indenturesecurednotesexe






Execution Version      Allegiant Travel Company  as Issuer  and  the Guarantors party hereto    INDENTURE  Dated as of August 17, 2022      Wilmington Trust, National Association  as Trustee and Collateral Agent      





 






  i    TABLE OF CONTENTS  Page  ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE ................................. 1  Section 1.1. Definitions................................................................................................... 1  Section 1.2. Other Definitions ...................................................................................... 33  Section 1.3. Rules of Construction ............................................................................... 33  ARTICLE II. THE NOTES .......................................................................................................... 34  Section 2.1. Form and Dating ....................................................................................... 34  Section 2.2. Execution and Authentication ................................................................... 34  Section 2.3. Registrar and Paying Agent ...................................................................... 35  Section 2.4. Paying Agent to Hold Money in Trust ...................................................... 35  Section 2.5. Holder Lists ............................................................................................... 36  Section 2.6. Transfer and Exchange ............................................................................. 36  Section 2.7. Replacement Notes ................................................................................... 49  Section 2.8. Outstanding Notes ..................................................................................... 49  Section 2.9. Treasury Notes .......................................................................................... 50  Section 2.10. Temporary Notes ...................................................................................... 50  Section 2.11. Cancellation .............................................................................................. 50  Section 2.12. Defaulted Interest ...................................................................................... 50  Section 2.13. Further Issuances ...................................................................................... 51  Section 2.14. No Reissuance of Notes ............................................................................ 51  ARTICLE III. REDEMPTION ..................................................................................................... 51  Section 3.1. Notice to Trustee ....................................................................................... 51  Section 3.2. Selection of Notes to Be Redeemed or Purchased .................................... 51  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 ................................................ 53  Section 3.6. Notes Redeemed or Purchased in Part ...................................................... 53  Section 3.7. Optional Redemption. ............................................................................... 53  Section 3.8. Mandatory Redemption. ........................................................................... 54  ARTICLE IV. COVENANTS ...................................................................................................... 54  Section 4.1. Payment of Principal and Interest ............................................................. 54  Section 4.2. SEC Reports .............................................................................................. 54  Section 4.3. Special Interest .......................................................................................... 55  Section 4.4. Stay, Extension and Usury Laws .............................................................. 55  Section 4.5. Corporate Existence .................................................................................. 55  





 






    Section 4.6. Restricted Payments .................................................................................. 56  Section 4.7. Incurrence of Indebtedness and Issuance of Preferred Stock ................... 60  Section 4.8. Limitation on Liens ................................................................................... 66  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  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 ...................................................................... 86  Section 7.10. Limitation on Duty of Trustee in Respect of Collateral ........................... 86  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 ....................................................................... 88  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 ......................................................................................... 96  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 .......................... 103  Section 11.6. Maintenance of Collateral ....................................................................... 103  Section 11.7. Additional Collateral; After-Acquired Property ..................................... 103  Section 11.8. [Reserved] ............................................................................................... 104  Section 11.9. Further Assurances.................................................................................. 104  ARTICLE XII. MISCELLANEOUS .......................................................................................... 104  Section 12.1. Notices .................................................................................................... 104  Section 12.2. Certificate and Opinion as to Conditions Precedent ............................... 105  Section 12.3. Statements Required in Certificate or Opinion ....................................... 105  





 






    Section 12.4. Rules by Trustee and Agents .................................................................. 106  Section 12.5. Legal Holidays ........................................................................................ 106  Section 12.6. No Recourse Against Others ................................................................... 106  Section 12.7. Counterparts ............................................................................................ 106  Section 12.8. Governing Law; Jurisdiction; Jury Trial Waiver .................................... 106  Section 12.9. No Adverse Interpretation of Other Agreements .................................... 107  Section 12.10. Successors ............................................................................................... 107  Section 12.11. Severability ............................................................................................. 107  Section 12.12. Table of Contents, Headings, Etc ........................................................... 107  Section 12.13. Force Majeure ......................................................................................... 107  Section 12.14. U.S.A. Patriot Act ................................................................................... 108    





 






  i    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      





 






  1    Indenture dated as of August 17, 2022 between ALLEGIANT TRAVEL  COMPANY, a company incorporated under the laws of Nevada (the “Company”), the Guarantors  (as defined herein) party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, a  national banking association, as trustee (in such capacity, the “Trustee”) and collateral agent (in  such capacity, the “Collateral Agent”).  Each party agrees as follows for the benefit of the other party and for the equal and  ratable benefit of the Holders of the Company’s 7.250% Senior Secured Notes due 2027 (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.  





 






  2    “Affiliate” of any specified Person means any other Person directly or indirectly controlling or  controlled by or under direct or indirect common control with such specified Person. For purposes  of this definition, “control,” as used with respect to any Person, means the possession, directly or  indirectly, of the power to direct or cause the direction of the management or policies of such  Person, whether through the ownership of voting securities, by agreement or otherwise. For  purposes of this definition, the terms “controlling,” “controlled by” and “under common control  with” have correlative meanings. No Person (other than the Company or any Subsidiary of the  Company) in whom a Receivables Subsidiary makes an Investment in connection with a Qualified  Receivables Transaction will be deemed to be an Affiliate of the Company or any of its  Subsidiaries solely by reason of such Investment. A specified Person shall not be deemed to control  another Person solely because such specified Person has the right to determine the aircraft flights  operated by such other Person under a code sharing, capacity purchase or similar agreement.  “Agent” means any Registrar, co-registrar, Paying Agent or additional paying agent.   “Aircraft Assets” means (x) aircraft, airframes, engines, spare engines, propellers, parts  (other than Spare Parts) and other operating assets (including all substitutions, replacements and  renewals of the foregoing, and all property that becomes physically attached thereto and  including all related (aa) technical data, manuals, records, logs, all inspection, modification,  repair and overhaul records and other materials, (bb) warranties, service contracts and product  agreements of any manufacturer and all maintenance and overhaul agency agreements, (cc) bills  of sale and agreements for acquisition, purchase, conditional sale, and lease (specifically  including but not limited to those certain agreements between the Company and The Boeing  Company dated December 2021 and any amendments thereto), pre-delivery payments and  related cash deposits, and (dd) insurance policies and proceeds under insurance carried by the  Borrower or any Restricted Subsidiary), and (y) leases or conditional sale agreements relating to  any of the items in the foregoing clause (x), in each case owned or leased by, or subject to  conditional sale or future sale to, the Company or any Restricted Subsidiary.  “Aircraft Related Equipment” means aircraft (including engines, airframes, propellers and  appliances), engines, propellers, spare parts, aircraft parts, simulators and other training devices,  quick engine change kits, passenger loading bridges or other flight or ground equipment and other  operating assets, including any modifications and improvements with respect to any such  equipment.  “Aircraft Related Facilities” means (i) airport terminal facilities, including, without limitation,  baggage systems, loading bridges and related equipment, building, infrastructure and maintenance  facilities, tooling facilities, club rooms, apron, fueling systems or facilities, signage/image systems,  administrative offices, information technology systems and security systems, (ii) airline support  facilities, including, without limitation, cargo, catering, mail, ground service equipment, ramp  control, deicing, hangars, aircraft parts/storage, training, office and reservations facilities and  (iii) all equipment and tooling used in connection with the foregoing.  “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  





 






  3    months) at the Treasury Rate plus 50 basis points, over (2) 100% of the principal amount of such  Notes.  “Applicable Procedures” means, with respect to any notice, transfer, exchange, or other  transaction for or with respect to beneficial interests in any Global Note, the rules and procedures  of the Depositary, Euroclear and Clearstream that apply to such notice, transfer, exchange or other  transaction.   “Asset Sale” means any Disposition (excluding any Disposition of Cash Equivalents), to the  extent that the aggregate Net Proceeds of all such Dispositions, together with all Recovery Events,  without giving effect to the dollar thresholds in the definition thereof, during any fiscal year exceed  $5.0 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 spare parts, used engine life limited parts, inventory, and  Permitted Investments in the ordinary course of business;   (3) the Disposition of equipment or real property to the extent that (i) such property is  exchanged for credit against the purchase price of similar replacement property or  (ii) the proceeds of such Disposition are reasonably promptly applied to the  purchase price of such replacement property;  (4) the Disposition of property by any Subsidiary to the Company or to any Guarantor;  (5) Dispositions permitted pursuant to Article V;   (6) leases, licenses, subleases or sublicenses granted in the ordinary course of business  and on ordinary commercial terms that do not interfere in any material respect with  the business of the Company and its Subsidiaries;  (7) Dispositions of intellectual property rights that are no longer used or useful in the  business of the Company and its Subsidiaries;  (8) the discount, write-off or Disposition of accounts receivables overdue by more than  180 days, in each case in the ordinary course of business;   (9) Restricted Payments permitted by Section 4.6;   (10) Dispositions of Aircraft Assets; and  (11) Dispositions by the Company and its Subsidiaries not otherwise listed in clauses  (1) through (10) above; provided that the aggregate book value of all property  Disposed of pursuant to this clause (11) shall not exceed $100.0 million.    “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,  





 






  4    including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and  disbursements in connection therewith. Treasury, depository and cash management services,  netting services and automated clearing house transfers of funds services include, without  limitation:  corporate purchasing, fleet and travel credit card and prepaid card programs, electronic  check processing, electronic receipt services, lockbox services, cash consolidation, concentration,  positioning and investing, fraud prevention services, and disbursement services.  “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief  of debtors.  “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5  under the Exchange Act, except that in calculating the beneficial ownership of any particular  “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be  deemed to have beneficial ownership of all securities that such “person” has the right to acquire  by conversion or exercise of other securities, whether such right is currently exercisable or is  exercisable only after the passage of time.  “Board of Directors” means:  (1) with respect to a corporation, the board of directors of the corporation or any  committee thereof duly authorized to act on behalf of such board of directors;  (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, other than any such assets that are Excluded Property.  “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  





 






  5    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,  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;  





 






