Common use of Future Issuances Clause in Contracts

Future Issuances. If the Company or any subsidiary thereof, at any time while this Debenture is outstanding, shall issue Capital Shares, or Capital Share Equivalents entitling any Person to acquire shares of Common Stock, at a price per share less than the Set Price (if the holder of the Capital Shares or Capital Share Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued in connection with such issuance, be entitled to receive shares of Common Stock at a price less than the Set Price, such issuance shall be deemed to have occurred for less than the Set Price) then, the Set Price shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such securities plus the number of Capital Shares or Capital Share Equivalents offered for subscription or purchase, and of which the numerator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such securities plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at the Set Price, provided, that for purposes hereof, all shares of Common Stock that are issuable upon conversion, exercise or exchange of Capital Share Equivalents shall be deemed outstanding immediately after the issuance of such Capital Share Equivalents. Such adjustment shall be made whenever such shares of Capital Shares or Capital Share Equivalents are issued. However, upon the expiration of any Capital Share Equivalents, the issuance of which resulted in an adjustment in the Conversion Price pursuant to this Section, if any such Capital Share Equivalents shall expire and shall not have been exercised, the Set Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Set Price made pursuant to the provisions of this Section after the issuance of such Capital Share Equivalents) had the adjustment of the Set Price made upon the issuance of such Capital Share Equivalents been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such Capital Share Equivalents actually exercised.

Future Issuances. If The Borrower shall give the Company Agent, the Lenders, the Participants, the Loan Administrator and the Board not less than eight Business Days' prior written notice of any anticipated Future Issuance and upon receipt by either Obligor or any subsidiary thereof, at any time while this Debenture is outstanding, shall issue Capital Shares, or Capital Share Equivalents entitling any Person to acquire shares of Common Stock, at a price per share less than the Set Price (if the holder its Subsidiaries of the Capital Shares or Capital Share Equivalent so issued proceeds of such Future Issuance, the Borrower shall at prepay the Loan in the manner provided below in an amount equal to 100% of the amount of such proceeds in excess of $25,000,000 during any timeFiscal Year, whether by operation net of purchase price adjustmentsany reasonable and customary brokers' and advisors' fees, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued any underwriting discounts and commissions and other costs incurred in connection with such issuancetransaction (provided that evidence of such fees, discounts, commissions and costs is provided to the Board and the Agent); provided, that, the Borrower shall not be entitled obligated to receive shares so prepay the Loan (and such amounts shall not be included in the calculation of Common Stock at the $25,000,000 threshold) if and to the extent that (x) the Borrower applies such proceeds (i) from an issue or incurrence of Indebtedness to finance Aircraft Related Equipment in a price transaction of the type excepted from the definition of Asset Sale in this Agreement, (ii) to purchase Aircraft Related Equipment or (iii) to refinance Indebtedness upon maturity of the refinanced Indebtedness or (y) such Future Issuance consists of borrowings used to refinance Indebtedness existing on the date hereof on terms, in the reasonable judgment of the Board, that are no less favorable (including with respect to the repayment schedule or maturity and the interest rate and other fees) to the Borrower, the Board, the Lenders and (solely in respect of their interest in the transactions contemplated by this Agreement and their respective Participations) the Participants than the Set PriceIndebtedness so refinanced; provided, however, to the extent the Borrower receives any proceeds in connection with the refinancing of any existing Indebtedness in excess of the amount required to refinance such existing Indebtedness plus reasonable expenses incurred in connection with such refinancing, such issuance excess proceeds shall constitute proceeds of a Future Issuance and the Borrower shall prepay the Loan in the manner contemplated above. Any such prepayment of the Loan shall be deemed to have occurred for less than the Set Price) then, the Set Price shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding made on the date of issuance of such securities plus the number of Capital Shares or Capital Share Equivalents offered for subscription or purchase, and of which the numerator shall be the number of shares receipt of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such securities plus the number of shares which the aggregate offering price proceeds of the total number of shares so offered would purchase at the Set Price, provided, that for purposes hereof, all shares of Common Stock that are issuable upon conversion, exercise or exchange of Capital Share Equivalents shall be deemed outstanding immediately after the issuance of such Capital Share Equivalents. Such adjustment shall be made whenever such shares of Capital Shares or Capital Share Equivalents are issued. However, upon the expiration of any Capital Share Equivalents, the issuance of which resulted in an adjustment in the Conversion Price pursuant to this Section, if any such Capital Share Equivalents shall expire and shall not have been exercised, the Set Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Set Price made pursuant to the provisions of this Section after the issuance of such Capital Share Equivalents) had the adjustment of the Set Price made upon the issuance of such Capital Share Equivalents been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such Capital Share Equivalents actually exercisedapplicable Future Issuance.

