Transcription
Execution VersionLOAN AND GUARANTEE AGREEMENTdated as ofOctober 26, 2020amongSUN COUNTRY, INC., as Borrower,the Guarantors party hereto from time to time,THE UNITED STATES DEPARTMENT OF THE TREASURY,andTHE BANK OF NEW YORK MELLON,as Administrative Agent and Collateral Agent#93665153v33
TABLE OF CONTENTSPageARTICLE IDEFINITIONSSECTION 1.01SECTION 1.02SECTION 1.03SECTION 1.04SECTION 1.05Defined Terms .1Terms Generally .36Accounting Terms; Changes in GAAP .37Rates .37Divisions.37ARTICLE IICOMMITMENT AND BORROWINGSECTION 2.01SECTION 2.02SECTION 2.03SECTION 2.04SECTION 2.05SECTION 2.06SECTION 2.07SECTION 2.08SECTION 2.09SECTION 2.10SECTION 2.11SECTION 2.12SECTION 2.13SECTION 2.14SECTION 2.15SECTION 2.16SECTION 2.17SECTION 2.18SECTION 2.19Commitment .37Loans and Borrowing .38Borrowing Request .38[Reserved] .38[Reserved] .38Prepayments .38Reduction and Termination of Commitments .40Repayment of Loans .40Interest .40Benchmark Replacement Setting .41Evidence of Debt .42Payments Generally .43Sharing of Payments .44Compensation for Losses .44Increased Costs .45Taxes .46[Reserved] .49[Reserved] .49Mitigation Obligations; Replacement of Lenders .49ARTICLE IIIREPRESENTATIONS AND WARRANTIESSECTION 3.01SECTION 3.02SECTION 3.03SECTION 3.04SECTION 3.05SECTION 3.06SECTION 3.07SECTION 3.08Existence, Qualification and Power .50Authorization; No Contravention .51Governmental Authorization; Other Consents .51Execution and Delivery; Binding Effect .51Financial Statements; No Material Adverse Change.51Litigation .51Contractual Obligations; No Default .51Property .52i#93665153v33
SECTION 3.09SECTION 3.10SECTION 3.11SECTION 3.12SECTION 3.13SECTION 3.14SECTION 3.15SECTION 3.16SECTION 3.17SECTION 3.18SECTION 3.19SECTION 3.20SECTION 3.21SECTION 3.22SECTION 3.23SECTION 3.24SECTION 3.25SECTION 3.26SECTION 3.27SECTION 3.28Taxes .52Disclosure .52Compliance with Laws .53ERISA Compliance .53Environmental Matters .54Investment Company Act .54Sanctions; Export Controls; Anti-Corruption; AML Laws .54Solvency .54Subsidiaries .54Senior Indebtedness .54Insurance Matters .55Labor Matters .55Insolvency Proceedings .55Margin Regulations .55Liens .55Perfected Security Interests .55US Citizenship.56Eligible Business Status .56Cybersecurity .56Loyalty Program Agreements .56ARTICLE IVCONDITIONSSECTION 4.01SECTION 4.02Closing Date Conditions .56Additional Borrowing Conditions .59ARTICLE VAFFIRMATIVE COVENANTSSECTION 5.01SECTION 5.02SECTION 5.03SECTION 5.04SECTION 5.05SECTION 5.06SECTION 5.07SECTION 5.08SECTION 5.09SECTION 5.10SECTION 5.11SECTION 5.12SECTION 5.13SECTION 5.14SECTION 5.15SECTION 5.16SECTION 5.17SECTION 5.18Financial Statements.60Certificates; Other Information .61Notices .62Preservation of Existence, Etc. .63Maintenance of Properties .63Maintenance of Insurance .63Payment of Obligations .63Compliance with Laws .63Environmental Matters .63Books and Records .64Inspection Rights .64Sanctions; Export Controls; Anti-Corruption Laws and AML Laws .64Guarantors; Additional Collateral .64Post-Closing Matters .65Further Assurances .65Delivery of Appraisals.66Ratings .66Regulatory Matters .66ii#93665153v33
SECTION 5.19SECTION 5.20SECTION 5.21Eligible Receivables .66Loyalty Programs; Loyalty Program Agreements. .67Collections; Accounts; Payments .67ARTICLE VINEGATIVE COVENANTSSECTION 6.01SECTION 6.02SECTION 6.03SECTION 6.04SECTION 6.05SECTION 6.06SECTION 6.07SECTION 6.08SECTION 6.09SECTION 6.10SECTION 6.11SECTION 6.12SECTION 6.13SECTION 6.14SECTION 6.15SECTION 6.16SECTION 6.17[Reserved] .68Liens .68Fundamental Changes .68Dispositions .69Restricted Payments .71Investments.72Transactions with Affiliates .73[Reserved] .74[Reserved] .74Changes in Nature of Business .74Sanctions; AML Laws .74Amendments to Organizational Documents .74[Reserved] .74Prepayments of Junior Indebtedness .74Lobbying .74Use of Proceeds .74Financial Covenants .75ARTICLE VIIEVENTS OF DEFAULTSECTION 7.01SECTION 7.02Events of Default .76Application of Payments .79ARTICLE VIIIAGENCYSECTION 8.01SECTION 8.02SECTION 8.03SECTION 8.04SECTION 8.05SECTION 8.06SECTION 8.07SECTION 8.08Appointment and Authority.80Collateral Matters .80Removal or Resignation of Administrative Agent .80Exculpatory Provisions.81Reliance by Agents.83Delegation of Duties.83Non-Reliance on Agents and Other Lenders .83Administrative Agent May File Proofs of Claim .83iii#93665153v33