  6    (5) Investments in certificates of deposit (including Investments made through an  intermediary, such as the certificated deposit account registry service), banker’s  acceptances, time deposits, eurodollar time deposits and overnight bank deposits  maturing within one year from the date of acquisition thereof issued or guaranteed  by or placed with, and money market deposit accounts issued or offered by, any  domestic office of any other commercial bank of recognized standing organized  under the laws of the United States or any State thereof that has a combined capital  and surplus and undivided profits of not less than $100.0 million;  (6) fully collateralized repurchase agreements with a term of not more than six months  for underlying securities that would otherwise be eligible for investment;  (7) Investments in an investment company registered under the Investment Company  Act of 1940, as amended, or in pooled accounts or funds offered through mutual  funds, investment advisors, banks and brokerage houses which invest its assets in  obligations of the type described in clauses (1) through (6) above. This could  include, but not be limited to, money market funds or short‐term and intermediate  bonds funds;  (8) money market funds that (A) comply with the criteria set forth in SEC Rule 2a-7  under the Investment Company Act of 1940, as amended, (B) are rated AAA (or  the equivalent thereof) by S&P and Aaa (or the equivalent thereof) by Moody’s and  (C) have portfolio assets of at least $5.0 billion;  (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  





 






  7    (2) the consummation of any transaction (including, without limitation, any merger or  consolidation), the result of which is that any Person (including any “person” (as  defined above)) becomes the Beneficial Owner, directly or indirectly, of more  than 50% of the Voting Stock of the Company (measured by voting power rather  than number of shares), other than (A) any such transaction where the Voting Stock  of the Company (measured by voting power rather than number of shares)  outstanding immediately prior to such transaction constitutes or is converted into  or exchanged for a majority of the outstanding shares of the Voting Stock of such  Person or Beneficial Owner (measured by voting power rather than number of  shares) or (B) any sale, transfer, conveyance or other disposition to, or any merger  or consolidation of the Company with or into, any Person (including any “person”  (as defined above)) which owns or operates (directly or indirectly through a  contractual arrangement) a Permitted Business (a “Permitted Person”) or a  Subsidiary of a Permitted Person, in each case under this subclause (B), if  immediately after such transaction no Person (including any “person” (as defined  above)) is the Beneficial Owner, directly or indirectly, of more than 50% of the  total Voting Stock of such Permitted Person (measured by voting power rather than  number of shares).   “Clearstream” means Clearstream Banking, S.A.  “Closing Date” means the date of original issuance of the Notes.  “Collateral Agent” means Wilmington Trust, National Association, in its capacity as collateral  agent for the benefit of the Noteholders under the Collateral Documents, or any successor thereto.  “Collateral” means all assets that secure obligations under the Credit Agreement and that are  subject or purported to be subject, from time to time, to a Lien under any Collateral Documents.  “Collateral Documents” means, collectively, the Security Agreement, the Spare Parts Security  Agreement, the Trademark Security Agreement, the account control agreements and all other  security agreements, pledge agreements, collateral assignments, mortgages, instruments or  documents that create or purport to create a Lien in favor of the Collateral Agent for the benefit of  the Noteholders, in each case, as amended, supplemented, restated, renewed, refunded, replaced,  restructured, repaid, refinanced or otherwise modified from time to time, so long as such  agreement, instrument or document shall not have been terminated in accordance with its terms.  “Company” means Allegiant Travel Company.  “Company Order” means a written order signed in the name of the Company by an Officer.  “Consolidated EBITDA” means, with respect to any specified Person for any period,  Consolidated EBITDAR of such Person for such period, less the aggregate amount of aircraft rent  expense described in clause (5) of “Fixed Charges” for such period.  “Consolidated EBITDAR” means, with respect to any specified Person for any period, the  Consolidated Net Income of such Person for such period plus, without duplication:  





 






  8    (1) an amount equal to any extraordinary loss plus any net loss realized by such Person  or any of its Restricted Subsidiaries in connection with any Disposition of assets,  to the extent such losses were deducted in computing such Consolidated Net  Income; plus  (2) provision for taxes based on income or profits of such Person and its Restricted  Subsidiaries, to the extent that such provision for taxes was deducted in computing  such Consolidated Net Income; plus  (3) the Fixed Charges and expense for subservice arrangements contracted with third  parties to service scheduled flights of such Person and its Restricted Subsidiaries,  to the extent that such Fixed Charges were deducted in computing such  Consolidated Net Income; plus  (4) any foreign currency translation losses (including losses related to currency  remeasurements of Indebtedness) of such Person and its Restricted Subsidiaries for  such period, to the extent that such losses were deducted in computing such  Consolidated Net Income; plus  (5) depreciation, amortization (including amortization of intangibles but excluding  amortization of prepaid cash expenses that were paid in a prior period) and other  non-cash charges and expenses (excluding any such non-cash charge or expense to  the extent that it represents an accrual of or reserve for cash charges or expenses in  any future period or amortization of a prepaid cash charge or expense that was paid  in a prior period) of such Person and its Restricted Subsidiaries to the extent that  such depreciation, amortization and other non-cash charges or expenses were  deducted in computing such Consolidated Net Income; plus  (6) the amortization of debt discount to the extent that such amortization was deducted  in computing such Consolidated Net Income; plus  (7) stock compensation expense for grants to any employee of the Company or its  Restricted Subsidiaries of any Equity Interests during such period to the extent  deducted in computing such Consolidated Net Income; plus  (8) any net loss arising from the sale, exchange or other disposition of capital assets by  the Company or its Restricted Subsidiaries (including any fixed assets, whether  tangible or intangible, all inventory sold in conjunction with the disposition of fixed  assets and all securities) to the extent such loss was deducted in computing such  Consolidated Net Income; plus  (9) any losses actually realized arising under fuel hedging arrangements entered into  prior to February 5, 2019 and any losses actually realized under fuel hedging  arrangements entered into after February 5, 2019, in each case to the extent  deducted in computing such Consolidated Net Income; plus  (10) proceeds from business interruption insurance for such period, to the extent not  already included in computing such Consolidated Net Income; plus  





 






  9    (11) any expenses and charges that are covered by indemnification or reimbursement  provisions in connection with any permitted acquisition, merger, disposition,  incurrence of Indebtedness, issuance of Equity Interests or any investment to the  extent (a) actually indemnified or reimbursed and (b) deducted in computing such  Consolidated Net Income; minus  (12) non-cash items, other than the accrual of revenue in the ordinary course of business,  to the extent such amount increased such Consolidated Net Income; minus  (13) the sum of (i) income tax credits and (ii) Consolidated Interest Income included in  computing such Consolidated Net Income;  in each case of clauses (1) through (13), determined on a consolidated basis in accordance with  GAAP.  “Consolidated Interest Income” means, as of any 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  





 






  10    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;  (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;  





 






  11    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  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 Revolving Credit and Guaranty Agreement, dated as of August  17, 2022, among the Company, as borrower, the subsidiaries of the borrower party thereto, as  guarantors, the lenders party thereto, and Barclays Bank PLC, as administrative agent and arranger,  and as may be further amended, restated, supplemented, modified, renewed, refunded, replaced or  refinanced from time to time.  “Credit Card” means obligations incurred in connection with any agreement or plan relating  to a credit card, debit card, charge card, purchasing card or other similar system.  “Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any  successor entity thereto.  “Default” means any event which, unless cured or waived, is, or after notice or passage of time  or both would be, an Event of Default.  “Definitive Note” means a certificated Note registered in the name of the Holder thereof and  issued in accordance with Section 2.6 hereof, substantially in the form of Exhibit A hereto except  that such Note shall not bear the Global Note Legend and shall not have the “Schedule of  Exchanges of Interests in the Global Note” attached thereto.  “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global  form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Notes, and  any and all successors thereto appointed as Depositary hereunder and having become such  pursuant to the applicable provision of this Indenture.  “Disposition” means, with respect to any property, any sale, lease, sale and leaseback,  conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall  have correlative meanings.  “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security  into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder  of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable,  pursuant to a sinking fund obligation or otherwise (other than as a result of a change of control or  asset sale), is convertible or exchangeable for Indebtedness or Disqualified Stock, or is redeemable  





 






  12    at the option of the holder of the Capital Stock, in whole or in part (other than as a result of a  change of control or asset sale), on or prior to the date that is 91 days after the date on which the  Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute  Disqualified Stock solely because the holders of the Capital Stock have the right to require the  Company or any Restricted Subsidiary to repurchase such Capital Stock upon the occurrence of a  change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital  Stock provide that the Company or such Restricted Subsidiary may not repurchase or redeem any  such Capital Stock pursuant to such provisions unless such repurchase or redemption complies  with Section 4.6.  The amount of Disqualified Stock deemed to be outstanding at any time for  purposes of this Indenture will be the maximum amount that the Company and its Restricted  Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory  redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.  “Dollars” and “$” means the currency of The United States of America.  “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire  Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital  Stock).  “Equity Offering” means a public offering for cash by the Company of its common stock, or  options, warrants or rights with respect to its common stock, other than (1) public offerings with  respect to the Company’s common stock, or options, warrants or rights, registered on Form S-4 or  S-8, (2) an issuance to any Subsidiary or (3) any offering of common stock issued in connection  with a transaction that constitutes a Change of Control.  “Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.  “Exchange Act” means the Securities Exchange Act of 1934, as amended.  “Excluded Property” has the meaning given to such term in the Security Agreement.  “Excluded Contributions” means net cash proceeds received by the Company after February  5, 2019 from:  (1) contributions to its common equity capital (other than from any Subsidiary); or  (2) the sale (other than to a Subsidiary or to any management equity plan or stock  option plan or any other management or employee benefit plan or agreement of the  Company or any Subsidiary) of Qualifying Equity Interests,  in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed  on or around the date such capital contributions are made or the date such Equity Interests are sold,  as the case may be. Excluded Contributions will not be considered to be net proceeds of Qualifying  Equity Interests for purposes of Section 4.6(a).  “Existing Indebtedness” means all Indebtedness of the Company and its Subsidiaries (other  than Indebtedness incurred under clauses (1), (2) or (5) of the definition of “Permitted Debt”) in  existence on the Closing Date, including the Existing Notes, until such amounts are repaid.  