Future Issuances. If Upon receipt by an Obligor of any cash proceeds from Future Issuances, the Company or Borrower shall prepay the Loan in the manner provided below in an amount equal to the amount of all such proceeds net of any subsidiary thereofreasonable and customary brokers' and advisors' fees, at any time while this Debenture underwriting discounts and commissions and other costs incurred in connection with such transaction (provided that evidence of such fees, discounts, commissions and costs is outstandingprovided to the Board and the Agent) ("Net Issue Proceeds"); provided, shall issue that, (i) with respect to Future Issuances of Capital Shares, or Capital Share Equivalents entitling Stock in connection with the exercise of any Person to acquire shares of Common Stock, at a price per share less than the Set Price (if the holder of the Capital Shares or Capital Share Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or other rights to acquire Capital Stock that are issued as part of the Consummation of the Plan, the Borrower shall be obligated to prepay the Loan only to the extent that the Net Issue Proceeds from all such Future Issuances consummated after the Closing Date exceed $10,000,000; (ii) with respect to other Future Issuances of Capital Stock or warrants, options or other rights to acquire Capital Stock consummated after the Closing Date, the Borrower (A) shall not be obligated to prepay the Loan from the first $50,000,000 of Net Issue Proceeds therefrom, and (B) thereafter, shall be obligated to prepay the Loan in amounts equal to (1) 25% on a dollar-for-dollar basis of Net Issue Proceeds from the next $50,000,000 of Net Issue Proceeds, (2) 50% on a dollar-for-dollar basis of Net Issue Proceeds from the next $50,000,000 of Net Issue Proceeds, (3) 75% on a dollar-for-dollar basis of Net Issue Proceeds from the next $50,000,000 of Net Issue Proceeds, and (4) 100% of Net Issue Proceeds in excess of $200,000,000, with all calculations of Net Issue Proceeds for the purpose of this clause (ii) being made on a cumulative basis from the Closing Date through the life of the Loan; and (iii) the Borrower shall not be obligated to so prepay the Loan if and to the extent that (A) the Future Issuance is of Permitted Refinancing Indebtedness, (B) an Obligor applies the proceeds of a Future Issuance of Indebtedness to make pre-delivery payments, deposits or progress payments (or other similar payments) with respect to the acquisition of Aircraft Related Equipment (or reimburses itself or any other Obligor for any such payment or deposit), an Obligor applies such proceeds to purchase (or reimburse itself or any other Obligor for the purchase of) Aircraft Related Equipment, or an Obligor otherwise sets aside such proceeds (through an escrow account or otherwise) for a period not to exceed twelve (12) months for the express purpose of making any of the payments described above in this subclause (iii)(B) and the Obligor makes such payment within such period, or (C) an Obligor applies the proceeds of a Future Issuance of Indebtedness to finance the purchase of Aircraft Related Equipment in connection with a sale by an Obligor of such issuanceAircraft Related Equipment to a third party as part of a Covered Sale Leaseback Transaction, be entitled to receive shares it being understood that all Net Issue Proceeds in excess of Common Stock at a price less than the Set Priceamounts otherwise applied in accordance with clause (iii)(B) or (iii)(C) above, such issuance as applicable shall be deemed applied to have occurred for less than prepay the Set PriceLoan. Any partial prepayments of the Loan made by the Borrower in accordance with this Section 2.6(a) thenshall be applied to the then remaining installments of the outstanding principal balance of the Loan ratably as to Tranche A and Tranche B in the inverse order of maturity. If any such prepayment is made by the Borrower, the Set Price Borrower shall also pay any amounts owing pursuant to Section 2.10(e) or (f). Subject to the Borrower's right to elect the Prepayment Breakage Avoidance Procedure, any such prepayment of the Loan shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding made on the date which is one (1) Business Day following the receipt by such Obligor of issuance the proceeds of such securities plus the number of Capital Shares or Capital Share Equivalents offered for subscription or purchaseapplicable Future Issuance, and of which the numerator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such securities plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at the Set Price, provided, that for purposes hereof, all shares of Common Stock that are issuable upon conversion, exercise or exchange of Capital Share Equivalents shall be deemed outstanding immediately after the issuance of such Capital Share Equivalents. Such adjustment shall be made whenever such shares of Capital Shares or Capital Share Equivalents are issued. However, upon the expiration of any Capital Share Equivalents, the issuance of which resulted in an adjustment in the Conversion Price pursuant to this Section, if any such Capital Share Equivalents shall expire and shall not have been exercised, the Set Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased paid to the price which it would have been (but reflecting any other adjustments Agent for application as provided in the Set Price made pursuant to the provisions of this Section after the issuance of such Capital Share Equivalents) had the adjustment of the Set Price made upon the issuance of such Capital Share Equivalents been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such Capital Share Equivalents actually exercised2.9.

