Common use of Future Issuances Clause in Contracts

Future Issuances. The Borrower shall give the 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 of its 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) ("Net Issue Proceeds"); provided, that, the Borrower shall not be obligated to 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 Permitted Refinancing Indebtedness to repay the then outstanding principal amount of the refinanced Old Indebtedness and to pay accrued and unpaid interest, 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 obligated to prepay the Loan only in an amount equal to 60% of the Net Issue Proceeds therefrom, (v) with 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 Borrower shall be 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 maximum amount 75% of such Net Issue Proceeds, except that if the Refinancing Indebtedness does not satisfy all conditions of such definition solely because the principal amount exceeds the Permitted Refinancing Cap, the Borrower shall be obligated to prepay the loan only in an amount equal to 75% of the amount of the Net Issue Proceeds in excess of the Permitted Refinancing Cap, and (vi) with respect to each incurrence of Indebtedness not otherwise contemplated above in this Section 2.6(a), 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 receipt of the proceeds of the applicable Future Issuance; provided, however, in all cases, that if 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 next Interest Payment Date in manner provided in the second sentence of Section 2.6(f) below. (b)

Future Issuances. The Borrower shall give the 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 Borrower Obligors or any of its 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, thatthat (i) with respect to Future Issuances of Capital Stock or warrants, options or other rights 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 (ix) the proceeds are from ARE Acquisition Financing, or (ii) the Borrower an Obligor applies such proceeds (A) from an issuance issue or incurrence of Permitted Refinancing Indebtedness to repay finance Aircraft Related Equipment in a transaction of the then outstanding principal amount type excepted from the definition of Asset Sale, (B) to purchase Aircraft Related Equipment or (C) to refinance Indebtedness upon maturity of the refinanced Old Indebtedness and to pay accrued and unpaid interest, 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 such Future Issuance consists of borrowings used to refinance Indebtedness existing on the date hereof on terms, in the event reasonable judgment of the imposition of increased costsBoard and the Lenders, withholding taxes that are no less favorable (including with respect to the repayment schedule or maturity and the interest rate and other similar amounts (after required mitigation efforts have not been successfulfees) or similar occurrences or conditionsto the Obligors, the Board and the Lenders than the Indebtedness so refinanced; and provided, further, thatthat (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 refinancing, (iv) with respect to each such excess proceeds shall constitute proceeds of a Future Issuance of Capital Stock, 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 obligated applied to prepay the Loan (but only to the extent necessary to cure such Value Differential) without regard to the retention amounts referenced in an amount equal to 60% of the Net Issue Proceeds therefrom, clause (vi) with 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 Borrower shall be 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 maximum amount 75% of such Net Issue Proceeds, except that if the Refinancing Indebtedness does not satisfy all conditions of such definition solely because the principal amount exceeds the Permitted Refinancing Cap, the Borrower shall be obligated to prepay the loan only in an amount equal to 75% of the amount of the Net Issue Proceeds in excess of the Permitted Refinancing Cap, and (vi) with respect to each incurrence of Indebtedness not otherwise contemplated above in this Section 2.6(a), the Borrower shall be obligated to prepay the Loan only in an amount equal to 75% of the Net Issue Proceeds therefromabove. Any such prepayment of the Loan shall be made on the date of receipt of the proceeds of the applicable Future Issuance; provided, however, in all cases, that if 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 next Interest Payment Date in manner provided in the second sentence of Section 2.6(f) below. (b).

