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April 20, 2020





 












 






                                                                                                 PAYROLL SUPPORT PROGRAM AGREEMENT                                  INTRODUCTION   The Coronavirus Aid, Relief, and Economic Security Act (CARES Act or Act) directs the  Department of the Treasury (Treasury) to provide Payroll Support (as defined herein) to  passenger air carriers, cargo air carriers, and certain contractors that must be exclusively used for  the continuation of payment of Employee Salaries, Wages, and Benefits (as defined herein).  The  Act permits Treasury to provide Payroll Support in such form, and on such terms and conditions,  as the Secretary of the Treasury determines appropriate, and requires certain assurances from the  Recipient (as defined herein).     This Payroll Support Program Agreement, including the application and all supporting  documents submitted by the Recipient and the Payroll Support Certification attached hereto  (collectively, Agreement), memorializes the binding terms and conditions applicable to the  Recipient.                                     DEFINITIONS   As used in this Agreement, the following terms shall have the following respective meanings,  unless the context clearly requires otherwise.  In addition, this Agreement shall be construed in a  manner consistent with any public guidance Treasury may from time to time issue regarding the  implementation of Division A, Title IV, Subtitle B of the CARES Act.   Act or CARES Act means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No.  116-136).   Additional Payroll Support Payment means any disbursement of Payroll Support occurring after  the first disbursement of Payroll Support under this Agreement.   Affiliate means any Person that directly or indirectly controls, is controlled by, or is under  common control with, the Recipient.  For purposes of this definition, “control” of a Person shall  mean having the power, directly or indirectly, to direct or cause the direction of the management  and policies of such Person, whether by ownership of voting equity, by contract, or otherwise.   Benefits means, without duplication of any amounts counted as Salary or Wages, pension  expenses in respect of Employees, all expenses for accident, sickness, hospital, and death  benefits to Employees, and the cost of insurance to provide such benefits; any Severance Pay or  Other Benefits payable to Employees pursuant to a bona fide voluntary early retirement program  or voluntary furlough; and any other similar expenses paid by the Recipient for the benefit of  Employees, including any other fringe benefit expense described in lines 10 and 11 of Financial  Reporting Schedule P-6, Form 41, as published by the Department of Transportation, but  excluding any Federal, state, or local payroll taxes paid by the Recipient.    Corporate Officer means, with respect to the Recipient, its president; any vice president in  charge of a principal business unit, division, or function (such as sales, administration or  finance); any other officer who performs a policy-making function; or any other person who                                         2   





 






                                                                                 performs similar policy making functions for the Recipient.  Executive officers of subsidiaries or  parents of the Recipient may be deemed Corporate Officers of the Recipient if they perform such  policy-making functions for the Recipient.    Employee means an individual who is employed by the Recipient and whose principal place of  employment is in the United States (including its territories and possessions), including salaried,  hourly, full-time, part-time, temporary, and leased employees, but excluding any individual who  is a Corporate Officer or independent contractor.   Involuntary Termination or Furlough means the Recipient terminating the employment of one or  more Employees or requiring one or more Employees to take a temporary suspension or unpaid  leave for any reason, including a shut-down or slow-down of business; provided, however, that  an Involuntary Termination or Furlough does not include a Permitted Termination or Furlough.   Maximum Awardable Amount means the amount determined by the Secretary with respect to the  Recipient pursuant to section 4113(a)(1), (2), or (3) (as applicable) of the CARES Act.   Payroll Support means funds disbursed by the Secretary to the Recipient under this Agreement,  including the first disbursement of Payroll Support and any Additional Payroll Support Payment.   Permitted Termination or Furlough means, with respect to an Employee, (1) a voluntary  furlough, voluntary leave of absence, voluntary resignation, or voluntary retirement, (2)  termination of employment resulting from such Employee’s death or disability, or (3) the  Recipient terminating the employment of such Employee for cause or placing such Employee on  a temporary suspension or unpaid leave of absence for disciplinary reasons, in either case, as  reasonably determined by the Recipient acting in good faith.   Person means any natural person, corporation, limited liability company, partnership, joint  venture, trust, business association, governmental entity, or other entity.   Recipient means, collectively, the Signatory Entity; its Affiliates that are air carriers as defined in  49 U.S.C. § 40102; and their respective heirs, executors, administrators, successors, and assigns.    Salary means, without duplication of any amounts counted as Benefits, a predetermined regular  payment, typically paid on a weekly or less frequent basis but which may be expressed as an  hourly, weekly, annual or other rate, as well as cost-of-living differentials, vacation time, paid  time off, sick leave, and overtime pay, paid by the Recipient to its Employees, but excluding any  Federal, state, or local payroll taxes paid by the Recipient.   Secretary means the Secretary of the Treasury.   Severance Pay or Other Benefits means any severance payment or other similar benefits,  including cash payments, health care benefits, perquisites, the enhancement or acceleration of the  payment or vesting of any payment or benefit or any other in-kind benefit payable (whether in  lump sum or over time, including after March 24, 2022) by the Recipient to a Corporate Officer  or Employee in connection with any termination of such Corporate Officer’s or Employee’s  employment (including, without limitation, resignation, severance, retirement, or constructive  termination), which shall be determined and calculated in respect of any Employee or Corporate                                         3   