Future Issuances. If The Borrower shall give the Company Agent, the Lenders, the Supplemental Guarantor, the Loan Administrator and the Board not less than five Business Days' prior written notice of any anticipated Future Issuance and upon receipt by the Obligors or any subsidiary thereof, at any time while this Debenture is outstanding, shall issue Capital Shares, or Capital Share Equivalents entitling any Person to acquire shares of Common Stock, at a price per share less than the Set Price (if the holder their Restricted Subsidiaries of the proceeds of such Future Issuance, the Borrower shall prepay the Loan in the manner provided below in an amount equal to the applicable amount of such proceeds, net of any reasonable and customary brokers' and advisors' fees, any underwriting discounts and commissions and other costs incurred in connection with such transaction (provided that evidence of such fees, discounts, commissions and costs is provided to the Board and the Agent) (the "Net Issue Proceeds"); provided, that (i) with respect to Future Issuances of Capital Shares Stock or Capital Share Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or other rights issued to acquire Capital Stock, in each Fiscal Year the Borrower (A) shall not be obligated to prepay the Loan from the first $5,000,000 of Net Issue Proceeds therefrom, and (B) thereafter, shall be obligated to prepay the Loan in amounts equal to (1) 25% on a dollar-for-dollar basis of Net Issue Proceeds from the next $5,000,000 of Net Issue Proceeds and (2) 50% on a dollar-for-dollar basis of Net Issue Proceeds in excess of $10,000,000 (with all calculations of Net Issue Proceeds for the purpose of this clause (i) being made on a cumulative basis for each Fiscal Year); and (ii) with respect to all other Future Issuances, the Borrower shall be obligated to prepay the Loan in an amount equal to 100% of the Net Issue Proceeds therefrom; provided, however, that in either case the Borrower shall not be obligated to so prepay the Loan if and to the extent that (x) an Obligor applies such proceeds (A) from an issue or incurrence of Indebtedness to finance Aircraft Related Equipment in a transaction of the type excepted from the definition of Asset Sale, (B) to purchase Aircraft Related Equipment or (C) to refinance Indebtedness upon maturity of the refinanced Indebtedness or (y) such Future Issuance consists of borrowings used to refinance Indebtedness existing on the date hereof on terms, in the reasonable judgment of the Board and the Lenders, that are no less favorable (including with respect to the repayment schedule or maturity and the interest rate and other fees) to the Obligors, the Board and the Lenders than the Indebtedness so refinanced; provided, further, that (I) to the extent an Obligor receives any proceeds in connection with the refinancing of any existing Indebtedness in excess of the amount required to refinance such existing Indebtedness plus reasonable expenses incurred in connection with such issuance, be entitled to receive shares of Common Stock at a price less than the Set Pricerefinancing, such issuance excess proceeds shall constitute proceeds of a Future Issuance and the Borrower shall prepay the Loan in the manner contemplated above, and (II) during the existence of a Value Differential, the Net Issue Proceeds received from a Future Issuance shall be deemed applied to have occurred for less than prepay the Set PriceLoan (but only to the extent necessary to cure such Value Differential) then, without regard to the Set Price retention amounts referenced in clause (i) above. Any such prepayment of the Loan shall be multiplied by a fraction, of which the denominator shall be the number of shares of the Common Stock (excluding treasury shares, if any) outstanding made on the date of issuance of such securities plus the number of Capital Shares or Capital Share Equivalents offered for subscription or purchase, and of which the numerator shall be the number of shares receipt of the Common Stock (excluding treasury shares, if any) outstanding on the date of issuance of such securities plus the number of shares which the aggregate offering price proceeds of the total number of shares so offered would purchase at the Set Price, provided, that for purposes hereof, all shares of Common Stock that are issuable upon conversion, exercise or exchange of Capital Share Equivalents shall be deemed outstanding immediately after the issuance of such Capital Share Equivalents. Such adjustment shall be made whenever such shares of Capital Shares or Capital Share Equivalents are issued. However, upon the expiration of any Capital Share Equivalents, the issuance of which resulted in an adjustment in the Conversion Price pursuant to this Section, if any such Capital Share Equivalents shall expire and shall not have been exercised, the Set Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been (but reflecting any other adjustments in the Set Price made pursuant to the provisions of this Section after the issuance of such Capital Share Equivalents) had the adjustment of the Set Price made upon the issuance of such Capital Share Equivalents been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such Capital Share Equivalents actually exercisedapplicable Future Issuance.