 






  13    “Existing Notes” means the outstanding $150.0 million 8.500% Senior Secured Notes due  2024 of the Company.  “Fair Market Value” means the value that would be paid by a willing buyer to an unaffiliated  willing seller in a transaction not involving distress or necessity of either party, determined in good  faith by an officer of the Company; provided that any such officer shall be permitted to consider  the circumstances existing at such time (including, without limitation, economic or other  conditions affecting the United States airline industry generally and any relevant legal compulsion,  judicial proceeding or administrative order or the possibility thereof) in determining such Fair  Market Value in connection with such transaction.  “First Lien Debt” means any Pari Passu Debt of the Company or any of its Restricted  Subsidiaries that is or will be secured by a Lien on the Collateral on a pari passu basis with the  Senior Secured Obligations pursuant to an intercreditor agreement.  “First Lien Leverage Ratio” means, as of any date of determination, the ratio of (x) the  outstanding amount of the Senior Secured Obligations together with any other First Lien Debt to  (y) Consolidated EBITDA of the Company and its Restricted Subsidiaries for the most recent four  consecutive fiscal quarters ending prior to the date of such determination for which internal  consolidated financial statements of the Company have been or are required to be delivered;  provided, that:  (1) if, since the beginning of such period, the Company or any of its Restricted  Subsidiaries shall have made any sales, transfers or other dispositions of any assets  (other than Aircraft Assets) where the Fair Market Value of such assets exceeds  $10.0 million (a “Sale”), the Consolidated EBITDA for such period shall be  reduced by an amount equal to the Consolidated EBITDA (if positive) attributable  to the assets that are the subject of such Sale for such period or increased by an  amount equal to the Consolidated EBITDA (if negative) attributable thereto for  such period;  (2) if, since the beginning of such period, the Company or any of its Restricted  Subsidiaries (by merger, consolidation or otherwise) shall have made any  acquisition or purchase of any assets (other than Aircraft Assets) where the Fair  Market Value of any such assets exceeds $10.0 million (a “Purchase”) or any  Permitted Investment (including any Permitted Investment occurring in connection  with a transaction causing a calculation to be made hereunder), Consolidated  EBITDA for such period shall be calculated after giving pro forma effect thereto as  if such Purchase or Permitted Investment occurred on the first day of such period;  and  (3) if, since the beginning of such period, any Person became a Restricted Subsidiary  or was merged or consolidated with or into the Company or any Restricted  Subsidiary, and since the beginning of such period such Person shall have made  any Sale, Purchase or Permitted Investment that would have required an adjustment  pursuant to clause (1) or (2) above if made by the Company or a Restricted  Subsidiary of the Company since the beginning of such period, Consolidated  





 






  14    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.  “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;  





 






  15    (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;  (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.  





 






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





 






  17    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:  (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 2.5% 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 2.5% 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  





 






  18    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 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 $550.0 million aggregate principal amount of Notes issued  under this Indenture on the date hereof.  “Initial Purchasers” means Barclays Capital Inc., Credit Agricole Securities (USA) Inc. and  MUFG Securities Americas Inc.   “Institutional Accredited Investor” means an institution that is an “accredited investor” as  defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are not also QIBs.  “Interest Payment Date” has the meaning set forth in Exhibit A attached hereto.  “Intercreditor Agreement” means (i) the intercreditor agreement among Barclays Bank PLC,  as authorized representative for the Credit Agreement Secured Parties (as defined therein),  Wilmington Trust, National Association, as collateral agent for the Existing Notes and authorized  representative for the First Lien Notes Secured Parties (as defined therein) and the other parties  from time to time party thereto, dated as of October 7, 2020, as it may be amended, restated,  supplemented or otherwise modified from time to time in accordance with this Indenture or (ii)  





 






  19    any replacement or other intercreditor agreement that contains terms not materially less favorable  to Holders of the Notes than the intercreditor agreement referred to in clause (i).  “Investments” means, with respect to any Person, all direct or indirect investments made from  and after the Closing Date by such Person in other Persons (including Affiliates) in the forms of  loans (including Guarantees), capital contributions or advances (but excluding advance and pre- delivery payments and deposits for goods and services and similar advances to officers, employees  and consultants made in the ordinary course of business), purchases or other acquisitions for  consideration of Indebtedness, Equity Interests or other securities of other Persons, together with  all items that are or would be classified as investments on a balance sheet prepared in accordance  with GAAP; provided that a Completion Guarantee will not constitute an “Investment”. If the  Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity  Interests of any direct or indirect Restricted Subsidiary of the Company after the Closing Date  such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted  Subsidiary of the Company, the Company will be deemed to have made an Investment on the date  of any such sale or disposition equal to the Fair Market Value of the Company’s Investments in  such Subsidiary that were not sold or disposed of in an amount determined as provided in Section  4.6(c). Notwithstanding the foregoing, any Equity Interests retained by the Company or any of its  Subsidiaries after a disposition or dividend of assets or Capital Stock of any Person in connection  with any partial “spin-off” of a Subsidiary or similar transactions shall not be deemed to be an  Investment. The acquisition by the Company or any Restricted Subsidiary of the Company after  the Closing Date of a Person that holds an Investment in a third Person will be deemed to be an  Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal  to the Fair Market Value of the Investments held by the acquired Person in such third Person in an  amount determined as provided in Section 4.6(c). Except as otherwise provided above or in this  Indenture, the amount of an Investment will be determined at the time the Investment is made and  without giving effect to subsequent changes in value.  “Junior Lien Debt” means any Indebtedness of the Company or any of its Restricted  Subsidiaries that is or will be secured by a Lien on the Collateral on a basis that is junior to the  Notes and the Note Guarantees pursuant to an intercreditor agreement.  “Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest  or similar encumbrance of any kind in respect of such asset, whether or not filed, recorded or  otherwise perfected under applicable law, including any conditional sale or other title retention  agreement, any option or other agreement to sell or give a security interest in and, except in  connection with any Qualified Receivables Transaction, any agreement to give any financing  statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.  “Liquidity” means the sum of (i) all unrestricted cash and Cash Equivalents of the Company  and its Restricted Subsidiaries (including, for the avoidance of doubt, any cash or Cash Equivalents  held in accounts subject to Account Control Agreements), (ii) the aggregate principal amount  committed and available to be drawn by the Company and its Restricted Subsidiaries (taking into  account all borrowing base limitations or other restrictions) under all revolving credit facilities of  the Company and its Restricted Subsidiaries and (iii) the scheduled net proceeds (after giving  effect to any expected repayment of existing Indebtedness using such proceeds) of any securities  offering of the Company or any of its Restricted Subsidiaries that has priced but has not yet closed  





 






  20    (until the earliest of the closing thereof, the termination thereof without closing or the date that  falls five (5) Business Days after the initial scheduled closing date thereof).  “Loan 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 Company’s non-card loyalty program Allways  RewardsTM and the Company’s 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.  “Maturity,” when used with respect to any Note, means the date on which the principal of such  Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by  declaration of acceleration, call for redemption or otherwise.  “Moody’s” means Moody’s Investors Service, Inc.  “Net Proceeds” means the aggregate cash and Cash Equivalents received by the Company or  any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any  cash or Cash Equivalents received in respect of or upon the sale or other disposition of any non- cash consideration received in any Asset Sale) or Recovery Event, net of: (a) the direct costs and  expenses relating to such Asset Sale and incurred by the Company or a Restricted Subsidiary  (including the sale or disposition of such non-cash consideration) or any such Recovery Event,  including, without limitation, legal, accounting and investment banking fees, and sales  commissions, and any relocation expenses incurred as a result of the Asset Sale or Recovery Event,  taxes paid or payable as a result of the Asset Sale or Recovery Event, in each case, after taking  into account any available tax credits or deductions and any tax sharing arrangements; (b) any  reserve for adjustment or indemnification obligations in respect of the sale price of such asset or  assets established in accordance with GAAP; and (c) any portion of the purchase price from an  Asset Sale placed in escrow pursuant to the terms of such Asset Sale (either as a reserve for  adjustment of the purchase price, or for satisfaction of indemnities in respect of such Asset Sale)  until the termination of such escrow.  “Non-Recourse Debt” means Indebtedness:  (1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides  credit support of any kind (including any undertaking, agreement or instrument that  would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor  or otherwise; and  





 






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





 






  22    (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;  (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;  





 






  23    (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;  (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:  





 






  24    (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 (4),  (6) and (14) of Section 4.7(b); provided that, with respect to clause (4), such Liens  attach only to the assets being financed thereby, with respect to clause (6) of Section  4.7(b), such Liens are junior to the Liens of the Collateral Documents and holders  of such Indebtedness (or their representatives or agents) are party to the  Intercreditor Agreement and have agreed to be bound by the terms thereof and, with  respect to clause (14), such Liens attach only to the assets being financed thereby  or to Excluded Property;   (3) Liens for taxes not yet due or which are being contested in good faith by appropriate  proceedings and the Company shall have set aside on its books adequate reserves  with respect thereto in accordance with GAAP;  (4) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like  Liens arising in the ordinary course of business and securing obligations that are  not due and payable or which are being contested in good faith by appropriate  proceedings and the Company shall have set aside on its books adequate reserves  with respect thereto in accordance with GAAP and such contest operates to suspend  collection of the contested obligation, tax, assessment or charge and enforcement  of a Lien;  (5) pledges and deposits made in the ordinary course of business in compliance with  workmen’s compensation, unemployment insurance and other social security laws  or regulations;  (6) deposits to secure the performance of bids, trade contracts (other than for  Indebtedness), leases (other than Capital Lease Obligations), statutory obligations,  surety and appeal bonds, performance bonds and other obligations of a like nature  incurred in the ordinary course of business;  (7) Liens attaching solely to cash earnest money deposits in connection with any letter  of intent or purchase agreement in connection with an acquisition permitted under  the terms of this Indenture;  (8) any encumbrance or restriction (including, but not limited to, put and call  agreements) with respect to Capital Stock of any joint venture or similar  arrangement pursuant to any joint venture or similar agreement;  (9) Liens created by landlords over leasehold property and zoning restrictions,  easements, rights-of-way, restrictions on use of real property and other similar  encumbrances incurred in the ordinary course of business which do not interfere  with the intended use by the Company or any of its Restricted Subsidiaries of such  property;  





 