 






 Officer of the Recipient in the manner prescribed in 17 CFR 229.402(j) (without regard to its   limitation to the five most highly compensated executives and using the actual date of  termination of employment rather than the last business day of the Recipient’s last completed  fiscal year as the trigger event).    Signatory Entity means the passenger air carrier, cargo air carrier, or contractor that has entered   into this Agreement.     Taxpayer Protection Instruments means warrants, options, preferred stock, debt securities, notes,   or other financial instruments issued by the Recipient or an Affiliate to Treasury as   compensation for the Payroll Support under this Agreement, if applicable.     Total Compensation means compensation including salary, wages, bonuses, awards of stock, and   any other financial benefits provided by the Recipient or an Affiliate, as applicable, which shall   be determined and calculated for the 2019 calendar year or any applicable 12-month period in   respect of any Employee or Corporate Officer of the Recipient in the manner prescribed under  paragraph e.5 of the award term in 2 CFR part 170, App. A, but excluding any Severance Pay or  Other Benefits in connection with a termination of employment.    Wage means, without duplication of any amounts counted as Benefits, a payment, typically paid  on an hourly, daily, or piecework basis, including cost-of-living differentials, vacation, paid time  off, sick leave, and overtime pay, paid by the Recipient to its Employees, but excluding any   Federal, state, or local payroll taxes paid by the Recipient.                           PAYROLL SUPPORT PAYMENTS    1. Upon the execution of this Agreement by Treasury and the Recipient, the Secretary shall     approve the Recipient’s application for Payroll Support.   2. The Recipient may receive Payroll Support in multiple payments up to the Maximum     Awardable Amount, and the amounts (individually and in the aggregate) and timing of such     payments will be determined by the Secretary in his sole discretion.  The Secretary may, in     his sole discretion, increase or reduce the Maximum Awardable Amount (a) consistent with     section 4113(a) of the CARES Act and (b) on a pro rata basis in order to address any shortfall     in available funds, pursuant to section 4113(c) of the CARES Act.   3. The Secretary may determine in his sole discretion that any Payroll Support shall be     conditioned on, and subject to, such additional terms and conditions (including the receipt of,     and any terms regarding, Taxpayer Protection Instruments) to which the parties may agree in     writing.                             TERMS AND CONDITIONS    Retaining and Paying Employees    4. The Recipient shall use the Payroll Support exclusively for the continuation of payment of     Wages, Salaries, and Benefits to the Employees of the Recipient.                                         4 





 