ARTICLE IXGUARANTEESECTION 9.01SECTION 9.02SECTION 9.03SECTION 9.04SECTION 9.05SECTION 9.06SECTION 9.07SECTION 9.08SECTION 9.09SECTION 9.10Guarantee of the Obligations .84Payment or Performance by a Guarantor .84Liability of Guarantors Absolute .84Waivers by Guarantors .86Guarantors’ Rights of Subrogation, Contribution, Etc. .86Subordination .87Continuing Guarantee.87Financial Condition of the Borrower.87Reinstatement .87Discharge of Guarantees .87ARTICLE XCARES ACT REQUIREMENTSSECTION 10.01SECTION 10.02SECTION 10.03SECTION 10.04SECTION 10.05SECTION 10.06SECTION 10.07SECTION 10.08CARES Act Compliance .88Dividends and Buybacks .88Maintenance of Employment Levels .88United States Business .88Limitations on Certain Compensation .88Continuation of Certain Air Service .89Treasury Access .89Additional Defined Terms .89ARTICLE XIMISCELLANEOUSSECTION 11.01SECTION 11.02SECTION 11.03SECTION 11.04SECTION 11.05SECTION 11.06SECTION 11.07SECTION 11.08SECTION 11.09SECTION 11.10SECTION 11.11SECTION 11.12SECTION 11.13SECTION 11.14SECTION 11.15SECTION 11.16SECTION 11.17Notices; Public Information .90Waivers; Amendments .92Expenses; Indemnity; Damage Waiver .94Successors and Assigns .96Survival .98Counterparts; Integration; Effectiveness; Electronic Execution .99Severability.99Right of Setoff .99Governing Law; Jurisdiction; Etc.100Waiver of Jury Trial .100Headings .100Treatment of Certain Information; Confidentiality .100Money Laundering; Sanctions.101Interest Rate Limitation .101Payments Set Aside .101No Advisory or Fiduciary Responsibility .102Acknowledgement and Consent to Bail-In of EEA Financial Institutions .102iv#93665153v33
SCHEDULESSCHEDULE 1.01(a)SCHEDULE 1.01(b)SCHEDULE 1.01(c)SCHEDULE 3.05SCHEDULE 3.17SCHEDULE 5.14SCHEDULE 6.05(i)SCHEDULE 6.06SCHEDULE 6.07-Carrier Loyalty ProgramsLoyalty Program AgreementsLoyalty Subscription ProgramsFinancial StatementsSubsidiariesPost-Closing MattersRestricted PaymentsInvestmentsAffiliate Transactions-Assignment and AssumptionForm of U.S. Tax Compliance CertificateForm of U.S. Tax Compliance CertificateForm of U.S. Tax Compliance CertificateForm of U.S. Tax Compliance CertificateForm of NoteForm of Loyalty Partner Direct AgreementForm of Borrowing RequestEXHIBITSEXHIBIT AEXHIBIT B-1EXHIBIT B-2EXHIBIT B-3EXHIBIT B-4EXHIBIT CEXHIBIT DEXHIBIT Ev#93665153v33
LOAN AND GUARANTEE AGREEMENT dated as of October 26, 2020 (this“Agreement”), among SUN COUNTRY, INC., a corporation organized under the laws of Minnesota (the“Borrower”), SUN COUNTRY AIRLINES HOLDINGS, INC., a corporation organized under the laws ofDelaware (the “Parent”), SCA ACQUISITION INTERMEDIATE, LLC, a limited liability companyorganized under the laws of Delaware, SCA ACQUISITION, LLC, a limited liability company organizedunder the laws of Delaware, the Guarantors party hereto from time to time, the UNITED STATESDEPARTMENT OF THE TREASURY (“Treasury”) and THE BANK OF NEW YORK MELLON asAdministrative Agent and Collateral Agent.WHEREAS, the Borrower has requested that the Initial Lender (as defined below) extendcredit as is permissible under the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136(Mar. 27, 2020), as the same may be amended form time to time (the
Execution Version #93665153v33 LOAN AND GUARANTEE AGREEMENT dated as of October 26, 2020 among SUN COUNTRY, INC., as