  25    (10) Liens securing reimbursement obligations with respect to commercial letters of  credit which encumber documents and other property relating to such letters of  credit and products and proceeds thereof;  (11) Liens on insurance proceeds or unearned premiums incurred in the ordinary course  of business in connection with the financing of insurance premiums;  (12) judgment Liens so long as such Lien is adequately bonded and any appropriate legal  proceedings which may have been duly initiated for the review of such judgment  have not been finally terminated or the period within which such proceedings may  be initiated has not expired;  (13) Liens securing First Lien Debt permitted to be incurred pursuant to Section  4.7(b)(5)(C)(i) provided that holders of such First Lien Debt (or their  representatives or agents) are party to the Intercreditor Agreement and have agreed  to be bound by the terms thereof;  (14) Liens securing Junior Lien Debt permitted to be incurred pursuant to Section  4.7(b)(5)(C)(ii) provided that holders of such Junior Lien Debt (or their  representatives or agents) are party to an intercreditor agreement and have agreed  to be bound by the terms thereof;   (15) Liens securing Indebtedness permitted to be incurred pursuant to Section  4.7(b)(15); provided that such Liens securing such Indebtedness are on assets that  would constitute Excluded Property;  (16) Liens on Aircraft Assets in favor of airport authorities; and   (17) Any extension, renewal or replacement (or successive extensions, renewals or  replacements), in whole or in part, of any Permitted Lien referred to in clauses (1)  through (16) above, inclusive of any Lien existing at the date of the issuance of the  Notes; provided, however, that (i) the obligation secured by such new Lien shall  not extend beyond the property subject to the existing Lien and is not greater in  amount than the obligations secured by the Lien extended, renewed or replaced  (plus an amount in respect of any applicable premium and reasonable financing fees  and related transaction costs).  For purposes of determining compliance with this definition, a Lien need not be incurred solely  by reference to one category of Permitted Liens described in this definition but may be incurred  under any combination of such categories (including in part under one such category and in part  under any other such category).  “Permitted Refinancing Indebtedness” means any Indebtedness (or commitments in respect  thereof) of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net  proceeds of which are used to renew, refund, extend, refinance, replace, defease or discharge other  Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany  Indebtedness); provided that:  





 






  26    (1) the principal amount (or accreted value, if applicable) of such Permitted  Refinancing Indebtedness does not exceed the original principal amount (or  accreted value, if applicable) when initially incurred by the Company or its  Restricted Subsidiaries of the Indebtedness renewed, refunded, extended,  refinanced, replaced, defeased or discharged (plus all accrued interest on the  Indebtedness (whether or not capitalized or accreted or payable on a current basis)  and the amount of all fees and expenses, including premiums, incurred in  connection therewith (such original principal amount plus such amounts described  above, collectively, for purposes of this clause (1), the “preceding amount”));  provided that with respect to any such Permitted Refinancing Indebtedness that is  refinancing secured Indebtedness and is secured by all or a portion of the same  collateral, the principal amount (or accreted value, if applicable) of such Permitted  Refinancing Indebtedness shall not exceed the greater of the preceding amount and  the Fair Market Value of the assets securing such Permitted Refinancing  Indebtedness (which Fair Market Value may, at the time of an advance  commitment, be determined to be the Fair Market Value at the time of such  commitment or (at the option of the issuer of such Indebtedness) the Fair Market  Value projected for the time of incurrence of such Indebtedness);  (2) if such Permitted Refinancing Indebtedness has a maturity date that is after the  maturity date of the Notes (with any amortization payment comprising such  Permitted Refinancing Indebtedness being treated as maturing on its amortization  date), such Permitted Refinancing Indebtedness has a Weighted Average Life to  Maturity that is (a) equal to or greater than the Weighted Average Life to Maturity  of, the Indebtedness being renewed, refunded, extended, refinanced, replaced,  defeased or discharged or (b) more than 60 days after the final maturity date of the  Notes;  (3) if the Indebtedness being renewed, refunded, extended, refinanced, replaced,  defeased or discharged is subordinated in right of payment to the Notes, such  Permitted Refinancing Indebtedness is subordinated in right of payment to the  Notes on terms at least as favorable to the Holders as those contained in the  documentation governing the Indebtedness being renewed, refunded, extended,  refinanced, replaced, defeased or discharged;  (4) to the extent such Permitted Refinancing Indebtedness is secured, the Liens  securing such Permitted Refinancing Indebtedness have a Lien priority equal or  junior to the Liens securing the Indebtedness being renewed, refunded, extended,  refinanced, replaced, defeased or discharged;   (5) no Restricted Subsidiary that is not a Guarantor shall be an obligor with respect to  such Permitted Refinancing Indebtedness unless such non-guarantor Restricted  Subsidiary was an obligor with respect to the Indebtedness being renewed,  refunded, extended, refinanced, replaced, defeased or discharged; and  (6) notwithstanding that the Indebtedness being renewed, refunded, refinanced,  extended, replaced, defeased or discharged may have been repaid or discharged by  





 






  27    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.  “Qualified Receivables Transaction” means any transaction or series of transactions entered  into by the Company or any of its Subsidiaries pursuant to which the Company or any of its  Subsidiaries sells, conveys or otherwise transfers to (1) a Receivables Subsidiary or any other  Person (in the case of a transfer by the Company or any of its Subsidiaries) and (2) any other  Person (in the case of a transfer by a Receivables Subsidiary), or grants a security interest in, any  accounts receivable (whether now existing or arising in the future) of the Company or any of its  Subsidiaries, and any assets related thereto including, without limitation, all Equity Interests and  other Investments in the Receivables Subsidiary, all collateral securing such accounts receivable,  all contracts and all Guarantees or other obligations in respect of such accounts receivable,  proceeds of such accounts receivable and other assets which are customarily transferred or in  respect of which security interests are customarily granted in connection with asset securitization  transactions involving accounts receivable; provided that the financing terms, covenants,  termination events and other provisions (including collateralization levels) thereof shall be on  customary market terms for securitization transactions involving assets such as, or similar to, the  assets subject thereto (as determined in good faith by a responsible financial officer of the  Company).  “Qualifying Equity Interests” means Equity Interests of the Company other than Disqualified  Stock.  “Receivables Subsidiary” means a Subsidiary of the Company which engages in no activities  other than in connection with the financing or securitization of accounts receivable and which is  designated by the Board of Directors of the Company (as provided below) as a Receivables  Subsidiary (a) no portion of the Indebtedness or any other obligations (contingent or otherwise) of  which (i) is guaranteed by the Company or any Restricted Subsidiary of the Company (other than  comprising a pledge of the Capital Stock or other interests in such Receivables Subsidiary (an  “incidental pledge”), and excluding any Guarantees of obligations (other than the principal of, and  interest on, Indebtedness) pursuant to representations, warranties, covenants and indemnities  entered into in the ordinary course of business in connection with a Qualified Receivables  Transaction), (ii) is recourse to or obligates the Company or any Restricted Subsidiary of the  





 






  28    Company in any way other than through an incidental pledge or pursuant to representations,  warranties, covenants and indemnities entered into in the ordinary course of business in connection  with a Qualified Receivables Transaction or (iii) subjects any property or asset of the Company or  any Subsidiary of the Company (other than accounts receivable and related assets as provided in  the definition of “Qualified Receivables Transaction”), directly or indirectly, contingently or  otherwise, to the satisfaction thereof, other than pursuant to representations, warranties, covenants  and indemnities entered into in the ordinary course of business in connection with a Qualified  Receivables Transaction, (b) with which neither the Company nor any Subsidiary of the Company  has any material contract, agreement, arrangement or understanding (other than pursuant to the  Qualified Receivables Transaction) other than (i) on terms no less favorable to the Company or  such Subsidiary than those that might be obtained at the time from Persons who are not Affiliates  of the Company, and (ii) fees payable in the ordinary course of business in connection with  servicing accounts receivable and (c) with which neither the Company nor any Subsidiary of the  Company has any obligation to maintain or preserve such Subsidiary’s financial condition, other  than a minimum capitalization in customary amounts, or to cause such Subsidiary to achieve  certain levels of operating results. Any such designation by the Board of Directors of the Company  will be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the  Board of Directors of the Company giving effect to such designation and an Officer’s Certificate  certifying that such designation complied with the foregoing conditions.  “Recovery Event” means any event that gives rise to the receipt by the Company or any of its  Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any  equipment, fixed assets or real property (including any improvements thereon) to replace or repair  such equipment, fixed assets or real property; provided, however, for purposes of determining  whether an Asset Sale Offer would be required, a Recovery Event shall be deemed to have  occurred only to the extent that the aggregate net cash proceeds of all such events, together with  all Dispositions that constitute Asset Sales without giving effect to the dollar thresholds in the  definition thereof, during any fiscal year exceed $1.0 million.  “Regulation S” means Regulation S promulgated under the Securities Act.  “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto  bearing the Global Note Legend and the Regulation S Global Note Legend and deposited with or  on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination  equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation  S.  “Regulation S Global Note Legend” means the legend set forth in Section 2.6(f)(3) hereof to  be placed on all Regulation S Global Notes issued under this Indenture except where otherwise  permitted by the provisions of this Indenture.  “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having  responsibility for administration of this Indenture and also means, with respect to a particular  corporate trust matter, any other officer to whom any corporate trust matter is referred because of  his or her knowledge of and familiarity with a particular subject.  “Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.  





 






  29    “Restricted Global Note” means a Global Note bearing the Private Placement Legend.  “Restricted Investment” means an Investment other than a Permitted Investment.  “Restricted Period” means the 40-day distribution compliance period as defined in Regulation  S.   “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  





 






  30    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,  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, the Existing  Notes 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.   





 






  31    “Spare Parts Security Agreement” means the Spare Parts Security Agreement, dated as of the  Closing Date, between Allegiant Air, LLC, as grantor, and the Collateral Agent, as the same may  be amended, restated, modified, supplemented, extended or amended and restated from time to  time.  “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.  “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.  