                                                                                       a. Furloughs and Layoffs.  The Recipient shall not conduct an Involuntary Termination           or Furlough of any Employee between the date of this Agreement and September 30,           2020.           b. Employee Salary, Wages, and Benefits               i. Salary and Wages.  Except in the case of a Permitted Termination or                 Furlough, the Recipient shall not, between the date of this Agreement and                 September 30, 2020, reduce, without the Employee’s consent, (A) the pay rate                 of any Employee earning a Salary, or (B) the pay rate of any Employee                 earning Wages.               ii. Benefits.  Except in the case of a Permitted Termination or Furlough, the                 Recipient shall not, between the date of this Agreement and September 30,                 2020, reduce, without the Employee’s consent, the Benefits of any Employee;                 provided, however, that for purposes of this paragraph, personnel expenses                 associated with the performance of work duties, including those described in                 line 10 of Financial Reporting Schedule P-6, Form 41, as published by the                 Department of Transportation, may be reduced to the extent the associated                 work duties are not performed.   Dividends and Buybacks   5. Through September 30, 2021, neither the Recipient nor any Affiliate shall, in any transaction,     purchase an equity security of the Recipient or of any direct or indirect parent company of     the Recipient that, in either case, is listed on a national securities exchange.       6. Through September 30, 2021, the Recipient shall not pay dividends, or make any other     capital distributions, with respect to the common stock (or equivalent equity interest) of the     Recipient.   Limitations on Certain Compensation   7. Beginning March 24, 2020, and ending March 24, 2022, the Recipient and its Affiliates shall     not pay any of the Recipient’s Corporate Officers or Employees whose Total Compensation     exceeded $425,000 in calendar year 2019 (other than an Employee whose compensation is     determined through an existing collective bargaining agreement entered into before March     27, 2020):         a. Total Compensation which exceeds, during any 12 consecutive months of such two-          year period, the Total Compensation the Corporate Officer or Employee received in           calendar year 2019; or         b. Severance Pay or Other Benefits in connection with a termination of employment           with the Recipient which exceed twice the maximum Total Compensation received           by such Corporate Officer or Employee in calendar year 2019.                                          5   





 






                                                                                 8. Beginning March 24, 2020, and ending March 24, 2022, the Recipient and its Affiliates shall     not pay any of the Recipient’s Corporate Officers or Employees whose Total Compensation     exceeded $3,000,000 in calendar year 2019 Total Compensation in excess of the sum of:         a. $3,000,000; and         b. 50 percent of the excess over $3,000,000 of the Total Compensation received by such           Corporate Officer or Employee in calendar year 2019.   9. For purposes of determining applicable amounts under paragraphs 7 and 8 with respect to     any Corporate Officer or Employee who was employed by the Recipient or an Affiliate for     less than all of calendar year 2019, the amount of Total Compensation in calendar year 2019     shall mean such Corporate Officer’s or Employee’s Total Compensation on an annualized     basis.   Continuation of Service   10. If the Recipient is an air carrier, until March 1, 2022, the Recipient shall comply with any     applicable requirement issued by the Secretary of Transportation under section 4114(b) of the     CARES Act to maintain scheduled air transportation service to any point served by the     Recipient before March 1, 2020.    Effective Date   11. This Agreement shall be effective as of the date of its execution by both parties.   Reporting and Auditing    12. Until the calendar quarter that begins after the later of March 24, 2022, and the date on which     no Taxpayer Protection Instrument is outstanding, not later than 45 days after the end of each     of the first three calendar quarters of each calendar year and 90 days after the end of each     calendar year, the Signatory Entity, on behalf of itself and each other Recipient, shall certify     to Treasury that it is in compliance with the terms and conditions of this Agreement and     provide a report containing the following:             a. the amount of Payroll Support funds expended during such quarter;                   b. the Recipient’s financial statements (audited by an independent certified public           accountant, in the case of annual financial statements); and                   c. a copy of the Recipient’s IRS Form 941 filed with respect to such quarter; and                   d. a detailed summary describing, with respect to the Recipient, (a) any changes in           Employee headcount during such quarter and the reasons therefor, including any           Involuntary Termination or Furlough, (b) any changes in the amounts spent by the           Recipient on Employee Wages, Salary, and Benefits during such quarter, and (c) any           changes in Total Compensation for, and any Severance Pay or Other Benefits in           connection with the termination of, Corporate Officers and Employees subject to                                         6   





