Company,        to the extent that such dividends were not otherwise included in the Consolidated        Net Income of the Company for such period.   (b)   The provisions of Section 4.6(a) hereof shall not prohibit:         (1)   so long as no Event of Default has occurred and is continuing as of such  time,  the  declaration  and  payment  of any  regularly  scheduled  dividend  (including  any  regularly scheduled dividend that was temporarily suspended prior to or after the Closing                                   57                





 






                Date) payable to the holders of the Company’s common stock; provided that the aggregate  amount of such dividends  for any four consecutive fiscal  quarters shall  not  exceed the  lesser of (A) $75.0 million and (B) 20% of the Company’s Consolidated EBITDA for the  most recent four consecutive fiscal quarters ending prior to the date of such determination  for  which  internal  consolidated  financial  statements  of  the  Company  have  been  or  are  required to be delivered pursuant to this Indenture;          (2)   the payment of any dividend or distribution or the consummation of any  irrevocable  redemption  within 60 days  after  the  date  of  declaration of  the  dividend  or  distribution  or  giving  of  the  redemption  notice,  as  the  case  may  be,  if  at  the  date  of  declaration  or  notice,  the  dividend  or  distribution  or  redemption  payment  would  have  complied with the provisions of this Indenture;         (3)   the making of any Restricted Payment in exchange for, or out of or with the  net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the  Company) of, Qualifying Equity Interests or from the substantially concurrent contribution  of common equity capital to the Company; provided that the amount of any such net cash  proceeds that are utilized for any such Restricted Payment will not be considered to be net  proceeds of Qualifying Equity Interests for purposes of Section 4.6(a)(4)(B) and will not  be considered to be Excluded Contributions;         (4)   the payment of any dividend (or, in the case of any partnership or limited  liability  company,  any  similar  distribution),  distribution  or  payment  by  a  Restricted  Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;         (5)   the repurchase, redemption, defeasance or other acquisition or retirement  for value of Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt  with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;         (6)   the  repurchase,  redemption,  acquisition  or  retirement  for  value  of  any  Equity Interests of the Company or any Restricted Subsidiary of the Company held by any  current or former officer, director, consultant or employee (or their estates or beneficiaries  of  their  estates)  of  the  Company  or  any  of  its  Restricted  Subsidiaries  pursuant  to  any  management  equity  plan  or  equity  subscription  agreement,  stock  option  agreement,  shareholders’ agreement or other agreement to compensate such persons; provided that the  aggregate  price  paid  for  all  such  repurchased,  redeemed,  acquired  or  retired  Equity  Interests may not exceed $20.0 million in any twelve-month period; provided further that  the Company or any of its Restricted Subsidiaries may carry over and make in subsequent  twelve-month periods, in addition to the amounts permitted for such twelve-month period,  up  to  $5.0 million  of  unutilized  capacity  under  this  clause (6)  attributable  to  the  immediately preceding twelve-month period;         (7)   the repurchase of Equity Interests or other securities deemed to occur upon  (a) the exercise of stock options, warrants or other securities convertible or exchangeable  into Equity Interests or any other securities, to the extent such Equity Interests or other  securities represent a portion of the exercise price of those stock options, warrants or other  securities convertible or exchangeable into Equity Interests or any other securities or (b) the                                   58                





 






                withholding of a portion of Equity Interests issued to employees and other participants  under  an  equity  compensation  program  of  the  Company  or  its  Subsidiaries  to  cover  withholding tax obligations of such persons in respect of such issuance or upon the vesting  of such Equity Interests;         (8)   so long as no Default or Event of Default has occurred and is continuing,  the declaration and payment of regularly scheduled or accrued dividends, distributions or  payments to holders of any class or series of Disqualified Stock or Subordinated Debt of  the Company or any preferred stock of any Restricted Subsidiary of the Company in each  case  either  outstanding  on  the  Closing  Date  or  issued  on  or  after  the  Closing  Date  in  accordance with Section 4.7;         (9)   payments  of  cash,  dividends,  distributions,  advances,  common  stock  or  other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow  the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of  options or warrants, (ii) the conversion or exchange of Capital Stock of any such Person,  (iii) a distribution or split or (iv) the conversion or exchange of Indebtedness or hybrid  securities into Capital Stock of any such Person;         (10)  the declaration and payment of dividends to holders of any class or series  of Disqualified Stock of the Company or any Disqualified Stock or preferred stock of any  Restricted Subsidiary of the Company to the extent such dividends  are included in  the  definition of “Fixed Charges” for such Person;         (11)  in the event of a Change of Control, and if no Default or Event of Default  shall have occurred and be continuing, the payment, purchase, redemption, defeasance or  other acquisition or retirement of any Junior Lien Debt, Senior Unsecured Pari Passu Debt  and Subordinated Debt,  in  each case, at  a purchase price not  greater than 101% of the  principal  amount  of  such  Indebtedness,  plus  any  accrued  and  unpaid  interest  thereon;  provided, however, that prior to such payment, purchase, redemption, defeasance or other  acquisition or retirement, the Company or the Guarantors (or a third party to the extent  permitted by this Indenture) have made a Change of Control Offer with respect to the Notes  as a result of such Change of Control and has repurchased all notes validly tendered and  not withdrawn in connection with such Change of Control Offer (it being agreed that the  Company or the Guarantors may pay, purchase, redeem, defease or otherwise acquire or  retire such Indebtedness even if the purchase price exceeds 101% of the principal amount  of such Indebtedness; provided that the amount paid in excess of 101% of such principal  amount is otherwise permitted under the Restricted Payments covenant);         (12)  Restricted Payments made with Excluded Contributions;         (13)  the distribution, as a dividend or otherwise, of shares of Capital Stock of, or  Indebtedness  owed  to  the  Company  or  any  of  its  Restricted  Subsidiaries  by,  any  Unrestricted Subsidiary;                                    59                





 






               (14)  so long as no Event of Default has occurred and is continuing, Restricted        Payments in an aggregate amount not to exceed $150.0 million, such aggregate amount to        be calculated from and after the Closing Date;               (15)  any Restricted Payment if, after giving pro forma effect thereto and to the        incurrence  of  any  Indebtedness  the  net  proceeds  of  which  are  used  to  finance  such        Restricted  Payment,  the  Consolidated  Total  Leverage  Ratio  would  be  no  greater        than 2.50:1.00;                (16)  the payment of any amounts in respect of any restricted stock units or other        instruments or rights whose value is based in whole or in part on the value of any Equity        Interests issued to any directors, officers or employees of the Company or any Restricted        Subsidiary of the Company;                (17)  so long as no Event of Default has occurred and is continuing, Restricted        Payments  (A)  made  to  purchase  or  redeem  Equity  Interests  of  the  Company  or  (B)        consisting of payments in respect of any Indebtedness (whether for purchase or prepayment        thereof or otherwise); and               (18)  Restricted Investments, including any Investment by the Company or any        Restricted  Subsidiary  in  the  Sunseeker  Project,  outstanding  at  any  such  time  in  an        aggregate amount that does not exceed $200.0 million.         (c)   In the case of any Restricted Payment that is not cash, the amount of such non-cash  Restricted Payment will be the Fair Market Value on the date of the Restricted Payment of the  asset(s)  or  securities  proposed  to  be  transferred  or  issued  by  the  Company  or  such Restricted  Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.  The Fair  Market Value of any assets or securities that are required to be valued by this Section 4.6 will be  determined by an officer of the Company and, if greater than $10,000,000, set forth in an Officer’s  Certificate delivered to the Trustee.         (d)   For  purposes  of  determining  compliance  with  this  Section 4.6,  if  a  proposed  Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of  Restricted Payments set forth in clauses (1) through (18) of Section 4.6(b) hereof, or is entitled to  be made pursuant to Section 4.6(a) hereof, the Company shall be entitled to classify on the date of  its payment or later reclassify such Restricted Payment (or portion thereof) in any manner that  complies with this Section 4.6.         (e)   Notwithstanding anything in this Indenture to the contrary, if a Restricted Payment  is made (or any other action is taken or omitted under this Indenture) at a time when a Default or  Event  of  Default  has  occurred  and  is  continuing  and  such  Default  or  Event  of  Default  is  subsequently cured, any Default or Event of Default arising from the making of such Restricted  Payment (or the taking or omission of such other action) during the existence of such Default or  Event of Default shall simultaneously be deemed cured.               Section 4.7. Incurrence of Indebtedness and Issuance of Preferred Stock.                                          60   





 






         (a)   The Company shall not, and shall not permit any of its Restricted Subsidiaries to,  directly  or  indirectly,  create,  incur,  issue,  assume,  guarantee  or  otherwise  become  directly  or  indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness  (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not  permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however,  that  the  Company  may  incur  unsecured  Indebtedness  (including  Acquired  Debt)  or  issue  Disqualified Stock and the Company’s Restricted Subsidiaries may incur unsecured Indebtedness  (including  Acquired  Debt)  or  issue  preferred  stock,  if  the  Fixed  Charge  Coverage  Ratio  immediately preceding the date on which such additional unsecured Indebtedness is incurred or  such Disqualified Stock or such preferred stock is issued, as the case may be, would have been at  least 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net  proceeds  therefrom)  as  if  the  additional  unsecured  Indebtedness  had  been  incurred  or  the  Disqualified Stock or the preferred stock had been issued, as the case may be, at the beginning of  the four-quarter period used to calculate the Fixed Charge Coverage Ratio.         (b)   The provisions of Section 4.7(a) hereof shall not prohibit the incurrence of any of  the following items of Indebtedness (collectively, “Permitted Debt”):               (1)   the incurrence by the Company and the Guarantors of the Notes and note        guarantees in the aggregate principal amount to be issued on the Closing Date and any        Permitted Refinancing Indebtedness that is incurred to renew, refund, refinance, replace,        defease, extend or discharge any Indebtedness incurred pursuant to this clause (1);               (2)   the incurrence by the Company or any of its Restricted Subsidiaries of the        Existing  Indebtedness  and  any  Permitted  Refinancing  Indebtedness  that  is  incurred        pursuant to or in lieu of a commitment in existence as of the Closing Date;               (3)   the incurrence by the Company or any of its Restricted Subsidiaries of:               (A)   First Lien Debt so long as (i) no Event of Default shall have occurred and        be continuing or would result from giving effect to such First Lien Debt, (ii) the Weighted        Average Life to Maturity of any First Lien Debt shall be no shorter than the Weighted        Average Life to Maturity of the Notes and (iii) (x) at the time of such incurrence and after        giving pro forma effect thereto, the First Lien Leverage Ratio would be no greater than        1.50:1.00 or (y) if, after giving pro forma effect to such incurrence of First Lien Debt, the        First  Lien  Leverage  Ratio  would  be  greater  than  1.50:1.00,  then  the  aggregate  initial        outstanding amount of such new First Lien Debt that would cause the First Lien Leverage        Ratio to exceed 1.50:1.00 shall not exceed $300.0 million; and               (B)   Junior  Lien  Debt  that  is  expressly  contractually  subordinated  in  right  of        payment and lien priority to the prior payment in full in cash of all the Senior Secured        Obligations, so long as, at the time of such incurrence and after giving pro forma effect        thereto, the Secured Leverage Ratio would be no greater than 2.00:1.00;                (4)   the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of        Indebtedness (including Capital Lease Obligations, mortgage financings, purchase money        obligations  and  government  bond  financings)  incurred  to  finance  (or  to  reimburse  the                                         61   





 






                Company or any of its Restricted Subsidiaries for) all or any part of the purchase price or  installation or improvement of any Aircraft Asset used in the business of the Company or  any of its Restricted Subsidiaries or leased to third parties which Indebtedness is incurred  within one (1) year from the date of such purchase or installation or improvement; provided  that no junior Liens shall be permitted on any such Aircraft Asset;         (5)   the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of  Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used  to renew, refund, refinance, replace, extend, defease or discharge any Indebtedness (other  than intercompany Indebtedness) that was permitted by this Indenture to be incurred under  Section 4.7(a) or any of clauses (1) through (23) of this Section 4.7(b);         (6)   the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of  intercompany Indebtedness between or among the Company and/or any of its Restricted  Subsidiaries;         (7)   the  issuance  by  any  of the  Company’s  Restricted  Subsidiaries  to  the  Company or to any of its Restricted Subsidiaries of shares of preferred stock;         (8)   the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of  Hedging Obligations in the ordinary course of business and not for speculative purposes;         (9)   the Guarantee (including by way of co-obligation or assumption) by the  Company or any Restricted Subsidiary of the Company of Indebtedness of the Company  or  a  Restricted  Subsidiary  of  the  Company  (including  in  connection  with  or  in  contemplation  of  a  spin-off  of  the  original  obligor  of  the  guaranteed  or  assumed  Indebtedness) to the extent that the guaranteed Indebtedness was permitted to be incurred  by another provision of this Section 4.7; provided that if the Indebtedness being guaranteed  is Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt, then the  Guarantee must be Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated  Debt, as applicable, to the same extent as the Indebtedness guaranteed or assumed;         (10)  the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of  Indebtedness or reimbursement obligations in respect of workers’ compensation claims,  self-insurance  obligations  (including  reinsurance),  bankers’  acceptances,  performance  bonds and surety bonds in the ordinary course of business (including without limitation in  respect of customs obligations, landing fees, taxes, airport charges, overfly rights and any  other obligations to airport and governmental authorities);         (11)  the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of  Indebtedness  in  respect  of  any  overdrafts  and  related  liabilities  arising  from  treasury,  depository and cash management services or in connection with any automated clearing  house transfers of funds;         (12)  Indebtedness  (a) constituting credit support or financing  from  aircraft or  engine  manufacturers  or  their  affiliates  or  (b)  incurred  to  finance  or  refinance  Aircraft  Assets (including, without limitation, to reimburse the Company or any of its Restricted  Subsidiaries for the acquisition cost of any of the foregoing, to finance any pre-delivery,                                   62                





 






                progress or similar payment or pursuant to a sale and lease-back) (whether in advance of  or  at  any  time  following  any  acquisition  of  items  being  financed,  and  whether  such  indebtedness is unsecured in whole or in part or is secured by such items or by other items  or by any combination); provided that the principal amount of such Indebtedness incurred  in  reliance  on  subsection  (b)  of  this  clause  (12),  at  the  time  of  incurrence  of  such  Indebtedness,  may  exceed  the  aggregate  incurred  and  anticipated  costs  to  finance  acquisition of the item or items being financed by such Indebtedness (calculated at the time  of  incurrence  of  such  Indebtedness  and  determined  in good  faith  by  an  officer  of  the  Company  or  Restricted  Subsidiary,  as  applicable  (including  reasonable  estimates  of  anticipated  costs)  and  calculated  to  include,  without  limitation,  purchase  price,  fees,  expenses, repayment of any pre-delivery financing and related interest expense (whether  or  not  capitalized)  and  premium  (if  any),  delivery  and  late  charges  and  other  costs  associated  with  such  acquisition  (as  so  calculated,  for  purposes  of  this  proviso,  the  “financing costs”)) but, if such principal amount exceeds such financing costs, it may not  exceed the aggregate Fair Market Value of the item or items securing such Indebtedness  (which Fair Market Value may, at the time of an advance commitment, be determined to  be the Fair Market Value at the time of such commitment or (at the option of the issuer or  such Indebtedness) the  Fair Market  Value projected for the time of incurrence of such  Indebtedness)  or  (c)  constituting  letters  of  credit  in  lieu  of  security  deposits  and  maintenance reserves in connection with any Indebtedness in operating lease associated  with an Aircraft Asset; provided, further, that no junior Liens shall be permitted on any  such Aircraft Asset;         (13)  Indebtedness issued to current or former directors, consultants, managers,  officers and employees and their spouses or estates (a) to purchase or redeem Capital Stock  of the Company issued to such director, consultant, manager, officer or employee in an  aggregate principal amount not to exceed $2.5 million in any twelve-month period or (b)  pursuant to any deferred compensation plan approved by the Board of Directors of the  Company;         (14)  reimbursement obligations in respect of standby or documentary letters of  credit or banker’s acceptances;         (15)  surety  and  appeal  bonds  that  do  not  secure  judgments  that constitute  an  Event of Default;         (16)  Indebtedness of the Company or any of its Restricted Subsidiaries to Credit  Card, travel charge or clearing house processors in connection with Credit Card processing,  travel  charge  or  clearing  house  services  incurred  in  the ordinary  course  of  business,  whether in the form of hold-backs or otherwise;         (17)  the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified  Receivables Transaction that is without recourse to the Company or to any other Restricted  Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its  assets and, as to the Company or any other Restricted Subsidiary of the Company, other  than Standard Securitization Undertakings) and is not guaranteed by any such Person;                                    63                





 






               (18)  the  incurrence  of  Indebtedness  of  the  Company  or  any  of  its  Restricted        Subsidiaries owed to one or more Persons in connection with the financing of insurance        premiums in the ordinary course of business;               (19)  Indebtedness  in  respect  of  or  in  connection  with  tax-exempt or  tax-       advantaged municipal bond and similar financings related to Aircraft Related Facilities;               (20)  Credit Card purchases of fuel;               (21)  Indebtedness  arising  from  agreements  of  the  Company  or  any  of  its        Restricted  Subsidiaries  providing  for  indemnification,  adjustment  of  purchase  price  or        similar obligations, in each case, incurred or assumed in connection with the acquisition or        disposition  of  any  business,  assets  or  a  Subsidiary; provided that,  in  the  case  of  a        disposition, the maximum assumable liability in respect of all such Indebtedness shall at        no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of        such non-cash proceeds being measured at the time received and without giving effect to        any subsequent changes in value) actually received by the Company or any of its Restricted        Subsidiaries in connection with such disposition;               (22)  Indebtedness  of  the  Company  or  any  of  its  Restricted  Subsidiaries        consisting  of  take-or-pay  or  like  obligations  contained  in  supply,  maintenance,  repair,        power-by-the-hour,  overhaul  or  like  agreements  entered  into  in  the  ordinary  course  of        business; or               (23)  the  incurrence  by  the  Company  or  any  of  its  Restricted  Subsidiaries  of        additional Indebtedness in an aggregate principal amount (or accreted value, as applicable),        including  all  Permitted  Refinancing  Indebtedness  incurred  to  renew,  refund,  refinance,        replace, extend, defease  or discharge any  Indebtedness  incurred pursuant  to  this clause        (23), not to exceed $150.0 million at any time outstanding; provided that no more than        $75.0 million of such aggregate principal amount shall constitute secured Indebtedness.         (c)   None of the following shall constitute an incurrence of Indebtedness or an issuance  of preferred stock or Disqualified Stock for purposes of this Section 4.7:               (1)   the accrual of interest or preferred stock dividends,               (2)   the accretion or amortization of original issue discount,               (3)   the  payment  of  interest  on  any  Indebtedness  in  the  form  of  additional        Indebtedness with the same terms,               (4)   the reclassification of preferred stock or of operating leases or any other        instrument or transaction as Indebtedness due to a change in accounting principles or in        GAAP or due to a modification of such operating leases, and               (5)   the payment of dividends on preferred stock or Disqualified Stock in the        form of additional shares of the same class of preferred stock or Disqualified Stock.                                         64   





 