 






  32    “Treasury Rate” means, with respect to any redemption date for the Notes, the yield to  maturity at the time of computation of U.S. Treasury securities with a constant maturity (as  compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has  become publicly available at least two Business Days prior to the redemption date (or, if such  Statistical Release is no longer published, any publicly available source or similar market data))  most nearly equal to the period from the redemption date to August 15, 2024; provided, however,  that if the period from the redemption date to August 15, 2024 is not equal to the constant maturity  of a U.S. Treasury security for which a weekly average yield is given, the Treasury Rate shall be  obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly  average yields of U.S. Treasury securities for which such yields are given, except that if the period  from the redemption date to August 15, 2024 is less than one year, the weekly average yield on  actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.  “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and the rules and  regulations thereunder as in effect on the date of this Indenture.  “Trustee” means Wilmington Trust, National Association in its capacity as such, until a  successor replaces it in accordance with the applicable provisions of this Indenture and thereafter  means the successor serving hereunder.  “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable  jurisdiction.  “Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required  to bear the Private Placement Legend.  “Unrestricted Global Note” means a Global Note that does not bear and is not required to bear  the Private Placement Legend.  “Unrestricted Subsidiary” means (i) Sunseeker Resorts, Inc. and each of its direct and indirect  Subsidiaries so long as such Person meets the requirements set forth in clauses (2) through (5)  below, or (ii) any other Subsidiary of the Company that is designated by the Board of Directors of  the Company as an Unrestricted Subsidiary in compliance with Section 4.10 pursuant to a  resolution of the Board of Directors, but only if such Subsidiary:  (1) has no Indebtedness other than Non-Recourse Debt;  (2) is not party to any agreement, contract, arrangement or understanding with the  Company or any Restricted Subsidiary of the Company unless the terms of any  such agreement, contract, arrangement or understanding are no less favorable to the  Company or such Restricted Subsidiary than those that might be obtained at the  time from Persons who are not Affiliates of the Company;  (3) is a Person with respect to which neither the Company nor any of its Restricted  Subsidiaries has any direct or indirect obligation (a) to subscribe for additional  Equity Interests or (b) to maintain or preserve such Person’s financial condition or  to cause such Person to achieve any specified levels of operating results (other than  a Completion Guarantee);   





 






  33    (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     “Acceleration Event” ..........................................................  6.2  “Asset Sale Offer” ...............................................................  4.13(a)  “Asset Sale Offer Period” ...................................................  4.13(c)  “Asset Sale Purchase Date” ................................................  4.13(c)  “Change of Control Offer” ..................................................  4.12(a)  “Change of Control Payment” ............................................  4.12(a)  “Change of Control Payment Date” ....................................  4.12(a)  “Completion Guarantee” .....................................................  4.11(b)(13)  “DTC” .................................................................................  2.3  “Event of Default” ..............................................................  6.1  “Excess Proceeds” ..............................................................  4.13(b)  “Paying Agent” ...................................................................  2.3  “Permitted Debt” .................................................................  4.7  “Registrar” ..........................................................................  2.3  “Special Interest” ................................................................  4.3(b)    Section 1.3. Rules of Construction.  Unless the context otherwise requires:  (a) a term has the meaning assigned to it;  





 






  34    (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  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.    





 






  35    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.  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  





 






  36    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:  (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  





 






  37    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 Purchasers). Beneficial interests in any Unrestricted  Global Note may be transferred to Persons who take delivery thereof in the form of a  beneficial interest in an Unrestricted Global Note. No written orders or instructions shall  be required to be delivered to the Registrar to effect the transfers described in this Section  2.6(b)(1).  (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges of beneficial interests that are not subject to  Section 2.6(b)(1) above, the transferor of such beneficial interest must deliver to the  Registrar either:  (A) both:  (i) a written order from a Participant or an Indirect Participant  given to the Depositary in accordance with the Applicable Procedures  directing the Depositary to credit or cause to be credited a beneficial  interest in another Global Note in an amount equal to the beneficial  interest to be transferred or exchanged; and  (ii) instructions given in accordance with the Applicable  Procedures containing information regarding the Participant account to be  credited with such increase; or  (B) both:  (i) a written order from a Participant or an Indirect Participant  given to the Depositary in accordance with the Applicable Procedures  directing the Depositary to cause to be issued a Definitive Note in an  amount equal to the beneficial interest to be transferred or exchanged; and  





 






  38    (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.  (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  





 






  39    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;  (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  





 






  40    (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  (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  





 






  41    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;  (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;  





 






  42    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  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.  





 






  43    (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.  (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.  





 






  44    (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  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  





 






  45    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).”  (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.  





 






  46    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  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  





 






  47    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  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  





 






  48    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  Section 2.10, 3.6, 3.7, 4.13, and 9.5 hereof).  (3) The Registrar will not be required to register the transfer of or exchange of  any Note selected for redemption in whole or in part, except the unredeemed portion of  any Note being redeemed in part.  (4) All Global Notes and Definitive Notes issued upon any registration of  transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of  the Company, evidencing the same debt, and entitled to the same benefits under this  Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of  transfer or exchange.  (5) Neither the Registrar nor the Company will be required:  (A) to issue, to register the transfer of or to exchange any Notes during  a period beginning at the opening of business 15 days before the day of any  selection of Notes for redemption under Section 3.2 hereof and ending at the close  of business on the day of selection;  (B) to register the transfer of or to exchange any Note selected for  redemption in whole or in part, except the unredeemed portion of any Note being  redeemed in part; or  (C) to register the transfer of or to exchange a Note between a record  date and the next succeeding Interest Payment Date.  (6) Prior to due presentment for the registration of a transfer of any Note, the  Trustee, any Agent and the Company may deem and treat the Person in whose name any  Note is registered as the absolute owner of such Note for the purpose of receiving payment  of principal of, premium, if any, and interest on, the Notes and for all other purposes, and  none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.  





 






  49    (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.   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.  





 






  50    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 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.  





 






  51    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;  (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  





 






  52    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;  (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  





 






  53    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 15, 2024, the Company, at its option, may redeem the Notes,  in whole or in part at any time and from time to time, at the redemption prices (expressed in  percentages of the principal amount of the Notes to be redeemed) listed below, plus any accrued  and unpaid interest thereon to, but excluding, the redemption date, if redeemed during the twelve- month period beginning August 15 of the years indicated below.  Year Percentage  2024 .................................................................................................... 103.6250%  2025 .................................................................................................... 101.8125%  2026 and thereafter ............................................................................. 100.0000%     (b) Prior to August 15, 2024, the Company may on any one or more occasions redeem  up to 40% of the original aggregate principal amount of the Notes (calculated after giving effect  to any issuance of Additional Notes) with the net cash proceeds of one or more Equity Offerings,  upon not less than 30 nor more than 60 days’ notice mailed or otherwise delivered to each Holder  in accordance with the Applicable Procedures of DTC, at a redemption price equal to 107.250%  of the principal amount of the Notes, plus accrued and unpaid interest, if any, to the applicable  redemption date; provided that at least 60% of the original aggregate principal amount of the Notes  (calculated after giving effect to any issuance of Additional Notes) remains outstanding after each  





 






  54    such redemption and such redemption occurs within 90 days after the closing of such Equity  Offering.  (c) In addition, prior to August 15, 2024, 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.  (d) Any redemption pursuant to this Section 3.7 shall be made pursuant to the  provisions of Section 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  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.  





 






  55    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. Special Interest.  (a) The Company shall deliver to the Trustee, within the time periods the Company is  required to furnish quarterly and annual reports pursuant to Section 4.2, an Officer’s Certificate  demonstrating in reasonable detail the aggregate amount of Liquidity as of the end of the preceding  fiscal quarter.   (b) If such Officer’s Certificate demonstrates that Liquidity is less than $300.0 million  at the time, then the Company will pay additional interest on all outstanding Notes (“Special  Interest”) in an amount equal to 2.0% per annum of the principal amount of such Notes,  commencing on the earlier of (x) the date on which the Company was required to deliver such  Officer’s Certificate in accordance with this Section 4.3 and (y) the date the Company delivers an  Officer’s Certificate demonstrating such Liquidity is less than $300.0 million, and continuing until  the Company delivers to the Trustee an Officer’s Certificate demonstrating in reasonable detail  Liquidity of at least $300.0 million. Special Interest payable pursuant to the provisions of this  Section 4.3 will be calculated and paid in the same manner as regular interest is calculated and  paid under this Indenture.  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.  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.  





 






  56    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) being  collectively referred to as “Restricted Payments”),  unless, at the time of and after giving effect to such Restricted Payment:  (a) no Default of Event  of Default has occurred and is continuing, (b) the Company would, at the time of such Restricted  Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at  the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of  additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section  4.7(a); and (c) such Restricted Payment, together with the aggregate amount of all other Restricted  Payments (other than Restricted Investments) made by the Company and its Restricted  Subsidiaries after February 5, 2019 and together with Restricted Investments outstanding at the  time of giving effect to such Restricted Payment (excluding, in each case, Restricted Payments  permitted by clauses (2) through (18) of Section 4.6(b)), is less than the sum, without duplication,  of:  (A) 50% of the Consolidated Net Income of the Company for the period  (taken as one accounting period) from October 1, 2018 to the end of the Company’s  most recently ended fiscal quarter for which financial statements are available at  the time of such Restricted Payment; plus  (B) 100% of the aggregate net cash proceeds and the Fair Market Value  of non-cash consideration received by the Company after February 5, 2019, in each  





 






  57    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  Date, such as the Company’s regularly scheduled dividend that was suspended by the  Company in accordance with the Coronavirus Aid, Relief, and Economic Security  (CARES) Act) payable to the holders of the Company’s common stock; provided that the  aggregate amount of such dividends for any four consecutive fiscal quarters shall not  exceed the greater of (A) $75.0 million and (B) 15% of the Company’s Consolidated  EBITDAR for the most recent four consecutive fiscal quarters ending prior to the date of  





 






  58    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  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;  





 