Future Issuances. If The Borrower shall give the Company Agent, the Lenders, the Loan Administrator and the Board not less than five Business Days' prior written notice of any anticipated Future Issuance and upon receipt by the Borrower or any subsidiary thereof, at any time while this Debenture is outstanding, shall issue Capital Shares, or Capital Share Equivalents entitling any Person to acquire shares of Common Stock, at a price per share less than the Set Price (if the holder its Subsidiaries of the Capital Shares or Capital Share Equivalent so issued proceeds of such Future Issuance, the Borrower shall at prepay the Loan in the manner provided below in an amount equal to the applicable amount of such proceeds, net of any timereasonable and customary brokers' and advisors' fees, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued any underwriting discounts and commissions and other costs incurred in connection with such issuancetransaction (provided that evidence of such fees, discounts, commissions and costs is provided to the Board and the Agent) ("Net Issue Proceeds"); provided, that, the Borrower shall not be entitled obligated to receive shares so prepay the Loan if and to the extent that (i) the proceeds are from ARE Acquisition Financing, or (ii) the Borrower applies such proceeds from an issuance or incurrence of Common Stock at a price less than Permitted Refinancing Indebtedness to repay the Set Pricethen outstanding principal amount of the refinanced Old Indebtedness and to pay accrued and unpaid interest, such issuance premiums and fees thereon; or (iii) the Future Issuance is an incurrence of Indebtedness for the sole purpose of repaying existing Indebtedness that is required to be repaid under the terms of the existing Indebtedness that (x) require prepayment because of any law that has made it illegal for the lender thereof to continue to maintain the existing Indebtedness or (y) permit prepayment in the event of the imposition of increased costs, withholding taxes or other similar amounts (after required mitigation efforts have not been successful) or similar occurrences or conditions; and provided, further, that, (iv) with respect to each Future Issuance of Capital Stock, the Borrower shall be deemed obligated to have occurred for less than prepay the Set PriceLoan only in an amount equal to 60% of the Net Issue Proceeds therefrom, (v) thenwith respect to each incurrence of Indebtedness from which the Net Issue Proceeds will be applied to refinance ARE Acquisition Financing or Indebtedness that refinanced ARE Acquisition Financing, but which does not satisfy all of the applicable conditions set forth in the definition of Permitted Refinancing Indebtedness, the Set Price Borrower shall be multiplied by obligated to prepay the Loan in an amount equal to (A) 25% of the Net Issue Proceeds therefrom, plus (B) each dollar in excess of such 25% amount that is not used to refinance such Indebtedness, up to a fractionmaximum amount 75% of such Net Issue Proceeds, except that if the Refinancing Indebtedness does not satisfy all conditions of which such definition solely because the denominator principal amount exceeds the Permitted Refinancing Cap, the Borrower shall be obligated to prepay the number of shares loan only in an amount equal to 75% of the Common Stock amount of the Net Issue Proceeds in excess of the Permitted Refinancing Cap, and (excluding treasury sharesvi) with respect to each incurrence of Indebtedness not otherwise contemplated above in this Section 2.6(a), if any) outstanding the Borrower shall be obligated to prepay the Loan only in an amount equal to 75% of the Net Issue Proceeds therefrom. Any such prepayment of the Loan shall be made on the date of issuance of such securities plus the number of Capital Shares or Capital Share Equivalents offered for subscription or purchase, and of which the numerator shall be the number of shares receipt of the Common Stock (excluding treasury sharesproceeds of the applicable Future Issuance; provided, however, in all cases, that if any) outstanding prepayment at such time would cause the Borrower to incur Breakage Costs, the Borrower may, by delivery of written notice to the Agent, elect to deposit the amount that it would otherwise prepay at such time in the Prepayment Account established under Section 6.06 of the Security Agreement, for application on the date of issuance of such securities plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at the Set Price, provided, that for purposes hereof, all shares of Common Stock that are issuable upon conversion, exercise or exchange of Capital Share Equivalents shall be deemed outstanding immediately after the issuance of such Capital Share Equivalents. Such adjustment shall be made whenever such shares of Capital Shares or Capital Share Equivalents are issued. However, upon the expiration of any Capital Share Equivalents, the issuance of which resulted next Interest Payment Date in an adjustment manner provided in the Conversion Price pursuant to this Section, if any such Capital Share Equivalents shall expire and shall not have been exercised, the Set Price shall immediately upon such expiration be recomputed and effective immediately upon such expiration be increased to the price which it would have been second sentence of Section 2.6(f) below. (but reflecting any other adjustments in the Set Price made pursuant to the provisions of this Section after the issuance of such Capital Share Equivalents) had the adjustment of the Set Price made upon the issuance of such Capital Share Equivalents been made on the basis of offering for subscription or purchase only that number of shares of Common Stock actually purchased upon the exercise of such Capital Share Equivalents actually exercised.b)