         (d)   For  purposes  of  determining  compliance  with  any  U.S. dollar-denominated  restriction  on  the  incurrence  of  Indebtedness,  the  U.S. dollar-equivalent  principal  amount  of  Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant  currency exchange rate in effect on the date such Indebtedness was incurred.  Notwithstanding any  other provision of this Section 4.7, the maximum amount of Indebtedness that the Company or any  of its Restricted Subsidiaries may incur pursuant to this Section 4.7 shall not be deemed to be  exceeded solely as a result of fluctuations in exchange rates or currency values.         (e)   The amount of any Indebtedness outstanding as of any date shall be:               (1)         the accreted value of the Indebtedness as of such date, in the case of        any Indebtedness issued with original issue discount;               (2)         the principal amount of the Indebtedness as of such date, in the case        of any other Indebtedness; and               (3)         in respect of Indebtedness of another Person secured by a Lien on        the assets of the specified Person, the lesser of:                     (A)   the Fair Market Value of such assets as of such date; and                     (B)   the amount of the Indebtedness of the other Person as of such date.         Section 4.8. Limitation on Liens         The Company and each Guarantor shall not, and the Company shall not permit any of its  Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien  upon any of its property or assets (including Capital Stock of the Company or Subsidiaries), or  income or profits therefrom, or assign or convey any right to receive income therefrom, whether  owned  on  the  Closing  Date  or  acquired  after  that  date,  that  secures  any  Indebtedness  or  any  obligations related thereto except:         (a)   in the case of any property or asset that does not constitute Collateral, Permitted  Liens,  unless  contemporaneously  with  the  incurrence  of  such  Liens, the  Notes  and the  Note  Guarantees are equally and ratably secured or are secured by a Lien on such property, assets or  proceeds that is senior in priority to such Liens; and         (b)   in the case of any property or asset that constitutes Collateral, Permitted Liens.         Section 4.9. Additional Guarantors         (a)   If the Company or any of its Restricted Subsidiaries acquires or creates another  wholly owned domestic Subsidiary after the date of this Indenture, such newly acquired or created  Subsidiary  will  become  a  Guarantor  and  execute  a  supplemental  indenture  effectuating  such  Guarantor’s note guarantee and deliver an Opinion of Counsel satisfactory to the Trustee within  30 business days of the date on which it was acquired or created; provided that any Subsidiary  (whether designated as such on or after the Closing Date) that constitutes a Receivables Subsidiary  or an Unrestricted Subsidiary need not become a Guarantor until such time as it ceases to be a                                         65   





 






   Receivables Subsidiary or an Unrestricted Subsidiary; provided, further, that any Subsidiary that  constitutes an Immaterial Subsidiary need not become a Guarantor unless and until 30 business  days after such time as it ceases to be an Immaterial Subsidiary or such time as it guarantees, or  pledges any property or assets to secure, any other Senior Secured Obligations.         (b)   Each Person that becomes a Guarantor after the Closing Date shall also become a  party to the applicable Collateral Documents and shall as promptly as practicable execute and  deliver such security instruments, financing statements, mortgages, deeds of trust (in substantially  the same form as those first executed and delivered with respect to the Collateral) and certificates  and opinions of counsel as may be necessary to vest in the Collateral Agent a perfected first priority  security interest (subject to Permitted Liens) in properties and assets that constitute Collateral as  security for such Guarantor’s note guarantee and as may be necessary to have such property or  asset  added  to  the  Collateral  as  required  under  the  Collateral  Documents  and this  Indenture.  Thereupon, all provisions of this Indenture relating to the Collateral shall be deemed to relate to  such properties and assets to the same extent and with the same force and effect.         Section 4.10. Designation of Restricted and Unrestricted Subsidiaries         (a)   The Board of Directors may designate any Restricted Subsidiary (other than the  Significant Guarantors) to be an Unrestricted Subsidiary if that designation would not cause a  Default.  If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair  Market  Value  of  all  outstanding  Investments  owned  by  the  Company  and  its  Restricted  Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an  Investment made as of the time of the designation.  That designation will be permitted only if the  Investment would be permitted at that time under Section 4.6 and if the Restricted Subsidiary  otherwise meets the definition of an “Unrestricted Subsidiary.”         (b)   Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will  be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board  of Directors giving effect  to  such designation and an Officer’s Certificate certifying that such  designation complied with the preceding conditions.  The Board of Directors may at any time  designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company; provided that  such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of  the  Company  of  any  outstanding  Indebtedness  of  such  Unrestricted  Subsidiary,  and  such  designation  will  be  permitted  only  if  (1) such  Indebtedness  is  permitted  under Section  4.7,  calculated  on  a  pro  forma  basis  as  if  such  designation  had  occurred  at  the  beginning  of  the  applicable reference period; and (2) no Default would be in existence following such designation.         (c)   As of the Closing Date, each of Sunseeker Resorts, Inc., Sunseeker Florida, Inc.,  Point Charlotte Development, LLC and Point Charlotte, LLC will be an Unrestricted Subsidiary.         Section 4.11. Transactions with Affiliates         (a)   The Company will not, and will not permit any of its Restricted Subsidiaries to,  make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets  to,  or  purchase  any  property  or  assets  from,  or  enter  into  or  make  or  amend  any  transaction,  contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any                                         66   





 






   Affiliate  of  the  Company  (each  an “Affiliate  Transaction”)  involving  aggregate  payments  or  consideration in excess of $7.5 million, unless:               (1)   the Affiliate Transaction is on terms that are not materially less favorable to        the Company or  the  relevant  Restricted  Subsidiary  (taking  into  account  all  effects  the        Company or such Restricted Subsidiary expects to result from such transaction whether        tangible  or  intangible)  than  those  that  would  have  been  obtained  in  a  comparable        transaction by the Company or such Restricted Subsidiary with an unrelated Person; and               (2)   the Company delivers to the Trustee:                     (A)  with respect to any Affiliate Transaction or series of related Affiliate              Transactions  involving  aggregate  consideration  in  excess  of  $15.0  million,  an              Officer’s Certificate certifying that such Affiliate Transaction complies with clause              (1) of this Section 4.11(a) above; and                     (B)  with respect to any Affiliate Transaction or series of related Affiliate              Transactions  involving  aggregate  consideration  in  excess  of  $30.0  million,  an              opinion as to the fairness to the Company or such Restricted Subsidiary of such              Affiliate  Transaction  from  a  financial  point  of  view  issued  by an  accounting,              appraisal or investment banking firm of national standing.         (b)   The following items will not be deemed to be Affiliate Transactions and, therefore,  will not be subject to the provisions of Section 4.11(a):                (1)   any  employment  agreement,  confidentiality  agreement,  non-competition        agreement,  incentive plan, employee stock option agreement, long-term incentive plan,        profit sharing plan, employee benefit plan, officer or director indemnification agreement        or  any  similar  arrangement  entered  into  by  the  Company  or  any  of  its  Restricted        Subsidiaries in the ordinary course of business and payments pursuant thereto;               (2)   transactions  between  or  among  the  Company  and/or  its  Restricted        Subsidiaries (including without limitation in connection with any full or partial “spin-off”        or similar transactions);               (3)   transactions  with  a  Person  (other  than  an  Unrestricted  Subsidiary  of  the        Company) that is an Affiliate of the Company solely because the Company owns, directly        or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;               (4)   payment of fees, compensation, reimbursements of expenses (pursuant to        indemnity arrangements or otherwise) and reasonable and customary indemnities provided        to or on behalf of officers, directors, employees or consultants of the Company or any of        its Restricted Subsidiaries;               (5)   any issuance of Qualifying Equity Interests to Affiliates of the Company or        any increase in the liquidation preference of preferred stock of the Company;                                          67   





 






               (6)   transactions with customers, clients, suppliers or purchasers or sellers of        goods or services in the ordinary course of business or transactions with joint ventures,        alliances, alliance members or Unrestricted Subsidiaries entered into in the ordinary course        of business;               (7)   loans or advances to employees, directors and contractors in the ordinary        course of business not to exceed $3.0 million in the aggregate at any one time outstanding;               (8)   transactions  pursuant  to  agreements  or  arrangements  in  effect  on  the        Closing  Date  or  any  amendment,  modification  or  supplement  thereto  or  replacement        thereof and any payments made or performance under any agreement as in effect on the        Closing Date or any amendment, replacement, extension or renewal thereof (so long as        such  agreement  as  so  amended,  replaced,  extended  or  renewed  is  not materially  less        advantageous, taken as a whole, to the Holders than the original agreement as in effect on        the Closing Date);               (9)   transactions between or among the Company and/or its Subsidiaries;               (10)  any purchase by the Company’s Affiliates of Indebtedness of the Company        or  any  of  its  Restricted  Subsidiaries,  the  majority  of  which  Indebtedness  is  offered  to        Persons who are not Affiliates of the Company;               (11)  transactions between the Company or any of its Restricted Subsidiaries and        any employee labor union or other employee group of the Company or such Restricted        Subsidiary provided such transactions are not otherwise prohibited by this Indenture;               (12)  transactions with captive insurance companies of the Company or any of its        Restricted Subsidiaries; and               (13)  any completion guarantee relating to the Sunseeker Project furnished by the        Company or any Restricted Subsidiary (the “Completion Guarantee”).         Section 4.12. Offer to Repurchase Notes Upon a Change of Control         (a)   If  a  Change  of  Control  occurs,  unless  the  Company  has  exercised  its  rights  to  redeem all of the Notes pursuant to Section 3.7, the Company will make an offer to purchase all  of the outstanding Notes (the “Change of Control Offer”) at a purchase price in cash equal to 101%  of the aggregate principal amount of notes repurchased, plus any accrued and unpaid interest on  the Notes repurchased to, but excluding, the date of purchase (the “Change of Control Payment”),  subject to the right of Holders of record on the applicable record date to receive any interest due  on the Change of Control Payment Date (as defined below).  Within 30 days following any Change  of Control, the Company will deliver a notice to each holder (with a copy to the Trustee) describing  the transaction or transactions that constitute the Change of Control and offering to repurchase  notes on the date specified in the notice (the “Change of Control Payment Date”), which date will  be no earlier than 30 days and no later than 60 days from the date such notice is delivered, pursuant  to the procedures required by this Indenture and described in such notice.                                            68   





 






               (b)   On the Change of Control Payment Date, the Company will, to the extent  lawful:                     (1)   accept for payment all notes or portions of notes properly tendered              pursuant to the Change of Control Offer; provided that if, following the repurchase              of a portion of a note, the remaining principal amount of such note outstanding              immediately after such repurchase would be less than $2,000, then the portion of              such note so repurchased shall be reduced so that the remaining principal amount              of such note outstanding immediately after such repurchase is $2,000;                     (2)   deposit  with  the paying  agent  an amount  equal  to the Change of              Control Payment in respect of all notes or portions of notes properly tendered; and                     (3)   deliver or cause to be delivered to the Trustee for cancellation the              Notes properly accepted together with an Officer’s Certificate stating the aggregate              principal amount of notes or portions of notes being purchased by the Company.               (c)   The paying agent will promptly deliver to each holder of notes properly  tendered the Change of  Control  Payment for such notes, and the Company will issue and the  Trustee will promptly authenticate and deliver (or cause to be transferred by book entry) to each  holder a new note equal in principal amount to any unpurchased portion of the Notes surrendered,  if any; provided that each such new note will be in a principal amount of $2,000 or an integral  multiple of $1,000 in  excess thereof.  The Company will publicly  announce the results of the  Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.               (d)   However, the Company shall not be required to make a Change of Control  Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the  manner, at the times and otherwise in compliance with the requirements set forth in this Indenture  applicable to a Change of Control Offer made by the Company and purchases all notes properly  tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption with  respect to all notes has been given pursuant to Section 3.7,” unless and until there is a default in  payment  of  the  applicable  redemption  price;  and  a  Change  of  Control  Offer  may  be  made  in  advance of a Change of Control, conditioned upon the consummation of such Change of Control,  if a definitive agreement is in place for the Change of Control at the time the Change of Control  Offer is made.               (e)   If a Change of Control occurs at a time when the Company is prohibited, by  the terms of any of its indebtedness, from purchasing the Notes, the Company may seek the consent  of its lenders to the purchase of the Notes or may attempt to refinance the borrowings that contain  such prohibition.  If the Company does not obtain such a consent or repay such borrowings, the  Company  would  remain  prohibited  from  purchasing the  Notes.   In  such  case,  the  Company’s  failure to offer to purchase the Notes would constitute a Default (as defined below) under this  Indenture.  For the avoidance of doubt, the Company’s failure to offer to purchase the Notes would  constitute a Default under clause (3) and not clause (1) under Section 6.1, but the failure of the  Company  to  pay  the  Change  of  Control  Payment  when  due  shall  constitute  a  Default  under  clause (1) under Section 6.1.                                          69   





 






         Section 4.13. Offer to Repurchase Notes Upon an Asset Sale               (a)   Subject to this Section 4.13, on the 366th day after the Company or any of  its Subsidiaries receives any Net Proceeds as a result of an Asset Sale or a Recovery Event, the  Company will be required to make an offer (an “Asset Sale Offer”) to all Holders and, to the extent  required by the terms of any other outstanding First Lien Debt, to all holders of such other First  Lien Debt, to purchase the maximum aggregate principal amount of notes and any such other First  Lien Debt (on a pro rata basis, if applicable) that may be purchased out of Excess Proceeds (as  defined below), at an offer price in cash in an amount equal to 100% of the principal amount of  the Notes and any such other First Lien Debt, plus any accrued and unpaid interest thereon to, but  excluding, the date of purchase, subject to the right of Holders of record on the applicable record  date to receive any interest due on the Asset Sale Purchase Date (as defined below), in accordance  with the procedures set forth in this Indenture or the agreements governing such other First Lien  Debt, as applicable.               (b)   The Company will not be required to make an Asset Sale Offer in respect  of:               (1)   Net Proceeds from an Asset Sale or a Recovery Event to the extent that such        Net Proceeds are (unless such Net Proceeds constitute collateral for any Permitted Debt)        deposited into an account subject to an Account Control Agreement until applied as set        forth in clause (A) or (B) below and:                     (A)   such Net Proceeds are used to prepay Permitted Debt that is secured              by a first priority lien over property from which such Net Proceeds are derived              within 365 days from the receipt of such Net Proceeds; or                      (B)   only if no Event of Default has occurred and is continuing at the              time of such proposed reinvestment, such Net Proceeds are reinvested, in the case              of Net Proceeds of assets that do not constitute Collateral, in assets of a kind then              used or usable in the business of the Company and its Restricted Subsidiaries or, in              the case of Net Proceeds of assets that constitute Collateral, in additional assets that              constitute Collateral and that are substantially simultaneously pledged under the              Collateral Documents with a Lien of the same priority as the Collateral that was              subject of the Asset Sale or Recovery Event, in each case, within 365 days from the              receipt of such Net Proceeds (or, if within such 365 day period the Company or any              of its Restricted Subsidiaries enters into a binding commitment to so reinvest in              such Net Proceeds, such Net Proceeds are so reinvested within 180 days after such              binding commitment is so entered into); or               (2)   Net Proceeds from the disposition of used engine life limited parts in the        ordinary course of business and any Net Proceeds related to Boeing 757 and McDonnell        Douglas MD-80 aircraft spare parts that were owned as of February 5, 2019.               Any Net Proceeds not applied as provided in clause (1) of this Section 4.13(b) will  be deemed to constitute “Excess Proceeds.”                                          70   





 






               (c)   The Asset Sale Offer will remain open for a period of 20 business days  following its commencement, except to the extent that a longer period is required by applicable  law (the “Asset Sale Offer Period”). No later than five (5) business days after the termination of  the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company will apply all Excess  Proceeds to the purchase of the aggregate principal amount of notes and, if applicable, any other  First Lien Debt (on a pro rata basis, if applicable) required to be offered for purchase pursuant to  this Section  4.13 and  validly  tendered  or  otherwise  surrendered  and  not  validly  withdrawn  in  response to the Asset Sale Offer.               (d)   On the Asset Sale Purchase Date, the Company will, to the extent lawful:                     (1)   accept for payment all notes or portions of notes and any other First              Lien Debt properly tendered pursuant to the Asset Sale Offer that can be purchased              with the Excess Proceeds from such Asset Sale or Recovery Event; provided that              if, following repurchase of a portion of a note, the remaining principal amount of              such note outstanding immediately after such repurchase would be less than $2,000,              then the portion of such note so repurchased shall be reduced so that the remaining              principal amount of such note outstanding immediately after such repurchase is              $2,000;                     (2)   deposit with the paying agent an amount equal to the payment in              respect of all notes or portions of notes and any other First Lien Debt properly              tendered pursuant to the Asset Sale Offer; and                     (3)   deliver or cause to be delivered to the Trustee for cancellation the              Notes properly accepted together with an Officer’s Certificate stating the aggregate              principal amount of notes or portions of notes being purchased by the Company.         The  paying  agent  will  promptly  deliver  to  each  holder  of  notes  properly  tendered  the  payment for such notes, and the Company will issue and the Trustee will promptly authenticate  and deliver (or cause to be transferred by book entry) to each holder a new note equal in principal  amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new  note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.         To the extent that the aggregate principal amount of notes and, if applicable, other First  Lien Debt validly tendered or otherwise surrendered and not validly withdrawn in connection with  an Asset Sale Offer is less than the Excess Proceeds, the Company may, after purchasing all such  notes and, if applicable, other First Lien Debt, use the remaining Excess Proceeds for any purpose  not otherwise prohibited this Indenture. To the extent that the aggregate principal amount of notes  and, if applicable, other First Lien Debt validly tendered or otherwise surrendered and not validly  withdrawn in connection with an Asset Sale Offer exceeds the Excess Proceeds, the amount of  notes and such other First Lien Debt to be purchased will be determined on a pro rata basis based  on the aggregate principal amount of tendered notes and other First Lien Debt (provided that the  selection of such other First Lien Debt shall be made pursuant to the terms of such other First Lien  Debt).         Section 4.14. Dispositions of Loyalty Program and Brand IP Assets.                                         71   





 






      The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or  indirectly, Dispose of any or all of the Loyalty Program or the Brand IP (including by way of spin- off or Investment in an entity that is not a Guarantor), other than to the Company or a Guarantor.         Section 4.15. Dispositions of Collateral to Unrestricted Subsidiaries for Replacement of  First Lien Debt.    The Company shall not, and shall not permit any of its Restricted Subsidiaries  to,  directly  or  indirectly,  Dispose  of  assets  that  constitute  or  constituted  Collateral  to  any  Unrestricted Subsidiary or any other Affiliate of the Company if such assets will be used to secure  Indebtedness issued in exchange for, in place of or to repurchase First Lien Debt and will not  permit an Unrestricted Subsidiary to use any such assets to conduct an exchange, replacement or  repurchase of First Lien Debt.  For the avoidance of doubt, this Section 4.15 will not prohibit the  use  of  any  such  assets  to  secure  Indebtedness  issued  primarily  for  cash and  not  in  exchange,  replacement or repurchase of First Lien Debt.                                    ARTICLE V.                                  SUCCESSORS         Section 5.1. When Company May Merge, Etc.               (a)   The  Company and  the  Significant Guarantors  may consolidate  with  or        merge with or into, or convey, transfer or lease all or substantially all of the Company’s or        such Significant Guarantor’s properties and assets to, any Person (a “successor person”),        provided that:               (1)   the  resulting,  surviving  or  transferee  Person  is  a  Person  organized  and        existing under the laws of the United States of America, any state thereof or the District of        Columbia, and expressly assumes (a) by a supplemental indenture or other document or        instrument  in  form  reasonably  satisfactory  to  the  Trustee,  all  the  obligations  under the        Notes and this Indenture (in the case of the Company) or the obligations under the Note        Guarantees (in the case of the Significant Guarantors) and (b) by written agreement in form        reasonably satisfactory to the Collateral Agent, all the obligations of the Company or such        Significant  Guarantor,  as  applicable,  under  the  Collateral  Documents,  and  such  Person        shall cause such amendments, supplements or other instruments to be executed, filed and        recorded in such jurisdictions as may be required by applicable law to preserve and protect        the  Lien  on  the  Collateral  owned  by  or  transferred  to  such  Person,  together  with  such        financing statements or comparable documents as may be required to perfect any security        interests in such Collateral that may be perfected by the filing of a financing statement or        a  similar  document  under  the  Uniform  Commercial  Code  or  other  similar  statute  or        regulation of the relevant states or jurisdictions;               (2)   except  in  connection  with  a  merger  of  the  Company  with  a  Significant        Guarantor or a Significant Guarantor with another Significant Guarantor, immediately after        giving  effect  to  such  transaction,  no  Event  of  Default  shall  have  occurred  and  be        continuing; and                                          72   