 






                                                                                          limitation under this Agreement during such quarter; and the reasons for any such           changes.           13. If the Recipient or any Affiliate, or any Corporate Officer of the Recipient or any Affiliate,     becomes aware of facts, events, or circumstances that may materially affect the Recipient’s     compliance with the terms and conditions of this Agreement, the Recipient or Affiliate shall     promptly provide Treasury with a written description of the events or circumstances and any     action taken, or contemplated, to address the issue.       14. In the event the Recipient contemplates any action to commence a bankruptcy or insolvency     proceeding in any jurisdiction, the Recipient shall promptly notify Treasury.       15. The Recipient shall:                a. Promptly provide to Treasury and the Treasury Inspector General a copy of any           Department of Transportation Inspector General report, audit report, or report of any           other oversight body, that is received by the Recipient relating to this Agreement.                   b. Immediately notify Treasury and the Treasury Inspector General of any indication of           fraud, waste, abuse, or potentially criminal activity pertaining to the Payroll Support.                c. Promptly provide Treasury with any information Treasury may request relating to           compliance by the Recipient and its Affiliates with this Agreement.          16. The Recipient and Affiliates will provide Treasury, the Treasury Inspector General, and such     other entities as authorized by Treasury timely and unrestricted access to all documents,     papers, or other records, including electronic records, of the Recipient related to the Payroll     Support, to enable Treasury and the Treasury Inspector General to make audits,     examinations, and otherwise evaluate the Recipient’s compliance with the terms of this     Agreement.  This right also includes timely and reasonable access to the Recipient’s and its     Affiliates’ personnel for the purpose of interview and discussion related to such documents.      This right of access shall continue as long as records are required to be retained.   Recordkeeping and Internal Controls   17. If Treasury notifies the Recipient that the first disbursement of Payroll Support to the     Recipient under this Agreement is the Maximum Awardable Amount (subject to any pro rata     reductions and as determined by the Secretary as of the date of such disbursement), the     Recipient shall maintain the Payroll Support funds in a separate account over which Treasury     shall have a perfected security interest to continue the payment of Wages, Salary, and     Benefits to the Employees.  For the avoidance of doubt, regardless whether the first     disbursement of Payroll Support to the Recipient under this Agreement is the Maximum     Awardable Amount, if the Recipient is a debtor as defined under 11 U.S.C. § 101(13), the     Payroll Support funds, any claim or account receivable arising under this Agreement, and     any segregated account holding funds received under this Agreement shall not constitute or     become property of the estate under 11 U.S.C. § 541.                                              7   





 