Future Issuances. The Borrower shall give the Agent, the Lenders, the Participants, the Loan Administrator and the Board not less than five eight Business Days' prior written notice of any anticipated Future Issuance and upon receipt by the Borrower either Obligor or any of its Subsidiaries of the proceeds of such Future Issuance, the Borrower shall prepay the Loan in the manner provided below in an amount equal to 100% of the applicable amount of such proceedsproceeds in excess of $25,000,000 during any Fiscal Year, 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) ("Net Issue Proceeds"); provided, that, the Borrower shall not be obligated to so prepay the Loan (and such amounts shall not be included in the calculation of the $25,000,000 threshold) if and to the extent that (i) the proceeds are from ARE Acquisition Financing, or (iix) the Borrower applies such proceeds (i) from an issuance issue or incurrence of Permitted Refinancing Indebtedness to repay the then outstanding principal amount finance Aircraft Related Equipment in a transaction of the refinanced Old Indebtedness and type excepted from the definition of Asset Sale in this Agreement, (ii) to pay accrued and unpaid interest, premiums and fees thereon; purchase Aircraft Related Equipment or (iii) the Future Issuance is an incurrence of to refinance Indebtedness for the sole purpose of repaying existing Indebtedness that is required to be repaid under the terms upon maturity 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 refinanced Indebtedness or (y) permit prepayment such Future Issuance consists of borrowings used to refinance Indebtedness existing on the date hereof on terms, in the event reasonable judgment of the imposition of increased costsBoard, withholding taxes or other similar amounts that are no less favorable (after required mitigation efforts have not been successful) or similar occurrences or conditions; and provided, further, that, (iv) including with respect to each 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 Indebtedness 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 excess proceeds shall constitute proceeds of a Future Issuance of Capital Stock, and the Borrower shall be obligated to prepay the Loan only in an amount equal to 60% of the Net Issue Proceeds therefrom, (v) with 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 Borrower shall be 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 maximum amount 75% of such Net Issue Proceeds, except that if the Refinancing Indebtedness does not satisfy all conditions of such definition solely because the principal amount exceeds the Permitted Refinancing Cap, the Borrower shall be obligated to prepay the loan only in an amount equal to 75% of the amount of the Net Issue Proceeds in excess of the Permitted Refinancing Cap, and (vi) with respect to each incurrence of Indebtedness not otherwise manner contemplated above in this Section 2.6(a), the Borrower shall be obligated to prepay the Loan only in an amount equal to 75% of the Net Issue Proceeds therefromabove. Any such prepayment of the Loan shall be made on the date of receipt of the proceeds of the applicable Future Issuance; provided, however, in all cases, that if 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 next Interest Payment Date in manner provided in the second sentence of Section 2.6(f) below. (b).

Future Issuances. The Borrower shall give the Agent, the Lenders, the Loan Administrator and the Board not less than five Business Days' prior written notice Upon receipt by an Obligor of any anticipated cash proceeds from Future Issuance and upon receipt by the Borrower or any of its Subsidiaries of the proceeds of such Future IssuanceIssuances, the Borrower shall prepay the Loan in the manner provided below in an amount equal to the applicable amount of all such proceeds, 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) ("Net Issue Proceeds"); provided, that, (i) with respect to Future Issuances of Capital Stock in connection with the exercise of any 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 (i) the proceeds are from ARE Acquisition Financing, or (ii) the Borrower applies such proceeds from an issuance or incurrence of Permitted Refinancing Indebtedness to repay the then outstanding principal amount of the refinanced Old Indebtedness and to pay accrued and unpaid interest, premiums and fees thereon; or (iiiA) 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 obligated to prepay the Loan only in an amount equal to 60% of the Net Issue Proceeds therefrom, (v) with 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 Borrower shall be obligated to prepay the Loan in an amount equal to (A) 25% of the Net Issue Proceeds therefrom, plus (B) each dollar 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 excess 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 25% amount that is not used to refinance such Indebtedness, up Aircraft Related Equipment to a maximum amount 75% third party as part of such Net Issue Proceedsa Covered Sale Leaseback Transaction, except it being understood that if the Refinancing Indebtedness does not satisfy all conditions of such definition solely because the principal amount exceeds the Permitted Refinancing Cap, the Borrower shall be obligated to prepay the loan only in an amount equal to 75% of the amount of the Net Issue Proceeds in excess of amounts otherwise applied in accordance with clause (iii)(B) or (iii)(C) above, as applicable shall be applied to prepay the Permitted Refinancing Cap, and (vi) Loan. Any partial prepayments of the Loan made by the Borrower in accordance with respect to each incurrence of Indebtedness not otherwise contemplated above in this Section 2.6(a)) shall 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 Borrower shall be obligated also pay any amounts owing pursuant to prepay Section 2.10(e) or (f). Subject to the Loan only in an amount equal Borrower's right to 75% of elect the Net Issue Proceeds therefrom. Any Prepayment Breakage Avoidance Procedure, any such prepayment of the Loan shall be made on the date of which is one (1) Business Day following the receipt by such Obligor of the proceeds of the applicable Future Issuance; provided, however, in all cases, that if prepayment at such time would cause the Borrower to incur Breakage Costs, the Borrower may, by delivery of written notice and shall be paid 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, Agent for application on the next Interest Payment Date in manner as provided in the second sentence of Section 2.6(f) below. (b)2.9.