 






               (3)   the Company shall have delivered to the Trustee an Officer’s Certificate and        Opinion  of  Counsel,  each  stating  that  such  consolidation,  merger  or  transfer,  and  such        supplemental indenture, if any, comply with this Indenture.         Any such successor will succeed to and be substituted for, and may exercise every right  and power of, the Company or the Significant Guarantor, whichever is party to such transaction,  under this Indenture and the Collateral Documents, but the predecessor issuer, in the case of a lease  of all or substantially all of its assets, shall not be released from the obligation to pay the principal  of and interest on the Notes.         (b)   A Guarantor that is not a Significant Guarantor may consolidate with or merge into,  or  convey,  transfer  or  lease  all  or  substantially  all  of  its properties  and  assets  to,  any  Person;  provided that:               (1)   except  in  the  case  of  such  a  Guarantor  that  has  been  disposed  of  in  its        entirety to another Person (other than to the Company or a Subsidiary of the Company) or        otherwise ceases to be a Guarantor in accordance with this Indenture as a result of such        transaction or series of transactions, whether through a merger, consolidation or sale of        Capital Stock or assets, the resulting, surviving or transferee Person is a Person organized        and existing under the laws of the United States of America, any state thereof or the District        of Columbia, and expressly assumes (a) by a supplemental indenture or other document or        instrument in form reasonably satisfactory to the Trustee, all its obligations under such        Guarantor’s note guarantee and (b) by written agreement in form reasonably satisfactory        to the Collateral Agent, all its obligations under the Collateral Documents, and such Person        shall cause such amendments, supplements or other instruments to be executed, filed and        recorded in such jurisdictions as may be required by applicable law to preserve and protect        the  Lien  on  the  Collateral  owned  by  or  transferred  to  such  Person,  together  with  such        financing statements or comparable documents as may be required to perfect any security        interests in such Collateral that may be perfected by the filing of a financing statement or        a  similar  document  under  the  Uniform  Commercial  Code  or  other  similar  statute  or        regulation of the relevant states or jurisdictions;                (2)   except in connection with a merger of such Guarantor with the Company, a        Significant  Guarantor  or  another  Guarantor,  immediately  after  giving  effect  to  such        transaction, no Event of Default shall have occurred and be continuing; and               (3)   the Company shall have delivered to the Trustee an Officer’s Certificate and        Opinion  of  Counsel,  each  stating  that  such  consolidation,  merger  or  transfer,  and  such        supplemental indenture, if any, comply with this Indenture.         Any such successor Guarantor will succeed to and be substituted for, and may exercise  every right and power of, a Guarantor under this Indenture and the Collateral Documents.         The Company shall not be required to preserve the corporate, partnership or other existence  of any Subsidiary that is an Immaterial Subsidiary if its Board of Directors shall determine that the  preservation thereof is no longer desirable in the conduct of the business of the Company and its                                          73   





 






   Subsidiaries, taken as a whole, and that the loss thereof would not, individually or in the aggregate,  have a Material Adverse Effect.         For  the  avoidance  of  doubt,  this Section  5.1 will  not  restrict  mergers,  conveyances,  transfers  or  leases  by  a  Restricted  Subsidiary  of  the  Company  with  the  Company  or  another  Restricted Subsidiary.  Neither an Officer’s Certificate nor an Opinion of Counsel shall be required  to be delivered in connection therewith.         Section 5.2. Successor Corporation Substituted.         Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of  all or substantially all of the assets of the Company in accordance with Section 5.1, the successor  corporation formed by such consolidation or into or with which the Company is merged or to  which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted  for, and may exercise every right and power of, the Company under this Indenture with the same  effect as if such successor person has been named as the Company herein; provided, however, that  the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease)  shall be released from all obligations and covenants under this Indenture and the Notes.                                    ARTICLE VI.                            DEFAULTS AND REMEDIES         Section 6.1. Events of Default.               An “Event  of  Default” occurs with  respect  to the Notes  if any of the following  occurs:               (1)   default in any payment of the principal amount or premium, if any, on any        of the  Notes  when  such  amount  becomes  due  and  payable  at  Stated  Maturity,  upon        acceleration, redemption or otherwise;               (2)   failure to pay interest on the Notes when such interest becomes due and        payable and such failure continues for a period of 30 days;               (3)   failure by the Company or any of its Restricted Subsidiaries to comply with        any other covenants or agreements applicable to the Notes and the Note Guarantees under        this Indenture or the Collateral Documents, as the case may be, and such failure continues        for 60 days after the notice specified below;               (4)   default on any Indebtedness under the Credit Agreement, which default (a)        is  caused  by  a  failure  to  pay  principal  of,  or  interest  or  premium,  if  any,  on  such        Indebtedness prior to the expiration of the applicable grace period provided in the Credit        Agreement or (b) results in the acceleration of such Indebtedness prior to its maturity;               (5)   except as permitted by this Indenture, a note guarantee of any Significant        Subsidiary or any group of Guarantors that, taken together, would constitute a Significant        Subsidiary is held in any judicial proceeding to be unenforceable or invalid or ceases for                                         74   





 






         any reason to be in full force and effect, or a Guarantor denies or disaffirms in writing its        obligations under its note guarantee and such default continues for 10 days;                (6)   except as permitted by this Indenture or the Collateral Documents, (a) any        material provision of this Indenture or any Collateral Document ceases to be a valid and        binding obligation of the Company or any Guarantor and such default continues for 10        days, (b) the Lien on any material portion of the Collateral intended to be created by this        Indenture and the Collateral Documents ceases to be or is not a valid and perfected Lien        having  the  priorities  contemplated  thereby  (subject  to  Permitted  Liens  and  except  as        permitted by the terms of this Indenture or the Collateral Documents) and such default        continues for 30 days, or (c) the Company or any Guarantor denies or disaffirms in writing        its obligations under any Collateral Document and such default continues for 10 days; or               (7)   certain events of bankruptcy or insolvency described in this Indenture with        respect to the Company or any of its Restricted Subsidiaries that is a Significant Subsidiary        or  any  group  of  its  Restricted  Subsidiaries  that,  taken  together,  would  constitute  a        Significant Subsidiary.               A Default under clause (3) above will not constitute an Event of Default until the  Trustee notifies the Company or the Holders of at least 25% in principal amount of the outstanding  Notes notify the Company and the Trustee of the Default and the Company does not cure such  Default within 60 days after receipt of such notice.         Section 6.2. Acceleration .         If  an  Event  of  Default  (other  than  an  Event  of  Default  relating  to  certain  events  of  bankruptcy,  insolvency  or  reorganization  with  respect  to  the  Company  or  its  Restricted  Subsidiaries that are Significant Subsidiaries) occurs and is continuing, the Trustee or the holders  of at least 25% in principal amount of the Notes then outstanding may, by written notice to us (and  to the Trustee, if such notice is given by the Holders), declare the principal amount of and premium,  if any, on the Notes and any accrued and unpaid interest on the Notes to be due and payable.  Upon  such a declaration, such amounts shall be due and payable immediately.  In the case of certain  events of bankruptcy, insolvency or reorganization with respect to the Company or its Restricted  Subsidiaries that are Significant Subsidiaries, the principal amount of and premium, if any, and  accrued and unpaid interest on the Notes shall automatically become and be immediately due and  payable without any declaration or other act on the part of the Trustee or any Noteholder.         If the Notes are accelerated or otherwise become due prior to their Stated Maturity, in each  case, in respect of any Event of Default (including an event of default relating to certain events of  bankruptcy, insolvency or reorganization (including the acceleration of claim by operation of law))  (each an “Acceleration Event”), the amount that shall then be due and payable shall be equal to:  (x) 100% of the principal amount of the Notes then outstanding plus the Applicable Premium in  effect on the date of such acceleration, plus (y) accrued and unpaid interest to, but excluding, the  date of such acceleration, in each case as if such acceleration were an optional redemption of the  Notes so accelerated. Without limiting the generality of the foregoing, it is understood and agreed  that, upon an Acceleration Event, the Applicable Premium with respect to an optional redemption  of the Notes shall also be due and payable as though the Notes had been optionally redeemed in                                         75   





 






   full at the time of such Acceleration Event and shall constitute part of the obligations payable to  Holders in view of the impracticability and extreme difficulty of ascertaining actual damages and  by mutual agreement of the parties as to a reasonable calculation of each holder’s loss as a result  thereof. If the Applicable Premium becomes due and payable, it shall be deemed to be principal of  the  Notes  and  interest  shall  accrue  on  the  full  principal  amount  of the  Notes  (including  the  Applicable Premium) from and after the applicable triggering event, including in connection with  certain events of bankruptcy, insolvency or reorganization. Any premium payable pursuant to this  Section 6.2 shall be presumed to be the liquidated damages sustained by each holder of the Notes  as the result of the acceleration of the Notes and each of the Company and the Guarantors agrees  that it is reasonable under the circumstances currently existing. The premium shall also be payable  in the event the Notes and/or this Indenture are satisfied, released or discharged by foreclosure  (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other  similar means. EACH OF THE COMPANY AND THE GUARANTORS EXPRESSLY WAIVES  (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY  PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE  COLLECTION  OF  THE  FOREGOING  PREMIUM  IN  CONNECTION  WITH  ANY  SUCH  ACCELERATION.  Each  of  the  Company  and  the  Guarantors  expressly  agrees  (to  the  fullest  extent it may lawfully do so) that: (A) the premium is reasonable and is the product of an arm’s  length transaction between sophisticated business people, ably represented by counsel; (B) the  premium shall be payable notwithstanding the then prevailing market rates at the time acceleration  occurs; (C) there has  been a course of conduct  between the Holders and the Company giving  specific  consideration in this  transaction for such agreement to  pay the  premium; and (D) the  Company and each Guarantor shall be estopped hereafter from claiming differently than as agreed  to in this Section 6.2. Each of the Company and the Guarantors expressly acknowledges that its  agreement to pay the premium to the Holders as herein described is a material inducement to the  holders to purchase the Notes.         Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.         The Company covenants that if               (a)   default  is  made  in  the  payment  of  any  interest  on any  Note when  such        interest becomes due and payable and such default continues for a period of 30 days, or               (b)   default is  made in  the payment of principal  of any Note at  the Maturity        thereof,   then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of  such Notes, the whole amount then due and payable on such Notes for principal and interest and,  to the extent that payment of such interest shall be legally enforceable, interest on any overdue  principal and any overdue interest at the rate or rates prescribed therefor in such Notes, and, in  addition thereto, such further amount as shall be sufficient to  cover the costs and expenses of  collection, including the reasonable compensation, expenses, disbursements and advances of the  Trustee, its agents and counsel.         If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its  own name and as trustee of an express trust, may institute a judicial proceeding for the collection                                         76   





 






   of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and  may enforce the same against the Company or any other obligor upon such Notes and collect the  moneys adjudged or deemed to be payable in the manner provided by law out of the property of  the Company or any other obligor upon such Notes, wherever situated.         If an Event of Default with respect to any Notes occurs and is continuing, the Trustee may  in its discretion proceed to protect and enforce its rights and the rights of the Holders by such  appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce  any  such  rights,  whether  for  the  specific  enforcement  of any  covenant  or  agreement  in  this  Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper  remedy.         Section 6.4. Trustee May File Proofs of Claim.         In  case  of  the  pendency  of  any  receivership,  insolvency,  liquidation,  bankruptcy,  reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the  Company or any other obligor upon the Notes (if the occurrence of such event to such other obligor  would constitute a Default under the Notes) or the property of the Company or of such other  obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then  be due and payable as therein expressed or by declaration or otherwise and irrespective of whether  the Trustee shall have made any demand on the Company for the payment of overdue principal or  interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,               (a)   to  file and prove a claim  for the whole amount of principal and interest        owing and unpaid in respect of the Notes and to file such other papers or documents as        may be necessary or advisable in order to have the claims of the Trustee (including any        claim  for  the  reasonable  compensation,  expenses,  disbursements  and  advances  of  the        Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding,        and               (b)   to collect and receive any moneys or other property payable or deliverable        on any such claims and to distribute the same,   and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in  any such judicial proceeding is hereby authorized by each Holder to make such payments to the  Trustee and, in the event that the Trustee shall consent to the making of such payments directly to  the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,  disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the  Trustee under Section 7.6. To the extent that the payment of any such compensation, expenses,  disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the  Trustee under Section 7.6 hereof out of the estate in any such proceeding, shall be unpaid for any  reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all  distributions, dividends, money, securities and other properties that the Holders may be entitled to  receive  in  such  proceeding  whether  in  liquidation  or  under  any  plan  of  reorganization  or  arrangement or otherwise. The Trustee may, on behalf of the Holders, vote for the election of a  trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar  committee.                                           77   





 






         Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent  to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment  or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee  to vote in respect of the claim of any Holder in any such proceeding.         Section 6.5. Trustee May Enforce Claims Without Possession of Notes.         All rights of action and claims under this Indenture or the Notes may be prosecuted and  enforced by the Trustee without the possession of any of the Notes or the production thereof in  any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought  in its own name as trustee of an express trust, and any recovery of judgment shall, after provision  for the payment of the reasonable compensation, expenses, disbursements and advances of the  Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such  judgment has been recovered.         Section 6.6. Application of Money Collected.         Any money or property collected by the Trustee pursuant to this Article, and after an Event  of Default any money or other property distributable in respect of the Company’s obligations under  this Indenture, shall be applied in the following order, at the date or dates fixed by the Trustee and,  in case of the distribution of such money or property on account of principal or interest, upon  presentation of the Notes and the notation thereon of the payment if only partially paid and upon  surrender thereof if fully paid:               First:  To the payment of all amounts due the Trustee and any predecessor under  Section 7.6; and               Second:  To the payment of the amounts then due and unpaid for principal of and  interest on the Notes in respect of which or for the benefit of which such money has been collected,  ratably, without preference or priority of any kind, according to the amounts due and payable on  such Notes for principal and interest, respectively; and               Third:  To the Company.         Section 6.7. Limitation on Suits.         No  Holder  of any  Note shall  have  any  right  to  institute  any  proceeding,  judicial  or  otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any  other remedy hereunder, unless               (a)   such  Holder  has  previously  given  written  notice  to  the  Trustee  of  a        continuing Event of Default with respect to the Notes;               (b)   the Holders of not  less than 25% in  principal amount of the outstanding        Notes shall have made written request to the Trustee to institute proceedings in respect of        such Event of Default in its own name as Trustee hereunder;                                          78   





 






               (c)   such Holder or Holders have offered to the Trustee indemnity or security        satisfactory  to  the  Trustee  against  the  costs,  expenses  and  liabilities  which  might  be        incurred by the Trustee in compliance with such request;               (d)   the Trustee for 60 days after its receipt of such notice, request and offer of        indemnity or security has failed to institute any such proceeding; and               (e)   no direction inconsistent with such written request has been given to the        Trustee during such 60-day period by the Holders of a majority in principal amount of the        outstanding Notes; it being understood, intended and expressly covenanted by the Holder        of every Note with every other Holder and the Trustee that no one or more of such Holders        shall have any right in any manner whatever by virtue of, or by availing of, any provision        of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or        to obtain or to seek to obtain priority or preference over any other of such Holders or to        enforce any right under this Indenture, except in the manner herein provided and for the        equal and ratable benefit of all such Holders.         Section 6.8. Unconditional Right of Holders to Receive Principal and Interest.         Notwithstanding any other provision in this Indenture, the Holder of any Note shall have  the right, which is absolute and unconditional, to receive payment of the principal of and interest,  if any, on such Note on the Maturity of such Note, including the Stated Maturity expressed in such  Note (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement  of any such payment, and such rights shall not be impaired without the consent of such Holder.         Section 6.9. Restoration of Rights and Remedies.         If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy  under this Indenture and such proceeding has been discontinued or abandoned for any reason, or  has  been determined adversely  to  the Trustee or to  such Holder, then and in  every such case,  subject to any determination in such proceeding, the Company, the Trustee and the Holders shall  be restored severally and respectively to their former positions hereunder and thereafter all rights  and remedies of the Trustee and the Holders shall continue as though no such proceeding had been  instituted.         Section 6.10. Rights and Remedies Cumulative.         Except as otherwise provided with respect to the replacement or payment of mutilated,  destroyed, lost or stolen Notes in Section 2.7, no right or remedy herein conferred upon or reserved  to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every  right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other  right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.   The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the  extent permitted by law, prevent the concurrent assertion or employment of any other appropriate  right or remedy.         Section 6.11. Delay or Omission Not Waiver.                                         79   





 






         No delay or omission of the Trustee or of any Holder of any Notes to exercise any right or  remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a  waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by  this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as  often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.         Section 6.12. Control by Holders.         The Holders of a majority in principal amount of the outstanding Notes shall have the right  to direct the time, method and place of conducting any proceeding for any remedy available to the  Trustee, or exercising  any trust  or power conferred on the Trustee,  with  respect  to  the Notes,  provided that               (a)   such  direction  shall  not  be  in  conflict  with  any  rule  of  law  or  with  this        Indenture,               (b)   the Trustee has  not in  good faith determined that such direction may be        unduly prejudicial to the rights of other Holders not taking part in such direction (it being        understood that the Trustee does not have an affirmative duty to ascertain whether or not        any such directions are unduly prejudicial to such Holders),               (c)   the Trustee may, but shall be under no obligation to, take any other action        deemed proper by the Trustee which is not inconsistent with such direction,               (d)   subject to the provisions of Section 6.1, the Trustee shall have the right to        decline to follow any such direction if the Trustee in good faith shall, by a Responsible        Officer of the Trustee, determine that the proceeding so directed would involve the Trustee        in personal liability, and               (e)   prior to taking any action as directed under this Section 6.12, the Trustee        shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities        which might be incurred by it in compliance with such request or direction.         Section 6.13. Waiver of Past Defaults.         By notice to the Trustee, the Holders of a majority in aggregate principal amount of the  Notes then outstanding may waive an existing Default and its consequences except (i) a Default  in the payment of the principal amount of, premium, if any, and accrued and unpaid interest on  the Notes, (ii) a Default arising from the failure to redeem or purchase any Note when required  pursuant to the terms of this Indenture or (iii) a Default in respect of a provision that under this  Indenture cannot be amended without the consent of each Holder of the Notes affected.  Further,  the Holders of a majority in principal amount of the Notes by notice to the Trustee may rescind  an acceleration of the Notes and its consequences if the rescission would not conflict with any  judgment or decree and if all existing Events of Default with respect to the Notes have been  cured or waived, except nonpayment of the principal amount of, and accrued and unpaid interest  on, the Notes that have become due solely because of acceleration. The Company shall pay any  amounts owing to the Trustee pursuant to Section 7.6 upon any such rescission or annulment of a  declaration of acceleration.                                         80   





 