                                                                                 18. The Recipient shall expend and account for Payroll Support funds in a manner sufficient to:             a. Permit the preparation of accurate, current, and complete quarterly reports as required           under this Agreement.                    b. Permit the tracing of funds to a level of expenditures adequate to establish that such           funds have been used as required under this Agreement.             19. The Recipient shall establish and maintain effective internal controls over the Payroll     Support; comply with all requirements related to the Payroll Support established under     applicable Federal statutes and regulations; monitor compliance with Federal statutes,     regulations, and the terms and conditions of this Agreement; and take prompt corrective     actions in accordance with audit recommendations.  The Recipient shall promptly remedy     any identified instances of noncompliance with this Agreement.         20. The Recipient and Affiliates shall retain all records pertinent to the receipt of Payroll Support     and compliance with the terms and conditions of this Agreement (including by suspending     any automatic deletion functions for electronic records, including e-mails) for a period of     three years following the period of performance.  Such records shall include all information     necessary to substantiate factual representations made in the Recipient’s application for     Payroll Support, including ledgers and sub-ledgers, and the Recipient’s and Affiliates’     compliance with this Agreement.  While electronic storage of records (backed up as     appropriate) is preferable, the Recipient and Affiliates may store records in hardcopy (paper)     format. The term “records” includes all relevant financial and accounting records and all     supporting documentation for the information reported on the Recipient’s quarterly reports.          21. If any litigation, claim, investigation, or audit relating to the Payroll Support is started before     the expiration of the three-year period, the Recipient and Affiliates shall retain all records     described in paragraph 20 until all such litigation, claims, investigations, or audit findings     have been completely resolved and final judgment entered or final action taken.   Remedies   22. If Treasury believes that an instance of noncompliance by the Recipient or an Affiliate with     (a) this Agreement, (b) sections 4114 or 4116 of the CARES Act, or (c) the Internal Revenue     Code of 1986 as it applies to the receipt of Payroll Support has occurred, Treasury may     notify the Recipient in writing of its proposed determination of noncompliance, provide an     explanation of the nature of the noncompliance, and specify a proposed remedy.  Upon     receipt of such notice, the Recipient shall, within seven days, accept Treasury’s proposed     remedy, propose an alternative remedy, or provide information and documentation contesting     Treasury’s proposed determination.  Treasury shall consider any such submission by the     Recipient and make a final written determination, which will state Treasury’s findings     regarding noncompliance and the remedy to be imposed.       23. If Treasury makes a final determination under paragraph 22 that an instance of     noncompliance has occurred, Treasury may, in its sole discretion, withhold any Additional     Payroll Support Payments; require the repayment of the amount of any previously disbursed                                         8   





 






                                                                                    Payroll Support, with appropriate interest; require additional reporting or monitoring; initiate     suspension or debarment proceedings as authorized under 2 CFR Part 180; terminate this     Agreement; or take any such other action as Treasury, in its sole discretion, deems     appropriate.              24. Treasury may make a final determination regarding noncompliance without regard to     paragraph 22 if Treasury determines, in its sole discretion, that such determination is     necessary to protect a material interest of the Federal Government.  In such event, Treasury     shall notify the Recipient of the remedy that Treasury, in its sole discretion, shall impose,     after which the Recipient may contest Treasury’s final determination or propose an     alternative remedy in writing to Treasury.  Following the receipt of such a submission by the     Recipient, Treasury may, in its sole discretion, maintain or alter its final determination.       25. Any final determination of noncompliance and any final determination to take any remedial     action described herein shall not be subject to further review.  To the extent permitted by law,     the Recipient waives any right to judicial review of any such determinations and further     agrees not to assert in any court any claim arising from or relating to any such determination     or remedial action.          26. Instead of, or in addition to, the remedies listed above, Treasury may refer any     noncompliance or any allegations of fraud, waste, or abuse to the Treasury Inspector General.          27. Treasury, in its sole discretion, may grant any request by the Recipient for termination of this     Agreement, which such request shall be in writing and shall include the reasons for such     termination, the proposed effective date of the termination, and the amount of any unused     Payroll Support funds the Recipient requests to return to Treasury.  Treasury may, in its sole     discretion, determine the extent to which the requirements under this Agreement may cease     to apply following any such termination.   28. If Treasury determines that any remaining portion of the Payroll Support will not accomplish     the purpose of this Agreement, Treasury may terminate this Agreement in its entirety to the     extent permitted by law.    Debts   29. Any Payroll Support in excess of the amount which Treasury determines, at any time, the     Recipient is authorized to receive or retain under the terms of this Agreement constitutes a     debt to the Federal Government.       30. Any debts determined to be owed by the Recipient to the Federal Government shall be paid     promptly by the Recipient.  A debt is delinquent if it has not been paid by the date specified     in Treasury’s initial written demand for payment, unless other satisfactory arrangements have     been made.  Interest, penalties, and administrative charges shall be charged on delinquent     debts in accordance with 31 U.S.C. § 3717, 31 CFR 901.9, and paragraphs 31 and 32.      Treasury will refer any debt that is more than 180 days delinquent to Treasury’s Bureau of     the Fiscal Service for debt collection services.                                                 9   