  59    (8) so long as no Default or Event of Default has occurred and is continuing,  the declaration and payment of regularly scheduled or accrued dividends, distributions or  payments to holders of any class or series of Disqualified Stock or Subordinated Debt of  the Company or any preferred stock of any Restricted Subsidiary of the Company in each  case either outstanding on the Closing Date or issued on or after the Closing Date in  accordance with Section 4.7 and not to exceed the greater of (A) $75.0 million and (B)  15% of the Company’s Consolidated EBITDAR for the preceding four fiscal quarters of  the Company in aggregate;  (9) payments of cash, dividends, distributions, advances, common stock or  other Restricted Payments by the Company or any of its Restricted Subsidiaries to allow  the payment of cash in lieu of the issuance of fractional shares upon (i) the exercise of  options or warrants, (ii) the conversion or exchange of Capital Stock of any such Person,  (iii) a distribution or split or (iv) the conversion or exchange of Indebtedness or hybrid  securities into Capital Stock of any such Person;  (10) the declaration and payment of dividends to holders of any class or series  of Disqualified Stock of the Company or any Disqualified Stock or preferred stock of any  Restricted Subsidiary of the Company to the extent such dividends are included in the  definition of “Fixed Charges” for such Person;  (11) in the event of a Change of Control, and if no Default or Event of Default  shall have occurred and be continuing, the payment, purchase, redemption, defeasance or  other acquisition or retirement of any Junior Lien Debt, Senior Unsecured Pari Passu Debt  and Subordinated Debt, in each case, at a purchase price not greater than 101% of the  principal amount of such Indebtedness, plus any accrued and unpaid interest thereon;  provided, however, that prior to such payment, purchase, redemption, defeasance or other  acquisition or retirement, the Company or the Guarantors (or a third party to the extent  permitted by this Indenture) have made a Change of Control Offer with respect to the Notes  as a result of such Change of Control and has repurchased all notes validly tendered and  not withdrawn in connection with such Change of Control Offer (it being agreed that the  Company or the Guarantors may pay, purchase, redeem, defease or otherwise acquire or  retire such Indebtedness even if the purchase price exceeds 101% of the principal amount  of such Indebtedness; provided that the amount paid in excess of 101% of such principal  amount is otherwise permitted under the Restricted Payments covenant);  (12) Restricted Payments made with Excluded Contributions;  (13) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or  Indebtedness owed to the Company or any of its Restricted Subsidiaries by, any  Unrestricted Subsidiary;  (14) so long as no Event of Default has occurred and is continuing, Restricted  Payments in an aggregate amount not to exceed $150.0 million, such aggregate amount to  be calculated from and after the Closing Date;  





 






  60    (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 in an aggregate amount that does not exceed the  greater of (A) $250.0 million and (B) 50% of the Company’s Consolidated EBITDAR for  the preceding four fiscal quarters of the Company.  (c) In the case of any Restricted Payment that is not cash, the amount of such non-cash  Restricted Payment will be the Fair Market Value on the date of the Restricted Payment of the  asset(s) or securities proposed to be transferred or issued by the Company or such Restricted  Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment. The Fair  Market Value of any assets or securities that are required to be valued by this Section 4.6 will be  determined by an officer of the Company and, if greater than $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.  (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,  





 






  61    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 Indebtedness under  the Credit Agreement in an aggregate principal amount outstanding at any time not to  exceed the original aggregate amount of total revolving commitments specified in the  Credit Agreement as of the Closing Date (for the avoidance of doubt, such amount does  not include any incremental commitments or other commitments);  (2) the incurrence by the Company and the Guarantors of the Notes and Note  Guarantees in the aggregate principal amount to be issued on the Closing Date;  (3) the incurrence by the Company or any of its Restricted Subsidiaries of the  Existing Indebtedness and any Permitted Refinancing Indebtedness that is incurred  pursuant to or in lieu of a commitment in existence as of the Closing Date;  (4) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness (including Capital Lease Obligations, mortgage financings, purchase money  obligations and government bond financings) incurred to finance (or to reimburse the  Company or any of its Restricted Subsidiaries for) all or any part of the purchase price or  installation or improvement of any Aircraft Asset used in the business of the Company or  any of its Restricted Subsidiaries or leased to any third party;  (5) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness in an aggregate principal amount up to the sum of:  (A) the greater of (x) $500.0 million and (y) 100% of the Company’s  Consolidated EBITDAR for the most recent four consecutive fiscal quarters ending  prior to the date of such determination (as calculated on a pro forma basis); plus  (B) all voluntary prepayments, debt buybacks (up to the actual amount  of the resulting reduction in Indebtedness), and payments utilizing the yank a bank  provisions, as applicable, of the Indebtedness permitted to be incurred under the  Credit Agreement and the other Loan Documents consisting of the issuance or  incurrence of any senior or subordinated Indebtedness, to the extent accompanied  by a permanent reduction of revolving commitments and to the extent not made  with the proceeds of long term Indebtedness (other than revolving indebtedness);  plus  





 






  62    (C) an additional amount such that, after giving effect to the incurrence  of such additional amount (but without giving effect to any amount incurred  simultaneously under subclauses (a) and (b) above), and after giving pro forma  effect to any acquisition or Investment consummated in connection therewith or  any other appropriate pro forma adjustments:  (i) in the case of First Lien Debt, the First Lien Leverage Ratio  would not exceed 3.00:1.00; and  (ii) in the case of Junior Lien Debt, the Secured Leverage Ratio  would not exceed 4.00:1.00;  (6) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to  exceed $250.0 million at any time outstanding;   (7) the incurrence by the Company or any of its Restricted Subsidiaries of  Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used  to renew, refund, refinance, replace, extend, defease or discharge any Indebtedness (other  than intercompany Indebtedness) that was permitted by this Indenture to be incurred under  Section 4.7(a) or any of clauses (1) through (25) of this Section 4.7(b);  (8) the incurrence by the Company or any of its Restricted Subsidiaries of  intercompany Indebtedness between or among the Company and/or any of its Restricted  Subsidiaries; provided that any such intercompany Indebtedness owed to a Restricted  Subsidiary shall be subordinated to the obligations under the Notes and the Note  Guarantees;  (9) the issuance by any of the Company’s Restricted Subsidiaries to the  Company or to any of its Restricted Subsidiaries of shares of preferred stock;  (10) the incurrence by the Company or any of its Restricted Subsidiaries of  Hedging Obligations in the ordinary course of business and not for speculative purposes;  (11) the Guarantee (including by way of co-obligation or assumption) by the  Company or any Restricted Subsidiary of the Company of Indebtedness of the Company  or a Restricted Subsidiary of the Company (including in connection with or in  contemplation of a spin-off of the original obligor of the guaranteed or assumed  Indebtedness) to the extent that the guaranteed Indebtedness was permitted to be incurred  by another provision of this Section 4.7; provided that if the Indebtedness being guaranteed  is Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated Debt, then the  Guarantee must be Junior Lien Debt, Senior Unsecured Pari Passu Debt or Subordinated  Debt, as applicable, to the same extent as the Indebtedness guaranteed or assumed;  (12) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness or reimbursement obligations in respect of workers’ compensation claims,  self-insurance obligations (including reinsurance), bankers’ acceptances, performance  bonds and surety bonds in the ordinary course of business (including without limitation in  





 






  63    respect of customs obligations, landing fees, taxes, airport charges, overfly rights and any  other obligations to airport and governmental authorities);  (13) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness in respect of any overdrafts and related liabilities arising from treasury,  depository and cash management services or in connection with any automated clearing  house transfers of funds;  (14) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness (a) constituting credit support or financing from aircraft or engine  manufacturers or their affiliates or (b) incurred to finance or refinance Aircraft Assets  (including, without limitation, to reimburse the Company or any of its Restricted  Subsidiaries for the acquisition cost of any of the foregoing, to finance any pre-delivery,  progress or similar payment or pursuant to a sale and lease-back) (whether in advance of  or at any time following any acquisition of items being financed, and whether such  indebtedness is unsecured in whole or in part or is secured by such items or by other items  or by any combination); provided that the principal amount of such Indebtedness incurred  in reliance on subsection (b) of this clause (14), at the time of incurrence of such  Indebtedness, may exceed the aggregate incurred and anticipated costs to finance  acquisition of the item or items being financed by such Indebtedness (calculated at the time  of incurrence of such Indebtedness and determined in good faith by an officer of the  Company or Restricted Subsidiary, as applicable (including reasonable estimates of  anticipated costs) and calculated to include, without limitation, purchase price, fees,  expenses, repayment of any pre-delivery financing and related interest expense (whether  or not capitalized) and premium (if any), delivery and late charges and other costs  associated with such acquisition (as so calculated, for purposes of this proviso, the  “financing costs”)) but, if such principal amount exceeds such financing costs, it may not  exceed the aggregate Fair Market Value of the item or items securing such Indebtedness  (which Fair Market Value may, at the time of an advance commitment, be determined to  be the Fair Market Value at the time of such commitment or (at the option of the issuer or  such Indebtedness) the Fair Market Value projected for the time of incurrence of such  Indebtedness) or (c) constituting letters of credit in lieu of security deposits and  maintenance reserves in connection with any Indebtedness in operating lease associated  with an Aircraft Asset;  (15) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness, Disqualified Stock or preferred stock (including Acquired Debt) (A) as part  of, or to finance, the acquisition (including by way of merger) of any Permitted Business,  (B) incurred in connection with, or as a result of, the merger, consolidation or  amalgamation of any Person (including the Company or any of its Restricted Subsidiaries)  that owns a Permitted Business with or into the Company or any of its Restricted  Subsidiaries, or into which the Company or any of its Restricted Subsidiaries is merged,  consolidated or amalgamated, or (C) that is an outstanding obligation or commitment to  enter into an obligation of a Person that owns a Permitted Business at the time that such  Person is acquired by the Company or any of its Restricted Subsidiaries and becomes a  Restricted Subsidiary of the Company; provided that, in each case, after giving pro forma  effect to such acquisition, merger, consolidation or amalgamation, either (x) the Company  





 






  64    would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to  the Fixed Charge Coverage Ratio test set forth in the first paragraph of this covenant or (y)  the Fixed Charge Coverage Ratio would be no less than the Fixed Charge Coverage Ratio  immediately prior to giving effect to such incurrence of Indebtedness or issuance of  Disqualified Stock or preferred stock;  (16) Indebtedness issued to current or former directors, consultants, managers,  officers and employees and their spouses or estates (a) to purchase or redeem Capital Stock  of the Company issued to such director, consultant, manager, officer or employee in an  aggregate principal amount not to exceed $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;  (17) reimbursement obligations in respect of standby or documentary letters of  credit or banker’s acceptances;  (18) surety and appeal bonds that do not secure judgments that constitute an  Event of Default;  (19) Indebtedness of the Company or any of its Restricted Subsidiaries to Credit  Card, travel charge or clearing house processors in connection with Credit Card processing,  travel charge or clearing house services incurred in the ordinary course of business,  whether in the form of hold-backs or otherwise;  (20) the incurrence of Indebtedness of the Company or any of its Restricted  Subsidiaries owed to one or more Persons in connection with the financing of insurance  premiums in the ordinary course of business;  (21) Credit Card purchases of fuel;  (22) Indebtedness arising from agreements of the Company or any of its  Restricted Subsidiaries providing for indemnification, adjustment of purchase price or  similar obligations, in each case, incurred or assumed in connection with the acquisition or  disposition of any business, assets or a Subsidiary; provided that, in the case of a  disposition, the maximum assumable liability in respect of all such Indebtedness shall at  no time exceed the gross proceeds, including non-cash proceeds (the Fair Market Value of  such non-cash proceeds being measured at the time received and without giving effect to  any subsequent changes in value) actually received by the Company or any of its Restricted  Subsidiaries in connection with such disposition;  (23) Indebtedness of the Company or any of its Restricted Subsidiaries  consisting of take-or-pay or like obligations contained in supply, maintenance, repair,  power-by-the-hour, overhaul or like agreements entered into in the ordinary course of  business;   (24) the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified  Receivables Transaction that is without recourse to the Company or to any other Restricted  Subsidiary of the Company or their assets (other than such Receivables Subsidiary and its  