                        Section 6.14. Undertaking for Costs.         All parties to this Indenture agree, and each Holder of any Note by his acceptance thereof  shall be deemed to have agreed, that any court may in its discretion require, in any suit for the  enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any  action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an  undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable  costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard  to the merits and good faith of the claims or defenses made by such party litigant; but the provisions  of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the  Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more  than 10% in principal amount of the outstanding Notes, or to any suit instituted by any Holder for  the enforcement of the payment of the principal of or interest on any Note on or after the Maturity  of such Note, including the Stated Maturity expressed in such Note (or, in the case of redemption,  on the redemption date).                                            ARTICLE VII.                                    TRUSTEE         Section 7.1. Duties of Trustee.         (a)   If an Event of Default has occurred and is continuing, the Trustee will exercise such  of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in  its exercise, as a prudent person would exercise or use under the circumstances in the conduct of  such person’s own affairs.         (b)   Except during the continuance of an Event of Default:                     (1)   The Trustee need perform only those duties that are expressly set              forth in this Indenture and no implied covenants or obligations shall be read into              this Indenture against the Trustee.                     (2)   In the absence of gross negligence or willful misconduct on its part,              the  Trustee  may  conclusively  rely,  as  to  the  truth  of  the  statements  and  the              correctness  of  the  opinions  expressed  therein,  upon Officer’s  Certificates  or              Opinions of Counsel furnished to the Trustee and conforming to the requirements              of  this  Indenture;  however,  in  the  case  of  any  such Officer’s  Certificates  or              Opinions of Counsel which by any provisions hereof are specifically required to be              furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and              Opinions  of  Counsel  to  determine  whether  or  not  they  conform  to  the  form              requirements of this Indenture.         (c)   The Trustee may not be relieved from liabilities for its own grossly negligent action,  its own grossly negligent failure to act, or its own willful misconduct, except that:                                         81   





 






                     (1)   this paragraph (c) does not limit the effect of paragraph (b) of this              Section 7.1;                     (2)   the Trustee will not be liable for any error of judgment made in good              faith by a Responsible Officer, unless it is proved that the Trustee was negligent in              ascertaining the pertinent facts; and                     (3)   The  Trustee  shall  not  be  liable  with  respect  to  any  action  taken,              suffered or omitted to  be taken by it with  respect  to  the Notes  in  good faith in              accordance with the direction of the Holders of a majority in principal amount of              the outstanding Notes relating to the time, method and place of conducting any              proceeding for any remedy available to the Trustee, or exercising any trust or power              conferred  upon  the  Trustee,  under  this  Indenture  with  respect  to  the  Notes  in              accordance with Section 6.12.         (d)   Whether or not therein expressly so provided, every provision of this Indenture that  in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.1.         (e)   The Trustee may refuse to perform any duty or exercise any right or power unless  it receives indemnity satisfactory to it against the costs, expenses and liabilities which might be  incurred by it in performing such duty or exercising such right or power.         (f)   The Trustee shall not be liable for interest on any money received by it except as  the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not  be segregated from other funds except to the extent required by law. The Trustee shall have no  responsibility or liability for any loss which may result from the investment of Collateral and, in  the absence of written instruction, the Trustee shall hold any such Collateral uninvested.         (g)   No provision of this Indenture shall require the Trustee to risk its own funds or  otherwise incur any financial liability in the performance of any of its duties, or in the exercise of  any of its rights or powers, if adequate indemnity against such risk is not assured to the Trustee in  its satisfaction.         (h)   The Paying Agent, the Registrar and any authenticating agent shall be entitled to  the protections and immunities as are set forth in paragraphs (e), (f) and (g) of this Section 7.1 and  in Section 7.2, each with respect to the Trustee.         Section 7.2. Rights of Trustee.         (a)   The Trustee may rely on and shall be protected in acting or refraining from acting  upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,  consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document  (whether in its original or facsimile form) believed by it to be genuine and to have been signed or  presented by the proper person. The Trustee need not investigate any fact or matter stated in the  document.                                          82   





 






         (b)   Before  the  Trustee  acts  or  refrains  from  acting,  it  may  require  an Officer’s  Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes  or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.         (c)   The Trustee may act through agents and shall not be responsible for the misconduct  or negligence of any agent appointed with due care. No Depositary shall be deemed an agent of  the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.         (d)   The Trustee shall not be liable for any action it takes or omits to take in good faith  which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct  does not constitute willful misconduct or gross negligence.         (e)   The  Trustee  may  consult  with  counsel  and  the  advice  of  such  counsel  or  any  Opinion of Counsel shall be full and complete authorization and protection in respect of any action  taken, suffered or omitted by it hereunder without willful misconduct or gross negligence, and in  reliance thereon.         (f)   The Trustee shall be under no obligation to exercise any of the rights or powers  vested in it by this Indenture at the request or direction of any of the Holders unless such Holders  shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses  and liabilities which might be incurred by it in compliance with such request or direction.         (g)   The Trustee shall not be bound to make any investigation into the facts or matters  stated  in  any  resolution,  certificate,  statement,  instrument,  opinion,  report,  notice,  request,  direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or  document, but the Trustee, in its discretion, may make such further inquiry or investigation into  such facts or matters as it may see fit.         (h)   The Trustee shall not be deemed to have notice of any Default or Event of Default  unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice  of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office  of the Trustee, and such notice references the Notes and this Indenture.         (i)   In no event shall the Trustee be liable to any person for special, punitive, indirect,  consequential or incidental loss or damage of any kind whatsoever (including but not limited to  lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.         (j)   The permissive right of the Trustee to take the actions permitted by this Indenture  shall not be construed as an obligation or duty to do so.         (k)   The  Trustee  shall  not  be  liable  for  any  amount  in  excess  of  the  value  of  the  Collateral.         (l)   The  Trustee  shall  have  no  responsibilities  as  to  the  validity,  sufficiency,  value,  genuineness, ownership or transferability of the Collateral, written instructions or other documents  in  connection  therewith  and  will  not  be  regarded  as  making  nor  be  required  to  make  any  representations with respect thereto.                                         83   





 






         (m)   The Trustee shall have no obligation to give, execute, deliver, file, record, authorize  or obtain any financing statements, notices, instruments, documents agreements consents or other  papers as shall be necessary to (i) create, preserve, perfect or validate the security interest granted  to the Collateral Agent pursuant to the Security Agreement or (ii) enable the Collateral Agent to  exercise  and  enforce  its  rights  under  the Security Agreement  with  respect  to  such  pledge  and  security interest. In addition, the Trustee shall have no responsibility or liability (i) in connection  with the acts or omissions of the Company or the Parent in respect of the foregoing or (ii) for or  with  respect  to  the  legality, validity  and  enforceability  of  any  security  interest  created  in  the  Collateral or the perfection and priority of such security interest.          Section 7.3. Individual Rights of Trustee.           The Trustee in its individual or any other capacity may become the owner or pledgee of  Notes and may otherwise deal with the Company or an Affiliate of the Company with the same  rights it would have if it were not Trustee. Any Agent may do the same with like rights. The  Trustee is also subject to Section 7.9.         Section 7.4. Trustee’s Disclaimer.           The Trustee makes no representation as to the validity or adequacy of this Indenture or the  Notes, it shall not be accountable for the Company’s use of the proceeds from the Notes, and it  shall not be responsible for any statement in the Notes other than its authentication.         Section 7.5. Notice of Defaults.           If a Default or Event of Default occurs and is continuing with respect to the Notes and if it  is actually known to a Responsible Officer of the Trustee, the Trustee shall deliver to each Holder  notice  of  the  Default  or  Event  of  Default  within  90  days  after  it  occurs  or,  if  later,  after  a  Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in  the case of a Default or Event of Default in payment of principal of, premium, if any, or accrued  and unpaid interest on the Notes, the Trustee may withhold the notice if and so long a Responsible  Officer in good faith determines that withholding the notice is in the interests of Holders.         Section 7.6. Compensation and Indemnity.           The Company shall pay to the Trustee from time to time compensation for its services as  the  Company  and  the  Trustee  shall  from  time  to  time  agree  upon  in  writing.  The  Trustee’s  compensation shall not be limited by any law on compensation of a trustee of an express trust. The  Company  shall  reimburse  the  Trustee  upon  request  for  all  reasonable  out  of  pocket  expenses  (including the fees  and expenses of its legal  counsel and any accounting or other professional  service  providers  retained  by  it) incurred  by  it.  Such  expenses  shall  include  the  reasonable  compensation and expenses of the Trustee’s agents and counsel.         The Company shall indemnify each of the Trustee and any predecessor Trustee (including  the  cost  of enforcement  or defending  itself)  and  hold  it  harmless  against  any  cost,  expense  (including the fees  and expenses of its legal  counsel and any accounting or other professional  service providers retained by it) or liability, including taxes (other than taxes based upon, measured  by  or  determined  by  the  income  of  the  Trustee)  incurred  by  it  except  as  set  forth  in  the  next                                         84   





 






   paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee  shall notify the Company promptly of any third party claim for which it may seek indemnity.  Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations  hereunder,  unless  and  to  the  extent  that  the  Company  is  materially  prejudiced  thereby.  The  Company shall defend the third party claim and the Trustee shall cooperate in the defense. The  Trustee  may  have  one  separate  counsel  and  the  Company  shall  pay  the  reasonable  fees  and  expenses of such counsel. The Company need not pay for any settlement made without its consent,  which consent will not be unreasonably withheld. This indemnification shall apply to officers,  directors, employees, shareholders and agents of the Trustee.         The Company need not reimburse any expense or indemnify against any loss or liability  incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee  through willful misconduct or gross negligence.         To secure the Company’s payment obligations in this Section, the Trustee shall have a lien  prior to the Notes on all money or property held or collected by the Trustee, except that held in  trust to pay principal of and interest on the Notes.         The  provisions  of  this  Section  shall  survive  the termination  of  this  Indenture  and  resignation or removal of the Trustee.         Section 7.7. Replacement of Trustee.           A  resignation  or removal  of  the  Trustee  and  appointment  of  a  successor  Trustee  shall  become effective only upon the successor Trustee’s acceptance of appointment as provided in this  Section.         The Trustee may resign with respect to the Notes by so notifying the Company at least 30  days prior to the date of the proposed resignation. The Holders of a majority in principal amount  of the Notes may remove the Trustee with respect to those Notes by so notifying the Trustee and  the Company at least 30 days prior to the date of the proposed removal. The Company may remove  the Trustee with respect to the Notes if:         (a)   the Trustee fails to comply with Section 7.9;         (b)   the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered  with respect to the Trustee under any Bankruptcy Law;         (c)   a Custodian or public officer takes charge of the Trustee or its property; or         (d)   the Trustee becomes incapable of acting.               If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee  for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the  successor  Trustee  takes  office,  the  Holders  of  a  majority  in  principal  amount  of  the  then  outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by  the Company.                                         85   





 






         If a successor Trustee with respect to the Notes does not take office within 60 days after  the retiring Trustee resigns or is removed, the retiring Trustee (at the Company’s expense), the  Company or the Holders of at least a majority in principal amount of the Notes may petition any  court of competent jurisdiction for the appointment of a successor Trustee.         A successor Trustee shall deliver a written acceptance of its appointment to the retiring  Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property  held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.6, the  resignation or removal of the retiring Trustee shall become effective, and the successor Trustee  shall have all the rights, powers and duties of the Trustee with respect to the Notes for which it is  acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to  each Holder of the Notes. Notwithstanding replacement of the Trustee pursuant to this Section 7.7,  the Company’s obligations under Section 7.6 hereof shall continue for the benefit of the retiring  Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted to be  taken  in  accordance  with  its  rights,  powers  and  duties  under  this  Indenture  prior  to  such  replacement.         Section 7.8. Successor Trustee by Merger, etc.           If the Trustee consolidates with, merges or converts into, or transfers all or substantially all  of its corporate trust business to, another corporation, the successor corporation without any further  act shall be the successor Trustee, subject to Section 7.9.         Section 7.9. Eligibility; Disqualification.           There will at all times be a Trustee hereunder that is a corporation organized and doing  business under the laws of the United States of America or of any state thereof that is authorized  under such laws to exercise corporate trustee power, that is subject to supervision or examination  by federal or state authorities and that has a combined capital and surplus of at least $100.0 million  as set forth in its most recent published annual report of condition.         Section 7.10. Limitation on Duty of Trustee in Respect of Collateral.                (a)   Beyond the exercise of reasonable care in the custody thereof, the Trustee  shall have no duty as to any Collateral in its possession or control or in the possession or control  of any agent or bailee or any income thereon or as to preservation of rights against prior parties or  any other rights pertaining thereto and the Trustee shall not be responsible for filing any financing  or continuation statements or recording any documents or instruments in any public office at any  time or times or otherwise perfecting or maintaining the perfection of any security interest in the  Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the  Collateral in its possession if the Collateral is accorded treatment substantially equal to that which  it accords its own property and shall not be liable or responsible for any loss or diminution in the  value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency  or other agent or bailee selected by the Trustee in good faith.               (b)   The Trustee shall not be responsible for the existence, genuineness or value  of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any  of the Collateral, for the validity or sufficiency of the Collateral or any agreement or assignment                                         86   





 






   contained therein, for the validity of the title of the Company to the Collateral, for insuring the  Collateral  or  for  the  payment  of  taxes,  charges,  assessments  or  Liens  upon  the  Collateral  or  otherwise as to the maintenance of the Collateral. The Trustee shall have no duty to ascertain or  inquire as to the performance or observance of any of the terms of this Indenture, the Collateral  Documents or any other security documents by the Company, the Guarantors, or the Collateral  Agent.                                   ARTICLE VIII.                  SATISFACTION AND DISCHARGE; DEFEASANCE         Section 8.1. Satisfaction and Discharge of Indenture.           This Indenture shall cease to be of further effect (except as hereinafter provided in this  Section  8.1),  and  the  Trustee,  at  the  expense  of  the  Company,  shall  execute  instruments  acknowledging satisfaction and discharge of this Indenture, when         (a)   either                     (1)   all Notes theretofore authenticated and delivered (other than Notes              that have been destroyed, lost or stolen and that have been replaced or paid) have              been delivered to the Trustee for cancellation; or                     (2)   all the Notes not theretofore delivered to the Trustee for cancellation                           (A)   have become due and payable, or                           (B)   will become due and payable at their Stated Maturity within              one year, or                           (C)   have  been  called  for  redemption  or  are  to  be  called  for              redemption within one year under arrangements satisfactory to the Trustee for the              giving of notice of redemption by the Trustee in the name, and at the expense, of              the Company, or                           (D)   are deemed paid and discharged pursuant to Section 8.3, as              applicable;   and  the  Company,  in  the  case  of  (1) or (2)  above,  has  irrevocably  deposited  or  caused  to  be  deposited with the Trustee as trust funds in trust an amount of money or Government Securities  sufficient  for  the  purpose  of  paying  and  discharging  the  entire  indebtedness  on  the  Notes  not  theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest  to the date of such deposit (in the case of Notes which have become due and payable on or prior  to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;         (b)   the Company has paid or caused to be paid all other sums payable hereunder by the  Company; and                                          87   





 






         (c)   the Company has delivered to the Trustee an Officer’s Certificate and an Opinion  of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction  and discharge of this Indenture have been complied with.               Notwithstanding the satisfaction and discharge of this Indenture, the obligations of  the Company to the Trustee under Section 7.6, and, if money shall have been deposited with the  Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.3, 2.6, 2.7, 8.2 and 8.5  shall survive.         Section 8.2. Application of Trust Funds; Indemnification.         (a)   Subject  to  the  provisions  of  Section  8.5,  all  money  or  Government  Securities  deposited with the Trustee pursuant to Section 8.1, all money and Government Securities deposited  with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of  Government Securities deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in  trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the  payment, either directly or through any Paying Agent (including the Company acting as its own  Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and  interest for whose payment such money has been deposited with or received by the Trustee.         (b)   The Company shall pay and shall indemnify the Trustee against any tax, fee or other  charge imposed on or assessed against Government Securities deposited pursuant to Section 8.3  or 8.4 or the interest and principal received in respect of such obligations other than any payable  by or on behalf of Holders.         (c)   The  Trustee  shall  deliver  or  pay  to  the  Company  from  time  to time  upon  the  Company’s request any Government Securities or money held by it as provided in Sections 8.3 or  8.4  which,  in  the  opinion  of  a  nationally  recognized  firm  of  independent  certified  public  accountants expressed in a written certification thereof delivered to the Trustee, are then in excess  of the amount thereof which then would have been required to be deposited for the purpose for  which such Government Securities or money were deposited or received. This provision shall not  authorize the sale by the Trustee of any Government Securities held under this Indenture.         Section 8.3. Legal Defeasance of Notes.           The Company shall be deemed to have paid and discharged the entire indebtedness on all  the outstanding Notes on the 91st day after the date of the deposit referred to in subparagraph (c)(1)  hereof, and the provisions of this Indenture, as it relates to the Notes, shall no longer be in effect  (and  the  Trustee,  at  the  expense  of  the  Company,  shall,  upon  receipt  of  direction  from  the  Company, execute instruments acknowledging the same), except as to:         (a)   the rights of Holders to receive, from the trust funds described in subparagraph  (c)(1) hereof, payment  of the principal of  and interest  on the outstanding Notes  on the Stated  Maturity of such principal or interest;         (b)   the provisions of Sections 2.3, 2.6, 2.7, 8.2, 8.3 and 8.5; and                                          88   





 






         (c)   the  rights,  powers,  trust  and  immunities  of  the  Trustee  hereunder  and  the  Company’s obligations in connection therewith;   provided that, the following conditions shall have been satisfied:                     (1)   the  Company  shall  have  irrevocably  deposited  or  caused  to  be              irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as              trust funds in trust for the purpose of making the following payments, specifically              pledged as security for, and dedicated solely to, the benefit of the Holders, cash in              U.S. dollars and/or Government Securities, which through the payment of interest              and principal in respect thereof in accordance with their terms will provide (and              without  reinvestment  and  assuming  no  tax  liability  will  be  imposed  on  such              Trustee), not later than one day before the due date of any payment of money, an              amount in cash, sufficient, in the opinion of a nationally recognized independent              registered accounting firm expressed in a written certification thereof delivered to              the Trustee, to pay and discharge each installment of principal of, premium, if any,              and  interest,  if  any,  on  the  Notes  on  the  dates  such  installments  of  interest  or              principal are due;                     (2)   the  Company  shall  have  delivered  an  Opinion  of Counsel  to  the              Trustee to the effect that (i) the Company has received from, or there has been              published  by,  the  Internal  Revenue  Service  a  ruling,  or  (ii)  since  the  date  of              execution  of  this  Indenture,  there  has  been  a  change  in  the  applicable  Federal              income tax law, in either case to the effect that, and based thereon such Opinion of              Counsel shall confirm that, the Holders will not recognize income, gain or loss for              Federal income tax purposes as a result of such deposit, defeasance and discharge              and will be subject to Federal income tax on the same amount and in the same              manner  and  at  the  same  times  as  would  have  been  the  case  if  such  deposit,              defeasance and discharge had not occurred;                     (3)   no Event of Default shall have occurred and be continuing either:              (x) on the date of such deposit (other than an Event of Default resulting from the              borrowing of funds to be applied to such deposit); or (y) with respect to Events of              Default  described  in  Section  6.1(5)  and  Section  6.1(7)  or  other  bankruptcy,              insolvency or reorganization-related Events of Default, at any time in the period              ending on the 91st day after the date of deposit;                     (4)   such  defeasance  will  not  result  in  a  breach  or  violation  of,  or              constitute a default under, this Indenture or any other agreement or instrument to              which the Company is a party or by which it is bound;                     (5)   the  Company  shall  have  delivered  to  the  Trustee  an  Officer’s              Certificate stating that the deposit was not made by the Company with the intent of              preferring the Holders over any other creditors of the Company or with the intent              of defeating, hindering, delaying or defrauding any other creditors of the Company              or others; and                                          89   





 