 






                                                                                 31. Penalties on any debts shall accrue at a rate of not more than 6 percent per year or such other     higher rate as authorized by law.          32. Administrative charges relating to the costs of processing and handling a delinquent debt     shall be determined by Treasury.          33. The Recipient shall not use funds from other federally sponsored programs to pay a debt to     the government arising under this Agreement.   Protections for Whistleblowers   34. In addition to other applicable whistleblower protections, in accordance with 41 U.S.C.     § 4712, the Recipient shall not discharge, demote, or otherwise discriminate against an     Employee as a reprisal for disclosing information to a Person listed below that the Employee     reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a     gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a     substantial and specific danger to public health or safety, or a violation of law, rule, or     regulation related to a Federal contract (including the competition for or negotiation of a     contract) or grant:             a. A Member of Congress or a representative of a committee of Congress;                   b. An Inspector General;                   c. The Government Accountability Office;                   d. A Treasury employee responsible for contract or grant oversight or management;                   e. An authorized official of the Department of Justice or other law enforcement agency;                   f. A court or grand jury; or                   g. A management official or other Employee of the Recipient who has the responsibility           to investigate, discover, or address misconduct.   Lobbying   35. The Recipient shall comply with the provisions of 31 U.S.C. § 1352, as amended, and with     the regulations at 31 CFR Part 21.     Non-Discrimination   36. The Recipient shall comply with, and hereby assures that it will comply with, all applicable     Federal statutes and regulations relating to nondiscrimination including:              a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), including           Treasury’s implementing regulations at 31 CFR Part 22;                                         10   





 






                                                                                                  b. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794);                 c. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101–6107),           including Treasury’s implementing regulations at 31 CFR Part 23  and the general           age discrimination regulations at 45 CFR Part 90; and                d. The Air Carrier Access Act of 1986 (49 U.S.C. § 41705).   Additional Reporting   37. Within seven days after the date of this Agreement, the Recipient shall register in SAM.gov,     and thereafter maintain the currency of the information in SAM.gov until at least March 24,     2022.  The Recipient shall review and update such information at least annually after the     initial registration, and more frequently if required by changes in the Recipient’s information.      The Recipient agrees that this Agreement and information related thereto, including the     Maximum Awardable Amount and any executive total compensation reported pursuant to     paragraph 38, may be made available to the public through a U.S. Government website,     including SAM.gov.       38. For purposes of paragraph 37, the Recipient shall report total compensation as defined in     paragraph e.5 of the award term in 2 CFR part 170, App. A for each of the Recipient’s five     most highly compensated executives for the preceding completed fiscal year, if:                a. the total Payroll Support is $25,000 or more;                   b. in the preceding fiscal year, the Recipient received:                         i. 80 percent or more of its annual gross revenues from Federal procurement                 contracts (and subcontracts) and Federal financial assistance, as defined at 2                 CFR 170.320 (and subawards); and                              ii. $25,000,000 or more in annual gross revenues from Federal procurement                 contracts (and subcontracts) and Federal financial assistance, as defined at 2                 CFR 170.320 (and subawards); and                   c. the public does not have access to information about the compensation of the           executives through periodic reports filed under section 13(a) or 15(d) of the Securities           Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal           Revenue Code of 1986.  To determine if the public has access to the compensation           information, the Recipient shall refer to U.S. Securities and Exchange Commission           total compensation filings at http://www.sec.gov/answers/execomp.htm.             39. The Recipient shall report executive total compensation described in paragraph 38:                   a. as part of its registration profile at https://www.sam.gov; and                                                    11   





 