 






  65    assets and, as to the Company or any other Restricted Subsidiary of the Company, other  than Standard Securitization Undertakings) and is not guaranteed by any such Person; and  (25) the incurrence by the Company or any of its Restricted Subsidiaries of  Indebtedness in respect of or in connection with tax-exempt or tax-advantaged municipal  bond and similar financings related to Aircraft Related Facilities.  (c) None of the following shall constitute an incurrence of Indebtedness or an issuance  of preferred stock or Disqualified Stock for purposes of this Section 4.7:  (1) the accrual of interest or preferred stock dividends,  (2) the accretion or amortization of original issue discount,  (3) the payment of interest on any Indebtedness in the form of additional  Indebtedness with the same terms,  (4) the reclassification of preferred stock or of operating leases or any other  instrument or transaction as Indebtedness due to a change in accounting principles or in  GAAP or due to a modification of such operating leases, and  (5) the payment of dividends on preferred stock or Disqualified Stock in the  form of additional shares of the same class of preferred stock or Disqualified Stock.  (d) For purposes of determining compliance with any U.S. dollar-denominated  restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of  Indebtedness denominated in a foreign currency shall be utilized, calculated based on the relevant  currency exchange rate in effect on the date such Indebtedness was incurred. Notwithstanding any  other provision of this Section 4.7, the maximum amount of Indebtedness that the Company or any  of its Restricted Subsidiaries may incur pursuant to this Section 4.7 shall not be deemed to be  exceeded solely as a result of fluctuations in exchange rates or currency values.  (e) The amount of any Indebtedness outstanding as of any date shall be:  (1) the accreted value of the Indebtedness as of such date, in the case of any  Indebtedness issued with original issue discount;  (2) the principal amount of the Indebtedness as of such date, in the case of any  other Indebtedness; and  (3) in respect of Indebtedness of another Person secured by a Lien on the assets  of the specified Person, the lesser of:  (A) the Fair Market Value of such assets as of such date; and  (B) the amount of the Indebtedness of the other Person as of such date.  





 






  66    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  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  





 






  67    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.,  Sunseeker Florida North, Inc., SFI Equity Holdco, 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  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.  





 






  68    (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;  (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;  





 






  69    (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.    (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  





 






  70    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.  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 Net Proceeds from an Asset Sale or a Recovery Event to the extent that such Net Proceeds are  (unless such Net Proceeds constitute collateral for any Permitted Debt) deposited into an account  subject to an Account Control Agreement until applied as set forth in clause (1) or (2) below and:  





 






  71    (1) such Net Proceeds are used to prepay Permitted Debt that is secured  by a first priority lien over property from which such Net Proceeds are derived  within 365 days from the receipt of such Net Proceeds; or   (2) only if no Event of Default has occurred and is continuing at the  time of such proposed reinvestment, such Net Proceeds are reinvested, in the case  of Net Proceeds of assets that do not constitute Collateral, in assets of a kind then  used or usable in the business of the Company and its Restricted Subsidiaries or, in  the case of Net Proceeds of assets that constitute Collateral, in additional assets that  constitute Collateral and that are substantially simultaneously pledged under the  Collateral Documents with a Lien of the same priority as the Collateral that was  subject of the Asset Sale or Recovery Event, in each case, within 365 days from the  receipt of such Net Proceeds (or, if within such 365 day period the Company or any  of its Restricted Subsidiaries enters into a binding commitment to so reinvest in  such Net Proceeds, such Net Proceeds are so reinvested within 180 days after such  binding commitment is so entered into).  Any Net Proceeds not applied as provided in clause (1) or (2) of this Section 4.13(b)  will be deemed to constitute “Excess Proceeds.”  (c) The Asset Sale Offer will remain open for a period of 20 Business Days  following its commencement, except to the extent that a longer period is required by applicable  law (the “Asset Sale Offer Period”). No later than five (5) Business Days after the termination of  the Asset Sale Offer Period (the “Asset Sale Purchase Date”), the Company will apply all Excess  Proceeds to the purchase of the aggregate principal amount of notes and, if applicable, any other  First Lien Debt (on a pro rata basis, if applicable) required to be offered for purchase pursuant to  this Section 4.13 and validly tendered or otherwise surrendered and not validly withdrawn in  response to the Asset Sale Offer.  (d) On the Asset Sale Purchase Date, the Company will, to the extent lawful:  (1) accept for payment all notes or portions of notes and any other First  Lien Debt properly tendered pursuant to the Asset Sale Offer that can be purchased  with the Excess Proceeds from such Asset Sale or Recovery Event; provided that  if, following repurchase of a portion of a note, the remaining principal amount of  such note outstanding immediately after such repurchase would be less than $2,000,  then the portion of such note so repurchased shall be reduced so that the remaining  principal amount of such note outstanding immediately after such repurchase is  $2,000;  (2) deposit with the paying agent an amount equal to the payment in  respect of all notes or portions of notes and any other First Lien Debt properly  tendered pursuant to the Asset Sale Offer; and  (3) deliver or cause to be delivered to the Trustee for cancellation the  Notes properly accepted together with an Officer’s Certificate stating the aggregate  principal amount of notes or portions of notes being purchased by the Company.  





 






  72    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.  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  





 






  73    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  (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  





 






  74    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  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;  





 






  75    (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  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  





 






  76    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  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  





 






  77    (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  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,  





 






  78    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.    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.  





 






  79    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;  (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.  





 






  80    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.  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.  





 






  81    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.  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.  





 






  82    (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:  (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.  





 






  83    (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.  (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.  





 






  84    (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.  (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.  





 






  85    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  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:  





 






  86    (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.  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.   





 






  87    (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  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  





 






  88    (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  (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 Section 8.3 or  8.4 which, in the opinion of a nationally recognized firm of independent certified public  accountants expressed in a written certification thereof delivered to the Trustee, are then in excess  of the amount thereof which then would have been required to be deposited for the purpose for  which such Government Securities or money were deposited or received. This provision shall not  authorize the sale by the Trustee of any Government Securities held under this Indenture.  Section 8.3. Legal Defeasance of Notes.    





 






  89    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  (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,  





 






  90    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  (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;  





 






  91    (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  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.  





 






  92    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;   (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;   





 






  93    (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  that are not Affiliates of each other) is generally required to amend this Indenture, the Collateral  Documents or the Intercreditor Agreement.  The Company, the Trustee and the Collateral Agent, as applicable, may enter into a  supplemental indenture with the written consent of the Holders of at least a majority in aggregate  principal amount of the outstanding Notes affected by such supplemental indenture (including  consents obtained in connection with a tender offer or exchange offer for the Notes), for the  purpose of adding any provisions to or changing in any manner or eliminating any of the provisions  of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the  Noteholders. Except as provided in Section 6.13 and Section 9.3, the Holders of at least a majority  in aggregate principal amount of the outstanding Notes by notice to the Trustee (including consents  obtained in connection with a tender offer or exchange offer for the Notes) may waive compliance  by the Company with any provision of this Indenture or the Notes.  It shall not be necessary for the consent of the Holders under this Section 9.2 to approve  the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if  such consent approves the substance thereof. After a supplemental indenture or waiver under this  section becomes effective, the Company shall mail or send to the Holders affected thereby, a notice  briefly describing the supplemental indenture or waiver. Any failure by the Company to send or  publish such notice, or any defect therein, shall not, however, in any way impair or affect the  validity of any such supplemental indenture or waiver.  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;  





 






  94    (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;   (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  





 






  95    (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  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.  





 






  96    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  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.  





 






  97    Except as set forth in Section 10.4, the obligations of each Guarantor hereunder shall not  be subject to any reduction, limitation, impairment or termination for any reason (other than  payment of the Guarantor Obligations in full), including any claim of waiver, release, surrender,  alteration or compromise, and shall not be subject to any defense of setoff, counterclaim,  recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability  of the Guarantor Obligations or otherwise. Without limiting the generality of the foregoing, the  Guarantor Obligations of each Guarantor herein shall not be discharged or impaired or otherwise  affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or  remedy against the Company or any other person under this Indenture, the Notes or any other  agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver,  amendment or modification of any of the terms or provisions of this Indenture, the Notes or any  other agreement; (d) the release of any security held by any Holder for the Guarantor Obligations;  (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; (f) any  change in the ownership of the Company; (g) any default, failure or delay, willful or otherwise, in  the performance of the Guarantor Obligations; or (h) any other act or thing or omission or delay to  do any other act or thing which may or might in any manner or to any extent vary the risk of any  Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity.  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.  





 






  98    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 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  





 






  99    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;   (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  





 






  100    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  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  





 






  101    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:    (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:  





 






  102    (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;  (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.  





 






  103    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 gross  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.    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.  





 






  104    Section 11.8. [Reserved].  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.   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, President and Chief Financial Officer // Robert  Goldberg, Senior Vice President and Senior Counsel, e-mail:  robert.goldberg@allegiantair.com   with a copy to:  Vedder Price P.C.  1633 Broadway  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  





 






  105    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.  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;  





 






  106    (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.  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  





 






  107    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.  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.  