                     (6)   the  Company  shall  have  delivered  to  the  Trustee  an  Officer’s              Certificate and an Opinion of Counsel, each stating that all conditions precedent              provided for relating  to  the defeasance contemplated by this  Section have been              complied with.         Section 8.4. Covenant Defeasance.           The Company may omit to comply with respect to the Notes with any term, provision or  condition set forth under Sections 4.2, 4.3, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15  as well as any additional covenants specified in a supplemental indenture for the Notes (and the  failure to comply with any such covenants shall not constitute a Default or Event of Default with  respect to the Notes under Section 6.1) and the occurrence of any event specified in a supplemental  indenture for the Notes and designated as an Event of Default shall not constitute a Default or  Event of Default hereunder, with respect to the Notes, provided that the following conditions shall  have been satisfied:         (a)   With  reference  to  this  Section  8.4,  the  Company  has  irrevocably  deposited  or  caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust  funds in trust for the purpose of making the following payments specifically pledged as security  for, and dedicated solely to, the benefit of the Holders, cash in U.S. dollars and/or Government  Securities, which through the payment of interest and principal in respect thereof in accordance  with  their terms,  will  provide (and without reinvestment  and assuming no tax liability  will be  imposed on such Trustee), not later than one day before the due date of any payment of money, an  amount in cash, sufficient, in the opinion of a nationally recognized independent registered public  accounting firm expressed in a written certification thereof delivered to the Trustee, to pay and  discharge each installment of principal of, premium, if any, and interest, if any, on the Notes on  the dates such installments of interest or principal are due;         (b)   The Company shall have delivered to the Trustee an Opinion of Counsel to the  effect that Holders will not recognize income, gain or loss for Federal income tax purposes as a  result of such deposit and covenant defeasance and will be subject to Federal income tax on the  same amounts, in the same manner and at the same times as would have been the case if such  deposit and covenant defeasance had not occurred;         (c)   No Event of Default shall have occurred and be continuing either: (x) on the date  of such deposit (other than an Event of Default resulting from the borrowing of funds to be applied  to such deposit); or (y) with respect to Events of Default described in Section 6.1(5) and Section  6.1(7) or other bankruptcy, insolvency or reorganization-related Events of Default, at any time in  the period ending on the 91st day after the date of deposit;         (d)   Such covenant defeasance will not result in a breach or violation of, or constitute a  default under, this Indenture or any other agreement or instrument to which the Company is a party  or by which it is bound;         (e)   The Company shall have delivered to the Trustee an Officer’s Certificate stating  the deposit was not made by the Company with the intent of preferring the Holders over any other                                          90   





 






   creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any  other creditors of the Company or others; and         (f)   The Company shall have delivered to the Trustee an Officer’s Certificate and an  Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the  covenant defeasance contemplated by this Section 8.4 have been complied with.   Upon a satisfaction and discharge or defeasance pursuant to Article VIII of this Indenture, the  Collateral Agent will cease to be a party to the Collateral Documents on behalf of the Holders and  the Collateral will no longer secure the Notes.          Section 8.5. Repayment to Company.           Subject to applicable abandoned property law, the Trustee and the Paying Agent shall pay  to the Company upon request any money held by them for the payment of principal, premium, if  any, and interest that remains unclaimed for two years. After that, Holders entitled to the money  must  look  to  the  Company  for  payment  as  general  creditors  unless  an  applicable  abandoned  property law designates another person.         Section 8.6. Reinstatement.           If the Trustee or the Paying Agent is unable to apply any money deposited with respect to  Holders in accordance with Section 8.1 by reason of any legal proceeding or by reason of any  order  or  judgment  of  any  court  or  governmental  authority  enjoining,  restraining  or  otherwise  prohibiting such application, the obligations of the Company under this Indenture with respect to  Holders and under the Notes shall be revived and reinstated as though no deposit had occurred  pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all  such money in accordance with Section 8.1; provided, however, that if the Company has made any  payment of principal of, premium, if any, or interest on the Notes because of the reinstatement of  its  obligations,  the  Company  shall  be  subrogated  to  the  rights  of  the  Holders  to  receive  such  payment from the money or Government Securities held by the Trustee or Paying Agent after  payment in full to the Holders.                                    ARTICLE IX.                          AMENDMENTS AND WAIVERS         Section 9.1. Without Consent of Holders.         The  Company,  the  Guarantors, the  Trustee or  the  Collateral  Agent may  amend  or  supplement this Indenture, the Collateral Documents or the Intercreditor Agreement without the  consent of any Noteholder:               (a)   to provide for the issuance of additional Notes;                (b)   to evidence the succession of another Person to us or a Guarantor pursuant        to a consolidation, merger or conveyance, transfer or lease of assets permitted under this        Indenture;                                          91   





 






               (c)   to  surrender  any  right  or  power  conferred  upon  the  Company or  the        Guarantors;                (d)   to add to the covenants such further covenants, restrictions, conditions or        provisions for the protection of the Holders, and to add any additional Events of Default        for the Notes, subject to certain limitations;                (e)   to cure any ambiguity or correct or supplement any provision contained in        this Indenture, in any supplemental indenture, board resolution, Officer’s Certificate, in the        Notes or in the Collateral Documents or the Intercreditor Agreement that may be defective        or inconsistent with any other provision contained therein;                (f)   to convey, transfer, assign, mortgage or pledge any property to or with the        Trustee or the Collateral Agent, or to make such other provisions in regard to matters or        questions  arising  under this  Indenture,  the  Collateral  Documents  and  the  Intercreditor        Agreement as shall not adversely affect the interests of any Holders;                (g)   to conform the text of this Indenture, the Notes, the Collateral Documents        or the Intercreditor Agreement to the “Description of the Notes” set forth in this offering        memorandum to the extent that such provision in the Description of the Notes was intended        to be a verbatim, or substantially verbatim, recitation of a provision of this Indenture, the        Notes,  the  Collateral  Documents  or  the  Intercreditor  Agreement  as  evidenced  by  an        Officer’s Certificate;                (h)   to add to or change any provisions of this Indenture relating to the transfer        and legending of the Notes or to such extent as necessary to permit or facilitate the issuance        of the Notes in bearer or uncertificated form; provided that (A) any such action shall not        adversely affect the interests of the Holders in any material respect and (B) compliance        with this  Indenture as  so  amended  would  not  result  in the Notes  being  transferred  in        violation of the Securities Act or any applicable securities law;               (i)   to provide additional security for the Notes or grant any Lien in favor of the        Collateral Agent or the Trustee to secure the Notes and the Note Guarantees;                (j)   to provide additional guarantees for the Notes or guarantees;                (k)   to make any change that does not adversely affect the rights of any holder        of notes; or               (l)   to evidence and provide for the acceptance of appointment of a separate or        successor trustee or collateral agent, and to add to or change any of the provisions of this        Indenture, the Collateral Documents or the Intercreditor Agreement as shall be necessary        to provide for or facilitate the administration of this Indenture by more than one trustee.         Section 9.2. With Consent of Holders.         Except as provided in Section 9.1 and Section 9.3, the consent of the Holders of at least a  majority in aggregate principal amount of the outstanding Notes (including at least two Holders                                         92   





 






   that are not Affiliates of each other) is generally required to amend the Indenture, the Collateral  Documents or the Intercreditor Agreement.         The  Company, the  Trustee and  the  Collateral  Agent,  as  applicable, may  enter  into  a  supplemental indenture with the written consent of the Holders of at least a majority in aggregate  principal amount of the outstanding Notes affected by such supplemental indenture (including  consents  obtained  in  connection  with  a  tender  offer  or  exchange  offer  for  the Notes),  for  the  purpose of adding any provisions to or changing in any manner or eliminating any of the provisions  of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the  Noteholders.  Except as provided in Section 6.13 and Section 9.3, the Holders of at least a majority  in aggregate principal amount of the outstanding Notes by notice to the Trustee (including consents  obtained in connection with a tender offer or exchange offer for the Notes) may waive compliance  by the Company with any provision of this Indenture or the Notes.         It shall not be necessary for the consent of the Holders under this Section 9.2 to approve  the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if  such consent approves the substance thereof.  After a supplemental indenture or waiver under this  section becomes effective, the Company shall mail or send to the Holders affected thereby, a notice  briefly describing the supplemental indenture or waiver.  Any failure by the Company to send or  publish such notice, or any defect therein, shall not, however, in any way impair or affect the  validity of any such supplemental indenture or waiver.         Section 9.3. Limitations.         Without the consent of each Noteholder affected, an amendment or waiver may not:               (a)   reduce the principal amount  of notes whose Holders  must consent  to  an        amendment, supplement or waiver or the number of Holders that are not Affiliates of each        other who must consent to an amendment, supplement or waiver;               (b)   reduce the stated rate of interest or extend the stated time for payment of        interest (including default interest) on the Notes;               (c)   reduce the principal or premium, if any, on the Notes or change the Stated        Maturity of the Notes or alter the provisions with respect to the redemption of the Notes        (except any provisions related to the number of days of notice to be given in the event of a        redemption of the Notes which may be amended with the consent of the Holders of at least        a majority in principal amount of the outstanding Notes);               (d)   waive a Default or Event of Default in the payment of the principal of or        interest, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders        of at least  a majority in  principal amount of the outstanding notes and a waiver of the        payment default that resulted from such acceleration);               (e)   make  the  principal  of  or  interest,  if  any,  on the  Notes  payable  in  any        currency other than U.S. dollars;               (f)   waive a redemption payment with respect to the Notes;                                          93   





 






               (g)   impair the right of such holder to institute suit for the enforcement of any        payment with respect to the Notes;                (h)   except as permitted under Article VIII or in connection with a consolidation,        merger  or  conveyance,  transfer  or  lease  of  assets  pursuant  to this  Indenture,  release  a        Guarantor from its obligations under its note guarantee or make any change in the Note        Guarantee that would adversely affect such holder;                (i)   change certain requirements relating to waiving an existing Default or to the        right to receive payment of, or bring suit to enforce payments of, the principal amount of,        premium, if any, or interest on the Notes;                (j)   modify any of the foregoing provisions of this sentence;                (k)   modify  any  of  the  provisions  of this  Indenture, the  Notes, the  Note        Guarantees, the Intercreditor Agreement or the Collateral Documents that has the effect of        releasing all or substantially all of the Collateral from the Liens securing the Notes;                (l)   subordinate the Liens on the Collateral to any other liens;               (m)   subordinate the Notes in right of payment to other Indebtedness;               (n)   modify any of the provisions in the Intercreditor Agreement in connection        with recovery and distributions in respect of any Collateral;               (o)   modify  any  of  the  provisions  of this  Indenture, the  Notes, the  Note        Guarantees,  the  Intercreditor  Agreement  or  the  Collateral  Documents  in  any  way  that        materially  adversely  affects  the  rights  of  the  Holders  with  respect to the Collateral,        including any provisions with respect to pro rata sharing;                (p)   modify Section 4.12 or Section 4.13 in any way that materially adversely        affects the rights of the Holders; or               (q)   modify Section 4.14 or Section 4.15.         Section 9.4. Revocation and Effect of Consents.         Until an amendment is set forth in a supplemental indenture or a waiver becomes effective,  a consent to it by a Holder of a Note is a continuing consent by the Holder and every subsequent  Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s  Security, even if notation of the consent is not made on any Note.  However, any such Holder or  subsequent Holder may revoke the consent as to its Note or portion of a Note if the Trustee receives  the  notice  of  revocation  before  the  date  of  the  supplemental  indenture  or  the  date  the  waiver  becomes effective.               Any amendment or waiver once effective shall bind every Noteholder affected by  such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of  Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Note who has                                         94   





 






   consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same  debt as the consenting Holder’s Security.         The  Company  may,  but  shall  not  be  obligated  to,  fix  a  record  date  for  the  purpose  of  determining the Holders entitled to give their consent or take any other action described above or  required  or  permitted  to  be  taken  pursuant  to  this  Indenture.   If  a  record  date  is  fixed,  then  notwithstanding the immediately preceding paragraph, those Persons who were Holders at such  record date (or their duly designated proxies), and only those persons, shall be entitled to give such  consent or to revoke any consent previously given or take any such action, whether or not such  Persons continue to be Holders after such record date.  No such consent shall be valid or effective  for more than 120 days after such record date.         Section 9.5. Notation on or Exchange of Notes.         The Company or the Trustee may place an appropriate notation about an amendment or  waiver on any Note thereafter authenticated. The Company in exchange for Notes  may issue and  the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3  new Notes that reflect the amendment or waiver.         Section 9.6. Trustee Protected.         In  executing,  or  accepting  the  additional  trusts  created  by,  any  supplemental  indenture  permitted by this Article or the modifications thereby of the trusts created by this Indenture, the  Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying  upon, an Officer’s Certificate or an Opinion of Counsel or both complying with Section 10.4 and  will be the valid and legally binding obligation of the Company, subject to customary exceptions.  The Trustee shall sign all supplemental indentures upon delivery of such an Officer’s Certificate  or Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture  that adversely affects its rights.                                       ARTICLE X.                               NOTE GUARANTEES                           Section 10.1. Guarantees.         Subject to the provisions of this Section 10, each Guarantor hereby fully, unconditionally  and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several  senior secured basis, to each Holder of the Notes, and the Trustee the due and punctual payment,  of the principal of (and premium, if any) and interest (including, in case of default, interest on  principal and, to the extent permitted by applicable law, on overdue interest and including any  additional interest required to be paid according to the terms of the Notes), if any, on the Notes,  when and as the same shall become due and payable, whether at Stated Maturity, upon redemption,  upon acceleration, upon tender for repayment at the option of any Holder or otherwise, according  to the terms thereof and of this Indenture and all other obligations of the Company with respect to  the Notes to any Holder or the Trustee hereunder or thereunder.  Each Note Guarantee will be  secured by first priority security interests (subject to Permitted Liens) in the Collateral owned by  such Guarantor. Each Guarantor agrees that the Guarantor Obligations shall rank equally in right  of  payment  with  other  Indebtedness  of  such  Guarantor,  except  to  the  extent  such  other                                         95   





 






   Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the  Guarantors  under  the  Note  Guarantees  shall  rank  senior  in  right  of  payment  to  such  other  Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which  case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of  payment to such claims.         To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees  that this Indenture (or a supplement thereto) shall be executed on behalf of such Guarantor by an  Officer of such Guarantor.         Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall  remain in full force and effect notwithstanding the absence of the endorsement of any notation of  such Note Guarantee on the Notes.         If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds  that  office  at  the  time  the  Trustee  authenticates  the  Note,  the  Note  Guarantee  shall  be  valid  nevertheless.         Each  Guarantor  further  agrees  (to  the  extent  permitted  by  law)  that  the  Guarantor  Obligations may be extended or renewed, in whole or in part, without notice or further assent from  it, and that it shall remain bound under this Section 10.1 notwithstanding any extension or renewal  of any Guarantor Obligation.         Each Guarantor  waives  presentation  to,  demand  of  payment  from  and  protest  to  the  Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment.   Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations.         Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of  payment when due (and not a guarantee of collection) and waives any right to require that any  resort be had by any Holder to any security held for payment of the Guarantor Obligations.         Except as set forth in Section 10.4, the obligations of each Guarantor hereunder shall not  be  subject  to  any  reduction,  limitation,  impairment  or  termination  for  any  reason  (other  than  payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender,  alteration  or  compromise,  and  shall  not  be  subject  to  any  defense  of  setoff,  counterclaim,  recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability  of the Guarantor Obligations or otherwise.  Without limiting the generality of the foregoing, the  Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise  affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or  remedy against the Company or any other person under this Indenture, the Notes or any other  agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver,  amendment or modification of any of the terms or provisions of this Indenture, the Notes or any  other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations;  (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any  change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in  the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to                                          96   





 






   do any other act or thing which may or might in any manner or to any extent vary the risk of any  Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.         Each Guarantor agrees that its Note Guarantee herein shall remain in full force and effect  until payment in full of all the Guarantor Obligations or such Guarantor is released from its Note  Guarantee in compliance with Sections 5.1, 8.1 or 10.5. Each Guarantor further agrees that its Note  Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time  payment, or any part thereof, of principal of, premium, if any, or interest on any of the Guarantor  Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or  reorganization of the Company or otherwise.         In furtherance of the foregoing and not in limitation of any other right which any Holder  has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Company to  pay any of the Guarantor Obligations when and as the same shall become due, whether at maturity,  by acceleration, by redemption or otherwise, each Guarantor hereby promises to and will forthwith  pay, or cause to be paid, in cash, to the Holders or the Trustee on behalf of the Holders an amount  equal to the sum of (i) the unpaid amount of such Guarantor Obligations then due and owing and  (ii) accrued and unpaid interest on such Guarantor Obligations then due and owing (but only to the  extent  not  prohibited  by  law)  (including  interest  accruing  after  the  filing  of  any  petition  in  bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to  the Company or any Guarantor whether or not a claim for post-filing or post-petition interest is  allowed in such proceeding).         Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the  Holders, on the other hand, (x) the maturity of the Guarantor Obligations guaranteed hereby may  be  accelerated  as  provided  in  this  Indenture  for  the  purposes  of  its  Note  Guarantee  herein,  notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect  of the Guarantor Obligations guaranteed hereby and (y) in the event of any such declaration of  acceleration of such Guarantor Obligations, such Guarantor Obligations (whether or not due and  payable) shall forthwith become due and payable by the Guarantor for the purposes of this Note  Guarantee.         Each Guarantor also agrees to pay any and all fees, costs and expenses (including attorneys’  fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under this Section  10.1.               Section 10.2. Right of Contribution.  Each Guarantor hereby agrees  that to  the  extent that any Guarantor shall have paid more than its proportionate share of any payment made  on the obligations under the Note Guarantees, such Guarantor shall be entitled to seek and receive  contribution  from  and  against  the  Company  or  any  other  Guarantor  who  has  not  paid  its  proportionate share of such payment.  The provisions of this Section 10.2 shall in no respect limit  the obligations and liabilities of each Guarantor to the Trustee and the Holders and each Guarantor  shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Guarantor  hereunder.               Section 10.3. No Subrogation.  Notwithstanding any payment or payments made  by any Guarantor hereunder, no Guarantor shall be entitled to be subrogated to any of the rights                                         97   





 






   of the Trustee or any Holder against the Company or any other Guarantor or any collateral security  or guarantee or right of offset held by the Trustee or any Holder for the payment of the Guarantor  Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement  from  the  Company  or  any  other  Guarantor  in  respect  of  payments  made  by  such  Guarantor  hereunder, until all amounts owing to the Trustee and the Holders by the Company on account of  the Guarantor Obligations are paid in full.  If any amount shall be paid to any Guarantor on account  of such subrogation rights at any time when all of the Guarantor Obligations shall not have been  paid in full, such amount shall be held by such Guarantor in trust for the Trustee and the Holders,  segregated  from  other  funds  of  such  Guarantor,  and  shall,  forthwith  upon  receipt  by  such  Guarantor,  be  turned  over  to  the  Trustee in  the  exact  form  received  by  such  Guarantor  (duly  indorsed  by  such  Guarantor  to  the  Trustee,  if  required),  to  be  applied  against  the  Guarantor  Obligations.               Section 10.4. Limitation  of  Guarantor’s  Liability.  Each  Guarantor  and,  by  its  acceptance of a Note, each Holder of a Note hereby confirms that it is the intention of all such  parties that in no event shall any Guarantor Obligations under the Note Guarantees constitute or  result in a fraudulent transfer or conveyance for purposes of, or result in a violation of, any United  States federal, or applicable United States state, fraudulent transfer or conveyance or similar law.   To effectuate the foregoing intention, in the event that the Guarantor Obligations, if any, in respect  of  the  Notes  would,  but  for  this  sentence, constitute  or  result  in  such  a  fraudulent  transfer  or  conveyance or violation, then the liability of the applicable Guarantor under its Note Guarantees  in respect of the Notes shall be reduced to the extent necessary to eliminate such fraudulent transfer  or conveyance or violation under the applicable fraudulent transfer or conveyance or similar law.         Section 10.5. Release of Guarantor.                (a)   The Note Guarantee of a Guarantor shall be automatically released:                     (1)   if the obligation of such Guarantor to guarantee the Notes after the              date of this Indenture arose pursuant to Section 4.9 if such Guarantor would not              then otherwise be required to Guarantee the Notes pursuant to Section 4.9 (but only              if the Liens on the Collateral of such Guarantor securing the Notes are also released              at such time);                     (2)   in  connection  with  any  sale  or  other  disposition  of  all  or              substantially  all  of  the  assets  of  that  Guarantor  (including  by  way  of  merger,              amalgamation, combination, consolidation, liquidation or otherwise) to a Person              that is not (either before or after giving effect to such transaction) us or any of our              Restricted Subsidiaries;                     (3)   in connection with any sale or other disposition of Capital Stock of              that Guarantor to a Person that is not (either before or after giving effect to such              transaction) us or any of our Restricted Subsidiaries, if the Guarantor ceases to be              a Subsidiary of us as a result of the sale or other disposition;                     (4)   if we designate that Guarantor to be an Unrestricted Subsidiary in              accordance with the applicable provisions of this Indenture;                                          98   





 






                     (5)   upon  delivery  by  the  Company  of  an  Officer’s  Certificate  to  the              Trustee  certifying  (a)  the  release  and  discharge  of  such  Guarantor  from  its              guarantee of Indebtedness under the Credit Agreement and (b) such Guarantor is              not a guarantor under any other First Lien Debt or any Junior Lien Debt; or                     (6)   upon  delivery  by  the  Company  of  an  Officer’s  Certificate  to  the              Trustee certifying that such Guarantor is an Immaterial Subsidiary; provided that              no Event of Default shall have occurred and be continuing or shall result therefrom;              provided further that  a  Subsidiary  that  is  considered  not  to  be  an  Immaterial              Subsidiary solely pursuant to the proviso of the definition of Immaterial Subsidiary              shall, solely for this purpose, be considered an Immaterial Subsidiary so long as              any applicable guarantee, pledge or other obligation of such Subsidiary with respect              to any other First Lien Debt or any Junior Lien Debt shall be irrevocably released              and  discharged  substantially  simultaneously  with  the  release  of  such  guarantee              under this Indenture.                If the Note Guarantee of any Guarantor is deemed to be released or is automatically  released, the Company shall deliver to the Trustee an Officer’s Certificate stating the identity of  the released Guarantor, the basis for release in reasonable detail, and that such release complies  with this Indenture. At the request of the Company, and upon delivery to the Trustee of an Officer’s  Certificate and an Opinion of Counsel that a Guarantor has been released and that execution by  the Trustee of an appropriate instrument acknowledging the release of such Guarantor from its  Note Guarantee complies with this Indenture, the Trustee shall execute and deliver an appropriate  instrument acknowledging the automatic release of such Guarantor from its Note Guarantee (it  being understood that the failure to obtain any such instrument shall not impair any automatic  release pursuant to Section 10.5(a)). Any Guarantor not released from its obligations under its  Subsidiary Guarantee as provided above shall remain liable for the full amount of the Guarantor  Obligations. In  the  event  that  any  released  Guarantor  thereafter  borrows  money  or  guarantees  Indebtedness  under  the  Credit  Agreement,  such  former  Guarantor  will  again  provide  a  note  guarantee  and  assume  by  written  agreement  all  of  the  obligations  of  a  Guarantor  under the  applicable Collateral Documents.                                    ARTICLE XI.                                  COLLATERAL         Section 11.1. Security Interest.               The due and punctual payment of the principal of, premium, if any, and interest, if  any, on the Notes when and as the same shall be due and payable, whether on an interest payment  date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue  principal of and interest (to the extent permitted by law) and any and all payments made pursuant  to the second paragraph of Section 6.2, if any, on the Notes and performance of all other obligations  of the Issuer and the Guarantors to the Holders or the Trustee under this Indenture and the Notes,  according  to  the  terms  hereunder  or  thereunder,  are  secured  as  provided  in  the Collateral  Documents.  Each  Holder,  by  its  acceptance  thereof,  consents  and  agrees  to  the  terms  of  the  Collateral Documents (including, without limitation, the provisions providing for foreclosure and  release of the Collateral) as the same may be in effect or may be amended from time to time in                                         99   





 






   accordance  with  its  terms  and  authorizes  and  directs  the Collateral  Agent and  the  Trustee,  as  applicable, to enter into the Collateral Documents and to perform its obligations and exercise its  rights thereunder in  accordance therewith. Upon the request of the Trustee, the Issuer and the  Guarantors will deliver to the Trustee copies of all documents delivered to the Collateral Agent  pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as  may be necessary or proper, or as may be required by the provisions of the Collateral Documents,  to assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral  contemplated  hereby,  by  the Collateral  Documents  or  any  part  thereof,  as  from  time  to  time  constituted, so as to render the same available for the security and benefit of this Indenture and of  the Notes secured hereby, according to the intent and purposes herein expressed. The Issuer will  take, and will cause its Subsidiaries to take any and all actions reasonably required to cause the  Collateral  Documents  to  create  and  maintain,  as  security  for  the obligations  of  the  Issuer  hereunder, a valid and enforceable perfected first priority Lien in and on all the Collateral, in favor  of the Collateral Agent for the benefit of the Holders, superior to and prior to the rights of all third  Persons, except for Permitted Liens.         Section 11.2. Lien Sharing and Priority Confirmation. Each Holder, by accepting a Note,  and the Trustee hereby agrees that:          (a)   all Senior Secured Obligations will be and are secured equally and ratably by all              First Liens at any time granted by the Issuer or any other Grantor to the Collateral              Agent  to  secure  any  Senior  Secured  Obligations  in  respect  of  this  Indenture,              whether  or  not  upon  property otherwise  constituting  collateral  for  such  Senior              Secured  Obligations,  and  that  all  such  First  Liens  will  be  enforceable  by  the              Collateral Agent for the benefit of all First Lien Secured Parties (as defined in the              Intercreditor Agreement) equally and ratably;           (b)   the Trustee and each of the Holders are bound by the provisions of the Intercreditor              Agreement, including without limitation the provisions relating to the ranking of              Liens granted by the Issuer or any other Grantor to the Collateral Agent to secure              any  Senior  Secured  Obligations  and  the  order  of  application  of  proceeds  from              enforcement of such Liens; and           (c)   that the Trustee and each of the Holders consent to and direct the Collateral Agent              to perform the Collateral Agent’s obligations under the Intercreditor Agreement              and the other Collateral Documents.                The  foregoing  provisions  of  this  Section  11.2  are  intended  for  the  enforceable  benefit of, and will be enforceable as a third party beneficiary by, all holders of existing and future  First Lien Debt and the Collateral Agent.         Section 11.3. Release  of  Collateral. In  addition  to  and  subject  to  the  terms  of  the  Intercreditor Agreement, the Collateral Agent’s Liens upon the Collateral will no longer secure  the Notes outstanding or any Note Guarantees under this Indenture, and the right of the Holders to  the benefits and proceeds of the Collateral Agent’s Liens on the Collateral will terminate and be  discharged:                                           100   





 






         (a)   in whole, upon payment in full of the principal of, together with accrued and              unpaid interest and premium, if any, on, the Notes;         (b)   in whole, upon satisfaction and discharge of this Indenture or upon a legal or              covenant defeasance pursuant to Article VIII hereof;         (c)   in whole, in respect of the Collateral of a Guarantor, upon the designation of such              Guarantor to be an Unrestricted Subsidiary in accordance with Section 4.6 and the              definition of “Unrestricted Subsidiary”;         (d)   in part, as to any property constituting Collateral that is sold, transferred or              otherwise disposed of by the Company or any of the Guarantors (other than to the              Company or another Guarantor) in a transaction permitted by Section 4.13 and by              the Collateral Documents (to the extent of the interest sold or disposed of), or              otherwise in accordance with this Indenture, the Collateral Documents and the              Intercreditor Agreement; and         (e)   in whole or in part, with the consent of holders of the requisite percentage of notes              in accordance with Sections 9.2 and 9.3.   provided that, in the case of any release in whole pursuant to clauses (a) and (b) above, all amounts  owing to the Trustee and the Collateral Agent under this Indenture, the Notes, the Note Guarantees,  the Collateral Documents and the Intercreditor Agreement have been paid or otherwise provided  for to the reasonable satisfaction of the Trustee and the Collateral Agent.         Section 11.4. Amendment of Collateral Documents. If the Trustee is requested to vote or  otherwise take action with respect to the Collateral Documents, the Trustee will vote or otherwise  act  as  directed  by  the  Holders  of  a  majority  in  aggregate  principal  amount  of  all  Notes  then  outstanding, except that:               (1) any amendment or supplement to any Collateral Document that has the effect  solely of adding or maintaining Collateral or preserving, perfecting or establishing the priority of  the Liens thereon or the rights of the Collateral Agent therein will not require a direction from the  Holders and will become effective when executed and delivered by the Issuer or any Guarantor  party thereto and the Collateral Agent;                (2) any amendment or supplement to any Collateral Document that has the effect  solely of curing any ambiguity, defect or inconsistency or making any change that would provide  any additional rights or benefits to Holders or the Collateral Agent or that does not adversely affect  the  legal  rights  under  this  Indenture  or  any  other  Collateral  Document  of  any  Holder  or  the  Collateral Agent in any material respect, will not require a direction from the Holders and will, in  each case, become effective when executed and delivered by the Issuer and any Guarantor party  thereto and the Collateral Agent;                (3)  any  amendment  to,  or  waiver  of,  the  provisions  of  this  Indenture  or  any  Collateral Document that has the effect of releasing all or substantially all of the Collateral from  the Liens securing the Notes will require the consent of Holders specified in Section 9.2 with  respect to such release;                                        101   





 






               (4)   no amendment or supplement to any Collateral Document that impairs the  right of any Holder:                     (A)   to vote its outstanding Notes as to any matter described as subject to                    direction by the Holders of a majority in aggregate principal amount of all                    Notes then outstanding,                       (B) to share in the order of application under the Intercreditor Agreement in                    the proceeds of enforcement of or realization on any Collateral, or                       (C) to require that Liens securing the Notes be released only as set forth in                    Section 11.3,    will become effective without the consent of the requisite percentage or number of Holders so  affected  under  this  Indenture  and  the  Collateral  Documents  and  such  additional  consents  as  required pursuant to the Intercreditor Agreement;                 (5) no amendment or supplement that imposes any obligation upon the Collateral  Agent or adversely affects the rights of the Collateral Agent in its individual capacity as such will  become effective without the consent of the Collateral Agent; and                (6) notwithstanding anything in this Article XII to the contrary, any amendment or  supplement to  the Collateral  Documents  that has the effect  solely  of implementing any action  permitted by Article IX will not require a direction from the Holders (except to the extent specified  in  Article  IX)  and  will  become  effective  when  executed  and  delivered  by  the  Issuer  or  any  Guarantor party thereto and the Collateral Agent.         Section 11.5. Limitation of Duty of Trustee in Respect of Collateral.               (a) The Trustee shall not be responsible for filing any financing or continuation  statements or recording any documents or instruments in any public office at any time or times or  otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The  Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its  possession if the Collateral is accorded treatment substantially equal to that which it accords its  own property and shall not be liable or responsible for any loss or diminution in the value of any  of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent  or bailee selected by the Trustee in good faith.                (b) The Trustee shall not be responsible for the existence, genuineness or value of  any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of  the Collateral, whether impaired by operation of law or by reason of any of any action or omission  to act on its part hereunder, except to the extent such action or omission constitutes negligence or  willful misconduct on the part of the Trustee, for the validity or sufficiency of the Collateral or  any agreement or assignment contained therein, for the validity of the title of the Issuer to the  Collateral, for insuring the Collateral or for the payment of taxes, insurance premiums or other  related  payments,  charges,  assessments  or  Liens  upon  the  Collateral  or  otherwise  as  to  the  maintenance of the Collateral.                                          102   





 






         Section 11.6. Maintenance of Collateral. The Company and the Guarantors as Grantors  shall keep and maintain the Collateral in good operating condition sufficient for the continuation  of the business conducted by them on a basis consistent with past practices (ordinary wear and tear  excepted); provided that no Grantor shall be restricted from discontinuing the maintenance of any  such Collateral if such discontinuance is, in the good faith judgment of such grantor, desirable in  the  conduct  of  the  business  of  such Grantor  and  would  not  reasonably  be  expected  to  have  a  Material Adverse Effect.         Section 11.7. Additional Collateral;  After-Acquired  Property. If  the  Company  or  any  Restricted Subsidiary of the Company pledges any additional property or assets as collateral under  the Loan Documents or acquires any property or assets (other than Excluded Property) after the  Closing Date, the Company shall, in each case at its own expense, promptly execute and deliver  (or  cause  such  Restricted  Subsidiary  to  execute  and  deliver)  to  the  Collateral  Agent  such  documents and take such actions to create, grant, establish, preserve and perfect the first priority  Liens (subject to Permitted Liens) in favor of the Collateral Agent for the benefit of the Holders  on such assets of the Company or such Restricted Subsidiary, as applicable, to secure the Notes to  the  extent  required  under  the  applicable  Collateral  Documents  or  reasonably  requested  by  the  Collateral Agent, and to ensure that such Collateral shall be subject to no other Liens other than  Permitted Liens, in each case within the earlier of (x) one (1) business day after the creation of the  first priority Liens on such additional collateral under the Loan Documents and (y) twenty (20)  business days after the addition of such after-acquired property and, in each case, in form and  substance  reasonably  satisfactory  to  the  Collateral  Agent.  Thereupon,  all  provisions  of this  Indenture, the Collateral Documents and the Intercreditor Agreement relating to the Collateral  shall be deemed to relate to such additional collateral under the Loan Documents or such after- acquired property to the same extent and with the same force and effect.         Section 11.8. Mortgaged Properties.  With respect to any fee interest in any real property  subject  to  a mortgage granted under the Loan Documents  as  of the Closing Date and any fee  interest in any real property located in the United States with a book value in excess of $6.0 million  (as reasonably estimated by the Company) acquired after the Closing Date by the Company or any  of its Restricted Subsidiaries, the Collateral Agent shall have received not later than 135 days after  the Closing Date (unless extended by the Collateral Agent in its sole discretion):         (a) a Mortgage (or an amendment to the existing Mortgage) encumbering each Mortgaged           Property in favor of the Collateral Agent for the benefit of the Holders, duly executed           and acknowledged by the Company or Restricted Subsidiary that is the owner of or           holder of any interest in such Mortgaged Property and otherwise in form for recording           in  the  recording  office  of  each  applicable  political  subdivision  where  each  such           Mortgaged  Property  is  situated,  together  with  such  certificates,  affidavits,           questionnaires or returns as shall be required in connection with the recording or filing           thereof  to  create  a  lien  under  applicable  requirements  of  law,  and  such  financing           statements and any other instruments necessary to grant a mortgage lien under the laws           of any applicable jurisdiction, all of which shall be in form and substance reasonably           satisfactory to the Collateral Agent;          (b) with  respect  to  each  Mortgaged  Property,  such  consents,  approvals,  amendments,           supplements,  estoppels,  tenant  subordination  agreements  or  other  instruments  as                                        103   





 






                   necessary  to  consummate  the  transactions  contemplated  by this  Indenture and  the     Collateral Documents or as shall reasonably be deemed necessary by the Collateral     Agent in order for the owner or holder of the fee interest constituting such Mortgaged     Property  to  grant  the  Lien  contemplated  by  the  Mortgage  with  respect  to  such     Mortgaged Property and the owner thereof;   (c) with respect to each Mortgage, either a bringdown of an existing title policy or a loan     policy of title insurance (or marked up title insurance commitment having the effect of     a loan policy of title insurance) insuring the Lien of such Mortgage as a valid first     mortgage Lien on the Mortgaged Property and fixtures described therein in the amount     reasonably  acceptable  to  the  Collateral  Agent,  which  policy  (or  such  marked-up     commitment) (each, a “Title Policy”) shall (A) be issued by a title insurance company     of recognized standing as shall be retained by the Company and reasonably acceptable     to the Collateral Agent (a “Title Company”), (B) to the extent necessary and available,     include such reinsurance arrangements (with provisions for direct access, if necessary)     as  shall  be  reasonably  acceptable to  the  Collateral  Agent,  (C) contain  a  “tie-in”  or     “cluster” endorsement, if available under applicable law (i.e., policies which insure     against losses regardless of location or allocated value of the insured property up to a     stated  maximum  coverage  amount),  (D) have  been  supplemented  by  such     endorsements  (or  where  such  endorsements  are  not  available,  other  documentation     reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the     Collateral  Agent  (including  endorsements  on  matters  relating  to  usury,  first  loss,     zoning,  contiguity,  revolving  credit,  doing  business,  non-imputation,  public  road     access, survey, variable rate, environmental lien, subdivision, mortgage recording tax,     separate  tax  lot,  revolving  credit,  and  so-called  comprehensive  coverage  over     covenants and restrictions); provided that to the extent that any such endorsement(s) or     other documentation cannot be issued or is not available due to the state or condition     of the Mortgaged Property, and such state or condition existed on the Closing Date (or,     in the case of a Mortgaged Property acquired after the Closing Date, on the date of the     acquisition of such Mortgaged Property) and such state or condition does not materially     and adversely affect the use or the value of such Mortgaged Property for the business     of the Company and its Affiliates, the Company shall have no obligation to procure     such endorsement or other documentation, and (E) contain no exceptions to title other     than  Permitted  Liens  and  other  exceptions  reasonably  acceptable  to  the  Collateral     Agent  or  a  datedown  endorsement  on  the  existing  Title Policy  for  each  existing     Mortgage;   (d) with  respect  to  each  Mortgaged  Property,  such  affidavits,  certificates,  information     (including financial data) and instruments of indemnification (including  a so-called     “gap” indemnification) as shall be required to induce the Title Company to issue the     title policies and endorsements contemplated above;   (e) evidence reasonably acceptable to the Collateral Agent of payment by the Company of     all title policy premiums, search and examination charges, escrow charges and related     charges, mortgage recording taxes, fees, charges, costs and expenses required for the     recording of the Mortgages and issuance of the title policies referred to above;                                  104                





 






         (f) with respect to each Mortgaged Property, copies of all leases in which the Company or           any Subsidiary holds the lessor’s interest or other agreements relating to possessory           interests  if  any.  To  the  extent  any  of  the  foregoing  leases  affect  any  Mortgaged           Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded           against  such  Mortgaged  Property,  either  expressly  by  its  terms  or  pursuant  to  a           subordination,  non-disturbance  and  attornment  agreement  in  form  and  substance           reasonably acceptable to the Collateral Agent, with respect to which the Company or           its applicable Subsidiary shall have used its commercially reasonable efforts to obtain           and (y) shall otherwise be reasonably acceptable to the Collateral Agent; provided that,           if the Collateral Agent fails to notify the Company of rejection of the lease within 10           business  days  from  receipt  of  the  lease,  the  lease  shall  be  deemed  to  have  been           reasonably accepted by the Collateral Agent;         (g) Surveys with respect to each Mortgaged Property; provided that, if the Company is able           to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue           a Title Policy removing all exceptions which would otherwise have been raised by the           Title Company as a result of the absence of a new Survey for such Mortgaged Property,           and issuing all survey related endorsements and coverages, then a new Survey shall not           be requested;         (h) a  completed  Federal  Emergency  Management  Agency  Standard  Flood  Hazard           Determination with respect to each Mortgaged Property; and         (i) an opinion of counsel  relating  to  each Mortgaged Property described  above, which           opinion  of  counsel  shall  be  in  form  and  substance,  and  from  counsel,  reasonably           satisfactory to the Collateral Agent.         In relation to the Mortgaged Property described in the Deed of Trust, the Company shall  deliver  to  the  Collateral  Agent  the  Survey  and  the  Federal  Emergency  Management  Agency  (“FEMA”) Standard Flood Hazard Determination delivered by the Company in 2019 pursuant to  the Credit Agreement. The Company shall have no obligation to provide any additional Survey or  related FEMA determination in relation to such Mortgaged Property.         Furthermore, to the extent required by law to grant, preserve, protect or perfect the Liens  created by such Mortgage and the validity or priority thereof, the Company will, and will cause  each of its applicable Restricted Subsidiaries to, promptly take all such further actions including  the payment of any additional mortgage recording taxes, fees, charges, costs and expenses required  so  to  grant,  preserve,  protect  or  perfect  the  Liens  created  by  such  Mortgage  to  the  maximum  amount of Indebtedness by its terms secured thereby and the validity or priority of any such Lien.         Section 11.9. Further Assurances. To the extent required under this Indenture or any of  the  Collateral  Documents,  the  Company  and  the  Guarantors shall  execute  any  and  all  further  documents, financing statements, agreements and instruments, and take all further actions that may  be  required  under  applicable  law,  or  that  the Collateral  Agent  or  the  Trustee  may  reasonably  request, in order to grant, preserve, protect and perfect the validity and priority of the security  interests and Liens created or intended to be created by the Collateral Documents in the Collateral.                                          105   





 






      In addition, to the extent required under this Indenture or any of the Collateral Documents,  from  time  to  time,  the  Company  and  the  Guarantors shall  reasonably  promptly  secure  the  obligations under this Indenture and the Collateral Documents by pledging or creating, or causing  to be pledged or created, perfected security interests and Liens with respect to the Collateral, under  other  security  agreements,  instruments  and  documents  in  form  and  substance  reasonably  satisfactory to the Collateral Agent.                              ARTICLE XII. MISCELLANEOUS         Section 12.1. Notices.               Any notice or communication by the Company or the Trustee to the other, or by a  Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed  by first-class mail (registered or certified, return receipt requested), facsimile transmission, email  or send by overnight air courier guaranteeing next Business Day delivery addressed as follows:   if to the Company:                     Allegiant Travel Company                    1201 North Town Center Drive                    Las Vegas, Nevada 89144                    Attention: Greg Anderson, Executive Vice President, Chief Financial                    Officer and Principal Accounting Officer // Robert Goldberg, Senior                    Counsel, e-mail: robert.goldberg@allegiantair.com                      with a copy to:                     Vedder Price P.C.                    1633 Broadway                    New York, NY 10019                    Attention: Kevin A. MacLeod, Esq., email: kmacleod@vedderprice.com                      if to the Trustee:                     Wilmington Trust, National Association                    1100 North Market Street                    Wilmington, DE 19890-1605                    Attention:  Corporate Trust Admin/Bob Hines                    Email: RHines@WilmingtonTrust.com                    Facsimile:   302-636-4140                    Telephone:  302-636-6197         The Company or the Trustee by notice to the other may designate additional or different  addresses for subsequent notices or communications. Notice to the Trustee by facsimile shall be  effective only if such receipt is acknowledged.                                        106   





 






         Any notice or communication to a Noteholder shall be mailed by first-class mail to his  address shown on the register kept by the Registrar.  Failure to mail a notice or communication to  a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders.         If a notice or communication is mailed or published in the manner provided above, within  the time prescribed, it is duly given, whether or not the Noteholder receives it.         If the Company mails a notice or communication to Noteholders, it shall mail a copy to the  Trustee and each Agent at the same time.         Notwithstanding any other provision of this Indenture or any Note, where this Indenture or  any Note provides for notice of any event (including any notice of redemption) to a Holder of a  Global Note (whether  by  mail  or  otherwise),  such  notice  shall  be  sufficiently  given  to  the  Depositary  for such  Note (or  its  designee)  pursuant  to  the  customary  procedures  of  such  Depositary.         Section 12.2. Certificate and Opinion as to Conditions Precedent.         Upon any request or application by the Company to the Trustee to take any action under  this Indenture, the Company shall furnish to the Trustee:               (a)   an Officer’s  Certificate  stating  that,  in  the  opinion  of the  signer,  all        conditions precedent, if any, provided for in this Indenture relating to the proposed action        have been complied with; and               (b)   an Opinion of Counsel stating that, in the opinion of such counsel, all such        conditions precedent have been complied with.         Section 12.3. Statements Required in Certificate or Opinion.         Each  certificate  or  opinion  with  respect  to  compliance  with  a  condition  or  covenant  provided for in this Indenture shall include:               (a)   a statement that the person making such certificate or opinion has read such        covenant or condition;               (b)   a  brief  statement  as  to  the  nature  and  scope  of  the  examination  or        investigation upon which the statements or opinions contained in such certificate or opinion        are based;               (c)   a  statement  that,  in  the  opinion  of  such  person,  he  has  made  such        examination or investigation as is necessary to enable him to express an informed opinion        as to whether or not such covenant or condition has been complied with; and               (d)   a  statement  as  to  whether  or  not,  in  the  opinion  of  such  person,  such        condition or covenant has been complied with.         Section 12.4. Rules by Trustee and Agents.                                        107   





 






         The Trustee may make reasonable rules for action by or a meeting of Noteholders.  Any  Agent may make reasonable rules and set reasonable requirements for its functions.         Section 12.5. Legal Holidays.         Unless otherwise  provided  by  Board  Resolution,  Officer’s  Certificate  or  supplemental  indenture hereto, a “Legal Holiday” is any day that is not a Business Day.  If a payment date is a  Legal Holiday at a place of payment, payment may be made at that place on the next succeeding  day that is not a Legal Holiday, and no interest shall accrue for the intervening period.         Section 12.6. No Recourse Against Others.         A director, officer, employee or stockholder (past or present), as such, of the Company  shall not have any liability for any obligations of the Company under the Notes or this Indenture  or for any claim based on, in respect of or by reason of such obligations or their creation.  Each  Noteholder by accepting a Note waives and releases all such liability.  The waiver and release are  part of the consideration for the issue of the Notes.         Section 12.7. Counterparts.         This Indenture may be executed in any number of counterparts and by the parties hereto in  separate counterparts, each of which when so executed shall be deemed to be an original and all  of which taken together shall constitute one and the same agreement.  The exchange of copies of  this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective  execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the  original Indenture for all purposes.  Signatures of the parties hereto transmitted by facsimile or  PDF shall be deemed to be their original signatures for all purposes.         Section 12.8. Governing Law; Jurisdiction; Jury Trial Waiver.         THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE  USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES  WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO  THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION  WOULD BE REQUIRED THEREBY.         Any legal  suit, action or proceeding  arising  out  of or based upon this  Indenture or the  transactions contemplated hereby may be instituted in the federal courts of the United States of  America located in the City of New York or the courts of the State of New York in each case  located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably  submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail (to the extent allowed under any  applicable statute or rule of court) to such party’s address set forth above shall be effective service  of process for any suit, action or other proceeding brought in any such court. The Company, the  Trustee  and  the  Holders  (by  their  acceptance  of  the  Notes)  each  hereby  irrevocably  and  unconditionally waive any objection to the laying of venue of any suit, action or other proceeding  in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim  any such suit, action or other proceeding has been brought in an inconvenient forum.                                        108   





 






         The Company, the Trustee and the Holders (by their acceptance of the Notes) each hereby  irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by  jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the transactions  contemplated hereby or thereby.         Section 12.9. No Adverse Interpretation of Other Agreements.         This Indenture may not be used to interpret another indenture, loan or debt agreement of  the Company or a Subsidiary of the Company.  Any such indenture, loan or debt agreement may  not be used to interpret this Indenture.         Section 12.10. Successors.         All agreements of the Company in this Indenture and the Notes shall bind its successor.   All agreements of the Trustee in this Indenture shall bind its successor.         Section 12.11. Severability.         In  case  any  provision  in  this  Indenture  or  in the  Notes shall  be  invalid,  illegal  or  unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any  way be affected or impaired thereby.         Section 12.12. Table of Contents, Headings, Etc.         The Table of Contents, Cross Reference Table, and headings of the Articles and Sections  of this Indenture have been inserted for convenience of reference only, are not to be considered a  part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.         Section 12.13. Force Majeure.         In  no  event  shall  the  Trustee  be  responsible  or  liable  for  any  failure  or  delay  in  the  performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces  beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or  terrorism,  civil  or  military  disturbances,  nuclear  or  natural  catastrophes  or  acts  of  God,  and  interruptions,  loss  or  malfunctions  of  utilities,  communications  or  computer  (software  and  hardware) services, it being understood that the Trustee shall use reasonable best efforts which are  consistent  with  accepted  practices  in  the  banking  industry  to  resume  performance  as  soon  as  practicable under the circumstances.         Section 12.14. U.S.A. Patriot Act.         The Company acknowledges that in accordance with Section 326 of the U.S.A. PATRIOT  Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism  and money laundering, is required to obtain, verify, and record information that identifies each  person or legal entity that establishes a relationship or opens an account with the Trustee. The  parties to this Indenture agree that they will provide the Trustee with such information as it may  request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.                                        109   





 






                [Signature Pages Follow]             110                





 












 












 












 






       WILMINGTON TRUST.   NATIONAL              ASSOCIATION. as Trustee          By:            Name  Rob     . Perkins            Title:                    Vice President   fsignature Page to lndenturel





 






                                                                      Exhibit A                                    [Face of Note]   [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]   [Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]   [Insert  the  Regulation  S  Global  Note  Legend,  if  applicable  pursuant  to  the  provisions  of  the  Indenture]                                                           CUSIP/ISINS _________1                          8.500% Senior Secured Notes due 2024   No. ___                                                              $_______*                          ALLEGIANT TRAVEL COMPANY   promises to pay to CEDE & CO. or registered assigns,   the  principal  sum  of  _____________________________________________________  DOLLARS* on February 5, 2024.   Interest Payment Dates: February 1 and August 1   Record Dates: January 15 and July 15                             1 144A CUSIP: 01748X AC6  144A ISIN: US01748XAC65  Reg. S CUSIP: U0177P AB4  Reg. S ISIN: USU0177PAB41    * This Global Note represents the aggregate principal amount of outstanding Notes from time to time endorsed  thereon, the initial amount of which is specified on the “Schedule of Exchanges of Interests in the Global Notes”  attached hereto, which may from time to time be reduced or increased, as appropriate, to reflect exchanges and  redemptions.                                       A - 2   





 






                                                                      Exhibit A      Dated: October 7, 2020                                       ALLEGIANT TRAVEL COMPANY                                                                                                                  By:   ______________________________                                            Name:                                            Title:                                        A - 2   





 






                                                                      Exhibit A   This is one of the Notes referred to  in the within-mentioned Indenture:    Wilmington Trust, National Association,   as Trustee    By: __________________________  Authorized Signatory    Dated: October 7, 2020                                                                              A - 2   





 






                                                                      Exhibit A                                     [Back of Note]                         8.500% Senior Secured Notes due 2024        INTEREST. Allegiant Travel Company, a Nevada corporation (the “Company”), promises  to pay or cause to be paid interest on the principal amount of this Note at 8.500% per annum  from October 7, 2020 until maturity and shall pay the Special Interest, if any, payable pursuant to  Section 4.3 of the Indenture. The Company will pay interest, if any, semi-annually in arrears on  February 1 and August 1 of each year, or if any such day is not a Business Day, on the next  succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will accrue  from the most recent date to which interest has been paid or, if no interest has been paid, from  the date of issuance; provided that the first Interest Payment Date shall be February 1, 2021. The  Company will pay interest (including post-petition interest in any proceeding under any  Bankruptcy Law) on overdue principal at a rate that is 1% higher than the then applicable interest  rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any  proceeding under any Bankruptcy Law) on overdue installments of interest, if any (without  regard to any applicable grace period), at the same rate to the extent lawful.         Interest  will  be  computed  on  the  basis  of  a  360-day  year  comprised of  twelve  30-day  months. All references to interest in this Note shall be deemed to include Special Interest, if any,  that is then due.         METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted  interest), if any, to the Persons who are registered Holders at the close of business on the January  15 and July 15 next preceding the Interest Payment Date, even if the Notes are canceled after  such record date and on or before such Interest Payment Date, except as provided in Section 2.12  of the Indenture with respect to defaulted interest. The Notes will be payable as to principal,  premium, if any, and interest, if any, at the office or agency of the Paying Agent and Registrar,  or, at the option of the Company, payment of interest, if any, may be made by check mailed to  the Holders at their addresses set forth in the register of Holders; provided that payment by wire  transfer of immediately available funds will be required with respect to principal of, premium on,  if any, and interest, if any, on, all Global Notes and all other Notes the Holders of which will  have provided wire transfer instructions to the Company or the Paying Agent. Such payment will  be in such coin or currency of the United States of America as at the time of payment is legal  tender for payment of public and private debts.         PAYING AGENT AND REGISTRAR. Initially, Wilmington Trust, National Association, the  Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change  the Paying Agent or Registrar without prior notice to the Holders. The Company or any of its  Subsidiaries may act as Paying Agent or Registrar.         INDENTURE. The Company issued the Notes under an Indenture dated as of October 7,  2020 (the “Indenture”) among the Company, the Guarantors party thereto from time to time and  the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject  to all such terms, and Holders are referred to the Indenture for a statement of such terms. To the  extent any provision of this Note conflicts with the express provisions of the Indenture, the  provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations                                       A - 2   





 






   of the Company. The Indenture does not limit the aggregate principal amount of Notes that may  be issued thereunder.         OPTIONAL REDEMPTION; CHANGE OF CONTROL REPURCHASE.         On and after August 5, 2023 (the “Par Call Date”), the Company, at its option, may redeem  the Notes, in whole or in part at any time and from time to time, at a redemption price equal to  100% of the principal amount of the Notes to be redeemed, plus any accrued and unpaid interest  thereon to, but excluding, the redemption date.         Prior to the Par Call Date, the Company may redeem the Notes, in whole or in part at any  time and from time to time, at a redemption price equal to 100% of the principal amount of the  Notes to be redeemed plus the Applicable Premium, plus any accrued and unpaid interest on the  principal amount being redeemed to, but excluding, the redemption date.  The Company will notify  the Trustee of the calculation of the redemption price and the Trustee will not be responsible for  such calculation.         Upon the occurrence of a Change of Control, each Holder of Notes will have the right to  require the Company to repurchase all or any part (equal to a minimum denomination of $2,000  or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes pursuant to a Change  of Control Offer at a purchase price in cash equal to 101% of the aggregate principal amount of  the Notes repurchased, plus accrued and unpaid interest on the Notes repurchased to (but not  including) the date of purchase.         MANDATORY REDEMPTION. The Company is not required to make mandatory redemption  or sinking fund payments with respect to the Notes.         NOTICE OF REDEMPTION. At least 30 days but not more than 60 days before a redemption  date, the Company will mail or cause to be mailed, by first-class mail, a notice of redemption to  each Holder whose Notes are to be redeemed at its registered address, except that redemption  notices may be mailed more than 60 days prior to a redemption date if the notice is issued in  connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture  pursuant to Article VIII thereof. Notes and portions of Notes selected will be in principal  amounts of $2,000 or integral multiples of $1,000 in excess thereof; except that if all of the  Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held  by such Holder shall be redeemed or purchased.               Any such redemption may, at the Company’s discretion, be subject to one or more  conditions precedent, including the consummation of a Change of Control. In addition, if such  redemption or notice is subject to satisfaction of one or more conditions precedent, such notice  shall state that, in the Company’s discretion, the redemption date may be delayed until such time  as any or all such conditions shall be satisfied or waived, or such redemption may not occur and  such notice may be rescinded in the event that any or all such conditions shall not have been  satisfied or waived by the redemption date, or by the redemption date so delayed.         DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form in  denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of  Notes may be registered and Notes may be exchanged as provided in the Indenture. The                                       A - 2   





 






   Registrar and the Trustee may require a Holder, among other things, to furnish appropriate  endorsements and transfer documents and the Company may require a Holder to pay any taxes  and fees required by law or permitted by the Indenture. The Company need not exchange or  register the transfer of any Note or portion of a Note selected for redemption, except for the  unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange  or register the transfer of any Notes for a period of 15 days before a selection of Notes to be  redeemed or during the period between a record date and the next succeeding Interest Payment  Date.         PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as the owner  of it for all purposes. Only registered Holders have rights under the Indenture.         AMENDMENT, SUPPLEMENT AND WAIVER. The provisions governing amendment,  supplement and waiver of any provision of the Indenture, the Notes or the Note Guarantees are  set forth in Article IX of the Indenture.         DEFAULTS AND REMEDIES. The Events of Default relating to the Notes and related  remedies and other provisions are included in Section 6.1 of the Indenture.         SECURITY. The Notes shall be secured by Liens and security interests, subject to Permitted  Liens, in the Collateral. The Collateral Agent holds the Collateral in trust for the benefit of the  Trustee and the Holders, in each case pursuant to the Collateral Documents.         TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity,  may make loans to, accept deposits from, and perform services for the Company or its Affiliates,  and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.         NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or  stockholder of the Company or any Guarantor, as such, will have any liability for any obligations  of the Company or any Guarantor under the Notes, the Indenture, the Note Guarantees, or for  any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder  of the Notes by accepting a Note waives and releases all such liability. The waiver and release  are part of the consideration for issuance of the Notes. The waiver may not be effective to waive  liabilities under the federal securities laws.         AUTHENTICATION. This Note will not be valid until authenticated by the manual signature  of the Trustee or an authenticating agent.         ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an  assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT  TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=  Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).         CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on  Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be  printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a  convenience to Holders. No representation is made as to the accuracy of such numbers either as                                       A - 3   





 






   printed on the Notes or as contained in any notice of redemption, and reliance may be placed  only on the other identification numbers placed thereon.         GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THE INTERNAL LAW OF THE  STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE  INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT  TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE  APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED  THEREBY.               Any legal suit, action or proceeding arising out of or based upon this Indenture or  the transactions contemplated hereby may be instituted in the federal courts of the United States  of America located in the City of New York or the courts of the State of New York in each case  located in the City of New York (collectively, the “Specified Courts”), and each party  irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action or  proceeding. Service of any process, summons, notice or document by mail (to the extent allowed  under any applicable statute or rule of court) to such party’s address set forth above shall be  effective service of process for any suit, action or other proceeding brought in any such court.  The Company, the Trustee and the Holders (by their acceptance of the Notes) each hereby  irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or  other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree  not to plead or claim any such suit, action or other proceeding has been brought in an  inconvenient forum.               The Company, the Trustee and the Holders (by their acceptance of the Notes)  each hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right  to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Notes or the  transactions contemplated hereby or thereby.         The Company will furnish to any Holder upon written request and without charge a copy  of the Indenture. Requests may be made to:         Allegiant Travel Company         1201 North Town Center Drive         Las Vegas, Nevada 89144                                                                   A - 4   





 






                                  ASSIGNMENT FORM               To assign this Note, fill in the form below:   (I) or (we) assign and transfer this Note to: ____________________________________________                                            (Insert assignee’s legal name)   ______________________________________________________________________________                          (Insert assignee’s soc. sec. or tax I.D. no.)   ______________________________________________________________________________  ______________________________________________________________________________  ______________________________________________________________________________  ______________________________________________________________________________                    (Print or type assignee’s name, address and zip code)   and irrevocably appoint __________________________________________________________  to transfer this Note on the books of the Company. The agent may substitute another to act for  him.   Date: _______________                                       Your Signature: ____________________________                                      (Sign exactly as your name appears on the face of                                      this Note)  Signature Guarantee*: _____________________   *     Participant in a recognized Signature Guarantee Medallion Program (or other signature  guarantor acceptable to the Trustee).                                                                   A - 5   





 






                         OPTION OF HOLDER TO ELECT PURCHASE               If  you  want  to  elect  to  have  this  Note  purchased  by  the  Company  pursuant  to  Section 4.12 or Section 4.13 of the Indenture, check the box below:                                        Section 4.12                                        Section 4.13               If  you want  to  elect  to  have  only  part  of  the  Note  purchased  by  the  Company  pursuant  to  Section  4.12  or  Section  4.13 the  Indenture,  state  the  amount  you  elect  to  have  purchased:                                     $_________   Date: ___________                                       Your Signature: ____________________________                                      (Sign exactly as your name appears on the face of                                      this Note)                                      Tax Identification No.: _______________________  Signature Guarantee*: ________________________   *     Participant in a recognized Signature Guarantee Medallion Program (or other signature  guarantor acceptable to the Trustee).                                                                   A - 6   





 






                SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE               The following exchanges of a part of this Global Note for an interest in another  Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive  Note for an interest in this Global Note, have been made:                                                      Principal                     Amount of      Amount of        Amount                     decrease in     increase in    of this Global  Signature of                      Principal       Principal         Note         authorized                      Amount         Amount        following such    officer       Date of      of this Global  of this Global    decrease      of Trustee or      Exchange          Note            Note         (or increase)   Custodian                                                                                  A - 7   





 






                                                                    EXHIBIT B                        FORM OF CERTIFICATE OF TRANSFER   Allegiant Travel Company   1201 North Town Center Drive  Las Vegas, Nevada 89144   Wilmington Trust, National Association  1100 North Market Street  Wilmington, DE 19890-1605                Re: 8.500% Senior Secured Notes due 2024               Reference  is  hereby  made  to  the  Indenture,  dated  as  of October  7,  2020 (the  “Indenture”), among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party  thereto and Wilmington Trust, National Association, as trustee and collateral agent. Capitalized  terms used but not defined herein shall have the meanings given to them in the Indenture.               ________________ (the “Transferor”) owns and proposes to transfer the Note[s]  or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________  in  such  Note[s]  or interests  (the  “Transfer”),  to ___________________________ (the  “Transferee”),  as  further  specified  in Annex  A  hereto.  In  connection  with  the  Transfer,  the  Transferor hereby certifies that:                             [CHECK ALL THAT APPLY]         1.       Check if Transferee will take delivery of a beneficial interest in the 144A  Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being  effected  pursuant  to  and  in  accordance  with  Rule  144A  under  the  Securities  Act  of  1933,  as  amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the  beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably  believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or  more accounts with respect to which such Person exercises sole investment discretion, and such  Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A  in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with  any applicable blue sky securities laws of any state of the United States. Upon consummation of  the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial  interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private  Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in  the Indenture and the Securities Act.         2.       Check  if  Transferee  will  take  delivery  of  a  beneficial  interest  in  the  Regulation  S  Global  Note  or  a  Restricted  Definitive  Note  pursuant  to  Regulation  S.  The  Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the  Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not  being made to a Person in the United States and (x) at the time the buy order was originated, the  Transferee was outside the United States or such Transferor and any Person acting on its behalf  reasonably  believed  and  believes  that  the  Transferee  was  outside  the  United  States  or  (y)  the                                        B - 1   





 






                                                                    EXHIBIT B   transaction was executed in, on or through the facilities of a designated offshore securities market  and neither such Transferor nor any Person acting on its behalf knows that the transaction was  prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in  contravention  of  the  requirements  of  Rule  903(b)  or  Rule  904(b)  of  Regulation  S  under  the  Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration  requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the  expiration of the Restricted Period, the transfer is  not  being  made to  a U.S.  Person or for the  account or benefit of a U.S. Person (other than the Initial Purchaser). Upon consummation of the  proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest  or  Definitive  Note  will  be  subject  to  the  restrictions  on  Transfer  enumerated  in  the  Private  Placement Legend printed on the Regulation S Global Note or the Restricted Definitive Note and  in the Indenture and the Securities Act.         3.       Check and complete if Transferee will take delivery of a beneficial interest  in the  IAI  Global  Note  or  a  Restricted  Definitive  Note  pursuant  to  any  provision  of  the  Securities  Act  other  than  Rule  144A  or  Regulation  S.  The  Transfer  is  being  effected  in  compliance with  the transfer restrictions applicable to  beneficial interests  in  Restricted Global  Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act  and any applicable blue sky securities laws of any state of the United States, and accordingly the  Transferor hereby further certifies that (check one):               (a)      such Transfer is being effected pursuant to and in accordance with Rule        144 under the Securities Act;                                         or               (b)      such Transfer is being effected to the Company or a subsidiary thereof;                                         or               (c)      such Transfer is being effected to an Institutional Accredited Investor        and pursuant to an exemption from the registration requirements of the Securities Act other        than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies        that it has not engaged in any general solicitation within the meaning of Regulation D under        the Securities Act and the Transfer complies with the transfer restrictions applicable to        beneficial  interests  in  a  Restricted  Global  Note  or  Restricted  Definitive  Notes  and  the        requirements of the exemption claimed, which certification is supported by (1) a certificate        executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer        is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an        Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the        Transferor  has  attached  to  this  certification),  to  the  effect  that  such  Transfer  is  in        compliance  with  the  Securities  Act.  Upon  consummation  of  the  proposed  transfer  in        accordance with the terms of the Indenture, the transferred beneficial interest or Definitive        Note will be subject to the restrictions on transfer enumerated in the Private Placement                                         B - 2   





 






                                                                    EXHIBIT B         Legend printed on the IAI Global Note and/or the Restricted Definitive Notes and in the        Indenture and the Securities Act.         4.       Check  if  Transferee  will  take  delivery  of  a  beneficial  interest  in  an  Unrestricted Global Note or of an Unrestricted Definitive Note.         (a)      Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected  pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the  transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any  state of the United States and (ii) the restrictions on transfer contained in the Indenture and the  Private Placement Legend are not required in order to maintain compliance with the Securities  Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture,  the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on  transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on  Restricted Definitive Notes and in the Indenture.         (b)      Check  if  Transfer  is  Pursuant  to  Regulation  S. (i) The  Transfer  is  being  effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in  compliance with the transfer restrictions contained in the Indenture and any applicable blue sky  securities laws of any state of the United States and (ii) the restrictions on transfer contained in the  Indenture and the Private Placement Legend are not required in order to maintain compliance with  the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of  the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the  restrictions  on  transfer  enumerated  in  the  Private  Placement  Legend  printed  on  the  Restricted  Global Notes, on Restricted Definitive Notes and in the Indenture.         (c)      Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being  effected pursuant to and in compliance with an exemption from the registration requirements of  the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer  restrictions contained in the Indenture and any applicable blue sky securities laws of any State of  the United States and (ü) the restrictions on transfer contained in the Indenture and the Private  Placement Legend are not required in order to maintain compliance with the Securities Act. Upon  consummation  of  the  proposed  Transfer  in  accordance  with  the  terms  of  the  Indenture,  the  transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer  enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted  Definitive Notes and in the Indenture.               This certificate and the statements contained herein are made for your benefit and  the benefit of the Company.                                                                    B - 3   





 






                                                                    EXHIBIT B                                       ______________________________________                                         [Insert Name of Transferor]                                       By:   ________________________________                                            Name:                                             Title:  Dated: ___________________                                            B - 4   





 






                                                       ANNEX A TO EXHIBIT B                      ANNEX A TO CERTIFICATE OF TRANSFER   1.    The Transferor owns and proposes to transfer the following:                             [CHECK ONE OF (a) OR (b)]               (a)      a beneficial interest in the:               (i)      144A Global Note (CUSIP _________), or               (ii)     Regulation S Global Note (CUSIP _________), or               (iii)    IAI Global Note (CUSIP ___________), or               (b)      a Restricted Definitive Note.   2.    After the Transfer the Transferee will hold:                                   [CHECK ONE]               (a)      a beneficial interest in the:               (i)      144A Global Note (CUSIP _________), or               (ii)     Regulation S Global Note (CUSIP _________), or               (iii)    IAI Global Note (CUSIP ___________), or               (iv)     Unrestricted Global Note (CUSIP _________); or               (b)      a Restricted Definitive Note; or               (c)      an Unrestricted Definitive Note,               in accordance with the terms of the Indenture.                                            B - 5   





 






                                                                    EXHIBIT C                       FORM OF CERTIFICATE OF EXCHANGE   Allegiant Travel Company   1201 North Town Center Drive  Las Vegas, Nevada 89144    Wilmington Trust, National Association  1100 North Market Street  Wilmington, DE 19890-1605                 Re: 8.500% Senior Secured Notes due 2024                                   (CUSIP [         ])               Reference  is  hereby  made  to  the  Indenture,  dated  as  of October  7,  2020 (the  “Indenture”), among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party  thereto and Wilmington Trust, National Association, as trustee and collateral agent. Capitalized  terms used but not defined herein shall have the meanings given to them in the Indenture.               _______________________ (the  “Owner”)  owns  and  proposes  to  exchange  the  Note[s] or interest in such Note[s] specified herein, in the principal amount of $ ________ in such  Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies  that:         1.    Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted  Global  Note  for  Unrestricted  Definitive  Notes  or  Beneficial  Interests  in  an  Unrestricted  Global Note         (a)      Check if Exchange is from beneficial interest in a Restricted Global Note  to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the  Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted  Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is  being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected  in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in  accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions  on transfer contained in the Indenture and the Private Placement Legend are not required in order  to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted  Global Note is being acquired in compliance with any applicable blue sky securities laws of any  state of the United States.         (b)      Check if Exchange is from beneficial interest in a Restricted Global Note  to  Unrestricted  Definitive  Note.  In  connection  with  the  Exchange  of  the  Owner’s beneficial  interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies  (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such  Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted  Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on  transfer contained in the Indenture and the Private Placement Legend are not required in order to                                        C - 1   





 






                                                                    EXHIBIT C   maintain  compliance with  the Securities Act  and (iv) the Definitive Note is  being  acquired in  compliance with any applicable blue sky securities laws of any state of the United States.         (c)      Check if Exchange is from Restricted Definitive Note to beneficial interest  in  an  Unrestricted  Global  Note.  In  connection  with  the  Owner’s  Exchange  of  a  Restricted  Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies  (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such  Exchange has been effected in compliance with the transfer restrictions applicable to Restricted  Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on  transfer contained in the Indenture and the Private Placement Legend are not required in order to  maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in  compliance with any applicable blue sky securities laws of any state of the United States.         (d)      Check  if  Exchange  is  from  Restricted  Definitive  Note  to  Unrestricted  Definitive Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an  Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is  being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected  in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant  to  and in  accordance  with  the Securities Act,  (iii) the restrictions on transfer  contained in  the  Indenture and the Private Placement Legend are not required in order to maintain compliance with  the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with  any applicable blue sky securities laws of any state of the United States.         2.    Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted  Global  Notes  for  Restricted  Definitive  Notes  or  Beneficial Interests  in  Restricted  Global  Notes         (a)      Check if Exchange is from beneficial interest in a Restricted Global Note  to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest  in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the  Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own  account without transfer. Upon consummation of the proposed Exchange in accordance with the  terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the  restrictions  on  transfer  enumerated  in  the  Private  Placement  Legend  printed  on  the  Restricted  Definitive Note and in the Indenture and the Securities Act.         (b)      Check if Exchange is from Restricted Definitive Note to beneficial interest  in  a  Restricted  Global  Note.  In  connection  with  the  Exchange  of  the  Owner’s  Restricted  Definitive Note for a beneficial interest in the [CHECK ONE]  ̈  144A Global Note,  IAI Global  Note,  Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i)  the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such  Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted  Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with  any applicable blue sky securities laws of any state of the United States. Upon consummation of  the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued                                         C - 2   





 






                                                                    EXHIBIT C   will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed  on the relevant Restricted Global Note and in the Indenture and the Securities Act.               This certificate and the statements contained herein are made for your benefit and  the benefit of the Company.                                                                    C - 3   





 






                                                                    EXHIBIT C                                       ______________________________________                                         [Insert Name of Transferor]                                       By:   ________________________________                                            Name:                                             Title:  Dated: ___________________                                            C - 4   





 






                                                                    EXHIBIT D                           FORM OF CERTIFICATE FROM               ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR   Allegiant Travel Company   1201 North Town Center Drive  Las Vegas, Nevada 89144    Wilmington Trust, National Association  1100 North Market Street  Wilmington, DE 19890-1605                Re: 8.500% Senior Secured Notes due 2024               Reference  is  hereby  made  to  the  Indenture,  dated  as  of October  7,  2020 (the  “Indenture”), among Allegiant Travel Company, as issuer (the “Company”), the Guarantors party  thereto and Wilmington Trust, National Association, as trustee and collateral agent. Capitalized  terms used but not defined herein shall have the meanings given to them in the Indenture.               In  connection  with  our  proposed  purchase  of  $_________ aggregate  principal  amount of:         1.       a beneficial interest in a Global Note, or         2.       a Definitive Note,               we confirm that:         1.    We understand that any subsequent transfer of the Notes or any interest therein is  subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees  to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein  except in compliance with, such restrictions and conditions and the Securities Act of 1933, as  amended (the “Securities Act”).         2.    We understand that the offer and sale of the Notes have not been registered under  the Securities Act, and that the Notes and any interest therein may not be offered or sold except as  permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts  for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein,  we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule  144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C) to an  institutional “accredited investor” (as defined below) that, prior to such transfer, furnishes (or has  furnished  on  its  behalf  by  a  U.S.  broker-dealer)  to  you  and  to  the  Company  a  signed  letter  substantially in the form of this letter and, if such transfer is in respect of a principal amount of  Notes, at the time of transfer of less than $250,000, an Opinion of Counsel in form reasonably  acceptable to the Company to the effect that such transfer is in compliance with the Securities Act,  (D) outside the United States in accordance with Rule 904 of Regulation S under the Securities  Act, (E) pursuant to the provisions of Rule 144 under the Securities Act or (F) pursuant to an  effective registration statement under the Securities Act, and we further agree to provide to any  Person  purchasing  the  Definitive  Note  or  beneficial  interest  in  a  Global  Note  from  us  in  a                                       D - 5 





 






                                                                    EXHIBIT D   transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising  such purchaser that resales thereof are restricted as stated herein.         3.    We  understand  that,  on  any  proposed  resale  of  the  Notes  or  beneficial  interest  therein, we will be required to furnish to you and the Company such certifications, legal opinions  and  other  information as  you  and  the  Company  may  reasonably  require  to  confirm  that  the  proposed  sale  complies  with  the  foregoing  restrictions.  We  further  understand  that  the  Notes  purchased by us will bear a legend to the foregoing effect.         4.    We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3)  or (7) of Regulation  D  under the Securities Act) and have such knowledge and  experience in  financial and business matters as to be capable of evaluating the merits and risks of our investment  in the Notes, and we and any accounts for which we are acting are each able to bear the economic  risk of our or its investment.         5.    We are acquiring the Notes or beneficial interest therein purchased by us for our  own account or for one or more accounts (each of which is an institutional “accredited investor”)  as to each of which we exercise sole investment discretion.               You  and  the  Company  are  entitled  to  rely  upon  this  letter  and  are  irrevocably  authorized to produce this letter or a copy hereof to any interested party in any administrative or  legal proceedings or official inquiry with respect to the matters covered hereby.                                       ______________________________________                                         [Insert Name of Transferor]                                       By:   ________________________________                                            Name:                                             Title:  Dated: ___________________                                           D - 6 





 






                                                                    EXHIBIT E                       FORM OF SUPPLEMENTAL INDENTURE                TO BE DELIVERED BY SUBSEQUENT GUARANTORS               SUPPLEMENTAL  INDENTURE (this  “Supplemental  Indenture”),  dated  as  of  ____________,  among  _____________  (the  “Guaranteeing  Subsidiary”),  a  subsidiary  of  Allegiant Travel Company (or its permitted successor), a Delaware corporation (the “Company”),  the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wilmington  Trust, National Association, as trustee (in such capacity, the “Trustee”) and Collateral Agent under  the Indenture referred to below.                                  W I T N E S E T H               WHEREAS, the Company has heretofore executed and delivered to the Trustee an  indenture (the “Indenture”), dated as of October 7, 2020 providing for the issuance of 8.500%  Senior Secured Notes due 2024 (the “Notes”);               WHEREAS,  the  Indenture  provides  that  under  certain  circumstances  the  Guaranteeing  Subsidiary  shall  execute  and  deliver  to  the  Trustee  a  supplemental  indenture  pursuant  to  which  the  Guaranteeing  Subsidiary  shall  unconditionally  guarantee  all  of  the  Company’s obligations under the Notes and the Indenture on the terms and conditions set forth  herein (the “Note Guarantee”); and               WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to  execute and deliver this Supplemental Indenture.               NOW, THEREFORE, in consideration of the foregoing and for other good and  valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary  and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as  follows:         1.    CAPITALIZED TERMS. Capitalized terms used herein without definition shall have  the meanings assigned to them in the Indenture.         1.    AGREEMENT  TO GUARANTEE.  The  Guaranteeing  Subsidiary  hereby  agrees  to  provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note  Guarantee and in the Indenture including but not limited to Article X thereof.         2.    NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or  stockholder of the Company or any Guarantor, as such, will have any liability for any obligations  of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any  claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of  the Notes by accepting a Note waives and releases all such liability. The waiver and release are  part of the consideration for issuance of the Notes. The waiver may not  be effective to waive  liabilities under the federal securities laws.         3.    NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF  NEW YORK SHALL  GOVERN AND BE USED TO CONSTRUE  THIS  SUPPLEMENTAL  INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS                                       D - 7 





 






                                                                    EXHIBIT E   OF  LAW  TO  THE  EXTENT  THAT  THE  APPLICATION  OF  THE  LAWS  OF  ANOTHER  JURISDICTION WOULD BE REQUIRED THEREBY.         4.    COUNTERPARTS. The parties may sign any number of copies of this Supplemental  Indenture.  Each  signed  copy  shall  be  an  original,  but  all  of  them  together represent  the  same  agreement.         5.    EFFECT OF HEADINGS. The Section headings herein are for convenience only and  shall not affect the construction hereof.         6.    THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for  or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the  recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and  the Company.               IN  WITNESS  WHEREOF,  the  parties  hereto  have  caused  this  Supplemental  Indenture to be duly executed and attested, all as of the date first above written.               Dated: __________________                                       [GUARANTEEING SUBSIDIARY]                                       By:   ____________________________                                            Name:                                            Title:                                                                            ALLEGIANT TRAVEL COMPANY                                       By:                                                                    Name:                                          Title:                                        ALLEGIANT AIR, LLC                                       By:                                                                    Name:                                          Title:                                        ALLEGIANT VACATIONS, LLC                                       By:                                                                    Name:                                          Title:                                        D - 8 





 






                                EXHIBIT E   SUNRISE ASSET MANAGEMENT, LLC   By:                                Name:      Title:    AFH, INC.   By:                                Name:      Title:    ALLEGIANT INFORMATION SYSTEMS, INC.   By:                                Name:      Title:    G4 PROPERTIES, LLC   By:                                Name:      Title:    TEESNAP, LLC   By:                                Name:      Title:    ALLEGIANT ENTERTAINMENT, INC   By:                                Name:      Title:    ALLEGIANT NONSTOP UTAH, LLC    D - 9 





 






                                EXHIBIT E   By:                                Name:      Title:    ALLEGIANT NONSTOP MICHIGAN, LLC   By:                                Name:      Title:    ALLEGIANT NONSTOP INDIANA, LLC   By:                                Name:      Title:    ALLEGIANT COMMERCIAL PROPERTIES,  INC.   By:                                Name:      Title:    G4 WORKS, LLC   By:                                Name:      Title:    ALLEGIANT COMMERCIAL PROPERTIES  MISSOURI LLC   By:                                Name:      Title:           D - 10 





 






                                EXHIBIT E   WILMINGTON TRUST, NATIONAL  ASSOCIATION, as Trustee and as Collateral Agent   By:                                Name:      Title:        D - 11