                                                                                       b. within five business days after the end of each month following the month in which           this Agreement becomes effective, and annually thereafter.        40. The Recipient agrees that, from time to time, it will, at its own expense, promptly upon     reasonable request by Treasury, execute and deliver, or cause to be executed and delivered,     or use its commercially reasonable efforts to procure, all instruments, documents and     information, all in form and substance reasonably satisfactory to Treasury, to enable Treasury     to ensure compliance with, or effect the purposes of, this Agreement, which may include,     among other documents or information, (a) certain audited financial statements of the     Recipient, (b) documentation regarding the Recipient’s revenues derived from its business as     a passenger or cargo air carrier or regarding the passenger air carriers for which the Recipient     provides services as a contractor (as the case may be), and (c) the Recipient’s most recent     quarterly Federal tax returns.  The Recipient agrees to provide Treasury with such documents     or information promptly.           41. If the total value of the Recipient’s currently active grants, cooperative agreements, and     procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any     period before termination of this Agreement, then the Recipient shall make such reports as     required by 2 CFR part 200, Appendix XII.    Other   42. The Recipient acknowledges that neither Treasury, nor any other actor, department, or     agency of the Federal Government, shall condition the provision of Payroll Support on the     Recipient’s implementation of measures to enter into negotiations with the certified     bargaining representative of a craft or class of employees of the Recipient under the Railway     Labor Act (45 U.S.C. 151 et seq.) or the National Labor Relations Act (29 U.S.C. 151 et     seq.), regarding pay or other terms and conditions of employment.       43. Notwithstanding any other provision of this Agreement, the Recipient has no right to, and     shall not, transfer, pledge, mortgage, encumber, or otherwise assign this Agreement or any     Payroll Support provided under this Agreement, or any interest therein, or any claim, account     receivable, or funds arising thereunder or accounts holding Payroll Support, to any party,     bank, trust company, or other Person without the express written approval of Treasury.       44. The Signatory Entity will cause its Affiliates to comply with all of their obligations under or     relating to this Agreement.          45. Unless otherwise provided in guidance issued by Treasury or the Internal Revenue Service,     the form of any Taxpayer Protection Instrument held by Treasury and any subsequent holder     will be treated as such form for purposes of the Internal Revenue Code of 1986 (for example,     a Taxpayer Protection Instrument in the form of a note will be treated as indebtedness for     purposes of the Internal Revenue Code of 1986).          46. This Agreement may not be amended or modified except pursuant to an agreement in writing     entered into by the Recipient and Treasury, except that Treasury may unilaterally amend this     Agreement if required in order to comply with applicable Federal law or regulation.                                          12   





 






                                                                                      47. Subject to applicable law, Treasury may, in its sole discretion, waive any term or condition     under this Agreement imposing a requirement on the Recipient or any Affiliate.        48. This Agreement shall bind and inure to the benefit of the parties and their respective heirs,     executors, administrators, successors, and assigns.              49. The Recipient represents and warrants to Treasury that this Agreement, and the issuance and     delivery to Treasury of the Taxpayer Protection Instruments, if applicable, have been duly     authorized by all requisite corporate and, if required, stockholder action, and will not result in     the violation by the Recipient of any provision of law, statute, or regulation, or of the articles     of incorporation or other constitutive documents or bylaws of the Recipient, or breach or     constitute an event of default under any material contract to which the Recipient is a party.          50. The Recipient represents and warrants to Treasury that this Agreement has been duly     executed and delivered by the Recipient and constitutes a legal, valid, and binding obligation     of the Recipient enforceable against the Recipient in accordance with its terms.          51. This Agreement may be executed in counterparts, each of which shall constitute an original,     but all of which together shall constitute a single contract.         52. The words “execution,” “signed,” “signature,” and words of like import in any assignment     shall be deemed to include electronic signatures or the keeping of records in electronic form,     each of which shall be of the same legal effect, validity or enforceability as a manually     executed signature or the use of a paper-based recordkeeping system, as the case may be, to     the extent and as provided for in any applicable law, including the Federal Electronic     Signatures in Global and National Commerce Act, the New York State Electronic Signatures     and Records Act, or any other similar state laws based on the Uniform Electronic     Transactions Act.  Notwithstanding anything herein to the contrary, delivery of an executed     counterpart of a signature page of this Agreement by electronic means, or confirmation of the     execution of this Agreement on behalf of a party by an email from an authorized signatory of     such party, shall be effective as delivery of a manually executed counterpart of this     Agreement.          53. The captions and paragraph headings appearing herein are included solely for convenience of     reference and are not intended to affect the interpretation of any provision of this Agreement.          54. This Agreement is governed by and shall be construed in accordance with Federal law.     Insofar as there may be no applicable Federal law, this Agreement shall be construed in     accordance with the laws of the State of New York, without regard to any rule of conflicts of     law (other than section 5-1401 of the New York General Obligations Law) that would result     in the application of the substantive law of any jurisdiction other than the State of New York.          55. Nothing in this Agreement shall require any unlawful action or inaction by either party.                                               13   





 






                                                                                 56. The requirement pertaining to trafficking in persons at 2 CFR 175.15(b) is incorporated     herein and made applicable to the Recipient.          57. This Agreement, together with the attachments hereto, including the Payroll Support     Certification and any attached terms regarding Taxpayer Protection Instruments, constitute     the entire agreement of the parties relating to the subject matter hereof and supersede any     previous agreements and understandings, oral or written, relating to the subject matter hereof.      There may exist other agreements between the parties as to other matters, which are not     affected by this Agreement and are not included within this integration clause.          58. No failure by either party to insist upon the strict performance of any provision of this     Agreement or to exercise any right or remedy hereunder, and no acceptance of full or partial     Payroll Support (if applicable) or other performance by either party during the continuance of     any such breach, shall constitute a waiver of any such breach of such provision.                                    ATTACHMENT    Payroll Support Program Certification of Corporate Officer of Recipient                                                                                   14   





 






                        PAYROLL SUPPORT PROGRAM              CERTIFICATION OF CORPORATE OFFICER OF RECIPIENT   In connection with the Payroll Support Program Agreement (Agreement) between Allegiant Air,  LLC and the Department of the Treasury (Treasury) relating to Payroll Support being provided  by Treasury to the Recipient under Division A, Title IV, Subtitle B of the Coronavirus Aid,   Relief and Economic Security Act, I hereby certify under penalty of perjury to the Treasury that   all of the following are true and correct.  Capitalized terms used but not defined herein have the   meanings set forth in the Agreement.          (1) I have the authority to make the following representations on behalf of myself and the     Recipient.  I understand that these representations will be relied upon as material in the      decision by Treasury to provide Payroll Support to the Recipient.           (2) The information and certifications provided by the Recipient in an application for     Payroll Support, and in any attachments or other information provided by the Recipient to      Treasury related to the application, are true and correct and do not contain any materially      false, fictitious, or fraudulent statement, nor any concealment or omission of any material      fact.          (3) The Recipient has the legal authority to apply for the Payroll Support, and it has the     institutional, managerial, and financial capability to comply with all obligations, terms, and      conditions set forth in the Agreement and any attachment thereto.          (4) The Recipient and any Affiliate will give Treasury, Treasury’s designee or the     Treasury Office of Inspector General (as applicable) access to, and opportunity to examine,      all documents, papers, or other records of the Recipient or Affiliate pertinent to the provision      of Payroll Support made by Treasury based on the application, in order to make audits,      examinations, excerpts, and transcripts.           (5) No Federal appropriated funds, including Payroll Support, have been paid or will be     paid, by or on behalf of the Recipient, to any person for influencing or attempting to      influence an officer or employee of an agency, a Member of Congress, an officer or      employee of Congress, or an employee of a Member of Congress in connection with the      awarding of any Federal contract, the making of any Federal grant, the making of any      Federal loan, the entering into of any cooperative agreement, and the extension, continuation,      renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative      agreement.          (6) If the Payroll Support exceeds $100,000, the Recipient shall comply with the     disclosure requirements in 31 CFR Part 21 regarding any amounts paid for influencing or      attempting to influence an officer or employee of any agency, a Member of Congress, an      officer or employee of Congress, or an employee of a Member of Congress in connection      with the Payroll Support.