 






  108    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.  [Signature Pages Follow]  





 






 





 






 





 






Signature Page to Indenture (Trustee)  WILMINGTON TRUST, NATIONAL  ASSOCIATION, as Trustee  By:  _________________________________  Name:  Title: Kevin McGarvey Assistant Vice President 





 






Exhibit A  A - 2    [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/ISIN _________1  7.250% Senior Secured Notes due 2027  No. ___ $_______*  ALLEGIANT TRAVEL COMPANY  promises to pay to CEDE & CO. or registered assigns,  the principal sum of _____________________________________________________________  DOLLARS* on August 15, 2027.  Interest Payment Dates: February 15 and August 15  Record Dates: February 1 and August 1   1 144A CUSIP: 01748X AD4  144A ISIN: US01748XAD49  Reg. S CUSIP: U0177P AC2  Reg. S ISIN: USU0177PAC24    * 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.  





 






Exhibit A  A - 2      Dated: August 17, 2022  ALLEGIANT TRAVEL COMPANY      By: ______________________________  Name:  Title:  





 






Exhibit A  A - 2    This is one of the Notes referred to  in the within-mentioned Indenture:    Wilmington Trust, National Association,   as Trustee    By: __________________________  Authorized Signatory    Dated: August 17, 2022    





 






Exhibit A  A - 2    [Back of Note]  7.250% Senior Secured Notes due 2027    INTEREST. Allegiant Travel Company, a Nevada corporation (the “Company”), promises to  pay or cause to be paid interest on the principal amount of this Note at 7.250% per annum from  August 17, 2022 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 15 and August 15 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 15, 2023. 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 February  1 and August 1 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 August 17, 2022  (the “Indenture”) among the Company, the Guarantors party thereto from time to time and the  Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all  such terms, and Holders are referred to the Indenture for a statement of such terms. To the extent  any provision of this Note conflicts with the express provisions of the Indenture, the provisions of  the Indenture shall govern and be controlling. The Notes are unsecured obligations of the  





 






  A - 2    Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued  thereunder.  OPTIONAL REDEMPTION.  On and after August 15, 2024, the Company, at its option, may redeem the Notes, in whole or  in part at any time and from time to time, at the redemption prices (expressed in percentages of the  principal amount of the Notes to be redeemed) listed below, plus any accrued and unpaid interest  thereon to, but excluding, the redemption date, if redeemed during the twelve-month period  beginning August 15 of the years indicated below.  Year Percentage  2024 .......................................................................................................... 103.6250%  2025 .......................................................................................................... 101.8125%  2026 and thereafter ................................................................................... 100.0000%    Prior to August 15, 2024, the Company may on any one or more occasions redeem up to  40% of the original aggregate principal amount of the Notes (calculated after giving effect to any  issuance of Additional Notes) with the net cash proceeds of one or more Equity Offerings, upon  not less than 30 nor more than 60 days’ notice mailed or otherwise delivered to each Holder in  accordance with the Applicable Procedures of DTC, at a redemption price equal to 107.250% of  the principal amount of the Notes, plus accrued and unpaid interest, if any, to the applicable  redemption date; provided that at least 60% of the original aggregate principal amount of the Notes  (calculated after giving effect to any issuance of Additional Notes) remains outstanding after each  such redemption and such redemption occurs within 90 days after the closing of such Equity  Offering.  Prior to August 15, 2024, the Company may redeem the Notes, in whole or in part at any  time and from time to time, at a redemption price equal to 100% of the principal amount of the  Notes to be redeemed plus the Applicable Premium, plus any accrued and unpaid interest on the  principal amount being redeemed to, but excluding, the redemption date. The Company will notify  the Trustee of the calculation of the redemption price and the Trustee will not be responsible for  such calculation.  CHANGE OF CONTROL REPURCHASE. Upon the occurrence of a Change of Control, each  Holder of Notes will have the right to require the Company to repurchase all or any part (equal to  a minimum denomination of $2,000 or an integral multiple of $1,000 in excess thereof) of that  Holder’s Notes pursuant to a Change of Control Offer at a purchase price in cash equal to 101%  of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest on  the Notes repurchased to (but not including) the date of purchase.  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  





 






  A - 3    each Holder whose Notes are to be redeemed at its registered address, except that redemption  notices may be mailed more than 60 days prior to a redemption date if the notice is issued in  connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant  to Article VIII thereof. Notes and portions of Notes selected will be in principal amounts of $2,000  or integral multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to  be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be  redeemed or purchased.  Any such redemption may, at the Company’s discretion, be subject to one or more  conditions precedent, including the consummation of a Change of Control. In addition, if such  redemption or notice is subject to satisfaction of one or more conditions precedent, such notice  shall state that, in the Company’s discretion, the redemption date may be delayed until such time  as any or all such conditions shall be satisfied or waived, or such redemption may not occur and  such notice may be rescinded in the event that any or all such conditions shall not have been  satisfied or waived by the redemption date, or by the redemption date so delayed.  DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form in denominations  of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be  registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee  may require a Holder, among other things, to furnish appropriate endorsements and transfer  documents and the Company may require a Holder to pay any taxes and fees required by law or  permitted by the Indenture. The Company need not exchange or register the transfer of any Note  or portion of a Note selected for redemption, except for the unredeemed portion of any Note being  redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a  period of 15 days before a selection of Notes to be redeemed or during the period between a record  date and the next succeeding Interest Payment Date.  PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as the owner of  it for all purposes. Only registered Holders have rights under the Indenture.  AMENDMENT, SUPPLEMENT AND WAIVER. The provisions governing amendment, supplement  and waiver of any provision of the Indenture, the Notes or the Note Guarantees are set forth in  Article IX of the Indenture.  DEFAULTS AND REMEDIES. The Events of Default relating to the Notes and related remedies  and other provisions are included in Section 6.1 of the Indenture.  SECURITY. The Notes shall be secured by Liens and security interests, subject to Permitted  Liens, in the Collateral. The Collateral Agent holds the Collateral in trust for the benefit of the  Trustee and the Holders, in each case pursuant to the Collateral Documents.  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  





 






  A - 4    based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes  by accepting a Note waives and releases all such liability. The waiver and release are part of the  consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under  the federal securities laws.  AUTHENTICATION. This Note will not be valid until authenticated by the manual signature  of the Trustee or an authenticating agent.  ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an  assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT  TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (=  Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).  CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on  Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be  printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a  convenience to Holders. No representation is made as to the accuracy of such numbers either as  printed on the Notes or as contained in any notice of redemption, and reliance may be placed only  on the other identification numbers placed thereon.  GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. THE INTERNAL LAW OF THE  STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE,  THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO  APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE  APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED  THEREBY.  Any legal suit, action or proceeding arising out of or based upon this Indenture or the  transactions contemplated hereby may be instituted in the federal courts of the United States of  America located in the City of New York or the courts of the State of New York in each case  located in the City of New York (collectively, the “Specified Courts”), and each party irrevocably  submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail (to the extent allowed under any  applicable statute or rule of court) to such party’s address set forth above shall be effective service  of process for any suit, action or other proceeding brought in any such court. The Company, the  Trustee and the Holders (by their acceptance of the Notes) each hereby irrevocably and  unconditionally waive any objection to the laying of venue of any suit, action or other proceeding  in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim  any such suit, action or other proceeding has been brought in an inconvenient forum.  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:  





 






  A - 5    Allegiant Travel Company  1201 North Town Center Drive  Las Vegas, Nevada 89144     





 






  A - 6    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 - 7    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 - 8    SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE  The following exchanges of a part of this Global Note for an interest in another  Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive  Note for an interest in this Global Note, have been made:  Date of  Exchange  Amount of  decrease in   Principal  Amount   of this Global  Note  Amount of  increase in   Principal  Amount   of this Global  Note  Principal  Amount   of this Global  Note   following such   decrease   (or increase)  Signature of   authorized  officer   of Trustee or   Custodian        





 






EXHIBIT B   B - 1    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: 7.250% Senior Secured Notes due 2027  Reference is hereby made to the Indenture, dated as of August 17, 2022 (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  





 






EXHIBIT B   B - 2    transaction was executed in, on or through the facilities of a designated offshore securities market  and neither such Transferor nor any Person acting on its behalf knows that the transaction was  prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in  contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the  Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration  requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the  expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the  account or benefit of a U.S. Person (other than the Initial Purchasers). Upon consummation of the  proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest  or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private  Placement Legend printed on the Regulation S Global Note or the Restricted Definitive Note and  in the Indenture and the Securities Act.  3.  Check and complete if Transferee will take delivery of a beneficial interest  in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the  Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in  compliance with the transfer restrictions applicable to beneficial interests in Restricted Global  Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act  and any applicable blue sky securities laws of any state of the United States, and accordingly the  Transferor hereby further certifies that (check one):  (a)  such Transfer is being effected pursuant to and in accordance with Rule  144 under the Securities Act;  or  (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  





 






EXHIBIT B   B - 3    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 (ii) the restrictions on transfer contained in the Indenture and the Private  Placement Legend are not required in order to maintain compliance with the Securities Act. Upon  consummation of the proposed Transfer in accordance with the terms of the Indenture, the  transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer  enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted  Definitive Notes and in the Indenture.  This certificate and the statements contained herein are made for your benefit and  the benefit of the Company.     





 






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





 






ANNEX A TO EXHIBIT B   B - 5    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.    





 






EXHIBIT C   C - 1    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: 7.250% Senior Secured Notes due 2027  (CUSIP [         ])  Reference is hereby made to the Indenture, dated as of August 17, 2022 (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  





 






EXHIBIT C   C - 2    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  





 






EXHIBIT C   C - 3    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.     





 






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





 






EXHIBIT D   D - 5  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: 7.250% Senior Secured Notes due 2027  Reference is hereby made to the Indenture, dated as of August 17, 2022 (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  





 






EXHIBIT D   D - 6  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: ___________________    





 






EXHIBIT E   D - 7  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 August 17, 2022 providing for the issuance of 7.250%  Senior Secured Notes due 2027 (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  





 






EXHIBIT E   D - 8  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:   





 






EXHIBIT E   D - 9  SUNRISE ASSET MANAGEMENT, LLC  By:   Name:   Title:   AFH, INC.  By:   Name:   Title:   G4 PROPERTIES, LLC  By:   Name:   Title:   ALLEGIANT COMMERCIAL PROPERTIES,  INC.  By:   Name:   Title:   G4 WORKS, LLC  By:   Name:   Title:         





 






EXHIBIT E   D - 10  WILMINGTON TRUST, NATIONAL  ASSOCIATION, as Trustee and as Collateral Agent  By:   Name:   Title: