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| Share Name | Share Symbol | Market | Type |
|---|---|---|---|
| Spirit Airlines Inc | NYSE:SAVE | NYSE | Common Stock |
| Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
|---|---|---|---|---|---|---|---|---|
| 0.00 | 0.00% | 1.08 | 0 | 00:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM
____________________________
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): November 18, 2024 (
____________________________
(Exact name of registrant as specified in its charter)
____________________________
| (State or other jurisdiction | (Commission | (IRS Employer |
| of incorporation) | File Number) | Identification No.) |
(Address of principal executive offices, including zip code)
(
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Class |
Trading |
Name
of each exchange |
|
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|
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
Restructuring Support Agreement
On November 18, 2024, Spirit Airlines, Inc. (the "Spirit”, and together with its direct and indirect subsidiaries, “the Company”) entered into a Restructuring Support Agreement (the "Restructuring Support Agreement" and the holders parties thereto, the “Supporting Stakeholders”) with (i) holders in the aggregate of approximately 78.6% of the Company's 8.00% Senior Secured Notes due 2025 issued by Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd. (the “Senior Secured Notes,” and the holders, the “Senior Secured Noteholders”) and (ii) holders in the aggregate of approximately 84.1% of the Company’s 4.75% Convertible Senior Notes due 2025 (the “2025 Convertible Notes”) and 1.00% Convertible Senior Notes due 2026 issued by Spirit Airlines, Inc. (together, with the 2025 Convertible Notes, the “Convertible Notes,” and the holders, the “Convertible Noteholders”). The transactions contemplated in the Restructuring Support Agreement are expected to be implemented through a pre-arranged chapter 11 process (the "Chapter 11 Cases") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court").
The Restructuring Support Agreement and the proposed pre-arranged plan of reorganization (the “Plan”) attached thereto contemplate the equitization of $410 million of outstanding Senior Secured Notes and $385 million of outstanding Convertible Notes, as well as a backstopped $350 million new money equity raise upon emergence from the Chapter 11 Cases, as described in greater detail below. Specifically, the Restructuring Support Agreement and the Plan provide, in pertinent part, as follows:
| · | Vendors, aircraft lessors and holders of secured aircraft indebtedness will continue to be paid in the ordinary course and will not be impaired; |
| · | The Supporting Stakeholders have committed to provide a $300 million new money senior secured superpriority debtor-in-possession facility (the “DIP Facility”), as further described under “Debtor-in-Possession Financing”. The DIP Facility is expected to be repaid in full in cash on the effective date of the Plan (the “Effective Date”). |
| · | On the Effective Date, the Company (as reorganized, “Reorganized Spirit”) will issue a single class of common equity interests (the “New Common Equity”) to certain of its creditors as follows: (a) 76% pro rata to the Senior Secured Noteholders and (b) 24% pro rata to the Convertible Noteholders, subject to dilution on account of the Management Incentive Plan (as defined in the Plan), the $350 million Equity Rights Offering (as defined hereafter), as further described under “Backstop Commitment Agreement, and certain adjustments set forth in the Plan. |
| · | On the Effective Date, Reorganized Spirit will issue $840 million of senior secured notes (the “Exit Secured Notes”), the material terms of which are described in the Exit Secured Notes Facility Term Sheet attached as Exhibit G to the Restructuring Support Agreement, to certain of its creditors as follows: (a) $700 million in the aggregate, pro rata, to the Senior Secured Noteholders and (b) $140 million in the aggregate, pro rata, to the Convertible Noteholders, subject to certain adjustments set forth in the Plan. |
| · | All of the Company’s existing common stock and other equity interests will be cancelled without any distributions to the holders of such common stock and other equity interests on account thereof. |
The Restructuring Support Agreement includes certain milestones for the progress of the Chapter 11 Cases, which include the dates by which Spirit is required to, among other things, obtain certain court orders and consummate the transactions contemplated therein. Failure to meet these milestones allows the Restructuring Support Agreement to be terminated by the non-Spirit signatories thereto. In addition, the signatories to the Restructuring Support Agreement have the right to terminate the Restructuring Support Agreement under certain circumstances, including if the board of directors of Spirit (the "Board") determines in good faith that performance under the Restructuring Support Agreement would be inconsistent with its fiduciary duties as set forth therein. The Plan remains subject to
Bankruptcy Court approval and the satisfaction of certain conditions precedent. Accordingly, no assurance can be given that the transactions described in the Restructuring Support Agreement or the Plan will be consummated.
The foregoing description of the Restructuring Support Agreement does not purport to be complete and is qualified in its entirety by reference to its full text, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.
Backstop Commitment Agreement
On November 18, 2024, Spirit entered into a Backstop Commitment Agreement (the “Backstop Commitment Agreement”) with the backstop commitment parties named therein (the “Backstop Commitment Parties”). The terms of the Backstop Agreement are, in pertinent part, as follows:
| · | Pursuant to the Backstop Commitment Agreement, the Backstop Commitment Parties have agreed to backstop an equity rights offering of New Common Equity (the “Equity Rights Offering”) for an aggregate purchase price of $350 million at 70% of Plan Equity Value (as defined in the Backstop Agreement) (such New Common Equity, the “Offering Shares”), as contemplated by the Restructuring Support Agreement. |
| · | Subject to adjustments described below, the Backstop Commitment Agreement provides that $175 million of the Offering Shares will be raised by soliciting commitments from certain of the Company’s creditors as follows: (a) $137.81 million from Senior Secured Noteholders (the “Senior Secured Notes Subscription Rights”) and (b) $37.19 million from Convertible Noteholders (the “Convertible Notes Subscription Rights”). |
| · | Subject to adjustments described below, the Backstop Commitment Agreement provides that $175 million of the Offering Shares will be reserved for purchase by the Backstop Commitment Parties as follows: $137.81 million by the Senior Secured Backstop Commitment Parties (as defined in the Backstop Commitment Agreement) (the “Senior Secured Direct Allocation”) and $37.19 million by the Convertible Backstop Commitment Parties (as defined in the Backstop Commitment Agreement) (the “Convertible Direct Allocation”). |
| · | If Senior Secured Noteholders holding, in the aggregate, at least 90.00% of the aggregate principal amount of the Senior Secured Notes claims shall have executed the Restructuring Support Agreement by 11:59 p.m., New York City time, on November 25, 2024 (or as such time may be extended pursuant to the Backstop Commitment Agreement), then the amount of the Senior Secured Notes Subscription Rights will be increased to $248.06 million and the Senior Secured Direct Allocation will be reduced to $27.56 million. |
| · | If Convertible Noteholders holding, in the aggregate, at least 90.00% of the aggregate principal amount of the Convertible Notes claims shall have executed the Restructuring Support Agreement by 11:59 p.m., New York City time, on November 25, 2024 (or as such time may be extended pursuant to the Backstop Commitment Agreement), then the amount of the Convertible Notes Subscription Rights will be increased to $66.94 million and the Convertible Direct Allocation will be reduced to $7.44 million. |
| · | As consideration for the commitment by the Backstop Commitment Parties, and subject to approval by the Bankruptcy Court: (i) a “Backstop Premium” will be paid to the Backstop Commitment Parties by the Company in an aggregate number of shares of New Common Equity equal to 10% of the total number of shares of New Common Equity issued by the Company upon emergence from bankruptcy as distributions under the Plan. If the Backstop Commitment Agreement is terminated under certain circumstances as set forth therein, the Backstop Commitment Agreement provides for a cash payment of $35 million to the Backstop Commitment Parties. |
The transactions contemplated by the Backstop Commitment Agreement are conditioned upon the satisfaction or waiver of customary conditions for transactions of this nature, including, among other things. that (i) the Bankruptcy Court shall have confirmed the Plan, (ii) the Effective Date shall have occurred, and (iii) the Restructuring Support Agreement remains in full force and effect.
The foregoing description of the Backstop Commitment Agreement is not complete and is qualified in its entirety by reference to the Backstop Commitment Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 10.2 and is hereby incorporated by reference into this Item 1.01.
Debtor-in-Possession Financing
The information set forth under the heading "Debtor-in-Possession Financing" in Item 1.03 below is hereby incorporated by reference into this Item 1.01.
| Item 1.03 | Bankruptcy or Receivership. |
Voluntary Petition for Reorganization
On November 18, 2024, Spirit filed a petition under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) in the Bankruptcy Court. Concurrently, Spirit filed a pre-arranged chapter 11 plan of reorganization (the “Plan”) with the Bankruptcy Court.
Spirit will continue to operate its business as a “debtor-in-possession” under the jurisdiction of the Bankruptcy Court and in accordance with the applicable provisions of the Bankruptcy Code and the orders of the Bankruptcy Court. The Plan and requested first day relief anticipate that trade claimants and other unsecured creditors who continue to work with Spirit on existing terms will be paid in full and in the ordinary course of business. Vendors, aircraft lessors and holders of secured aircraft indebtedness will continue to be paid in the ordinary course and will not be impaired.
Additional information about the Chapter 11 Cases may be obtained at https://dm.epiq11.com/SpiritGoForward.
Debtor-in-Possession Financing
Spirit has secured a commitment from certain of its prepetition debtholders (collectively, the “DIP Lenders”), to provide approximately $300 million in financing in the form of a senior secured debtor-in-possession facility (the “DIP Facility”). The DIP Facility is comprised of (i) new money term loans and (ii) new money notes (collectively, the “DIP Commitments”). Upon entry of the DIP Order by the Bankruptcy Court, the DIP Commitments shall be available to Spirit to draw upon. Spirit’s uses for the payment shall include, among other items, (i) prepetition obligations, (ii) adequate protection payments, (iii) the fees, costs, and expenses of administering the Chapter 11 Cases and (iv) working capital and other general corporate needs of Spirit in the ordinary course of business.
Spirit’s obligations under the proposed DIP Facility will be guaranteed by each subsidiary of Spirit. In addition, upon entry and subject to the terms of the DIP Order approving the DIP Facility, the claims of the DIP Lenders will be (i) entitled to superpriority administrative expense claim status, subject to certain customary exclusions in the credit documentation and (ii) secured by perfected senior security interests and liens on certain property of the Company, subject to a certain exclusions and exceptions carve out.
Subject to certain exceptions and conditions, Spirit will be obligated to prepay the obligations thereunder with the net cash proceeds of certain asset sales, with casualty insurance proceeds, extraordinary receipts and the proceeds of certain indebtedness. The DIP Facility will bear an interest rate equal to Spirit’s choice of (a) SOFR plus 7.00% per annum or (b) Alternate Base Rate plus 6.00% per annum.
The foregoing descriptions of the DIP Facility and DIP Commitments do not purport to be complete and are qualified in their entirety by reference to the DIP Term Sheet filed hereto as Exhibit 10.3.
| Item 2.04 | Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
The filing of the Chapter 11 Cases described above in Item 1.03 constitutes an event of default that accelerated the Company’s obligations under the following debt instruments (the "Debt Instruments"):
| · | Approximately $300.0 million of borrowings (plus any accrued but unpaid interest in respect thereof) under the Credit and Guaranty Agreement (the “Revolving Credit Agreement), dated as of March 30, 2020, by and among the Company, the lenders party thereto from time to time, Wilmington Trust, National Association (“Wilmington”), as collateral agent, and Citibank, N.A., as administrative agent, as amended, waived, |
supplemented or otherwise modified, relating to our Revolving Loans (as defined in the Revolving Credit Agreement).
| · | Approximately $525.1 million of borrowings (plus any accrued but unpaid interest in respect thereof) under the Indenture dated May 12, 2020, among the Company, as issuer, and Wilmington as trustee, as amended and supplemented, relating to our Convertible Notes. |
| · | Approximately $505.0 million of borrowings (plus any accrued but unpaid interest in respect thereof) under certain enhanced equipment trust certificates ("EETCs") debt agreements between the Company and Wilmington, as trustee. |
The Debt Instruments provide that, as a result of the Chapter 11 Cases, the principal and interest due thereunder shall be immediately due and payable. Any efforts to enforce such payment obligations under the Debt Instruments are automatically stayed as a result of the commencement of the Chapter 11 Cases, and the creditors’ rights of enforcement in respect of the Debt Instruments are subject to the applicable provisions of the Bankruptcy Code.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On November 12, 2024, the Board of Directors of Spirit approved the payment of one-time cash retention awards (“Retention Awards”) to Spirit’s named executive officers in the amounts set forth in the table below, which were paid pursuant to the terms of a retention award agreement (the “Retention Agreement”). Pursuant to the terms of the Retention Agreement, if the named executive officer ceases to be actively employed by Spirit in good standing prior to the earlier of (i) the one-year anniversary of the effective date of the Retention Agreement and (ii) the date that is 60 days following the date of a “change in control” (as defined in the Retention Agreement), then the executive is required to repay to Spirit the gross amount of the Retention Award within 10 days, except if the executive’s employment terminates due to death or “disability”, by Spirit without “cause” or due to the executive’s resignation for “good reason” (each as defined in the Retention Agreement).
In addition, each of Spirit’s named executive officers received their earned cash bonus under Spirit’s Short-Term Cash Incentive Program (the “2024 STIP”) for (i) the cash bonus earned under the individual component of the 2024 STIP for the first measurement period of 2024 (the “2024 H1 STIP Bonus”) and (ii) the second measurement period of 2024 (the “2024 H2 STIP Bonus”), in each case in the amounts set forth in the table below, which were paid pursuant to the terms of the Retention Agreement. Pursuant to the terms of the Retention Agreement, if the named executive officer ceases to be actively employed by Spirit in good standing prior to the earlier of (i) January 31, 2025 and (B) the date that is 60 days following the date of a “change in control”, then the executive is required to repay to Spirit the gross amount of the 2024 H1 STIP Bonus and the 2024 H2 STIP Bonus within 10 days, except if the executive’s employment terminates due to death or “disability”, by Spirit without “cause” or due to the executive’s resignation for “good reason” (each as defined in the Retention Agreement).
As set forth in the Retention Agreement, each of the named executive officers’ unpaid time-based or performance-based long-term cash incentive awards and any payment under Spirit’s short-term incentive plan for 2024 (except as set forth below) were forfeited in their entirety.
The foregoing description of the Retention Agreements does not purport to be complete and is qualified in its entirety by reference to the Retention Agreements, the form of which is filed herewith as Exhibit 10.4 and is incorporated herein by reference.
| Named Executive Officer | Retention Award | 2024 STIP Bonus |
| Edward M. Christie III, President & Chief Executive Officer | $3,800,000 | $419,866 |
| Frederick A. Cromer, Executive Vice President & Chief Financial Officer | $175,000 | $277,508 |
| John Bendoraitis, Executive Vice President & Chief Operating Officer | $850,000 | $400,275 |
| Matthew H. Klein, Executive Vice President & Chief Commercial Officer | $250,000 | $266,063 |
| Rocky B. Wiggins, Senior Vice President & Chief Information Officer | $300,000 | $276,581 |
| Item 7.01 | Regulation FD Disclosure. |
Press Release
On November 18, 2024, Spirit issued a press release announcing the filing of the Chapter 11 Cases. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
Cleansing Material
Prior to the filing of the Chapter 11 Cases, the Company entered into confidentiality agreements (collectively, the "NDAs") with certain Senior Secured Noteholders and Convertible Noteholders (the “NDA Parties”). The Company engaged in negotiations with the NDA Parties relating to the Restructuring Support Agreement, the Plan, the Backstop Commitment Agreement and the DIP Commitments. Pursuant to the NDAs, the Company provided the NDA Parties with confidential information and agreed to publicly disclose certain information (the "Cleansing Material") upon the occurrence of certain events set forth in the NDAs. A copy of the Cleansing Material is attached to this Current Report on Form 8-K as Exhibit 99.2. The Cleansing Material was prepared by the Company solely to facilitate a discussion with the parties to the NDAs and was not prepared with a view toward public disclosure and should not be relied upon to make an investment decision with respect to the Company. The Cleansing Material should not be regarded as an indication that the Company or any third party considers the Cleansing Material to be a reliable prediction of future events, and the Cleansing Material should not be relied upon as such. The Cleansing Material includes certain values for illustrative purposes only and such values are not the result of, and do not represent, actual valuations, estimates, forecasts or projections of the Company or any third party and should not be relied upon as such. Neither the Company nor any third party has made or makes any representation to any person regarding the accuracy of any Cleansing Material or undertakes any obligation to publicly update the Cleansing Material to reflect circumstances existing after the date when the Cleansing Material was prepared or conveyed or to reflect the occurrence of future events, even in the event that any or all of the assumptions underlying the Cleansing Material are shown to be in error.
The information contained in this Item 7.01, including in Exhibits 99.1 and 99.2 shall not be deemed to be “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (“the Exchange Act”), or otherwise subject to the liabilities of that section, and shall not be deemed to be incorporated by reference into any of the Company’s filings under the Securities Act or the Exchange Act, whether made before or after the date hereof and regardless of any general incorporation language in such filings, except to the extent expressly set forth by specific reference in such a filing. The filing of this Current Report on Form 8-K (including any exhibit hereto or any information included herein or therein) shall not be deemed an admission to the materiality of any information herein that is required to be disclosed solely by reason of Regulation FD.
Cautionary Note Regarding the Chapter 11 Cases
The Company cautions that trading in the Company’s common stock during the pendency of the Chapter 11 Cases is highly speculative and poses substantial risks. Trading prices for the Company’s common stock may bear little or no relationship to the actual recovery, if any, by holders of the Company’s common stock in the Chapter 11 Cases. The Company expects that holders of the Company’s common stock will not receive distributions in the Chapter 11 Cases, and that the equity will be canceled under the Plan.
Cautionary Statement Regarding Forward Looking Statements
This Current Report on Form 8-K (this “Current Report”) contains various forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) which are subject to the “safe harbor” created by those sections. Forward-looking statements are based on our management's beliefs and assumptions and on information currently available to our management. All statements other than statements of historical facts are “forward-looking statements” for purposes of these provisions. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “project,” “predict,” “potential,” and similar expressions intended to identify forward-looking statements. Forward-looking statements include, but are not limited to, statements regarding Spirit’s expectations with respect to operating in the normal course, the Chapter 11 process, the DIP and potential delisting of Spirit’s common stock by the New York Stock Exchange. Forward-looking statements are subject to risks, uncertainties and other important factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements. Factors include, among others, risks attendant to the bankruptcy process, including the Company's ability to obtain court approval from the Court with respect to motions or other requests made to the Court throughout the course of Chapter 11, including with respect the DIP; the effects of Chapter 11, including increased legal and other professional costs necessary to execute the Company's restructuring process, on the Company's liquidity (including the availability of operating capital during the pendency of Chapter 11); the effects of Chapter 11 on the interests of various constituents and financial stakeholders; the length of time that the Company will operate under Chapter 11 protection and the continued availability of operating capital during the pendency of Chapter 11; objections to the Company's restructuring process, the DIP, or other pleadings filed that could protract Chapter 11; risks associated with third-party motions in Chapter 11; Court rulings in the Chapter 11 and the outcome of Chapter 11 in general; the Company's ability to comply with the restrictions imposed by the terms and conditions of the DIP and other financing arrangements; employee attrition and the Company's ability to retain senior management and other key personnel due to the distractions and uncertainties; risks associated with the potential delisting or the suspension of trading in its common stock by the New York Stock Exchange, the impact of litigation and regulatory proceedings; and other factors discussed in the Company's Annual Report on Form 10-K and subsequent quarterly reports on Form 10-Q filed with the SEC and other factors, as described in the Company's filings with the Securities and Exchange Commission, including the detailed factors discussed under the heading "Risk Factors" in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as supplemented in the Company's Quarterly Report on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024. Furthermore, such forward-looking statements speak only as of the date of this Current Report. Except as required by law, we undertake no obligation to update any forward-looking statements to reflect events or circumstances after the date of such statements. Risks or uncertainties (i) that are not currently known to us, (ii) that we currently deem to be immaterial, or (iii) that could apply to any company, could also materially adversely affect our business, financial condition, or future results.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SPIRIT AIRLINES, INC. | ||||
| Date: November 18, 2024 | By: | /s/ Thomas Canfield | ||
| Thomas Canfield | ||||
| Senior Vice President - General Counsel & Secretary | ||||
Exhibit 10.1
THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER OR ACCEPTANCE WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCES OF A CHAPTER 11 PLAN WITHIN THE MEANING OF SECTION 1125 OF THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR PROVISIONS OF THE BANKRUPTCY CODE. Nothing contained in thIS RESTRUCTURING SUPPORT AGREEMENT shall be an admission of fact or liability OR, UNTIL THE OCCURRENCE OF THE AGREEMENT EFFECTIVE DATE ON THE TERMS DESCRIBED IN THIS AGREEMENT, DEEMED BINDING ON ANY OF THE PARTIES to this agreement.
RESTRUCTURING SUPPORT AGREEMENT
This RESTRUCTURING SUPPORT AGREEMENT (including all exhibits, annexes, and schedules attached to this agreement in accordance with Section 12.02, as amended, restated, supplemented or modified from time to time in accordance with the terms hereof, this “Agreement”) is made and entered into as of November 18, 2024, by and among the following parties (each of the following described in sub-clauses (i) through (iii) of this preamble, individually, a “Party” and, collectively, the “Parties”):1
| (i) | Spirit Airlines, Inc., a corporation incorporated under the laws of Delaware (the “Company”), and each of its direct or indirect subsidiaries that executes and delivers a Company Acknowledgment after the date hereof in accordance with this Agreement (together with the Company, each a “Company Party,” and collectively, the “Company Parties”); |
| (ii) | the undersigned beneficial holders of, or investment advisors, sub-advisors, or managers of discretionary accounts or funds that beneficially hold, Senior Secured Notes Claims (as defined below) that have executed and delivered counterpart signature pages to this Agreement (in each case solely in their capacity as such, together with each Senior Secured Noteholder (as defined below) that executes and delivers a Joinder from time to time after the date hereof, the “Consenting Senior Secured Noteholders”) to counsel to the Company Parties and counsel to the Consenting Senior Secured Noteholders; and |
| (iii) | the undersigned beneficial holders of, or investment advisors, sub-advisors, or managers of discretionary accounts or funds that beneficially hold, Convertible Notes Claims (as defined below) that have executed and delivered counterpart signature pages to this Agreement (in each case solely in their capacity as such, together with each Convertible Noteholder (as defined below) that executes and delivers a Joinder from time to time and after the date hereof, the “Consenting Convertible Noteholders” and, together with the Consenting Senior Secured Noteholders, the “Consenting Stakeholders”). |
1 Capitalized terms used but not defined in the preamble and recitals to this Agreement have the meanings ascribed to them in Section 1.
RECITALS
WHEREAS, the Company Parties and the Consenting Stakeholders have in good faith and at arm’s length negotiated and agreed upon the material terms of a comprehensive restructuring with respect to the Company Parties’ capital structure (the “Restructuring Transactions”) in accordance with and subject to the terms and conditions set forth in this Agreement and the terms set forth in the chapter 11 plan of reorganization attached hereto as Exhibit A (together with the exhibits and appendices annexed thereto, the “Plan”);
WHEREAS, the Restructuring Transactions shall be implemented through the commencement by the Company and its subsidiaries of voluntary cases (the “Chapter 11 Cases”) under chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”);
WHEREAS, as of the date hereof, (a) the Consenting Senior Secured Noteholders hold, in the aggregate, 78.6% of the aggregate principal amount of the Senior Secured Notes Claims (including Loaned Claims), and (b) the Consenting Convertible Noteholders hold, in the aggregate, 84.1% of the aggregate principal amount of Convertible Notes Claims;
WHEREAS, the Parties have agreed to express their mutual support and take certain actions in support of the Restructuring Transactions on the terms and conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the covenants and agreements contained in this Agreement, and for other valuable consideration, the receipt and sufficiency of which are acknowledged, each Party, severally, and not jointly and severally, intending to be legally bound by this Agreement, agrees as follows:
AGREEMENT
Section 1. Definitions and Interpretation.
1.01. Definitions. The following terms shall have the following definitions:
“2025 Convertible Notes” means the Company’s 4.75% Convertible Senior Notes due 2025, issued under the 2025 Convertible Notes Indenture.
“2025 Convertible Notes Claims” means any Claim on account of the 2025 Convertible Notes.
“2025 Convertible Notes Indenture” means that certain Indenture, dated as of May 12, 2020, between the Company and Wilmington Trust, National Association, as trustee, as supplemented by that certain First Supplemental Indenture, dated as of May 12, 2020, between the Company and Wilmington Trust, National Association, as trustee, as amended or supplemented to the date of this Agreement.
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“2025 Convertible Notes Trustee” means Wilmington Trust, National Association, in its capacity as trustee under the 2025 Convertible Notes Indenture, and any successor trustee appointed pursuant to the terms thereof.
“2026 Convertible Notes” means the Company’s 1.00% Convertible Senior Notes due 2026, issued under the 2026 Convertible Notes Indenture.
“2026 Convertible Notes Claims” means any Claim on account of the 2026 Convertible Notes.
“2026 Convertible Notes Indenture” means that certain Indenture, dated as of May 12, 2020, between the Company and Wilmington Trust, National Association, as trustee, as supplemented by that certain Second Supplemental Indenture, dated as of April 30, 2021, between the Company and Wilmington Trust, National Association, as trustee, as amended or supplemented to the date of this Agreement.
“2026 Convertible Notes Trustee” means Wilmington Trust, National Association, in its capacity as trustee under the 2026 Convertible Notes Indenture, and any successor trustee appointed pursuant to the terms thereof.
“Ad Hoc Group of Convertible Noteholders” means that certain ad hoc group of Convertible Noteholders represented by the Ad Hoc Group of Convertible Noteholders Advisors.
“Ad Hoc Group of Convertible Noteholders Advisors” means (i) Paul Hastings LLP, (ii) Ducera Partners LLC, (iii) one commercial aviation counsel to the Ad Hoc Group of Convertible Noteholders with prior written consent of the Company Parties (such consent not to be unreasonably withheld), and (iv) one Cayman Islands local counsel to the Ad Hoc Group of Convertible Noteholders.
“Ad Hoc Group of Senior Secured Noteholders” means that certain ad hoc group of Senior Secured Noteholders represented by the Ad Hoc Group of Senior Secured Noteholders Advisors.
“Ad Hoc Group of Senior Secured Noteholders Advisors” means (i) Akin Gump Strauss Hauer & Feld LLP, (ii) Evercore Group L.L.C., (iii) one Cayman Islands local counsel to the Ad Hoc Group of Senior Secured Noteholders, (iv) one commercial aviation counsel to the Ad Hoc Group of Senior Secured Noteholders, and (v) any consultants or other professionals retained by the Consenting Senior Secured Noteholders in connection with the Restructuring Transactions, with prior written consent of the Company Parties (such consent not to be unreasonably withheld).
“Adequate Protection Order” means an interim order of the Bankruptcy Court authorizing the Debtors’ use of the Cash Collateral (if any) and providing adequate protection for the Senior Secured Noteholders, the Secured Notes Trustee and the agent or lenders under the Company’s prepetition revolving credit facility.
“Affiliate” means, with respect to any specified Entity, any other Entity directly or indirectly controlling or controlled by or under direct or indirect common control with such
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specified Entity. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by,” and “under common control with”), as used with respect to any Entity, shall mean the possession, directly or indirectly, of the right or power to direct or cause the direction of the management or policies of such Entity, whether through the ownership of voting securities, by agreement, or otherwise. A Related Fund of any Person shall be deemed to be the Affiliate of such Person.
“Agreement” has the meaning set forth in the preamble hereto and, for the avoidance of doubt, includes all the exhibits, annexes, and schedules attached hereto in accordance with Section 12.02.
“Agreement Effective Date” means the date on which the conditions set forth in Section 2 have been satisfied or waived in accordance with this Agreement.
“Agreement Effective Period” means, with respect to a Party, the period from the Agreement Effective Date (or, in the case of any Company Party or Consenting Stakeholder that becomes a party hereto after the Agreement Effective Date, as of the date and time such Company Party or Consenting Stakeholder executes and delivers a Company Acknowledgment or Joinder, as applicable, in accordance with the terms hereof) to the Termination Date applicable to that Party.
“Alternative Restructuring Proposal” means any written or verbal inquiry, proposal, offer, bid, term sheet, discussion, or agreement with respect to a sale, disposition, new-money investment, restructuring, reorganization, merger, amalgamation, acquisition, consolidation, dissolution, debt investment, equity investment, financing (debt or equity), joint venture, partnership, liquidation, tender offer, recapitalization, plan of reorganization, share exchange, business combination, or similar transaction involving the Company or any of its direct or indirect subsidiaries or the debt, equity, or other interests in the Company or any of its direct or indirect subsidiaries that in each case is an alternative to, or is inconsistent with, the Restructuring Transactions, but in each case excluding any debtor in possession financing facility.
“Backstop Commitment” has the meaning set forth in the Backstop Commitment Agreement.
“Backstop Commitment Agreement” means the backstop commitment agreement (including all exhibits, annexes, and schedules thereto and as amended, supplemented, or modified pursuant to the terms thereof), substantially in the form attached hereto as Exhibit C.
“Backstop Commitment Parties” has the meaning set forth in the Backstop Commitment Agreement.
“Backstop Motion” means the motion seeking entry of the Backstop Order.
“Backstop Order” means the order entered by the Bankruptcy Court approving and authorizing the Debtors’ assumption of the Backstop Commitment Agreement and the Debtors’ performance thereunder.
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“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as amended.
“Bankruptcy Court” has the meaning set forth in the recitals to this Agreement.
“Business Day” means any day other than a Saturday, Sunday, or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state of New York.
“Cash Collateral” has the meaning set forth in section 363(a) of the Bankruptcy Code.
“Chapter 11 Cases” has the meaning set forth in the recitals to this Agreement.
“Claim” has the meaning ascribed to it in section 101(5) of the Bankruptcy Code.
“Closing Date” means, the effective date of the Restructuring Transactions pursuant to the Plan.
“Company Acknowledgment” means an acknowledgment and joinder to this Agreement substantially in the form attached to this Agreement as Exhibit D.
“Company Claims” means any Claim against the Company or any direct or indirect subsidiary thereof including, without limitation, the Senior Secured Notes Claims and the Convertible Notes Claims. Solely for the purpose of Sections 7, 8(a), 8(b), and 8(c) hereof, Company Claims shall exclude all debt financing claims secured by aircraft.
“Company Claims/Interests” means, collectively, any Company Claims and Company Interests.
“Company Interests” means any Equity Interests in the Company or any direct or indirect subsidiary thereof.
“Company Termination Notice” has the meaning set forth in Section 10.03.
“Confidentiality Agreement” means an executed confidentiality agreement, including, but not limited to, with respect to the issuance of a “cleansing letter” or other public disclosure of material non-public information in connection with or related to any potential restructuring.
“Confirmation Order” means, the order of the Bankruptcy Court confirming the Plan under section 1129 of the Bankruptcy Code, which Confirmation Order shall be consistent with this Agreement.
“Consent Solicitation” has the meaning set forth in Section 4(c).
“Consent Solicitation Date” has the meaning set forth in Section 4.
“Consenting Convertible Noteholders” has the meaning set forth in the preamble to this Agreement.
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“Consenting Convertible Noteholder Termination Notice” has the meaning set forth in Section 10.02.
“Consenting Senior Secured Noteholders” has the meaning set forth in the preamble to this Agreement.
“Consenting Senior Secured Noteholder Termination Notice” has the meaning set forth in Section 10.01.
“Consenting Stakeholder Fees and Expenses” has the meaning set forth in Section 12.18.
“Consenting Stakeholders” has the meaning set forth in the preamble to this Agreement.
“Convertible Notes Claims” 2025 Convertible Notes Claims and 2026 Convertible Notes Claims.
“Convertible Noteholder” means, collectively, a “Holder” as defined in the 2025 Convertible Notes Indenture or the 2026 Convertible Notes Indenture.
“Debtors” means, collectively, the Company and its direct or indirect subsidiaries that file the Chapter 11 Cases.
“Definitive Documents” means the definitive documents listed in Section 3.01.
“DIP Credit Agreement” means the Credit Agreement with respect to the DIP Facility.
“DIP Facility” means the post-petition senior secured credit facility to be provided pursuant to, and subject to the terms and conditions of, the DIP Financing Documents.
“DIP Financing Documents” means the documentation governing the DIP Facility, including any DIP Order, Adequate Protection Order, the DIP Term Sheet, the DIP Credit Agreement, and any related credit agreement, security agreement or similar documents, as may be amended, modified, or supplemented from time to time, in accordance with the terms and conditions set forth therein.
“DIP Order” means, as applicable, the interim and final orders of the Bankruptcy Court approving the DIP Facility and granting the Debtors authority to use Cash Collateral in the Chapter 11 Cases.
“DIP Term Sheet” means the term sheet setting forth the terms of the DIP Facility attached hereto as Exhibit E.
“Disclosure Statement” means, the disclosure statement with respect to the Plan.
“Entity” shall have the meaning set forth in Section 101(15) of the Bankruptcy Code.
“Equity Interests” means any common stock, limited liability company interest, equity security (as defined in section 101(16) of the Bankruptcy Code), equity, ownership, profit interests,
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unit, or share in a Debtor, including all issued, unissued, authorized, or outstanding shares of capital stock of the Debtors and any other rights, options, warrants, stock appreciation rights, phantom stock rights, restricted stock units, redemption rights, repurchase rights, convertible, exercisable or exchangeable securities or other agreements, arrangements or commitments of any character relating to, or whose value is related to, any such interest or other ownership interest in any Debtor.
“Equity Rights Offering” means the equity rights offering to be conducted in connection with the Plan and consummated on the Plan Effective Date in accordance with the Equity Rights Offering Documents.
“Equity Rights Offering Documents” means the Backstop Commitment Agreement, the Backstop Motion, the Backstop Order, and any and all other agreements, documents, and instruments delivered or entered into in connection with, or otherwise governing, the Equity Rights Offering, including the Equity Rights Offering procedures, subscription forms, and any other materials distributed in connection with the Equity Rights Offering.
“Event” means any event, development, occurrence, circumstance, effect, condition, result, state of facts or change.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exit Financing Facilities” means, collectively, the Exit Secured Notes Facility and Exit Revolving Credit Facility.
“Exit Financing Facilities Documents” means, collectively, the Exit Secured Notes Documents and Exit RCF Documents.
“Exit RCF Documents” means all documentation effectuating the incurrence of the Exit Revolving Credit Facility.
“Exit Revolving Credit Facility” means a senior secured revolving credit facility to be entered into by one or more Reorganized Company Parties in accordance with the Exit RCF Documents.
“Exit Secured Notes Documents” means all documentation effectuating the incurrence of the Exit Secured Notes Facility.
“Exit Secured Notes Facility” means $840 million of senior secured notes to be issued by the Reorganized Company Parties in accordance with the Exit Secured Notes Facility Term Sheet and the Exit Secured Notes Documents.
“Exit Secured Notes Facility Term Sheet” means the term sheet setting forth the material terms of the Exit Secured Notes Facility attached hereto as Exhibit G.
“First Day Pleadings” means, the first-day pleadings that the Company determines are necessary or desirable to file with the Bankruptcy Court.
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“Governance Term Sheet” means the term sheet setting forth the material governance terms of the Reorganized Company Parties, substantially in the form attached hereto as Exhibit H.
“Governing Body” means the board of directors, board of managers, manager, general partner, investment committee, special committee, or such similar governing body of an Entity.
“Governmental Authority” means any applicable federal, state, local or foreign government or any agency, bureau, board, commission, court or arbitral body, department, political subdivision, regulatory or administrative authority, tribunal or other instrumentality thereof, or any self-regulatory organization.
“Intercompany Claim” means any Claim on account of the Intercompany Note.
“Intercompany Note” means that certain Loyalty Program Intercompany Note originally dated as of September 17, 2020, by and among Spirit Airlines, Inc., as Payor, and Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd., each as Payee, as amended by that certain Amended and Restated Loyalty Program Intercompany Note, dated as of November 17, 2022, as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Joinder” means a joinder to this Agreement substantially in the form attached to this Agreement as Exhibit I.
“Joint Administration Motion” means the motion seeking joint administration of the Chapter 11 Cases of the Company Parties.
“Law” means any federal, state, local, or foreign law (including common law), statute, code, ordinance, rule, regulation, order, ruling, or judgment, in each case, that is validly adopted, promulgated, issued, or entered by a Governmental Authority of competent jurisdiction (including the Bankruptcy Court).
“Loaned Claims” has the meaning set forth in Section 8(a).
“Milestones” means the milestones set forth in Section 4, as any such milestone may be extended or waived in writing (including via email in accordance with Section 12.17) in accordance with the terms of Section 4.
“New Common Equity” means the equity interests in the Reorganized Company.
“New Organizational Documents” means, on or after the Closing Date, the organizational and governance documents for the Reorganized Company Parties, including, without limitation, certificates of incorporation (including any certificate of designations), certificates of formation or certificates of limited partnership (or equivalent organizational documents), certificates of designation, bylaws, limited liability company agreements, shareholders’ agreements, and limited partnership agreements (or equivalent governing documents), as applicable, in each case, consistent with the terms and conditions set forth in this Agreement, including the Governance Term Sheet.
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"Offshore Documents" means:
(i) the Amended and Restated Declaration of Trust in respect of the special share in Spirit Loyalty Cayman Ltd. to be made by Walkers Fiduciary Limited as trustee;
(ii) the Amended and Restated Declaration of Trust in respect of the special share in Spirit Finance Cayman 2 Ltd. to be made by Walkers Fiduciary Limited as trustee;
(iii) the Amended and Restated Declaration of Trust in respect of the special share in Spirit Finance Cayman 1 Ltd. to be made by Walkers Fiduciary Limited as trustee;
(iv) the Amended and Restated Declaration of Trust in respect of the special share in Spirit IP Cayman Ltd. to be made by Walkers Fiduciary Limited as trustee;
(v) the Amended and Restated Administration Agreement in respect of Spirit Loyalty Cayman Ltd. to be entered into among Walkers Fiduciary Limited as shareholder, Walkers Fiduciary Limited as administrator, Spirit Loyalty Cayman Ltd. and the Company as obligor;
(vi) the Amended and Restated Administration Agreement in respect of Spirit Finance Cayman 2 Ltd. to be entered into among Walkers Fiduciary Limited as shareholder, Walkers Fiduciary Limited as administrator, Spirit Finance Cayman 2 Ltd. and the Company as obligor;
(vii) the Amended and Restated Administration Agreement in respect of Spirit Finance Cayman 1 Ltd. to be entered into among Walkers Fiduciary Limited as shareholder, Walkers Fiduciary Limited as administrator, Spirit Finance Cayman 1 Ltd. and the Company as obligor;
(viii) the Amended and Restated Administration Agreement in respect of Spirit IP Cayman Ltd. to be entered into among Walkers Fiduciary Limited as shareholder, Walkers Fiduciary Limited as administrator, Spirit IP Cayman Ltd. and the Company as obligor;
(ix) the Amended and Restated Deed of Undertaking in respect of Spirit Loyalty Cayman Ltd. to be entered into among Spirit Loyalty Cayman Ltd., Spirit Finance Cayman 2 Ltd. as shareholder, Walkers Fiduciary Limited as special shareholder and Wilmington Trust, National Association as collateral agent;
(x) the Amended and Restated Deed of Undertaking in respect of Spirit Finance Cayman 2 Ltd. to be entered into among Spirit Finance Cayman 2 Ltd., Spirit Finance Cayman 1 Ltd. as shareholder, Walkers Fiduciary Limited as special shareholder and Wilmington Trust, National Association as collateral agent;
(xi) the Amended and Restated Deed of Undertaking in respect of Spirit Finance Cayman 1 Ltd. to be entered into among Spirit Finance Cayman 1 Ltd., the Company as shareholder, Walkers Fiduciary Limited as special shareholder and Wilmington Trust, National Association as collateral agent;
(xii) the Amended and Restated Deed of Undertaking in respect of Spirit IP Cayman Ltd. to be entered into among Spirit IP Cayman Ltd., Spirit Finance Cayman 2 Ltd. as shareholder,
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Walkers Fiduciary Limited as special shareholder and Wilmington Trust, National Association as collateral agent;
(xiii) the shareholder resolutions of Spirit Loyalty Cayman Ltd., together with the second amended and restated memorandum and articles of association of Spirit Loyalty Cayman Ltd. annexed thereto;
(xiv) the shareholder resolutions of Spirit Finance Cayman 2 Ltd., together with the second amended and restated memorandum and articles of association of Spirit Finance Cayman 2 Ltd. annexed thereto;
(xv) the shareholder resolutions of Spirit Finance Cayman 1 Ltd., together with the second amended and restated memorandum and articles of association of Spirit Finance Cayman 1 Ltd. annexed thereto;
(xvi) the shareholder resolutions of Spirit IP Cayman Ltd., together with the second amended and restated memorandum and articles of association of Spirit IP Cayman Ltd. annexed thereto;
(xvii) the consent in respect of Spirit Loyalty Cayman Ltd. to be granted by Wilmington Trust, National Association as collateral agent and controlling beneficiary;
(xviii) the consent in respect of Spirit Finance Cayman 2 Ltd. to be granted by Wilmington Trust, National Association as collateral agent and controlling beneficiary;
(xix) the consent in respect of Spirit Finance Cayman 1 Ltd. to be granted by Wilmington Trust, National Association as collateral agent and controlling beneficiary; and
(xx) the consent in respect of Spirit IP Cayman Ltd. to be granted by Wilmington Trust, National Association as collateral agent and controlling beneficiary.
“Parties” has the meaning set forth in the preamble to this Agreement.
“Permitted Transferee” means each Transferee of any Company Claim/Interest that meets the requirements of Section 7.02.
“Person” means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership, joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, and any Governmental Authority.
“Petition Date” means the date on which the Chapter 11 Cases are commenced.
“Plan Effective Date” means the date upon which all conditions precedent to the effectiveness of the Plan have been satisfied or are waived in accordance with the terms of this Agreement and the Plan, and on which the Restructuring Transactions become effective or are consummated.
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“Plan Supplement” means, the compilation of certain documents and forms of documents, schedules, and exhibits to the Plan that will be filed by the Debtors with the Bankruptcy Court prior to the hearing held by the Bankruptcy Court to consider confirmation of the Plan, each of which shall be consistent with this Agreement.
“Proposed Amendments” has the meaning set forth in Section 4(c).
“Qualified Marketmaker” means an entity that (a) holds itself out to the market as standing ready in the ordinary course of business to purchase from customers and sell to customers Company Claims/Interests (or enter with customers into long and short positions in Company Claims/Interests), in its capacity as a dealer or market maker in Company Claims/Interests and (b) is in fact regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt).
“Registration Rights Agreement” has the meaning set forth in the Governance Term Sheet.
“Related Fund” means, with respect to any Person, any fund, account, or investment vehicle that is controlled or managed by (i) such Person, (ii) an Affiliate of such Person, or (iii) the same investment manager, advisor or subadvisor as such Person or an Affiliate of such investment manager, advisor or subadvisor.
“Reorganized Company Parties” means, the Company Parties, as reorganized pursuant to the Plan, or any successor thereto or assignee thereof, by merger, consolidation, reorganization, or otherwise, in the form of a corporation, limited liability company, partnership, or other form, as the case may be, immediately after the Closing Date.
“Required Backstop Commitment Parties” shall have the meaning as provided in the Backstop Commitment Agreement.
“Required Consenting Convertible Noteholders” means, as of the relevant date, those holders of Convertible Notes Claims that are party to this Agreement holding greater than 50% of the aggregate outstanding principal amount of the Convertible Notes Claims that are held by all such holders in the aggregate.
“Required Consenting Senior Secured Noteholders” means, as of the relevant date, those holders of Senior Secured Notes Claims that are party to this Agreement holding greater than 50% of the aggregate outstanding principal amount of the Senior Secured Notes Claims that are held by all such holders in the aggregate.
“Required Consenting Stakeholders” means, collectively, the Required Consenting Senior Secured Noteholders and the Required Consenting Convertible Noteholders.
“Restructuring Transactions” has the meaning set forth in the recitals to this Agreement.
“Rules” means Rule 501(a)(1), (2), (3), (7), (8), (9), (12), and (13) under the Securities Act.
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“Securities Act” means the Securities Act of 1933, as amended.
“Senior Secured Notes” means the 8.00% Senior Secured Notes due 2025 issued by Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd. under the Senior Secured Notes Indenture.
“Senior Secured Notes Claims” means any Claim on account of the Senior Secured Notes.
“Senior Secured Notes Indenture” means that certain Indenture originally dated as of September 17, 2020, by and among Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd., each as co-issuers, the Company, as parent guarantor, the other guarantors from time to time party thereto and Wilmington Trust, National Association, as trustee and collateral custodian, as amended by that certain First Supplemental Indenture, dated as of November 17, 2022, as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Senior Secured Noteholder” means a “Holder” as defined in the Senior Secured Notes Indenture.
“Senior Secured Notes Trustee” means Wilmington Trust, National Association, in its capacity as trustee under the Senior Secured Notes Indenture, and any successor trustee appointed pursuant to the terms thereof.
“Solicitation” means the solicitation of votes with respect to the Plan.
“Solicitation Materials” means the Disclosure Statement, ballots, documents, forms, and all other materials provided in connection with the solicitation of the Plan pursuant to sections 1125 and 1126 of the Bankruptcy Code, which shall be consistent with this Agreement.
“Solicitation Procedures Motion” means the motion seeking final approval of the Disclosure Statement and approval of the Solicitation Procedures Order.
“Solicitation Procedures Order” means the order of the Bankruptcy Court approving the Solicitation procedures, the Equity Rights Offering procedures, subscription forms and other materials to be distributed in connection with Equity Rights Offering, granting approval of the adequacy of the Disclosure Statement, and scheduling a hearing for final approval of the Plan.
“Termination Date” means, with respect to a Party to this Agreement, the date on which termination of this Agreement as to such Party is effective in accordance with Section 10.
“Transaction Documentation” means all documents or agreements memorializing the Restructuring Transactions.
“Transfer” means to, directly or indirectly, sell, assign, grant, transfer, convey, pledge, hypothecate, or otherwise dispose of, but in each case only upon the date of settlement of the Transfer and excluding any pledge or assignment of security interest to secure obligations of a party to a Federal Reserve Bank or any other central bank.
“Transferee” means the recipient of a Transfer.
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“Trustee” means, as applicable, the 2025 Convertible Notes Trustee, 2026 Convertible Notes Trustee or Senior Secured Notes Trustee.
1.02. Interpretation. For purposes of this Agreement:
(a) in the appropriate context, each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neutral gender shall include the masculine, feminine, and the neutral gender;
(b) capitalized terms defined only in the plural or singular form shall nonetheless have their defined meanings when used in the opposite form. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning;
(c) unless otherwise specified, any reference in this Agreement to a contract, lease, instrument, release, indenture, or other agreement or document (other than a Definitive Document) being in a particular form or on particular terms and conditions means that such document shall be substantially in such form or substantially on such terms and conditions, provided that references in this Agreement to any Definitive Document shall mean such Definitive Document in form and substance as required pursuant to Section 3.02;
(d) unless otherwise specified, any reference in this Agreement to an existing document, schedule, or exhibit shall mean such document, schedule, or exhibit, as it may have been or may be amended, restated, supplemented, or otherwise modified from time to time; notwithstanding the foregoing, any capitalized terms in this Agreement that are defined with reference to another agreement, are defined with reference to such other agreement as of the date of this Agreement, without giving effect to any termination of such other agreement or amendments to such capitalized terms in any such other agreement following the date of this Agreement;
(e) unless otherwise specified, all references in this Agreement to “Sections” are references to Sections of this Agreement;”
(f) the words “herein,” “hereof,” and “hereto” refer to this Agreement in its entirety rather than to any particular portion of this Agreement;
(g) captions and headings to Sections are inserted for convenience of reference only and are not intended to be a part of or to affect the interpretation of this Agreement;
(h) references to “shareholders,” “directors,” and/or “officers” shall also include “members” and/or “managers,” as applicable, as such terms are defined under the applicable limited liability company Laws;
(i) the use of “include” or “including” is without limitation, whether stated or not; and
(j) the word “or” shall not be exclusive.
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Section 2. Effectiveness of this Agreement. This Agreement shall become effective and binding upon each of the Parties on the date and time by which all of the following conditions have been satisfied or waived in accordance with this Agreement:
(a) the Company shall have executed and delivered counterpart signature pages of this Agreement (which signature pages may be delivered by counsel and in electronic form) to counsel to the Consenting Stakeholders;
(b) the following shall have executed and delivered counterpart signature pages of this Agreement (which signature pages may be delivered by counsel and in electronic form) to the Company:
(i) holders of more than 66 2/3% of the aggregate outstanding principal amount of the Senior Secured Notes Claims; and
(ii) holders of more than 66 2/3% of the aggregate outstanding principal amount of the Convertible Notes Claims.
(c) the Company shall have paid in full the Consenting Stakeholder Fees and Expenses for which an invoice has been received by the Company on or before two (2) Business Days prior to the Agreement Effective Date.
With respect to any Company Party that becomes a party to this Agreement after the Agreement Effective Date, this Agreement shall become effective as to and fully binding upon such Company Party at the time it executes and delivers a Company Acknowledgment in accordance with the terms hereof, and such Company Party, as of such time and without further action, shall be deemed to have made to the other Parties all representations and warranties in Section 9 of the Agreement. Prior to the date that the Company Parties set forth on Exhibit F become a party to this Agreement, references to “Company Parties” in this Agreement shall be deemed to be a reference to the Company.
With respect to any Consenting Stakeholder that becomes a party to this Agreement pursuant to Section 7 hereof, this Agreement shall become effective as to such Consenting Stakeholder at the time it executes and delivers a Joinder in accordance with the terms hereof.
Section 3. Definitive Documents.
3.01. The definitive documents shall consist of the following (the “Definitive Documents”):
(i) the Plan;
(ii) the Confirmation Order;
(iii) the Disclosure Statement and all other Solicitation Materials; (iv) the Solicitation Procedures Order; 14 (v)
the First Day Pleadings and all orders sought pursuant thereto; (vi)
the Plan Supplement; (vii)
the DIP Financing Documents; (viii) the Exit Financing Facilities Documents; (ix)
the Equity Rights Offering Documents; (x)
the Registration Rights Agreement; (xi)
the New Organizational Documents; (xii) the Offshore Documents; (xiii)
the Adequate Protection Order; (xiv)
the documents relating to the Consent Solicitation, including the supplemental indentures, collateral agreement amendments, consent
solicitation statements and other documentation necessary to consummate the Consent Solicitation; (xv)
such other motions, orders, agreements, and documentation necessary or desirable to consummate and document the transactions contemplated
by this Agreement, including any plan prepared pursuant to Section 382 of the Internal Revenue Code; (xvi)
to the extent not included above, all financing documents needed to effectuate the Restructuring; and (xvii)
all other material customary filings, deeds, agreements, notifications, certificates or other documents delivered in connection
with transactions of this type (including, without limitation, any and all other documents implementing, achieving, contemplated by or
relating to the Restructuring Transactions). 3.02.
The Definitive Documents that are not executed or in a form attached to this Agreement as of the Agreement Effective Date remain
subject to good faith negotiation, agreement and completion. Upon completion, the Definitive Documents and every other document, deed,
agreement, filing, notification, letter, or instrument related to the Restructuring Transactions shall contain terms, conditions, representations,
warranties, and covenants consistent with the terms of this Agreement, as they may be modified, amended, or supplemented in accordance
with this Agreement. The Definitive Documents that are not executed or in a form attached to this Agreement as of the Effective Date,
and any amendments, modifications, or supplements to any Definitive Documents, shall be consistent with this Agreement and otherwise shall
be in form and substance reasonably acceptable to the Company, the Required Consenting Senior Secured Noteholders, and the Required Consenting
Convertible Noteholders. Notwithstanding anything herein
to the contrary, (i) the DIP Financing Documents shall further be required to be reasonably acceptable in form and substance to the Required
DIP Lenders (as 15 defined in the DIP Financing Documents); (ii) the Backstop Commitment
Agreement shall further be required to be reasonably acceptable in form and substance to the Required Backstop Commitment Parties and
(iii) the Adequate Protection Order shall be in form and substance acceptable to the Required Consenting Senior Secured Noteholders only
(provided that any modifications that increase the amount of any payments on account of the adequate protection provided for the benefit
of the Senior Secured Noteholders shall require the reasonable consent of the Required Consenting Convertible Noteholders). Section
4.
Milestones. The following milestones (collectively, the “Milestones”)
shall apply to this Agreement (unless extended or waived in writing (including via email in accordance with Section 12.17)
with the consent (not to be unreasonably withheld) of the Company Parties, the Required Consenting Senior Secured Noteholders, and, with
respect to Milestones other than those set forth in clauses (d) and (g)(ii), the Required Consenting Convertible Noteholders): (a)
no later than November 18, 2024, the Company shall file a voluntary petition for relief pursuant to chapter 11 of the Bankruptcy
Code in the Bankruptcy Court (the date of filing of such voluntary petition, the “Petition Date”); (b)
no later than November 18, 2024 the Company shall file with the Bankruptcy Court a motion seeking entry of the Adequate Protection
Order and DIP Order; (c)
no later than November 19, 2024, the Debtors shall launch a consent solicitation (the “Consent Solicitation”
and such date, the “Consent Solicitation Date”) seeking consent to certain amendments to the Senior Secured
Notes Indenture and as set out in the Offshore Documents (collectively, the “Proposed Amendments”) in order
to facilitate the commencement of Chapter 11 Cases for the Company Parties identified on Exhibit F hereto; (d)
no later than November 20, 2024, the Bankruptcy Court shall have entered the Adequate Protection Order; (e)
no later than November 27, 2024, the Company shall file the Backstop Moton with the Bankruptcy Court; (f)
no later than November 29, 2024, the Company Parties identified on Exhibit F shall have (i) executed and delivered the Company
Acknowledgment to counsel to the Consenting Stakeholders, (ii) filed voluntary petitions for relief pursuant to chapter 11 of the Bankruptcy
Code in the Bankruptcy Court and (iii) filed a Joint Administration Motion; (g)
no later than December 2, 2024, the Bankruptcy Court shall have entered (i) an order granting the Joint Administration Motion,
(ii) an order deeming the Adequate Protection Order applicable and binding with respect to all Company Parties, and (iii) an order deeming
all other applicable orders applicable and binding with respect to all Company Parties; (h)
no later than December 2, 2024, the Company shall file with the Bankruptcy Court the Plan, the Disclosure Statement, the Solicitation
Procedures Motion; 16 (i)
no later than December 23, 2024, the Bankruptcy Court shall have entered (i) the final DIP Order and (ii) the Backstop Order; (j)
no later than January 13, 2025, the Bankruptcy Court shall have entered the Solicitation Procedures Order; (k)
no later than February 17, 2025, the Bankruptcy Court shall have entered the Confirmation Order; (l)
the Plan shall have become effective in accordance with its terms no later than March 4, 2025; provided, however, such date
may be automatically extended by up to forty-five (45) days to the extent regulatory approvals are the only outstanding conditions to
effectiveness of the Plan. 5.01.
Affirmative Commitments. During the Agreement Effective Period, each Consenting Stakeholder severally, and not jointly and
severally, agrees in respect of all of its Company Claims/Interests (subject to Section 5.04) to: (a)
support and consummate the Plan in accordance with the terms and conditions set forth in this Agreement, and timely take all actions
contemplated thereby and as necessary to support and achieve consummation of the Restructuring Transactions, including with respect to
providing information as may be reasonably requested and necessary to obtain any necessary regulatory approvals to consummate the Restructuring
Transactions; (b)
act in good faith and support the Restructuring Transactions, subject to finalization of the Definitive Documents in accordance
with the terms and conditions set forth in this Agreement, including to vote and exercise any powers or rights available to it (including
in any creditors’ meeting or in any process requiring voting or approval to which such Consenting Stakeholder is legally entitled
to participate), in each case in favor of any matter requiring approval to the extent necessary to implement the Restructuring Transactions
and within the timeframe outlined herein and in the Definitive Documents and not change or withdraw (or cause to be changed or withdrawn)
any such vote; (c)
with respect to the Consenting Senior Secured Noteholders, provide consent in accordance with the Consent Solicitation in order
to effectuate the Proposed Amendments; (d)
use commercially reasonable efforts to cooperate with and assist the Company, as may be reasonably requested by the Company in
obtaining additional support for the Restructuring Transactions from the Company Party’s other stakeholders; (e)
use commercially reasonable efforts to give any notice, order, instruction, or direction to any applicable agent reasonably necessary
to give effect to the Restructuring Transactions (including, for the avoidance of doubt, any notice, order, instruction, or direction
required in connection with the execution and delivery of the Definitive Documents), on the terms and subject to the conditions of this
Agreement; provided that no Consenting Stakeholder shall be 17 required to provide an indemnity
or incur any potential expense or liability in connection therewith, other than expenses that the Company parties have agreed in writing
to reimburse or indemnify on terms satisfactory to such Consenting Stakeholder; (f)
negotiate in good faith and use commercially reasonable efforts to finalize, execute and deliver the Definitive Documents to which
it is required to be a party or to which it has a consent right pursuant to Section 3.02; (g)
consider in good faith any appropriate additional or alternative provisions or agreement necessary to address any legal, financial,
or structural impediment that may arise that would prevent, hinder, impede, delay or are necessary to effectuate the consummation of the
Restructuring Transactions in accordance with this Agreement. 5.02.
Negative Commitments. During the Agreement Effective Period, except as otherwise provided in Section 5.04, each Consenting
Stakeholder, as applicable, severally, and not jointly and severally, agrees in respect of all of its Company Claims/Interests (subject
to Section 5.04) that it shall not, directly or indirectly, and shall not direct any Trustee or other Entity to: (a)
take any action that is inconsistent with this Agreement or the Restructuring Transactions or that would reasonably be expected
to interfere with, delay, or impede the solicitation and approval of the Disclosure Statement or the confirmation and consummation of
the Plan and the Restructuring Transactions; (b)
directly or indirectly, through any Person, seek, solicit, propose, support, engage in negotiations in connection with or participate
in the formulation, preparation, filing, or prosecution of any Alternative Restructuring Proposal; (c)
file any motion, objection, pleading, or other document with the Bankruptcy Court or any other court (including any modifications
or amendments thereof) that, in whole or in part, is inconsistent with this Agreement, the Plan or the Restructuring Transactions; (d)
take (directly or indirectly), or direct the applicable Trustee to take, any action to enforce or exercise any right or remedy
for the enforcement, collection, or recovery of any of the Company Claims/Interests, including rights or remedies arising from or asserting
or bringing any claims under or with respect to the Senior Secured Notes Indenture and any Transaction Document (as defined in the Senior
Secured Notes Indenture), the 2025 Convertible Notes Indenture or the 2026 Convertible Notes Indenture, as applicable, to the extent inconsistent
with this Agreement; (e)
enter into any cooperation agreement or similar agreement or arrangement with any other holder of Company Claims/Interests that
both (i) relates to the holding, voting or disposition of any instrument, security or notes in connection with the Company Parties or
the Reorganized Company Parties, or any entitlement to distributions, sharing of recoveries, opportunities to participate in future transactions
in relation to such instrument, security or notes, and (ii) by its terms remains in effect after the Closing Date; (f)
initiate, or have initiated on its behalf, any litigation or proceeding of any kind (including a derivative action), including,
without limitation, with respect to this Agreement, the 18 Restructuring Transactions,
or the Chapter 11 Cases, against the Company or any of its direct or indirect subsidiaries or the other Parties (other than to enforce
this Agreement or any Definitive Document or as otherwise consistent with this Agreement); (g)
object to, delay, impede, or take any other action to interfere with the Company’s or its direct or indirect subsidiaries’
ownership and possession of its or their assets, wherever located, or interfere with the automatic stay arising under section 362 of the
Bankruptcy Code in the Chapter 11 Cases. 5.03.
Commitments with Respect to Chapter 11 Cases. Subject to Section 5.04, each Consenting Stakeholder agrees, severally,
and not jointly and severally, during the Agreement Effective Period, that it shall: (a)
timely vote each of its Company Claims/Interests it is entitled to vote to accept the Plan by timely delivering its duly executed
and completed ballot(s) accepting the Plan following the date of the Solicitation and its actual receipt of the Solicitation Materials
and the ballot; (b)
(i) to the extent it is permitted to elect whether to opt out of the releases set forth in the Plan, elect not to opt out of such
releases and (ii) to the extent it is permitted to elect whether to opt in to the releases set forth in the Plan, elect to opt in to such
releases, in each case by delivering its duly executed and completed ballot(s) indicating such election prior to the deadline for such
delivery; and (c)
not change, withdraw, amend, or revoke (or cause to be changed, withdrawn, amended, or revoked) any vote or election referred to
in clause (a) or (b) above; provided, however, that nothing in this Agreement shall prevent any Consenting Stakeholder from withholding,
amending, or revoking (or causing the same) its timely consent or vote with respect to the Plan if this Agreement has been terminated
in accordance with its terms with respect to such Consenting Stakeholder. 5.04.
Additional Provisions Regarding the Consenting Stakeholders’ Commitments. Notwithstanding anything contained in this
Agreement to the contrary, nothing in this Agreement shall: (a)
be construed to impair the rights of any Consenting Stakeholder from appearing as a party in interest in any matter to be adjudicated
in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not inconsistent with this
Agreement and are not for the purpose of delaying, interfering, impeding, or taking any other action to delay, interfere or impede, directly
or indirectly, the Restructuring Transactions; (b)
affect the ability of any Consenting Stakeholder, to consult with any other Consenting Stakeholder, the Company Parties, or any
other party in interest in the Chapter 11 Cases (including any official committee and the United States Trustee); 19 (c)
prevent any Consenting Stakeholder, from enforcing this Agreement or contesting whether any matter, fact, or thing is a breach
of, or is inconsistent with, this Agreement; (d)
require any Consenting Stakeholder, to incur, assume, become liable in respect of or suffer to exist any expenses, liabilities
or other obligations, or agree to or become bound by any commitments, undertakings, concessions, indemnities, or other arrangements that
could result in expenses, liabilities, or other obligations to such Consenting Stakeholder other than as expressly described in this Agreement,
other than expenses that the Company Parties have agreed in writing to reimburse or indemnify on terms satisfactory to such Consenting
Stakeholder; (e)
prevent any Consenting Stakeholder, from protecting and preserving its rights, remedies, and interests, including its Claims against,
or Interests in, the Company Parties to the extent not inconsistent with this Agreement; (f)
impair or waive the rights of any Consenting Stakeholder to assert or raise any objection permitted under this Agreement in connection
with the Restructuring Transactions; (g)
require any Consenting Stakeholder to (i) take any action, or omit to take any action, not reasonably within its control or which
would directly or indirectly breach or cause a breach of any legal or regulatory requirement or any order or direction of any relevant
court or Governmental Authority or (ii) take part or be involved in any litigation or court or regulatory proceedings, except as expressly
contemplated by this Agreement; (h)
other than as expressly set forth herein, limit the rights or obligations of any Consenting Stakeholder under, or constitute a
waiver or amendment of any term or provision of any of, the Senior Secured Notes Indenture, the 2025 Convertible Notes Indenture or the
2026 Convertible Notes Indenture; (i)
constitute a termination or release of any liens on, or security interests in, any of the assets or properties of the Company or
any of its direct or indirect subsidiaries that secure the obligations under any of the Senior Secured Notes Indenture, the 2025 Convertible
Notes Indenture or the 2026 Convertible Notes Indenture; or (j)
prevent any Consenting Stakeholder from taking any customary perfection step or other action as is necessary to preserve or defend
the validity, existence, or priority of its Company Claims/Interests (including, without limitation, the filing of a proof of claim against
any Debtor). Section
6.
Commitments of the Company Parties. 6.01.
Affirmative Commitments. Subject to Section 6.03, during the Agreement Effective
Period, the Company Parties, jointly and severally, agree to: 20 (a)
support, act in good faith, and take all actions reasonably necessary and desirable to implement and consummate the Restructuring
Transactions in accordance with this Agreement, and the applicable Milestones unless waived or modified in accordance with the terms hereof; (b)
to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Restructuring
Transactions contemplated in this Agreement, negotiate in good faith with the Required Consenting Stakeholders appropriate additional
or alternative provisions or alternative implementation mechanics to address any such impediment, and support and take all steps reasonably
necessary and desirable to address any such impediment; (c)
use commercially reasonable efforts to obtain any required regulatory and/or third-party approvals and consents for the consummation
and implementation of the Restructuring Transactions; (d)
negotiate in good faith and use commercially reasonable efforts to finalize, execute and implement the Definitive Documents, any
other required agreements to effectuate and consummate the Restructuring Transactions as contemplated by this Agreement; (e)
at least three (3) days prior to the filing (or such shorter period as may be necessary or practicable), provide concurrently to
the respective counsels for the Consenting Stakeholders draft copies of all material pleadings, motions, and proposed orders (including
without limitation the Plan, the Disclosure Statement, the First Day Pleadings, and all “second day motions and proposed orders);
that affect the Consenting Stakeholders; (f)
actively and timely oppose and object to the efforts of any person seeking to object to, delay, impede, or take any other action
to interfere with the acceptance, implementation, or consummation of the Restructuring Transactions (including, if applicable, the filing
of timely filed objections or written responses) to the extent such opposition or objection is reasonably necessary or desirable to facilitate
implementation of the Restructuring Transactions; (g)
consult and negotiate in good faith with the Consenting Stakeholders and their advisors regarding the implementation of the Restructuring
Transactions, and the execution of the Definitive Documents to which such Consenting Stakeholder is required to be a party or to which
it has a consent right pursuant to Section 3.02; (h)
inform counsel to the Consenting Stakeholders in writing (email being sufficient) as soon as reasonably practicable after becoming
aware of: (i) any matter or circumstance which it knows, or believes to be a material impediment to the implementation or consummation
of the Restructuring Transactions; (ii) any notice of any commencement of any material involuntary insolvency proceedings, legal suit
for payment of debt or securement of security from or by any person in respect the Company or any of its direct or indirect subsidiaries;
(iii) any material breach of any of the terms, conditions, representations, warranties or covenants set forth in this Agreement (including
a breach by the Company Parties); or (iv) any representation or statement made or deemed to be made by them under this Agreement which
is or proves to have been incorrect or misleading in any material respect when made or deemed to be made; 21 (i)
if the Company Parties receive any bona fide proposal or offer to effect an Alternative Restructuring Proposal, the Company shall
(i) inform counsel to each of the Consenting Stakeholders in writing (email being sufficient) within one (1) Business Day of receiving
such proposal, with such notice to include the material terms thereof, including the identity of the Person(s) involved, and the action
taken or proposed to be taken by the Company in response thereto, (ii) provide counsel and advisors to each of the Consenting Stakeholders
with regular updates as to the status and progress of such Alternative Restructuring Proposal, and (iii) respond promptly to reasonable
information requests and questions from counsel to the Consenting Stakeholders relating to such Alternative Restructuring Proposal; (j)
from the date hereof until the Plan Effective Date, other than (a) as required by contracts existing on the date hereof or applicable
Law, (b) with the consent of the Consenting Senior Secured Noteholders (not to be unreasonably withheld, conditioned, or delayed) and
in consultation with the Consenting Convertible Noteholders, or (c) except as expressly contemplated, allowed, or required by the Plan
or this Agreement, (i) operate their business in the ordinary course consistent with past practices; (ii) use commercially reasonable
efforts (x) to preserve intact the Company Parties’ business organization and relationships with third parties and employees, taking
into account the Restructuring Transactions; and (y) maintain good standing (or equivalent status under the Laws of its incorporation
or organization) under the Laws of the jurisdiction in which the Company Parties are incorporated or organized, taking into account the
Restructuring Transactions; (iii) consult in good faith with counsel for the Consenting Stakeholders prior to the Company Parties’
entry into, termination of, or modification of any material operational contracts, leases, or other binding agreements, other than in
the ordinary course of business; (iv) refrain from increasing the compensation payable to any “Insiders” (as defined in the
Bankruptcy Code) of the Company Parties, except, with advance notice to the Consenting Stakeholders, annual base salary compensation increases
and merit-based adjustments in the ordinary course of business and consistent with past practice or as required by the terms of and in
accordance with any written employment or engagement agreement currently in effect between the Company Parties and such person; (v) refrain
from granting any long term cash incentive awards payable to any “Insiders” (as defined in the Bankruptcy Code) of the Company
Parties not existing as of the date of this Agreement or implementing a short term incentive plan for 2025 payable to any “Insiders”
(as defined in the Bankruptcy Code) of the Company Parties; and (vi) refrain from entry into any binding transaction involving the direct
or indirect sale, purchase, transfer, or other disposition of a material portion of the Company Parties’ assets;
(k)
use commercially reasonable efforts to provide the advisors to the Consenting Stakeholders with (i) reasonable access to, during
regular business hours, the non-privileged, non-confidential books, work papers, records and materials of any Company Party, (ii) reasonable
access to, during regular business hours, the personnel and applicable advisors of any Company Party to discuss the status and progress
of the Restructuring Transactions, and (iii) timely responses to all reasonable diligence requests provided by any such advisors; it being
understood that the foregoing cannot, and should not be construed to, (A) require the disclosure of any workpapers, materials, reports,
statements, or other information intended to be subject to attorney-client or work-product privilege or any other applicable privilege
doctrines available under applicable law, or (B) override any existing confidentiality or other applicable obligations owed with respect
to any such information. In addition, the Company Parties shall cooperate with reasonable requests 22 from any Consenting Stakeholder
for information or documentation relating to compliance with Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions and Ex-Im Laws
(as such terms are defined in the Backstop Commitment Agreement) and the Company Parties’ associated policies and procedures. (l)
use commercially reasonable efforts to seek additional support for the Restructuring Transactions from their other material stakeholders
to the extent reasonably prudent; and (m)
in the event that any information to be provided pursuant to this Agreement contains material non-public information, deliver such
information to the Ad Hoc Group of Convertible Noteholders Advisors or Ad Hoc Group of Senior Secured Noteholders Advisors, as applicable,
on a professional-eyes only basis, instead of delivering such information to the Consenting Stakeholders, unless and until such Consenting
Stakeholder has entered into a Confidentiality Agreement in form and substance acceptable to such Consenting Stakeholder. 6.02.
Negative Commitments. Except as set forth in Section 6.03, during the Agreement Effective Period, the Company Parties
shall not, without the prior written consent (including via email in accordance with Section 12.17) of the Required Consenting
Stakeholders, directly or indirectly: (a)
take any action that is inconsistent with this Agreement, the Definitive Documents or the Restructuring Transactions or take any
other action that would reasonably be expected to interfere with, delay, or impede solicitation, implementation, or consummation of, the
Restructuring Transactions; (b)
modify the Plan, in whole or in part, in a manner that is inconsistent with this Agreement; (c)
file any motion, pleading, order or any Definitive Documents with the Bankruptcy Court or any other court (including any modification
or amendment thereof) that in whole or in part, is inconsistent with this Agreement, the Plan or the Definitive Documents; (d)
except as contemplated under the Restructuring Transactions, amend or change, or propose to amend or change any of the Company
Parties’ organizational documents; (e)
except to the extent permitted by Section 6.03(c) hereof, seek, solicit, support, initiate, encourage, propose, negotiate, discuss
assist, consent to, vote for or enter into any agreement regarding (in each case, directly or indirectly) any Alternative Restructuring
Proposal. (f)
(i) seek discovery in connection with, prepare, or commence an avoidance action or other legal proceeding that challenges (A) the
amount, validity, allowance, character, enforceability, or priority of the Senior Secured Notes Claims, the Convertible Notes Claims,
or the Intercompany Claim, or (B) as applicable, the validity, enforceability, or perfection of any lien or other encumbrance securing
any such Claims, or (ii) support any third party in connection with any of the acts described in clause (i) of this Section 6.02(f). 23 6.03.
Additional Provisions Regarding the Company Parties’ Commitments. (a)
Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require the Company Parties or the
Governing Body of the Company Parties, to take or refrain from taking any action with respect to the Restructuring Transactions (including
terminating this Agreement under Section 10) to the extent the Governing Body of the Company
Parties determines in good faith, based on the advice of counsel, that taking or refraining from taking such action, as applicable, would
be inconsistent with its or their fiduciary obligations under applicable Law or a violation of applicable Law. Any such action or inaction
pursuant to this Section 6.03 shall not be deemed to constitute a breach of this Agreement.
The Company Parties shall provide prompt written notice (within one (1) Business Day) to counsel to the Required Consenting Stakeholders
of any such determination in accordance with this Section 6.03 to take or refrain from taking
any action. This Section 6.03 shall not impede the Consenting Stakeholders’ right to terminate
this Agreement pursuant to Section 10 of this Agreement. (b)
Notwithstanding anything to the contrary in this Agreement but subject to Section 6.01(i), upon receipt of an unsolicited Alternative
Restructuring Proposal, the Company Parties and its directors, managers, officers, employees, investment bankers, attorneys, accountants,
consultants, and other advisors or representatives (including any Governing Body members) shall have the rights to: (i) consider and respond
to such Alternative Restructuring Proposal; (ii) provide access to non-public information concerning the Company and any of its direct
or indirect subsidiaries to any Entity making such proposal that requests such information and enters into Confidentiality Agreements
or nondisclosure agreements with the Company in connection with such proposal; (iii) receive, maintain, facilitate, participate in or
continue discussions or negotiations with respect to such Alternative Restructuring Proposal if the Governing Body of the Company Parties
entity determines, in good faith upon the advice of counsel, that failure to take such action would be inconsistent with their fiduciary
duties or applicable Law or in violation of applicable Law; and (iv) enter into or continue discussions or negotiations with holders of
Company Claims/Interests (including the Consenting Stakeholders) regarding such Alternative Restructuring Proposal. (c)
Nothing in this Agreement shall: (i) impair or waive the rights of the Company Parties to assert or raise any objection permitted
under this Agreement in connection with the implementation of the Restructuring Transactions; (ii) affect the ability of the Company Parties
to consult with any Consenting Stakeholder or any other party in interest in the Chapter 11 Cases (including any official committee and
the United States Trustee) so long as doing so is not inconsistent with the terms hereof; or (iii) prevent the Company Parties from enforcing
this Agreement or contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement. Section
7.
Transfer of Company Claims/Interests and Joinders. 7.01.
Except solely to the extent provided in Section 7.02 or 7.04 of this Agreement, this Agreement shall not limit, restrict,
or otherwise affect in any way a Party’s right, authority, or power to purchase or Transfer any Company Claims/Interests, including
any right, title, or interest in a Company Claim/Interest. 24 7.02.
Transfer Restrictions. During the Agreement Effective Period, and subject to the terms and conditions of this Agreement,
each Party agrees, solely with respect to itself, as expressly identified and limited on its signature page or Joinder, and not in any
other manner or with respect to any Affiliates, not to Transfer any right, title, or interest in a Company Claim, unless (a) the Transferee
is a Party to this Agreement, or (b) if the Transferee is not already a Party to this Agreement, (i) the Transferee is either (1)
a qualified institutional buyer as defined in Rule 144A of the Securities Act, (2) a non-U.S. person in an offshore transaction as defined
under Regulation S under the Securities Act, or (3) an institutional accredited investor (as defined in the Rules), and (ii) the Transferee
agrees in writing to be bound by the terms of this Agreement by executing a Joinder in the form attached to this Agreement and delivering
an executed copy thereof to counsel to the Company. Upon compliance with the requirements of Section 7.02 of this Agreement, including
delivery of the Joinder, the transferor shall be deemed to relinquish its rights (and be released from its obligations) under this Agreement
to the extent of the rights and obligations in respect of such transferred Company Claims. Any Transfer in violation of this Section 7.02
or 7.04 shall be void ab initio and the Company Parties and each other Consenting Stakeholder shall have the right to enforce
the voiding of such transfer. 7.03.
General Exception. Notwithstanding anything in this Agreement to the contrary, this Section 7 shall not apply to the
grant of any lien or encumbrance on any right, title, or interest in any Company Claims in favor of a bank, broker-dealer or other custodial
institution holding custody of any such right, title, or interest in the Company Claims in the ordinary course of business that is released
upon the Transfer of any such right, title, or interest in a Company Claim. 7.04.
Qualified Marketmaker Exceptions. (a)
Notwithstanding Section 7.02, a Consenting Stakeholder may Transfer any right, title, or interest in its Company Claims to
an entity that is acting in its capacity as a Qualified Marketmaker without the requirement that the Qualified Marketmaker execute a Joinder
or be a Party to this Agreement, on the condition that (i) such Qualified Marketmaker subsequently Transfers such Company Claims (by purchase,
sale, assignment, participation or otherwise) by no later than five (5) Business Days of its acquisition thereof, (ii) such Consenting
Stakeholder provides prompt notice of any such Transfer no later than the date of such Transfer to counsel to the Company Parties and
counsel to the Consenting Stakeholder in accordance with Section 12.10, (iii) any subsequent
Transfer by such Qualified Marketmaker of the right, title or interest in such Company Claims is to a Permitted Transferee, and (iv) the
Transferee is unaffiliated with such Qualified Marketmaker (and the Transfer documentation between the transferor Consenting Stakeholder
and such Qualified Marketmaker shall contain a requirement that provides as such); provided, that, if the foregoing items (i) through
(iv) are not satisfied, the Qualified Marketmaker will be required to executed and deliver a Joinder. (b)
Notwithstanding Section 7.02, to the extent that a Party to this Agreement is acting in its capacity as a Qualified Marketmaker,
it may Transfer any right, title or interest in any Company Claims/Interests that it acquires from a holder of such Company Claims/Interests
that is not a Party to this Agreement without the requirement that the transferee execute a Joinder or be a Party hereto. 25 7.05.
Effect of Delivery of Joinder. By executing and delivering a Joinder as provided under Section 7.02
or 7.04, a Transferee: (a)
becomes and shall be treated for all purposes under this Agreement as a Party to this Agreement with respect to the Transferred
Company Claims/Interests and with respect to all other Company Claims/Interests that the Transferee holds and subsequently acquires, subject
to Section 7.03 and Section 7.04(c); (b)
agrees to be bound by all of the terms of this Agreement (as such terms may be amended from time to time in accordance with the
terms hereof); and (c)
is deemed, without further action, to make to the other Parties hereto the representations and warranties that the Parties to this
Agreement make in Section 8 of this Agreement, in each case as of the date of the Joinder. 7.06.
Effect of Transfer. A Party to this Agreement that Transfers any right, title, or interest in any Company Claims in accordance
with the terms of this Section 7 shall, subject to delivery of a Joinder with respect to any
transferred Company Claims, be deemed to relinquish its rights and be released from its obligations under this Agreement solely to the
extent of such Transferred Company Claims; provided, however, that in no event shall such Transfer relieve any Party from liability
for its breach or non-performance of its obligations under this Agreement prior to such Transfer. 7.07.
Additional Claims. This Agreement shall not limit, restrict, or otherwise affect in any way a Party’s right, authority,
or power to acquire any Company Claims in addition to the Party’s Company Claims and such acquired Company Claims shall automatically
and immediately upon acquisition by a Party be deemed to be subject to the terms of this Agreement, except as set forth in Section 7.04
above. During the Agreement Effective Period, to the extent any Party to this Agreement acquires additional Company Claims from an entity
that is not a Party to this Agreement, such Party shall promptly provide notice of any such acquisition and (including the amount and
type of Company Claim acquired) and deliver a current list of its Company Claims to counsel to the Company Parties, counsel to the Consenting
Senior Secured Noteholders and counsel to the Consenting Convertible Noteholders within 3 Business Days after such acquisition. 7.08.
No Obligation. This Section 7 shall not by its terms impose any obligation on
the Company Parties to issue any “cleansing letter” or otherwise publicly disclose information for the purpose of enabling
a Consenting Stakeholder to Transfer any of its Company Claims/Interests. Notwithstanding anything to the contrary in this Agreement,
if the Company Parties and another Party have entered into a Confidentiality Agreement, the terms of such Confidentiality Agreement shall
continue to apply and remain in full force and effect according to its terms, and this Agreement does not supersede any rights or obligations
of the Company Parties otherwise arising under such Confidentiality Agreements. Section 8.
Representations and Warranties of Consenting Stakeholders. Each Consenting Stakeholder severally, and not jointly and severally,
represents and warrants that as of the Agreement Effective Date (or, in the case of a Consenting Stakeholder that becomes a party hereto 26 after the Agreement Effective Date, as of the
date such Consenting Stakeholder becomes a Party to this Agreement by executing and delivering a Joinder) and as of the Closing Date: (a)
it is the beneficial or record owner of the aggregate principal amount of the Company Claims or is the nominee, investment manager,
advisor or sub-advisor for beneficial holders of the Company Claims reflected in (or, to the extent it has loaned or transferred any Company
Claims to any third-party on a temporary basis pursuant to any loan or repurchase agreement (any such Company Claims, the “Loaned
Claims”), it has recalled any Loaned Claims to the extent possible, and will use commercially reasonable efforts to beneficially
own any such Loaned Claims as soon as reasonably practicable), and, having made reasonable inquiry, is not the beneficial or record owner
or the nominee, investment manager, advisor or sub-advisor for a beneficial or record owner of any Company Claims other than those reflected
in, such Consenting Stakeholder’s signature page to this Agreement or a Joinder, as applicable (as may be updated pursuant to Section
7); (b)
it has (or upon the return of any Loaned Claims, will have) the full power and authority to act on behalf of, vote and consent
to matters concerning, such Company Claims; (c)
such Company Claims are (or upon the return of any Loaned Claims, will be) free and clear of any pledge, lien, security interest,
charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition, transfer, or encumbrances
of any kind, that would adversely affect in any way such Consenting Stakeholder’s ability to perform any of its obligations under
this Agreement at the time such obligations are required to be performed; (d)
(i) it is either (A) a qualified institutional buyer as defined in Rule 144A of the Securities Act, (B) not a U.S. person (as defined
in Regulation S of the Securities Act) or (C) an institutional accredited investor (as defined in the Rules) and (ii) any securities acquired
by the Consenting Stakeholder in connection with the Restructuring Transactions will have been acquired for investment and not with a
view to distribute or resale in violation of the Securities Act; and (e)
it is not party to any cooperation agreement or similar agreement or arrangement with any other holder of Company Claims/Interests
that both (i) relates to the holding, voting or disposition of any instrument, security or notes in connection with the Company Parties
or the Reorganized Company Parties, or any entitlement to distributions, sharing of recoveries, opportunities to participate in future
transactions in relation to such instrument, security or notes, and (ii) by its terms remains in effect after the Closing Date. For the avoidance of doubt and
notwithstanding anything in this Agreement to the contrary, any Consenting Stakeholder’s inability to vote, consent, or take any
other action with respect to Loaned Claims shall not be a breach or default of such Consenting Stakeholder’s obligations under this
Agreement or any Definitive Document. Section 9.
Mutual Representations, Warranties, and Covenants. Each of the Parties, severally, and not jointly and severally, represents,
warrants and covenants to each other Party that, as of the Agreement Effective Date (or, in the case of each Company Party and Consenting
Stakeholder that becomes a party hereto after the Agreement Effective Date, as of the date such 27 Company Party or Consenting Stakeholder becomes a Party to this Agreement
by executing and delivering a Company Acknowledgment or Joinder, as applicable) and as of the Closing Date: (a)
it is validly existing and in good standing under the Laws of the state or jurisdiction of its organization, incorporation or formation,
and this Agreement is a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, except
as enforcement may be limited by applicable Laws relating to or limiting creditors’ rights generally or by equitable principles
relating to enforceability; (b)
except as expressly provided in this Agreement, the Plan or the Bankruptcy Code, if applicable, no consent or approval is required
by any other Entity or Person in order for it to effectuate the Restructuring Transactions contemplated by, and perform its respective
obligations under, this Agreement; (c)
the entry into and performance of, the transactions contemplated by this Agreement do not, and will not, conflict in any material
respect with any Law or regulation applicable to it or with any of its articles of association, memorandum of association, or other constitutional
documents; (d)
it has all requisite corporate or similar power and authority to enter into, execute, and deliver this Agreement and it has (or
will have, at the relevant time) all requisite corporate, partnership or similar power and authority to effectuate the Restructuring Transactions
and carry out the transactions contemplated by, and perform its respective obligations under, this Agreement; (e)
it has not assigned, conveyed, sold, hypothecated or otherwise transferred all, any part of or any interest in any claim or cause
of action that would be released pursuant to the releases set forth in the Plan; and (f)
it is not a party to any Alternative Restructuring Proposal, restructuring, or similar agreement with other Parties to this Agreement
that relates to the Company or any of its direct or indirect subsidiaries that has not been disclosed to all Parties to this Agreement. Section 10.
Termination Events. 10.01.
Consenting Senior Secured Noteholder Termination Events. This Agreement may be terminated with respect to the Consenting
Senior Secured Noteholders by the Required Consenting Senior Secured Noteholders by the delivery to the Company Parties’ counsel
of written notice (a “Consenting Senior Secured Noteholder Termination Notice”) in accordance with Section 12.10
of this Agreement upon the occurrence of any of the following events (unless waived in writing by the Required Consenting Senior Secured
Noteholders in their sole discretion): (a)
the breach by the Company Parties of any of the representations, warranties, or covenants of the Company Parties set forth in this
Agreement that would have, or could reasonably be expected to have, a material adverse effect on the Restructuring Transactions, which
breach remains uncured (to the extent curable) for five (5) Business Days after delivery of the Consenting Senior Secured Noteholder Termination
Notice detailing any such breach; 28 (b)
the breach in any material respect by one or more of the Consenting Convertible Noteholders of any of such Consenting Convertible
Noteholder’s representations, warranties, covenants or obligations set forth in this Agreement that (i) would result in the non-breaching
Consenting Convertible Noteholders owning or controlling less than 66-2/3% in aggregate principal amount of all outstanding Convertible
Notes Claims and (ii) remains uncured for a period of five (5) Business Days after the receipt of a Consenting Senior Secured Noteholder
Termination Notice specifying such breach; (c)
the Company Parties (i) file any motion seeking to avoid, disallow, subordinate, or recharacterize any Company Claims/Interests
or security interest held by or for the benefit of any Consenting Senior Secured Noteholder or (ii) shall have supported any application,
adversary proceeding, or cause of action referred to in the immediately preceding clause (i) filed by a third party, or consents to the
standing of any such third party to bring such application, adversary proceeding, or cause of action; (d)
the Company Parties (i) file any motion seeking to avoid, disallow, subordinate, or recharacterize the Intercompany Claim or (ii)
shall have supported any application, adversary proceeding, or cause of action referred to in the immediately preceding clause (i) filed
by a third party, or consent to the standing of any such third party to bring such application, adversary proceeding, or cause of action; (e)
the Bankruptcy Court enters an order providing for the relief specified in Section 10.01(c) or 10.01(d); (f)
the issuance, promulgation, or enactment by any Governmental Authority, including any regulatory authority or court of competent
jurisdiction, of any final, non-appealable ruling, judgment or order that (i) enjoins the consummation of a material portion of the Restructuring
Transactions and (ii) either (1) such ruling, judgment or order has been issued at the request of the Company Parties in contravention
of any obligations set forth in this Agreement or (2) such ruling, judgment or order remains in effect for ten (10) Business Days after
delivery of a Consenting Senior Secured Noteholder Termination Notice identifying any such issuance; notwithstanding the foregoing, this
termination right may not be exercised by any Party that sought or requested such ruling, judgment or order in contravention of any obligation
set forth in this Agreement; (g)
the Bankruptcy Court enters an order denying confirmation of the Plan and such order remains in effect for ten (10) Business Days
after the entry of such order; provided, that no Consenting Senior Secured Noteholder shall have the right to terminate this Agreement
pursuant to this Section 10.01(g) if the Bankruptcy Court denies confirmation of the Plan subject only to the making of ministerial, administrative,
or immaterial modifications to the Plan; (h)
the entry of an order by the Bankruptcy Court, or the filing of a motion or application by the Company Parties seeking an order
(without the prior written reasonable consent of the Required Consenting Senior Secured Noteholders), (i) converting any Chapter 11 Case
to cases under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers 29 beyond those set forth in sections
1106(a)(3) and (4) of the Bankruptcy Code or a trustee in the Chapter 11 Cases, (iii) dismissing the Chapter 11 Cases, or (iv) rejecting
this Agreement; (i)
any Company Party fails to timely file a formal objection, after consultation in good faith with the Consenting Senior Secured
Noteholders, to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment
of a trustee, (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11
Cases; (j)
any Company Party (i)(i) voluntarily commences any case or files any petition seeking bankruptcy, winding up, dissolution, liquidation,
administration, moratorium, receivership, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, administrative
receivership or similar law now or hereafter in effect, except as contemplated by this Agreement, (ii)(ii) is the subject of an involuntary
case under the Bankruptcy Code that is not dismissed or withdrawn within 30 days of the commencement of such proceeding, or any Company
Party consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described
in the preceding subsection (i), (iii)(iii) applies for or consents to the appointment of a receiver, administrator, administrative
receiver, trustee, custodian, sequestrator, conservator or similar official with respect to any Company Party or for a substantial part
of any Company Party’s assets, (iv)(iv) makes a general assignment or arrangement for the benefit of creditors, or (v)(v) takes
any corporate action for the purpose of authorizing any of the foregoing; (k)
the failure of the Company Parties to meet a Milestone, which has not been waived, modified or extended in accordance with this
Agreement, unless (i) such failure is the result of any act, omission, or delay on the part of the terminating Consenting Senior Secured
Noteholder in violation of its obligations under this Agreement or (ii) such failure is due solely to the unavailability of the Bankruptcy
Court; (l)
any Company Party (i) withdraws from the Plan or Disclosure Statement, if applicable, or (ii) files or otherwise makes public any
of the Definitive Documents (including any modification or amendments thereto) (x) in a form that is inconsistent (other than in an immaterial
manner) with this Agreement and (y) without the consent of the Required Consenting Senior Secured Noteholders in accordance with this
Agreement, which occurrence remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Senior
Secured Noteholder transmits a written notice in accordance with Section 12.10; (m)
any order approving the Plan or the Disclosure Statement is appealed, reversed, stayed, dismissed, vacated, reconsidered, or modified
without the prior written consent of the Required Consenting Senior Secured Noteholders, and such order remains in effect for ten (10)
Business Days after entry thereof; (n)
the acceleration of any obligations or termination of commitments under the DIP Facility or the DIP Financing Documents; (o)
any Company Party fails to comply with any of its obligations to the Senior Secured Notes Trustee or the Senior Secured Noteholders
under the Adequate Protection Order; 30 (p)
the Backstop Agreement is terminated as to all parties thereto in accordance with its terms; (q)
this Agreement is terminated as to the Consenting Convertible Noteholders; (r)
the Bankruptcy Court enters an order terminating a Debtor’s exclusive right to file or solicit acceptances of a plan of reorganization; (s)
any Company Party publicly announces that it (i) intends to not support the Restructuring Transactions, or (ii) intends to accept
an Alternative Restructuring Proposal or executes a definitive written agreement with respect to an Alternative Restructuring Proposal; (t)
the Company Parties fail to pay the Consenting Stakeholder Fees and Expenses of the Ad Hoc Group of Senior Secured Noteholders
Advisors in accordance with Section 12.18 hereof; or (u)
the Company Parties’ execution, delivery, amendment, modification, withdrawal, or filing of a pleading seeking approval of,
or authority to amend or modify, any Definitive Document that, in any such case, is not consistent with this Agreement or otherwise not
reasonably acceptable to the Required Consenting Senior Secured Noteholders. 10.02.
Consenting Convertible Noteholder Termination Events. This Agreement may be terminated with respect to the Consenting Convertible
Noteholders by the Required Consenting Convertible Noteholders by the delivery to the Company Parties’ counsel a written notice
(a “Consenting Convertible Noteholder Termination Notice”) in accordance with Section 12.10 of this
Agreement upon the occurrence of any of the following events (unless waived in writing by the Required Consenting Convertible Noteholders
in their sole discretion): (a)
the breach by the Company Parties of any of the representations, warranties, or covenants of the Company Parties set forth in this
Agreement that would have, or could reasonably be expected to have, a material adverse effect on the Restructuring Transactions, which
breach remains uncured (to the extent curable) for five (5) Business Days after delivery of the Consenting Convertible Noteholder Termination
Notice detailing any such breach; (b)
the breach in any material respect by one or more of the Consenting Senior Secured Noteholders of any of such Consenting Senior
Secured Noteholder’s representations, warranties, covenants or obligations set forth in this Agreement that (i) would result in
the non-breaching Consenting Senior Secured Noteholders owning or controlling less than 66-2/3% in aggregate principal amount of all outstanding
Senior Secured Notes Claims and (ii) remains uncured for a period of five (5) Business Days after the receipt of a Consenting Convertible
Noteholder Termination Notice specifying such breach; (c)
any Company Party (i) files any motion seeking to avoid, disallow, subordinate, or recharacterize any Company Claims/Interests
held by any Consenting Convertible Noteholder or (ii) shall have supported any application, adversary proceeding, or cause of action referred
to in the immediately preceding clause (i) filed by a third party, or consents to the standing of any such third party to bring such application,
adversary proceeding, or cause of action; 31 (d)
the Bankruptcy Court enters an order providing for the relief specified in Section 10.02(c); (e)
the issuance, promulgation, or enactment by any Governmental Authority, including any regulatory authority or court of competent
jurisdiction, of any final, non-appealable ruling, judgment or order that (i) enjoins the consummation of a material portion of the Restructuring
Transactions and (ii) either (1) such ruling, judgment or order has been issued at the request of the Company Parties in contravention
of any obligations set forth in this Agreement or (2) such ruling, judgment or order remains in effect for 10 Business Days after delivery
of a Consenting Convertible Noteholder Termination Notice identifying any such issuance; notwithstanding the foregoing, this termination
right may not be exercised by any Party that sought or requested such ruling, judgment or order in contravention of any obligation set
forth in this Agreement; (f)
the Bankruptcy Court enters an order (i) denying confirmation of the Plan, and such order remains in effect for ten (10) Business
Days after the entry of such order; provided, that no Consenting Convertible Noteholder shall have the right to terminate this
Agreement pursuant to this Section 10.02(f) if the Bankruptcy Court denies confirmation of the Plan subject only to the making of ministerial,
administrative, or immaterial modifications to the Plan; (g)
the entry of an order by the Bankruptcy Court, or the filing of a motion or application by the Company Parties seeking an order
(without the prior written reasonable consent of the Required Consenting Convertible Noteholders), (i) converting any Chapter 11 Cases
to cases under chapter 7 of the Bankruptcy Code, (ii) appointing an examiner with expanded powers beyond those set forth in sections
1106(a)(3) and (4) of the Bankruptcy Code or a trustee in the Chapter 11 Cases, (iii) dismissing the Chapter 11 Cases or (iv) rejecting
this Agreement; (h)
any Company Party fails to timely file a formal objection, after consultation in good faith with the Consenting Convertible Noteholders,
to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee,
(ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases; (i)
any Company Party (i)(i) voluntarily commences any case or files any petition seeking bankruptcy, winding up, dissolution, liquidation,
administration, moratorium, receivership, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, administrative
receivership or similar law now or hereafter in effect, except as contemplated by this Agreement, (ii)(ii) is the subject of an involuntary
case under the Bankruptcy Code that is not dismissed or withdrawn within 30 days of the commencement of such proceeding, or any Company
Party consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition described
in the preceding subsection (i), (iii)(iii) applies for or consents to the appointment of a receiver, administrator, administrative
receiver, trustee, custodian, sequestrator, conservator or similar official with respect to any Company Party or for a substantial part
of any Company Party’s assets, (iv)(iv) makes a general assignment or arrangement for the benefit of creditors, or (v)(v) takes
any corporate action for the purpose of authorizing any of the foregoing; 32 (j)
the failure of the Company Parties to meet a Milestone, which has not been waived, modified, or extended in accordance with this
Agreement, unless (i) such failure is the result of any act, omission, or delay on the part of the terminating Consenting Convertible
Noteholder in violation of its obligations under this Agreement, or (ii) such failure is due solely to the unavailability of the Bankruptcy
Court; (k)
any Company Party (i) withdraws from the Plan or Disclosure Statement, if applicable, or (ii) files or otherwise makes public any
of the Definitive Documents (including any modification or amendments thereto) (x) in a form that is inconsistent (other than in an immaterial
manner) with this Agreement and (y) without the consent of the Required Consenting Convertible Noteholders (in accordance with this Agreement),
which occurrence remains uncured (to the extent curable) for five (5) Business Days after such terminating Consenting Convertible Noteholder
transmits a written notice in accordance with Section 12.10; (l)
any order approving the Plan or the Disclosure Statement is appealed, reversed, stayed, dismissed, vacated, reconsidered or modified
without the prior written consent of the Required Consenting Convertible Noteholders, and such order remains in effect for ten (10) Business
Days after entry thereof; (m)
the Backstop Agreement is terminated as to all parties thereto in accordance with its terms; (n)
this Agreement is terminated as to the Consenting Senior Secured Noteholders; (o)
the Bankruptcy Court enters an order terminating a Debtor’s exclusive right to file or solicit acceptances of a plan of reorganization; (p)
any Company Party publicly announces that it (i) intends to not support the Restructuring Transactions, or (ii) intends to accept
an Alternative Restructuring Proposal or executes a definitive written agreement with respect to an Alternative Restructuring Proposal; (q)
the Company Parties fail to pay the Consenting Stakeholder Fees and Expenses of the Ad Hoc Group of Convertible Noteholders Advisors
in accordance with Section 12.18 hereof, unless the payment of such fees and expenses has not been authorized by an order of the Bankruptcy
Court; (r)
the Company Parties’ execution, delivery, amendment, withdrawal, modification, or filing of a pleading seeking approval of,
or authority to amend or modify, any Definitive Document that, in any such case, is not consistent in all respects with this Agreement
or does not comport with the consent rights of the Required Consenting Convertible Noteholders as set forth in Section 3.02 of this Agreement. 10.03.
Company Parties Termination Events. The Company Parties may terminate this Agreement as to all Parties upon prior written
notice to all Parties in accordance with Section 12.10 of this Agreement (each, a “Company Termination Notice”)
upon the occurrence of any of the following events: 33 (a)
the breach by (1) one or more of the Consenting Senior Secured Noteholders of any of any provision set forth in this Agreement
that would result in the non-breaching Consenting Senior Secured Noteholders owning or controlling less than 66-2/3% in aggregate principal
amount of all outstanding Senior Secured Notes Claims, or (2) one or more of the Consenting Convertible Noteholders of any of any provision
set forth in this Agreement that would result in the non-breaching Consenting Convertible Noteholders owning or controlling less than
66-2/3% in aggregate principal amount of all outstanding Convertible Notes Claims, in each case that remains uncured for a period of five
(5) Business Days after the receipt of a Company Termination Notice specifying such breach; (b)
in accordance with Section 6.03, the Governing Body of any Company Party determines in good faith, based upon advice of counsel
(which may be outside counsel), that proceeding with any of the Restructuring Transactions would be inconsistent with the exercise of
its fiduciary duties or applicable Law; (c)
the issuance, promulgation, or enactment by any Governmental Authority, including any regulatory authority or court of competent
jurisdiction, of any final, non-appealable ruling or order that (i) enjoins the consummation of a material portion of the Restructuring
Transactions and (ii) remains in effect for 10 Business Days after such delivery of a Company Termination Notice specifying any such issuance;
notwithstanding the foregoing, this termination right shall not apply to or be exercised by the Company Parties if the Company Parties
sought or requested such ruling or order in contravention of any obligation or restriction set out in this Agreement; (d)
the Required Consenting Senior Secured Noteholders or the Required Consenting Convertible Noteholders terminate this Agreement
with respect to the Consenting Senior Secured Noteholders or the Consenting Convertible Noteholders, as applicable, in accordance with
Section 10.01 or 10.02; (e)
the acceleration of any obligations under the DIP Facility or the DIP Financing Documents; (f)
the Backstop Agreement is terminated as to all parties thereto in accordance with its terms; or (g)
this Agreement is terminated as to either the Consenting Senior Secured Noteholders or the Consenting Convertible Noteholders. 10.04.
Mutual Termination. This Agreement, and the obligations of all Parties hereunder, may be terminated by mutual written agreement
among all of the following: (a) the Company Parties, (b) the Required Consenting Senior Secured Noteholders, and (c) the Required Consenting
Convertible Noteholders. 10.05.
Automatic Termination. This Agreement shall terminate automatically as to all Parties without any further required action
or notice immediately upon the Closing Date. 34 10.06.
Effect of Termination. After the occurrence of a Termination Date as to a Party, this Agreement shall be of no further force
and effect as to such Party and each Party subject to such termination, except as otherwise expressly provided in this Agreement, shall
be released from its commitments, undertakings, and agreements under or related to this Agreement and shall have the rights and remedies
that it would have had, had it not entered into this Agreement, and shall be entitled to take all actions, whether with respect to the
Restructuring Transactions or otherwise, that it would have been entitled to take had it not entered into this Agreement, including with
respect to any and all Company Claims/Interests held by such Party; provided, however, that in no event shall such termination
relieve any Party from (i) liability for its breach or non-performance of its obligations under this Agreement prior to the Termination
Date, or (ii) obligations under this Agreement which by their terms expressly survive termination of this Agreement. Upon the occurrence
of a Termination Date prior to the Confirmation Order being entered by the Bankruptcy Court, any and all consents or ballots tendered
by the Parties subject to such termination before such Termination Date shall be deemed, for all purposes, to be null and void from the
first instance and shall not be considered or otherwise used in any manner by the Parties in connection with the Restructuring Transactions
and this Agreement or otherwise. Nothing in this Agreement shall be construed as prohibiting the Company Parties or any of the Consenting
Stakeholders from contesting whether any such termination is in accordance with the terms hereof or to seek enforcement of any rights
under this Agreement that arose or existed before a Termination Date. Except as expressly provided in this Agreement, nothing in this
Agreement is intended to, or does, in any manner waive, limit, impair, or restrict (a) any right of the Company Parties or the ability
of the Company Parties to protect and preserve their rights (including rights under this Agreement), remedies, and interests, including
its claims against any Consenting Stakeholder, and (b) any right of any Consenting Stakeholder, or the ability of any Consenting
Stakeholder, to protect and preserve its rights (including rights under this Agreement), remedies, and interests, including its Claims
against the Company Parties, or any Consenting Stakeholder, as applicable. No purported termination of this Agreement shall be effective
under this Section 10.06 or otherwise if the Party seeking to terminate this Agreement is in breach of this Agreement, except a termination
pursuant to Section 10.03(b). Nothing in this Section 10.06 shall restrict the Company Parties’ right to terminate this Agreement
in accordance with Section 10.03(b). Section 11.
Amendments and Waivers. (a)
This Agreement may not be modified, amended, or supplemented, and no condition or requirement of this Agreement may be waived,
in any manner except in accordance with this Section 11. (b)
This Agreement may be modified, amended, or supplemented, or a condition or requirement of this Agreement may be waived, in a writing
signed by (i) the Company Parties, (ii) the Required Consenting Senior Secured Noteholders, and (iii) the Required Consenting Convertible
Noteholders; provided that (w) any modification or amendment to the definition of Required Consenting Senior Secured Noteholders
shall require the written consent of each Consenting Senior Secured Noteholder, (x) any modification or amendment to the definition of
Required Consenting Convertible Noteholders shall require the written consent of each Consenting Convertible Noteholder, (y) any modification,
amendment, supplement or waiver which materially, adversely and disproportionately affects the Senior Secured Notes Claims held by any 35 Consenting Senior Secured Noteholder
as compared to any other Consenting Senior Secured Noteholder shall require the written consent of such Consenting Senior Secured Noteholder;
and (z) any modification, amendment, supplement or waiver which materially, adversely and disproportionately affects the Convertible Notes
Claims held by any Consenting Convertible Noteholder as compared to any other Consenting Convertible Noteholder shall require the written
consent of such Consenting Convertible Noteholder; provided, further, that any modification, amendment, supplement or waiver
to any Definitive Document that is an exhibit hereto shall be subject to the consent rights of the respective Parties set forth in Section
3.02 of this Agreement; provided, further, that any modification or amendment to this Section shall require the consent
of each Consenting Stakeholder. For the avoidance of doubt, in the event of any modification, amendment or supplement of the type set
forth in clauses (y) and (z) above, the affected Consenting Senior Secured Noteholder or Consenting Convertible Noteholder, as applicable,
shall have the right to terminate this Agreement as to itself. (c)
Any proposed modification, amendment, waiver, or supplement that does not comply with this Section 11 shall be ineffective
and void ab initio. (d)
The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as (i) a further or continuing
waiver of such breach, (ii) a waiver of any other or subsequent breach, or (iii) a waiver of any provision of this Agreement by another
Party. No failure on the part of any Party to exercise, and no delay in exercising, any right, power, or remedy under this Agreement shall
operate as a waiver of any such right, power, or remedy or any provision of this Agreement, nor shall any single or partial exercise of
such right, power, or remedy by such Party preclude any other or further exercise of such right, power, or remedy or the exercise of any
other right, power, or remedy. All remedies under this Agreement are cumulative and are not exclusive of any other remedies provided by
Law. Section
12.
Miscellaneous. 12.01.
Acknowledgment. Notwithstanding any other provision of this Agreement, this Agreement is not and shall not be deemed to
be an offer with respect to any securities or solicitation of votes for the acceptance of a plan of reorganization for purposes of sections 1125
and 1126 of the Bankruptcy Code or otherwise. Any such offer or solicitation will be made only in compliance with all applicable securities
Laws, provisions of the Bankruptcy Code, and/or other applicable Law. 12.02.
Exhibits Incorporated by Reference; Conflicts. Each of the exhibits, annexes, signatures pages, and schedules attached to
this Agreement (together with any exhibits, annexes or schedules thereto) is expressly incorporated and made a part of this Agreement,
and all references to this Agreement shall include such exhibits, annexes, and schedules (it being understood and agreed that any actions
and obligations required to be taken by any Party that are included in the exhibits attached to this Agreement, but not in this Agreement
are to be considered “covenants” of such Party and therefore covenants of this Agreement, notwithstanding the failure of any
specific provision in any of the exhibits to be re-copied into this Agreement). In the event of any inconsistency between this Agreement
(without reference to the exhibits, annexes, and schedules attached to this Agreement) and the exhibits, annexes, and schedules attached
to this 36 Agreement, this Agreement (without
reference to the exhibits, annexes, and schedules thereto) shall govern, provided, that in the event of any inconsistency between
this Agreement and the Plan, the terms and conditions set forth in the Plan shall govern. 12.03.
Further Assurances. Subject to the other terms of this Agreement, the Parties agree to execute and deliver such other instruments
and perform such acts, in addition to the matters specified in this Agreement, as may be reasonably appropriate or necessary from time
to time, to effectuate the Restructuring Transactions, as applicable, provided that such additional documents are consistent with the
terms hereof and do not include any additional liabilities or obligations of the Consenting Stakeholder without each impacted Consulting
Stakeholder’s prior written consent. 12.04.
Complete Agreement. Except as otherwise explicitly provided in this Agreement, this Agreement constitutes the entire agreement
among the Parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, understandings, and agreements,
oral or written, among the Parties with respect thereto, other than any Confidentiality Agreement. The Parties acknowledge and agree that
they are not relying on any representations or warranties other than as set forth in this Agreement. 12.05.
GOVERNING LAW; SUBMISSION TO JURISDICTION; SELECTION OF FORUM. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE CHOSEN STATE, WITHOUT GIVING EFFECT TO
ITS CONFLICT OF LAWS PRINCIPLES. Each Party to this Agreement agrees that it shall bring any action or proceeding in respect of any claim
arising out of or related to this Agreement, to the extent possible, in the Bankruptcy Court, and solely in connection with claims arising
under this Agreement: (a) irrevocably submits to the exclusive jurisdiction of the Bankruptcy Court; (b) waives any objection
to laying venue in any such action or proceeding in the Bankruptcy Court; and (c) waives any objection that the Bankruptcy Court
is an inconvenient forum or does not have jurisdiction over any Party to this Agreement. 12.06.
Trial by Jury Waiver. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. 12.07.
Execution of Agreement. This Agreement may be executed and delivered in any number of counterparts and by way of electronic
signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall
constitute the same agreement. Except as expressly provided in this Agreement, each Person executing this Agreement on behalf of a Party
has been duly authorized and empowered to execute and deliver this Agreement on behalf of said Party. 12.08.
Rules of Construction. This Agreement is the product of negotiations among the Company Parties and the Consenting Stakeholders,
and in the enforcement or interpretation of this Agreement, is to be interpreted in a neutral manner, and any presumption with regard
to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted 37 this Agreement, or any portion of this Agreement,
shall not be effective in regard to the interpretation of this Agreement. The Company Parties and the Consenting Stakeholders were each
represented by counsel during the negotiations and drafting of this Agreement and continue to be represented by counsel. 12.09.
Successors and Assigns; Third Parties. This Agreement is intended to bind and inure to the benefit of the Parties and their
respective successors and permitted assigns, as applicable. There are no third-party beneficiaries under this Agreement, and, except as
set forth in Section 7, the rights or
obligations of any Party under this Agreement may not be assigned, delegated, or transferred to any other Entity. 12.10.
Notices. All notices hereunder shall be deemed given if in writing and delivered, by electronic mail, courier, or registered
or certified mail (return receipt requested), to the following addresses (or at such other addresses as shall be specified by like notice): (a)
if to the Company Parties, to: (b)
if to a Senior Secured Noteholder, the address or e-mail address set forth on such Party’s signature page to this Agreement
(or in the signature page to a Joinder, as applicable), with a copy to: 38 (c)
if to a Consenting Convertible Noteholder, the address or e-mail address set forth on such Consenting Convertible Noteholder’s
signature page to this Agreement (or in the signature page to a Joinder, as applicable), with a copy to: (d)
Any notice given by delivery, mail, or courier shall be effective when received. 12.11.
Independent Due Diligence and Decision Making. Each Consenting Stakeholder confirms that its decision to execute this Agreement
has been based upon its independent investigation of the operations, businesses, financial and other conditions, and prospects of the
Company Parties. Each Consenting Stakeholder acknowledges and agrees that it is not relying on any representations or warranties other
than as set forth in this Agreement or any other Definitive Document. 12.12.
Admissibility and Waiver. Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement
and all negotiations relating to this Agreement shall not be admissible into evidence in any proceeding other than a proceeding to enforce
its terms or the payment of damages or any other remedy to which a Party may be entitled under this Agreement. If the Restructuring Transactions
are not consummated, or if this Agreement is terminated for any reason, nothing herein shall be construed as a waiver by any Party of
any or all of such Party’s rights, remedies, claims, and defenses and the Parties fully reserve any and all of their rights. 12.13.
Specific Performance. It is understood and agreed by the Parties that money damages would be an insufficient remedy for
any breach of this Agreement by any Party, and each 39 non-breaching Party shall be entitled to seek specific performance
and injunctive or other equitable relief (without the posting of any bond and without proof of actual damages) as a remedy of any such
breach, including an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with
any of its obligations hereunder. 12.14.
Several, Not Joint and Several, Claims. The agreements, representations, warranties, and obligations of the Parties under
this Agreement are, in all respects, several, and not joint and several. 12.15.
Severability and Construction. If any provision of this Agreement shall be held by a court of competent jurisdiction to
be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect if essential terms and conditions
of this Agreement for each Party remain valid, binding, and enforceable. 12.16.
Remedies Cumulative. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof
at Law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall
not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party. 12.17.
Email Consents. Where a written consent, acceptance, approval, or waiver is required pursuant to or contemplated by this
Agreement, pursuant to Section 3, Section 4, Section
11, or otherwise, such written consent, acceptance, approval, or waiver shall be deemed to have occurred if, by agreement between counsel
to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed in writing (including electronic
mail) between each such counsel without representations or warranties of any kind on behalf of such counsel. 12.18.
Fees and Expenses. To the extent not previously paid, and regardless of whether the Restructuring Transactions are consummated,
the Company Parties shall promptly pay in cash all fees and expenses of the Ad Hoc Group of Senior Secured Noteholders Advisors and the
Ad Hoc Group of Convertible Noteholders Advisors, in each case, in accordance with any engagement letters (if any) of such professional,
including, without limitation, any success fees contemplated therein (collectively, the “Consenting Stakeholder Fees and Expenses”). 12.19.
Survival. Notwithstanding (a) any Transfer of any Company Claims in accordance with Section
7 or (b) the termination of this Agreement pursuant to Section 10, the agreements and obligations of the Parties in Sections
10.06, Sections 12.01-12.19, Sections 12.20-12.21, Section 12.23 any
defined terms used in any of the foregoing Sections (solely to the extent used therein) and the Confidentiality Agreements shall survive
such Transfer and/or termination and shall continue in full force and effect in accordance with the terms hereof and thereof. 12.20.
Enforceability of Agreement. If the Chapter 11 Cases are commenced, each of the Parties waives any right to assert that the exercise
of termination rights under this Agreement is subject to the automatic stay provisions of the Bankruptcy Code, and expressly stipulates
and consents hereunder to the prospective modification of the automatic stay provisions of the Bankruptcy Code for purposes of exercising
termination rights under this Agreement to the extent the Bankruptcy Court determines that such relief is required. 40 12.21.
Relationship Among Parties. Notwithstanding anything to the contrary herein, the duties and obligations of the Consenting
Stakeholders under this Agreement shall be several, not joint and several. None of the Consenting Stakeholders shall have any fiduciary
duty, any duty of trust or confidence in any form, or other duties or responsibilities to each other, any Consenting Stakeholder, any
Company Party, or any of the Company Party’s respective creditors or other stakeholders, and there are no commitments among or between
the Consenting Stakeholders, in each case except as expressly set forth in this Agreement or any other Definitive Document. It is understood
and agreed that any Consenting Stakeholders may trade in any debt or equity securities of any Company Party without the consent of the
Company Parties, subject to applicable securities laws and this Agreement. No prior history, pattern or practice of sharing confidences
among or between any of the Consenting Stakeholders, and/or the Company Parties shall in any way affect or negate this understanding and
agreement. The Parties have no agreement, arrangement or understanding with respect to acting together for the purpose of acquiring, holding,
voting or disposing of any equity securities of any of the Company Parties and do not constitute a “group” within the meaning
of Section 13(d)(3) of the Exchange Act or Rule 13d-5 promulgated thereunder. For the avoidance of doubt: (a) each Consenting Stakeholder
is entering into this Agreement directly with the Company Parties and not with any other Consenting Stakeholder; (b) subject to Section
7.02, no other Consenting Stakeholder shall have any right to bring any action against any other Consenting Stakeholder with respect this
Agreement (or any breach thereof); and (c) no Consenting Stakeholder shall, nor shall any action taken by a Consenting Stakeholder pursuant
to this Agreement, be deemed to be acting in concert or as any group with any other Consenting Stakeholder with respect to the obligations
under this Agreement nor shall this Agreement create a presumption that the Consenting Stakeholders are in any way acting as a group.
All rights under this Agreement are separately granted to each Consenting Stakeholder by the Company Parties and vice versa, and the use
of a single document is for the convenience of the Company Parties. The decision to commit to enter into the Restructuring Transactions
contemplated by this Agreement has been made independently. For the avoidance of doubt, the Consenting Stakeholders are not insiders of
the Company or its subsidiaries. 12.22.
Publicity. The Company Parties shall submit drafts to counsel to the Consenting Stakeholders, respectively, of any press
releases or other public statements that constitute disclosure of the existence or terms of this Agreement or any amendment to the terms
of this Agreement at least two (2) Business Days prior to making any such disclosure (provided, however, that if delivery of such
document at least two (2) Business Days in advance of such disclosure is impossible or impracticable under the circumstances, such document
shall be delivered as soon as otherwise practicable), and shall afford them a reasonable opportunity under the circumstances to comment
on such documents and disclosures and shall incorporate any such reasonable comments in good faith. Except as required by Law or otherwise
permitted under the terms of any other agreement between the Company Parties and any Consenting Stakeholder, no Party or its advisors
shall (a) use the name of any Consenting Stakeholder in any public manner (including in any press release) with respect to this Agreement,
the Restructuring or any of the Definitive Documents or (b) disclose to any Person (including, for the avoidance of doubt, any other Party),
other than advisors to the Company Parties, the principal amount or percentage of any Company Claims/Interests held by any individual
Consenting Stakeholder, in each case, without such Consenting Stakeholder’s prior written consent (it being understood and agreed
that each Consenting Stakeholder’s signature page to this Agreement shall be redacted to remove the name 41 of such Consenting Stakeholder
and the amount and/or percentage of Company Claims/Interests held by such Consenting Stakeholder); provided, however, that (i)
if such disclosure is required by Law, subpoena, or other legal process or regulation, the disclosing Party shall afford the relevant
Consenting Stakeholder a reasonable opportunity to review and comment in advance of such disclosure and shall take all reasonable measures
to limit such disclosure, and (ii) the foregoing shall not prohibit the disclosure of the aggregate percentage or aggregate principal
amount of Company Claims/Interests held by all the Consenting Stakeholders, collectively, on a facility by facility basis. Notwithstanding
the provisions in this Section 12.22, (x) any Party may disclose the identities of the other parties in any action to enforce this
Agreement or in any action for damages as a result of any breaches hereof, and (y) any Party may disclose, to the extent expressly consented
to in writing by a Consenting Stakeholder, such Consenting Stakeholder’s identity and individual holdings. 12.23.
No Recourse. This Agreement may only be enforced against the named parties hereto (and then only to the extent of the specific
obligations undertaken by such parties in this Agreement). All claims or causes of action (whether in contract, tort, equity or any other
theory) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement,
may be made only against the Persons that are expressly identified as parties hereto (and then only to the extent of the specific obligations
undertaken by such parties herein). No past, present or future direct or indirect director, manager, officer, employee, incorporator,
member, partner, stockholder, equity holder, trustee, affiliate, controlling person, investment manager or advisor (or such investment
manager’s or advisor’s employees, managers or partners), agent, attorney or other representative of any party hereto (including
any person negotiating or executing this Agreement on behalf of a party hereto), nor any past, present or future direct or indirect director,
manager, officer, employee, incorporator, member, partner, stockholder, equity holder, trustee, affiliate, controlling person, investment
manager or advisor (or such investment manager’s or advisor’s employees, managers or partners), agent, attorney or other representative
of any of the foregoing (other than any of the foregoing that is a party hereto) (any such Person, a “No Recourse Party”),
shall have any liability with respect to this Agreement or with respect to any proceeding (whether in contract, tort, equity or any other
theory that seeks to “pierce the corporate veil” or impose liability of an entity against its owners or affiliates or otherwise)
that may arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement. 12.24.
Specific Execution (a)
The Parties understand that the Consenting Stakeholders are engaged in a wide range of financial services and businesses. In furtherance
of the foregoing, the Parties acknowledge and agree that, to the extent a Consenting Stakeholder expressly indicates on its signature
page hereto that it is executing this Agreement on behalf of specific trading desk(s) and/or business group(s) of the Consenting Stakeholder,
the obligations set forth in this Agreement shall only apply to such trading desk(s) and/or business group(s) and shall not apply to any
other trading desk or business group of the Consenting Stakeholder so long as they are not acting at the direction or for the benefit
of such Consenting Stakeholder or such Consenting Stakeholder’s investment in the Company Parties; provided, that the foregoing
shall not diminish or otherwise affect the obligations and liability therefor of any legal entity that (i) executes this Agreement or
(ii) on 42 whose behalf this Agreement
is executed by a Consenting Stakeholder. The Company acknowledges that one or more Consenting Stakeholders may have engaged an investment
manager or advisor which acts as (i) the sole investment manager or advisor for certain single-manager accounts, and (ii) investment manager
or adviser solely to a designated pool of assets of certain multi-manager accounts. In respect of the multi-manager accounts, to the extent
a Consenting Stakeholder expressly indicates on its signature page hereto that such investment advisor or manager (A) is its discretionary
advisor with respect to the accounts of the Consenting Stakeholder or (B) has executed the Agreement on Consenting Stakeholder’s
behalf (“Investment Advisor”), the Investment Advisor has no visibility, control or oversight in respect of
the trading of other investment managers or advisers to such multi-manager accounts of the Consenting Stakeholder. As such, notwithstanding
anything to the contrary herein, all agreements, covenants, representations or warranties herein that relate to any Consenting Stakeholder
shall, with respect to any multi-manager accounts, solely apply to the portion of the account over which such Investment Advisor has discretion
and not the Consenting Stakeholder as a whole. 43 IN WITNESS WHEREOF, the Parties
have executed this Agreement on the day and year first above written. Spirit Airlines, Inc. By: /s/ Fred Cromer Name: Fred Cromer Authorized Signatory [Consenting
Stakeholders’ Signature Pages on file with the Company] [Consenting Stakeholder’s Signature Page
to the Restructuring Support Agreement] EXHIBIT A In re: SPIRIT AIRLINES,
INC., et al., Debtors.1 Chapter
11 Case
No. 24-[ ] ( ) (Joint
Administration Requested) JOINT CHAPTER
11 PLAN OF REORGANIZATION OF DAVIS POLK &
WARDWELL LLP 450 Lexington
Avenue New
York, New York 10017 Tel.: (212) 450-4000 Marshall
S. Huebner Darren
S. Klein Christopher
S. Robertson Moshe Melcer Kayleigh Yerdon Dated: [ ], 2024 New York, New York 1
The Debtors’ names and last four digits of their respective employer identification numbers or registration numbers in the applicable
jurisdictions are as follows: Spirit Airlines Inc. (7023); Spirit Finance Cayman 1 Ltd. (7020); Spirit Finance Cayman 2 Ltd. (7362); Spirit
IP Cayman Ltd. (4732); and Spirit Loyalty Cayman Ltd. (4752). The Debtors’ mailing address is 1731 Radiant Drive, Dania Beach, FL
33004. TABLE OF
CONTENTS Introduction Pursuant
to sections 1121(a),2 the Debtors propose this Joint
Chapter 11 Plan of Reorganization of Spirit Airlines, Inc. and its Debtor Affiliates (including all appendices, exhibits, schedules,
and supplements (including any Plan Supplements), and as it may be amended, supplemented, or otherwise modified from time to time in
accordance with the terms hereof, the “Plan”) to Holders of Claims against and Interests in the Debtors in connection
with the solicitation of votes on the Plan and the hearing on the final approval of the Disclosure Statement and confirmation of the
Plan (as such hearing may be continued from time to time, the “Confirmation Hearing”). The Debtors are the proponents
of the Plan within the meaning of section 1129 of the Bankruptcy Code. Other agreements and documents may supplement this Plan and may
be Filed with the Bankruptcy Court. Subject to certain restrictions and requirements set forth in section 1127 of the Bankruptcy Code,
Bankruptcy Rule 3019, and Article X, the Debtors reserve the right to alter, supplement, amend, or otherwise modify (one or more
times), revoke, or withdraw the Plan prior to its substantial consummation. Reference
is made to the Disclosure Statement, which includes information pertaining to the Debtors’ prepetition business operations and
financial history, the events leading up to the Chapter 11 Cases, a description of certain effects of confirmation of the Plan, certain
risk factors associated with the Plan, the way Plan Distributions will be made, the confirmation process, and confirmation requirements. Holders
of Claims entitled to vote to accept or reject the Plan will receive a Ballot and a copy of the Disclosure Statement to enable them to
vote on the Plan in accordance with the voting instructions and make any other elections or representations required pursuant to the
Plan. ALL
HOLDERS OF CLAIMS OR INTERESTS ENTITLED TO VOTE ON THE PLAN ARE ENCOURAGED TO READ THE PLAN AND DISCLOSURE STATEMENT IN THEIR ENTIRETY
BEFORE VOTING TO ACCEPT OR REJECT THE PLAN. ARTICLE
I. A.
Defined Terms Unless
the context otherwise requires, the following terms shall have the following meanings when used in capitalized form herein: 1.
“2025 Convertible Notes” means the 4.75% Convertible Senior Notes due 2025 issued under the 2025 Convertible
Notes Indenture. 2.
“2025 Convertible Notes Claim” means a Claim on account of the 2025 Convertible Notes. 2
Capitalized terms used herein shall have the meanings ascribed to them in Article I unless otherwise defined elsewhere herein. 3.
“2025 Convertible Notes Indenture” means that certain Indenture, dated as of May 12, 2020, between Spirit Airlines,
Inc., as issuer, and Wilmington Trust, National Association, as trustee, as supplemented by that certain First Supplemental Indenture,
dated as of May 12, 2020, between Spirit Airlines, Inc., as issuer, and Wilmington Trust, National Association, as trustee, as amended,
amended and restated, supplemented, or otherwise modified prior to the Petition Date. 4.
“2026 Convertible Notes” means the 1.00% Convertible Senior Notes due 2026 issued under the 2026 Convertible
Notes Indenture. 5.
“2026 Convertible Notes Claim” means a Claim on account of the 2026 Convertible Notes. 6.
“2026 Convertible Notes Indenture” means that certain Indenture, dated as of May 12, 2020, between Spirit Airlines,
Inc., as issuer, and Wilmington Trust, National Association, as trustee, as supplemented by that certain Second Supplemental Indenture,
dated as of April 30, 2021, between Spirit Airlines, Inc., as issuer, and Wilmington Trust, National Association, as trustee, as amended,
amended and restated, supplemented, or otherwise modified prior to the Petition Date. 7.
“Administrative Claim” means a Claim against any of the Debtors arising on or after the Petition Date and before
the Effective Date for costs and expenses of administration of the Chapter 11 Cases pursuant to sections 503(b) and entitled to priority
under sections 507(a)(2), 507(b), or 1114(e)(2) of the Bankruptcy Code, including the following: (a) the actual and necessary costs
and expenses incurred on or after the Petition Date until and including the Effective Date of preserving the Estates and operating the
businesses of the Debtors (including wages, salaries, or commissions for services, and payments for goods and other services and leased
premises); (b) compensation for legal, financial advisory, accounting, and other services, and reimbursement of expenses pursuant
to sections 328, 330(a), or 331 of the Bankruptcy Code or otherwise for the period commencing on the Petition Date and ending on the
Effective Date, including Professional Fee Claims; (c) all fees and charges assessed against the Estates pursuant to 28 U.S.C. §
1930, including the U.S. Trustee Fees; (d) the DIP Superpriority Claims; (e) all requests for compensation or expense reimbursement
for making a substantial contribution in the Chapter 11 Cases pursuant to sections 503(b)(3), (4), or (5) of the Bankruptcy Code and
to the extent approved by the Bankruptcy Court; (f) Cure Costs; and (g) any fees and expenses that are earned and payable pursuant
to the Plan or the Plan Documents (including the Backstop Premium). For the avoidance of doubt, for the purposes of treatment and Plan
Distributions, the DIP Superpriority Claims shall be subject to Article II.A. 8.
“Affiliate” has the meaning set forth in section 101(2) of the Bankruptcy Code as if the referenced Entity
were a Debtor. 9.
“Allowed” means, with respect to any Claim or Interest, except as otherwise provided in the Plan: (a) a Claim
or Interest that either (i) is not Disputed or (ii) has been allowed by a Final Order; (b) a Claim or Interest that is allowed, compromised,
settled, or otherwise resolved (i) pursuant to the terms of the Plan, (ii) in any stipulation that is approved by the Bankruptcy Court
by a Final Order, or (iii) pursuant to any contract, instrument, indenture, or other 2 agreement
entered into or assumed in connection herewith; (c) a Claim relating to a rejected Executory Contract or Unexpired Lease that either
(i) is not a Disputed Claim or (ii) has been allowed by a Final Order; or (d) a Claim or Interest as to which a Proof of Claim or Proof
of Interest, as applicable, has been timely filed and as to which no objection has been filed. Notwithstanding anything to the contrary
herein, no Claim of any Entity subject to section 502(d) of the Bankruptcy Code shall be deemed Allowed unless and until such Entity
pays the amount, or turns over any property, for which such Entity is liable. For the avoidance of doubt, (a) there is no requirement
to File a Proof of Claim (or move the Bankruptcy Court for allowance) to be an Allowed Claim under the Plan, and (b) the (Reorganized)
Debtors may affirmatively determine to deem Unimpaired Claims Allowed to the same extent such Claims would be allowed under applicable
non-bankruptcy law. “Allow” and “Allowing” shall have correlative meanings. Notwithstanding anything
to the contrary herein, to the extent applicable, and without prejudice to the rights of any Holder of an Allowed Administrative Claim
to argue that section 502(d) of the Bankruptcy Code is inapplicable to its Administrative Claim, no Claim of any Entity subject to section
502(d) of the Bankruptcy Code shall be deemed Allowed unless and until such Entity pays in full the amount that it owes such (Reorganized)
Debtor. Except as otherwise specified in the Plan or any Final Order, the amount of an Allowed Claim shall not include interest, late
fees, or other similar related charges on such Claim from and after the Petition Date. 10.
“Assets” means all rights, titles, interest, and assets of the Debtors of any nature whatsoever, including
all property of the Estates of any kind pursuant to section 541 of the Bankruptcy Code, Cash, Causes of Action, accounts receivable,
tax refunds, claims of right, interests in property (including real, personal, tangible, and intangible property), and proceeds from
any of the foregoing items in this Article I.A.10. 11.
“Assumption Dispute” has the meaning ascribed to it in Article VII.B. 12.
“Avoidance Actions” means any and all actual or potential avoidance, recovery, subordination, or other claims,
actions, or remedies that may be brought by or on behalf of the Debtors, their Estates, or other authorized parties in interest to avoid
a transfer of property or an obligation incurred by the Debtors pursuant to any applicable section of the Bankruptcy Code, including
sections 502, 510, 542, 544, 545, 547 through and including 553, and 724(a) of the Bankruptcy Code, or under similar or related state,
federal, and non-U.S. statutes, non-bankruptcy law, and common law, including fraudulent transfer laws or fraudulent conveyance laws. 13.
“Backstop Commitment Agreement” means that certain Backstop Commitment Agreement attached as Exhibit B
to the Restructuring Support Agreement, by and among the Debtors and the Backstop Commitment Parties, including all exhibits, annexes,
and schedules thereto, and as may be amended from time to time in accordance with its terms. 14.
“Backstop Cash Premium” has the meaning set forth in the Backstop Commitment Agreement. 15.
“Backstop Commitment Parties” has the meaning set forth in the Backstop Commitment Agreement. 3 16.
“Backstop Motion” means a motion Filed in the Chapter 11 Cases seeking entry of the Backstop Order. 17.
“Backstop Order” means the order entered by the Bankruptcy Court approving and authorizing the Debtors’
entry into the Backstop Commitment Agreement and other Equity Rights Offering Documents and approving the Rights Offering Procedures. 18.
“Backstop Premium” has the meaning set forth in the Backstop Commitment Agreement. 19.
“Backstop Premium Shares” means the backstop premium payable to the Backstop Commitment Parties in New Equity
Interests in consideration for the Backstop Commitment on the terms set forth in the Backstop Commitment Agreement. 20.
“Backstop Shares” has the meaning set forth in the Backstop Commitment Agreement. 21.
“Ballot” means the ballot upon which Holders of Claims entitled to vote on the Plan shall cast their vote to
accept or reject the Plan, including, as applicable, any E-Ballots. 22.
“Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. §§ 101–1532, as applicable
to the Chapter 11 Cases, as may be amended from time to time. 23.
“Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York with jurisdiction
over these Chapter 11 Cases and, to the extent any reference made under 28 U.S.C. § 157 is withdrawn or the Bankruptcy Court is
determined not to have authority to enter a Final Order on an issue, the United States District Court for the Southern District of New
York. 24.
“Bankruptcy Rules” means the Federal Rules of Bankruptcy Procedure, as applicable to the Chapter 11 Cases,
promulgated under 28 U.S.C. § 2075 and the general and chambers rules of the Bankruptcy Court. 25.
“Beneficial Owner” means a beneficial owner for U.S. federal income tax purposes. 26.
“Business Day” means any day, other than a Saturday, Sunday, or Legal Holiday. 27.
“Case Information Website” means the case information website maintained by the Claims and Solicitation Agent
at https://dm.epiq11.com/SpiritGoForward. 28.
“Cash” means the legal tender of the United States of America or the equivalent thereof, including bank deposits
and checks. 29.
“Causes of Action” means any claim, interest, damage, remedy, cause of action, proceeding, demand, right, action,
suit, obligation, liability, account, defense, offset, power, privilege, license, Lien, indemnity, guaranty, franchise, debt, judgment,
or controversy of any kind or character whatsoever, whether known or unknown, choate or inchoate, foreseen or unforeseen, 4 existing
or hereinafter arising, contingent or noncontingent, disputed or undisputed, liquidated or unliquidated, secured or unsecured, matured
or unmatured, suspected or unsuspected, assertable directly or derivatively, reduced to judgment or otherwise, whether arising before,
on, or after the Petition Date, in contract, tort, law, equity, or otherwise pursuant to any theory of law. For the avoidance of doubt,
Causes of Action include the following: (a) any right of setoff, counterclaim, or recoupment and any claim under contracts or for
breaches of duties imposed by law or in equity; (b) any claim based on or relating to, or in any manner arising from, in whole or
in part, breach of fiduciary duty, violation of local, state, federal, or foreign law, or breach of any duty imposed by law or in equity,
including securities laws, negligence, and gross negligence; (c) any claims or causes of action for aiding and abetting (including
of breaches of fiduciary duties), knowing participation (including knowing participation in breach of fiduciary duty), and conspiracy
(including conspiracy to breach fiduciary duty); (d) any claims or causes of action for illegal dividends; (e) any claims or causes of
action for fraud, misrepresentations, or omissions; (f) the right to object to, subordinate, disallow, or otherwise contest Claims
or Interests; (g) claims or causes of action pursuant to sections 362, 510, 542, 543, 544–550, or 553 of the Bankruptcy Code;
(h) any claim or defense, including fraud, mistake, duress, and usury, and any other defenses set forth in section 558 of the Bankruptcy
Code; (i) any Avoidance Action; (j) any claim or defense related to tax refunds or tax audits; and (k) any Retained Cause
of Action. 30.
“Certificate” means any instrument evidencing a Claim or an Interest. 31.
“Chapter 11 Cases” means (a) when used with reference to a particular Debtor or group of Debtors, the chapter
11 case or cases pending for that Debtor or group of Debtors under chapter 11 of the Bankruptcy Code in the Bankruptcy Court and (b)
when used with reference to all Debtors, the procedurally consolidated and jointly administered chapter 11 cases pending for the Debtors
in the Bankruptcy Court. 32.
“Claim” means any claim, as defined in section 101(5) of the Bankruptcy Code, against any of the Debtors. 33.
“Claims and Solicitation Agent” means Epiq Corporate Restructuring, LLC, the claims, noticing, and solicitation
agent employed by the Debtors in the Chapter 11 Cases. 34.
“Claims Register” means the official register of Claims maintained by the Claims and Solicitation Agent. 35.
“Class” means a category of Claims against or Interests in the Debtors, as set forth in Article III,
under section 1122(a) of the Bankruptcy Code. 36.
“Collateral Agency and Accounts Agreement” means that certain Collateral Agency and Accounts Agreement dated
as of September 17, 2020, by and among Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd., each as co-issuers, the other grantors from
time to time party thereto, Wilmington Trust, National Association, as depositary, collateral agent and trustee under the Senior Secured
Notes Indenture and the other senior secured debt representatives from time to time party thereto, as amended, restated, amended and
restated, supplemented, or otherwise modified from time to time in accordance with its terms. 5 37.
“Committee” means any statutory committee appointed in the Chapter 11 Cases pursuant to section 1102(a) of
the Bankruptcy Code. 38.
“Compensation and Benefits Programs” has the meaning set forth in Article VII.C. 39.
“Confirmation” means the entry of the Confirmation Order by the Bankruptcy Court on the docket of the Chapter
11 Cases. 40.
“Confirmation Date” means the date on which Confirmation occurs. 41.
“Confirmation Hearing” has the meaning set forth in the Introduction above. 42.
“Confirmation Objection Deadline” has the meaning set forth in the Scheduling Order. 43.
“Confirmation Order” means an order of the Bankruptcy Court (a) approving the Disclosure Statement on
a final basis, pursuant to section 1125 of the Bankruptcy Code, to the extent required, (b) confirming the Plan pursuant to section
1129 of the Bankruptcy Code, and (c) granting other related relief in form and substance acceptable to the Debtors and the Required
Consenting Stakeholders, including all exhibits, appendices, supplements, and related documents. 44.
“Consenting Convertible Noteholders” means the Convertible Noteholders that are signatories to the Restructuring
Support Agreement, and any subsequent Holder of the Convertible Notes that becomes party thereto in accordance with the terms of the
Restructuring Support Agreement. 45.
“Consenting Convertible Noteholders Advisors” means, collectively, (a) Paul Hastings LLP, (b) Ducera
Partners LLC, (c) one Cayman Islands local counsel, and (d) one aviation specialist counsel. 46.
“Consenting Senior Secured Noteholders” means the Senior Secured Noteholders that are signatories to the Restructuring
Support Agreement, and any subsequent Holder of the Senior Secured Notes that becomes party thereto in accordance with the terms of the
Restructuring Support Agreement. 47.
“Consenting Senior Secured Noteholders Advisors” means, collectively, (a) Akin Gump Strauss Hauer &
Feld LLP, (b) Evercore Group L.L.C., (c) Appleby (Cayman) Ltd, as Cayman Islands local counsel,
(d) Watson Farley & Williams LLP, as aviation counsel, and (e) any consultants or other professionals retained by the Consenting
Senior Secured Noteholder Advisors with the consent of the Debtors (such consent not to be unreasonably withheld). 48.
“Consenting Stakeholders” means, collectively, the Consenting Convertible Noteholders and the Consenting Senior
Secured Noteholders. 49.
“Consummation” means the occurrence of the Effective Date. 6 50.
“Contingent” means, when used in reference to a Claim, any Claim, the liability for which attaches or is dependent
upon the occurrence or happening of, or is triggered by, an event that has not yet occurred as of the date on which such Claim is sought
to be estimated or on which an objection to such Claim is Filed, whether or not such event is within the actual or presumed contemplation
of the Holder of such Claim and whether or not a relationship between the Holder of such Claim and the applicable Debtor now or hereafter
exists or previously existed. 51.
“Continuing Senior Secured Notes Document” has the meaning ascribed to it in Article IV.H. 52.
“Convertible Notes Claims” means, collectively, the 2025 Convertible Notes Claims and 2026 Convertible Notes
Claims. 53.
“Convertible Notes Documents” means the Convertible Notes Indentures and certain other documents related to
the Convertible Notes Indentures. 54.
“Convertible Notes Equity Distribution” means a share of the Total Convertible Notes Equity Entitlement based
on the proportion that the principal amount of a Class 5 Holder’s Claim bears to the aggregate principal amount of all Class 5
Holders’ Claims, subject to any Ineligible Convertible Noteholder Adjustment. 55.
“Convertible Notes Equity Rights Offering Amount” means 21.25% of New Equity Interests issued pursuant to the
Equity Rights Offering and the Backstop Commitment Agreement (other than the Backstop Premium Shares). 56.
“Convertible Notes Indentures” means, collectively, the 2025 Convertible Notes Indenture and the 2026 Convertible
Notes Indenture. 57.
“Convertible Notes Subscription Rights” means the rights of Holders of the Convertible Notes Claims to purchase
their Pro Rata share of the Convertible Notes Equity Rights Offering Amount, subject to the Equity Rights Offering Holdback, on the terms
and conditions set forth in the Restructuring Support Agreement and the Equity Rights Offering Documents. 58.
“Convertible Noteholder” means a “Holder” as defined in the 2025 Convertible Notes Indenture or
the 2026 Convertible Notes Indenture. 59.
“Covered Claim” means a claim or Cause of Action of the type set forth in Article VIII.D, Article
VIII.E.1–4, or Article VIII.F.1–4. 60.
“Cure Costs” means an amount (or such lesser amount as may be agreed upon by the parties under an Executory
Contract or Unexpired Lease), including an amount of $0.00, as applicable, required to cure any monetary defaults under any Executory
Contract or Unexpired Lease that is to be assumed, or assumed and assigned, by the Debtors via the Plan pursuant to section 365 or 1123
of the Bankruptcy Code, other than a default that is not required to be cured pursuant to section 365(b)(2) Bankruptcy Code. 61.
“D&O Liability Insurance Policies” means all directors’, managers’, and officers’, or
employees’ liability insurance policies (including any “tail policy” or excess policies) of any of the Debtors that
have been issued or provide coverage at any time to current or former directors, managers, officers, or employees of the Debtors, and
all agreements, documents, or instruments related thereto. 7 62.
“Debtors,” “Company,” or “Spirit” means, collectively, the above-captioned
debtors, in their capacities as debtors and debtors-in-possession in the Chapter 11 Cases. 63.
“DIP Agent” means Wilmington Savings Fund Society, FSB, as administrative agent and collateral agent under
certain of the DIP Documents. 64.
“DIP Credit and Note Purchase Agreement” means that certain Debtor in Possession Credit and Note Purchase Agreement
on the terms set forth in the DIP Facility Term Sheet. 65.
“DIP Documents” means the DIP Facility Term Sheet, the DIP Credit and Note Purchase Agreement and all other
agreements, documents, and instruments related thereto, including the DIP Order and any guaranty agreements, pledge and collateral agreements,
intercreditor agreements, and other security agreements, as now in effect or as may be amended, restated, supplemented, or otherwise
modified from time to time in accordance with their terms and the terms of the DIP Order. 66.
“DIP Facility” mean the $300 million senior secured superpriority debtor-in-possession facility to be provided
pursuant to, and subject to the terms and conditions of, the DIP Documents. 67.
“DIP Facility Term Sheet” means that certain DIP Facility Term Sheet attached as Exhibit E to the Restructuring
Support Agreement. 68.
“DIP Lenders” means the lenders from time to time party to the DIP Documents. 69.
“DIP Note Purchasers” means the holders of notes pursuant to the DIP Documents. 70.
“DIP Order” means, collectively, the Interim DIP Order and Final DIP Order entered by the Bankruptcy Court
authorizing the Debtors to enter into the DIP Documents and access the DIP Facility. 71.
“DIP Secured Parties” means the DIP Agent, the DIP Lenders, DIP Note Purchasers, and certain other secured
parties, as further set forth in the DIP Documents. 72.
“DIP Superpriority Claims” means superpriority Claims relating to or arising out of the DIP Facility, as further
set forth in the DIP Order (including for the avoidance of doubt, all adequate protection obligations set forth therein) and the DIP
Documents. 73.
“Disallowed” means, with respect to a Claim, Interest, or any portion thereof, (a) an objection to the
Claim has been Filed, (b) the Claim has been disallowed, subordinated, or expunged, in whole or in part, by a Final Order or stipulation,
(c) the Claim has been withdrawn, in whole or in part, (d) the Claim is listed in the Schedules as zero or as Disputed, Contingent,
or 8 Unliquidated
and in respect of which a Proof of Claim has not been timely Filed or deemed timely Filed pursuant to the Plan, the Bankruptcy Code,
or any Final Order of the Bankruptcy Court, (e) the Claim has been reclassified, expunged, subordinated, or estimated to the extent
that such reclassification, expungement, subordination, or estimation results in a reduction in amount reflected on the Schedules or
the applicable Proof of Claim, or (f) the Claim is evidenced by a Proof of Claim which was not timely or properly Filed. 74.
“Disclosure Statement” means the disclosure statement for the Plan, including all exhibits and schedules thereto,
as may be amended, supplemented, or otherwise modified from time to time, which shall be in form and substance reasonably acceptable
to the Debtors and the Required Consenting Stakeholders 75.
“Disputed” means, with respect to a Claim, Interest, or any portion thereof, (a) any such Claim to the
extent neither Allowed or Disallowed under the Plan or a Final Order nor deemed Allowed under section 502, 503, or 1111 of the Bankruptcy
Code or (b) with respect to which any party has filed a Proof or Claim or otherwise made a written request to a Debtor for payment, without
any further notice to or action, order, or approval of the Bankruptcy Court. To the extent that only a portion of a Claim is disputed,
such Claim shall be deemed Allowed in the amount not disputed, if any, and Disputed as to the balance of such Claim. 76.
“Distribution Agent” means, as applicable, the Reorganized Debtors or any Entity designated or retained by
the Reorganized Debtors with the consent of the Required Consenting Stakeholders without the need for any further order of the Bankruptcy
Court, to make or facilitate Plan Distributions. 77.
“Distribution Date” means, except as otherwise set forth herein, the date or dates determined by the Reorganized
Debtors, on or after the Effective Date, upon which the Distribution Agent shall make Plan Distributions to Holders of Allowed Claims
entitled to receive Plan Distributions. 78.
“Distribution Record Date” means, other than with respect to Securities held through DTC, the record date for
purposes of determining which Holders of Allowed Claims against or Allowed Interests in the Debtors are eligible to receive Plan Distributions,
which date shall be the Confirmation Date or such other date and time designated by the (Reorganized) Debtors. For the avoidance of doubt,
the Distribution Record Date shall not apply to Securities held through DTC, which shall receive Plan Distributions, if any, in accordance
with the applicable procedures of DTC. 79.
“DTC” means The Depository Trust Company. 80.
“Effective Date” means the date that is the first Business Day after the Confirmation Date on which (a) no
stay of the Confirmation Order is in effect, (b) all conditions precedent to the occurrence of the Effective Date set forth in Article
IX.A have been satisfied or waived in accordance with Article IX.B, and (c) the Debtors declare the Plan effective. Any
action to be taken on the Effective Date may be taken on or as soon as reasonably practicable thereafter and shall otherwise be deemed
in compliance with the Plan and Confirmation Order. 9 81.
“Eligible Convertible Noteholder” means any Convertible Noteholder that is not an Ineligible Convertible Noteholder. 82.
“Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code. 83.
“Equity Rights Offering” means the equity rights offering to be consummated on the Effective Date in accordance
with the Equity Rights Offering Documents. 84.
“Equity Rights Offering Amount” means $350 million of proceeds generated by the Equity Rights Offering. 85.
“Equity Rights Offering Documents” means the Backstop Commitment Agreement, the Backstop Motion, the Backstop
Order, the Scheduling Order, and any and all other agreements, documents, and instruments delivered or entered into in connection with,
or otherwise governing, the Equity Rights Offering, including the Equity Rights Offering Procedures, subscription forms, and any other
materials distributed in connection with the Equity Rights Offering. 86.
“Equity Rights Offering Holdback” means with respect to the Equity Rights Offering, the holdback only available
to the Backstop Commitment Parties in accordance with and in the amounts set forth in the Backstop Commitment Agreement. 87.
“Equity Rights Offering Holdback Shares” means the shares of New Equity Interests that are issued to the Backstop
Commitment Parties on account of the Equity Rights Offering Holdback. 88.
“Equity Rights Offering Participants” means the Holders of Convertible Notes Claims and Holders of Senior Secured
Notes Claims entitled to participate in the Equity Rights Offering, pursuant to the Equity Rights Offering Procedures. 89.
“Equity Rights Offering Procedures” means those certain rights offering procedures with respect to the Equity
Rights Offering, which rights offering procedures shall be set forth in the Equity Rights Offering Documents. 90.
“Equity Rights Offering Shares” means the shares of New Equity Interests issued pursuant to the Equity Rights
Offering. 91.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001-1461
(2018 & Supp. III 2021). 92.
“Estate” means, as to each Debtor, the bankruptcy estate created for the Debtor pursuant to section 541 of
the Bankruptcy Code upon the commencement of the applicable Debtor’s Chapter 11 Case. 93.
“Exculpated Party” means (a) each Debtor, (b) each Reorganized Debtor, (c) each DIP Secured
Party, (d) each Consenting Stakeholder, (e) each Backstop Commitment Party, (f) each Prepetition Agent/Trustee, (g) any Committee
and all members thereof, and (h) with respect to each of the foregoing Entities in clauses (a) through (g), such Entity’s
Related Parties. 10 94.
“Executory Contract” means a contract to which one or more of the Debtors is a party that is subject to assumption,
assumption and assignment, or rejection under section 365 or 1123 of the Bankruptcy Code. 95.
“Existing Interests” means all Interests in Spirit Airlines, Inc. existing immediately prior to the Effective
Date. 96.
“Exit Financing Documents” means, collectively, the Exit Secured Notes Documents and Exit RCF Documents. 97.
“Exit Financing Facilities” means, collectively, the Exit Secured Notes Financing and Exit Revolving Credit
Facility. 98.
“Exit Revolving Credit Facility” means a senior secured revolving credit facility to be entered into by one
or more Reorganized Debtors in accordance with the Exit RCF Documents. 99.
“Exit RCF Documents” means all documentation effectuating the incurrence of the Exit Revolving Credit Facility. 100.
“Exit Secured Notes” means $840 million of senior secured notes to be issued by Reorganized Parent in accordance
with the terms of the Restructuring Support Agreement and the Exit Secured Notes Documents. 101.
“Exit Secured Notes Financing” means $840 million of senior secured notes to be issued to the Required Consenting
Stakeholders by the Reorganized Parent and guaranteed by each of the other Reorganized Debtors in accordance with the Restructuring Support
Agreement and the Exit Secured Notes Documents. 102.
“Exit Secured Notes Documents” means all documentation effectuating the incurrence of the Exit Secured Notes
Financing. 103.
“Federal Judgment Rate” means the federal judgment rate in effect pursuant to 28 U.S.C. § 1961 as
of the Petition Date, compounded annually. 104.
“File,” “Filed,” or “Filing” means file, filed, or filing in the Chapter
11 Cases with the Bankruptcy Court or, with respect to the filing of a Proof of Claim, the Claims and Solicitation Agent. 105.
“Final DIP Order” means the order entered by the Court approving the DIP Facility and providing adequate protection
to the holders of Senior Secured Notes Claims and the holders of the Prepetition RCF Claims on a final basis, as such order may be amended
from time to time, subject to the consent rights set forth in the Restructuring Support Agreement and the DIP Documents. 106.
“Final Order” means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent
jurisdiction with respect to the relevant subject matter, which has not been reversed, stayed, modified, or amended, and as to which
the time to appeal, seek leave to 11 appeal,
or seek certiorari has expired and no appeal or petition for certiorari or motion for leave to appeal has been timely taken, or as to
which any appeal that has been taken or any petition for certiorari or motion for leave to appeal that has been or may be filed, has
been resolved by the highest court to which the order or judgment could be appealed or from which certiorari or leave to appeal could
be or was sought, or the new trial, reargument, petition for certiorari, leave to appeal, or rehearing shall have been denied, resulted
in no modification of such order, or has otherwise been dismissed with prejudice; provided, that the possibility that a motion
under rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such
order shall not prevent such order from being a Final Order. 107.
“First Day Declaration” means the Declaration of Fred Cromer in Support of the Chapter 11 Proceedings and
First Day Pleadings, Filed at the onset of the Chapter 11 Cases. 108.
“General Unsecured Claim” means any Claim against any of the Debtors that is not one of the following Claims:
(a) Administrative Claim (including a Professional Fee Claim, DIP Superpriority Claim, or a Claim related to U.S. Trustee Fees);
(b) Priority Tax Claim; (c) Senior Secured Notes Claim; (d) Convertible Notes Claim; (e) Other Secured Claim; (g) Other
Priority Claim; (g) Section 510(b) Claim; or (h) Intercompany Claim. 109.
“Governance Term Sheet” means the governance term sheet attached as 110.
“Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code. 111.
“Holder” means an Entity holding a Claim or Interest. 112.
“Impaired” means, with respect to a Class of Claims or Interests, a Class of Claims or Interests that is not
Unimpaired. 113.
“Indemnification Obligations” means each indemnification obligation of a Debtor in effect immediately prior
to the occurrence of the Effective Date, whether pursuant to a Debtor’s bylaws, articles or certificate of incorporation, corporate
charter, other formation, corporate, or organizational document, policy or practice of providing indemnification, board resolutions,
management or indemnification agreements, employment contracts, other agreement or applicable law, or otherwise, to indemnify, defend,
reimburse, or otherwise limit the liability of, or to advance fees and expenses to or on behalf of, any of the Debtors’ Related
Parties. 114.
“Ineligible Convertible Noteholder” means a Convertible Noteholder that has not affirmatively certified that
it is a non-U.S. person (within the meaning of Regulation S under the Securities Act), a Qualified Institutional Buyer, or an Institutional
Accredited Investor. 115.
“Ineligible Convertible Noteholder Adjustment” means the reallocation of the Total Convertible Notes Equity
Entitlement at the Stated Pre-Money Plan Equity Value to apportion equal value on account of additional equity consideration to any Ineligible
Convertible Noteholder for any of the Total Convertible Notes Exit Secured Notes Entitlement not distributed to such Holder. Such reallocation
would reduce the Total Convertible Notes Equity Entitlement available to Eligible Convertible Noteholders, who would be distributed equivalent
value in additional distribution from the Total Convertible Notes Exit Secured Notes Entitlement. 12 116.
“Institutional Accredited Investor” means an institutional “accredited investor” as defined in
Rule 501(a)(1), (2), (3), (7), (8), (9), (12), and (13) under the Securities Act. 117.
“Insurance Contracts” means all insurance policies (including the D&O Liability Insurance Policies) that
have been issued (or provide coverage) at any time to any of the Debtors (or any of their predecessors) and all agreements, documents,
or instruments relating thereto. 118.
“Insurance Coverage Rights” means any direct or derivative right, interest, claim, entitlement, or Cause of
Action of any Debtor under any Insurance Contract, including the rights of any Debtor to proceeds, indemnification, reimbursement, contribution,
benefits, or any other payment arising out of or under the Insurance Contracts. 119.
“Insurer” means any company, third-party administrator, or other Entity that issued or entered into an Insurance
Contract (or provides insurance coverage) and any respective predecessors, successors, or Affiliates of any of the foregoing Entities
in this Article I.A.119. 120.
“Intercompany Claim” means any Claim arising prior to the Petition Date against a Debtor and held by another
Debtor. 121.
“Interest” means, collectively, any equity security (as defined in section 101(16) of the Bankruptcy Code)
in a Debtor, including any issued or unissued share of common stock, preferred stock, or other instrument evidencing any other equity,
ownership, or profits interests in a Debtor, whether or not transferable, including membership interests in limited liability companies
and partnership interests in partnerships, and any option, warrant, right, or other security or agreement, contractual or otherwise,
to acquire or subscribe for, or which are convertible into any shares (or any class thereof) of, any such interest in a Debtor that existed
immediately prior to the Effective Date, and any award of stock options, restricted stock units, performance stock units, equity appreciation
rights, restricted equity, stock appreciation rights, or phantom equity of the Debtors (whether or not arising under or in connection
with any employment agreement, separation agreement, or employee incentive plan or program of the Debtors and whether or not certificated,
transferable, preferred, common, voting, or denominated “stock” or similar security, other than Intercompany Interests). 122.
“Interim DIP Order” means the order entered by the Court approving the DIP Facility and providing adequate
protection to the holders of Senior Secured Notes Claims and the holders of the Prepetition RCF Claims on an interim basis, as such order
may be amended from time to time, subject to the consent rights set forth in the Restructuring Support Agreement and the DIP Documents. 123.
“IRS” means the U.S. Internal Revenue Service. 124.
“Legal Holiday” has the meaning set forth in Bankruptcy Rule 9006(a). 125.
“Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code. 13 126.
“Local Rules” means the Local Bankruptcy Rules for the Southern District of New York. 127.
“Management Incentive Plan” means a management incentive plan providing for the issuance from time to time,
of awards with respect to the New Equity Interests, to be adopted by the New Board promptly following the Effective Date, the terms and
conditions of which, including any and all awards granted thereunder, shall be determined by the New Board, including, without limitation,
with respect to the participants, allocation, timing, and the form and structure and extent of issuance and vesting. 128.
“MIP Interests” means 10% of the New Equity Interests, as of the Effective Date, reserved for issuance under
the Management Incentive Plan in accordance with the terms thereof. 129.
“New Board” means initial members of the board of directors of Reorganized Parent. The New Board shall comprise
up to nine members as determined in accordance with the Restructuring Support Agreement and the Governance Term Sheet. 130.
“New Equity Interests” means the equity interests in Spirit Airlines, Inc., as reorganized pursuant to and
under the Plan, or any successor or assign thereto by merger, consolidation, reorganization, or otherwise, on and after the Effective
Date. 131.
“New Organizational Documents” means the organizational and governance documents for each of the Reorganized
Debtors, including certificates of incorporation (including any certificate of designations), certificates of formation or certificates
of limited partnership (or equivalent organizational documents), certificates of designation, bylaws, limited liability company agreements,
shareholders’ agreements, limited partnership agreements (or equivalent governing documents), and the Registration Rights Agreement,
as applicable, in each case, consistent with the terms and conditions set forth in in the Restructuring Support Agreement, including
the Governance Term Sheet attached thereto. 132.
“Nonvoting Classes” means, Class 1, Class 2, Class 3, Class 6, Class 7, Class 8, Class 9, and Class 10. 133.
“Opt-Out Form” means the form (including the E-Opt-Out Form) through which Holders of Claims or Interests in
Nonvoting Classes (with the exception of the Holders of Existing Interests) can affirmatively elect to “opt out” of being
a Releasing Party, as further set forth thereon and in the Scheduling Order. 134.
“Other Administrative Claims” means any Administrative Claims that are DIP Superpriority Claims, U.S. Trustee
Fees, or Professional Fee Claims against a (Reorganized) Debtor. 135.
“Other Priority Claims” means any Claim (other than an Administrative Claim or a Priority Tax Claim) entitled
to priority in right of payment under section 507(a) of the Bankruptcy Code. 136.
“Other Secured Claims” means any Secured Claim that is not a DIP Superpriority Claim, Prepetition RCF Claim,
or Senior Secured Notes Claim. 14 137.
“Person” has the meaning set forth in section 101(41) of the Bankruptcy Code. 138.
“Petition Date” means the date on which a Debtor commenced its Chapter 11 Case. 139.
“Plan Distribution” means a payment or distribution to Holders of Allowed Claims under the Plan. 140.
“Plan Documents” means the documents (other than the Plan) to be executed, delivered, assumed, and performed
in conjunction with the Consummation of the Plan on, prior to, or after the Effective Date, including any documents included in the Plan
Supplement, which shall be in form and substance accept to the Required Consenting Stakeholders. 141.
“Plan Supplement” means the compilation of documents and forms of documents, schedules, and exhibits (or substantially
final forms thereof) to be Filed no later than the Confirmation Objection Deadline or as soon as reasonably practicable thereafter, in
form and substance acceptable to the Debtors and the Required Consenting Stakeholders, which may include, as and to the extent applicable,
the following (or summaries of the material terms thereof): (a) a Schedule of Retained Causes of Action; (b) a Schedule of
Rejected Contracts; (c) material Exit Financing Documents; (d) New Organizational Documents; (e) the identity of the members
of the New Board and any officers of the Reorganized Debtors; (f) the Restructuring Steps Memorandum; (g) the Pre-Funded Warrants;
and (h) any other documentation that is contemplated by the Plan. For the avoidance of doubt, the Plan Supplement shall be subject to
Article XII. 142.
“Prepetition Agents/Trustees” means, collectively, (a) Wilmington Trust, National Association, as trustee under
the Convertible Notes Indentures, (b) Wilmington Trust, National Association, as trustee and collateral custodian under the Senior Secured
Notes Indenture, (c) Wilmington Trust, National Association, as depositary, collateral agent and trustee under the Collateral Agency
and Accounts Agreement, and (d) Citibank, N.A., as administrative agent and collateral agent under the Prepetition Revolving Credit Facility,
in each case including any successors thereto. 143.
“Prepetition RCF Claim” means a Claim on account of the Prepetition Revolving Credit Facility. 144.
“Prepetition RCF Lenders” means the lenders from time to time party to the Prepetition Revolving Credit Facility. 145.
“Prepetition Revolving Credit Facility” refers to that certain credit and guaranty agreement, dated as of March
30, 2020 (as amended, amended and restated, supplemented, or otherwise modified from time to time), among Spirit Airlines, Inc., as borrower,
each lender from time to time party thereto, and Citibank, N.A., as administrative agent and collateral agent. 146.
“Priority Tax Claim” means any Claim of a Governmental Unit of the kind specified in section 507(a)(8) of the
Bankruptcy Code. 147.
“Pro Rata” means, as applicable, the proportion that an Allowed Claim in a particular Class bears to the aggregate
amount of Allowed Claims in that Class, or the proportion that Allowed Claims in a particular Class bear to the aggregate amount of Allowed
Claims in such particular Class and other Classes entitled to share in the same recovery as such Allowed Claim under the Plan. 15 148.
“Professional” means an Entity (a) employed in the Chapter 11 Cases pursuant to a Final Order in accordance
with section 327, 328, 330, 363, or 1103 of the Bankruptcy Code and to be compensated for services rendered prior to or on the Effective
Date pursuant to (i) sections 327, 328, 329, 330, 331, or 363 of the Bankruptcy Code or (ii) a Final Order authorizing such
retention or (b) awarded compensation and reimbursement by the Bankruptcy Court pursuant to section 503(b)(4) of the Bankruptcy
Code (excluding those Entities entitled to compensation for services rendered after the Petition Date in the ordinary course of business
pursuant to or in accordance with a Final Order granting such relief). 149.
“Professional Fee Claims” means, at any given moment, all Administrative Claims arising from all accrued fees
and expenses (including success fees) for services rendered by all Professionals through and including the Effective Date under sections
328, 330, 331, 503(b)(2), 503(b)(3), 503(b)(4), or 503(b)(5) of the Bankruptcy Code to the extent such fees and expenses have not been
paid pursuant to or in accordance with an order of the Bankruptcy Court and regardless of whether a fee application has been Filed for
such fees and expenses. To the extent that the Bankruptcy Court denies or reduces by a Final Order any amount of a Professional’s
fees or expenses, then the amount by which such fees or expenses are reduced or denied shall reduce the applicable Professional Fee Claim. 150.
“Professional Fee Escrow Account” means an interest-bearing account funded by the Debtors in an amount equal
to the Professional Fee Reserve Amount no later than the earlier of (a) ten Business Days following the Confirmation Date and (b) the
Effective Date. 151.
“Professional Fee Reserve Amount” has the meaning set forth in Article II.B.3(c). 152.
“Proof of Claim” means a proof of Claim Filed against any of the Debtors in the Chapter 11 Cases. 153.
“PSP Loans” means the Company’s three Payroll Support Program Agreements entered into by Spirit Airlines,
Inc., the PSP Loan Lender, and the other parties from time to time thereto. 154.
“PSP Loan Lender” means the lender under the PSP Loans. 155.
“Qualified Institutional Buyer” means an entity that is a qualified institutional buyer as defined in Rule
144A of the Securities Act. 156.
“Registration Rights Agreement” means that certain registration rights agreement that will provide certain
registration rights to certain holders of New Equity Interests and which shall be consistent with the Governance Term Sheet. 157.
“Reinstated” or “Reinstatement” means (a) leaving unaltered the legal, equitable, and
contractual rights to which a Claim or Interest entitles the Holder of such Claim or Interest so as to leave such Claim or Interest Unimpaired
or (b) notwithstanding any contractual provision or applicable law that entitles the Holder of a Claim or Interest to demand or
receive accelerated 16 payment
of such Claim or Interest after the occurrence of a default (i) curing any such default that occurred before, on, or after the Petition
Date, other than a default of a kind specified in section 365(b)(2) of the Bankruptcy Code or of a kind that section 365(b)(2) of the
Bankruptcy Code expressly does not require to be cured, (ii) reinstating the maturity (to the extent such maturity has not otherwise
accrued by the passage of time) of such Claim or Interest as such maturity existed before such default, (iii) compensating the Holder
of such Claim or Interest for any damages incurred as a result of any reasonable reliance by such Holder on such contractual provision
or such applicable law, (iv) if such Claim or Interest arises from a failure to perform a nonmonetary obligation other than a default
arising from failure to operate a nonresidential real property lease subject to section 365(b)(1)(A) of the Bankruptcy Code, compensating
the Holder of such Claim or Interest (other than the Debtors or an insider) for any actual pecuniary loss incurred by such Holder as
a result of such failure, and (v) not otherwise altering the legal, equitable, or contractual rights to which such Claim or Interest
entitles the Holder. 158.
“Rejection Claim” means a Claim under section 502(g) of the Bankruptcy Code. 159.
“Rejection Damages Bar Date” means with respect to Claims purportedly arising from the rejection an Executory
Contract or Unexpired Lease, 4:00 p.m. (prevailing Eastern Time) on the date that is 30 days from the date that the (Reorganized) Debtors
provide notice of the Bankruptcy Court’s entry of any order (including the Confirmation Order) authorizing such rejection to the
affected contract or lease counterparty. 160.
“Related Parties” means, with respect to an Entity, each of, and in each case in its capacity as such, such
Entity’s current and former Affiliates, and such Entity’s and such Affiliates’ current and former directors, board
observers, managers, officers, committee members, members of any governing body, equity holders (regardless of whether such interests
are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds (including any beneficial
holders for the account of whom such funds are managed), predecessors, participants, successors, assigns, subsidiaries, partners, limited
partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory
board members, financial advisors, attorneys (including any other attorneys or professionals retained by any current or former director
or manager in his or her capacity as director or manager of an Entity), accountants, investment bankers, actuaries, consultants, representatives,
and other professionals and advisors and any such person’s or Entity’s respective heirs, executors, estates, and nominees. 161.
“Released Party” means each of the following, and in each case, solely in its capacity as such: (a) the
Debtors; (b) the Reorganized Debtors; (c) each DIP Secured Party; (d) each Consenting Senior Secured Noteholder; (e) each
Consenting Convertible Noteholder; (f) each Prepetition Agent/Trustee; (g) each Prepetition RCF Lender; (h) each Backstop Commitment
Party; (i) the Distribution Agent; (j) any Committee and all members thereof; and (k) with respect to each of the foregoing Entities
in clauses (a) through (j), such Entity’s Related Parties; provided, however, that an Entity that (i) affirmatively elects
to “opt out” of being a Releasing Party by timely objecting to Confirmation or by checking the appropriate box on such Holder’s
timely and properly submitted Ballot or Opt-Out Form, thereby indicating that such Holder elects to opt out of the Plan’s release
provisions, or (ii) timely objects to the releases herein and such objection is not resolved before Confirmation shall not be considered
a “Released Party” notwithstanding anything to the contrary herein. 17 162.
“Releasing Party” means each of the following, and in each case, solely in its capacity as such: (a) the
Debtors and their Estates; (b) the Reorganized Debtors; (c) each DIP Secured Party; (d) each Consenting Senior Secured Noteholder;
(e) each Consenting Convertible Noteholder; (f) each Prepetition Agent/Trustee; (g) each Prepetition RCF Lender; (h) each
Backstop Commitment Party; (i) each Holder of a Claim entitled to vote to accept or reject the Plan that does not affirmatively
elect to “opt out” of being a Releasing Party by checking the appropriate box on such Holder’s timely and properly
submitted Ballot to indicate that such Holder elects to opt out of the Plan’s release provisions; (j) each Holder of a Claim
or Interest in a Nonvoting Class (with the exception of Holders of Existing Interests) that does not affirmatively elect to “opt
out” of being a Releasing Party by checking the appropriate box on such Holder’s timely and properly submitted Opt-Out Form
to indicate that such Holder elects to opt out of the Plan’s release provisions; and (k) with respect to each of the foregoing
Entities in clauses (a) through (j), such Entities’ Related Parties. 163.
“Reorganized Debtors” means, collectively, the Debtors (including, for the avoidance of doubt, Reorganized
Parent) and any successors thereto, whether by merger, consolidation, or otherwise (including, to the extent applicable, any new Entity
that may be formed to, among other things, directly or indirectly acquire substantially all of the assets or equity of any of the Debtors
pursuant to the Plan), in each case, on and after the Effective Date. 164.
“Reorganized Parent” means as determined by the Debtors with the express consent of the Required Consenting
Stakeholders, either (a) Spirit Airlines, Inc., as reorganized pursuant to and under the Plan, or any successor or assign thereto by
merger, consolidation, reorganization, or otherwise, or (b) a new Entity that may be formed or caused to be formed to, among other things,
directly or indirectly acquire substantially all of the assets or equity of the Debtors and issue the New Equity Interests to be distributed
pursuant to the Plan, in each case, on and after the Effective Date. 165.
“Required Consenting Convertible Noteholders” has the meaning set forth in the Restructuring Support Agreement. 166.
“Required Consenting Senior Secured Noteholders” has the meaning set forth in the Restructuring Support Agreement. 167.
“Required Consenting Stakeholders” has the meaning set forth in the Restructuring Support Agreement. 168.
“Restructuring Steps Memorandum” means a document setting forth the material components of the Restructuring
Transactions, as well as a description of the steps to effectuate such transactions, contemplated in accordance with the Plan. 169.
“Restructuring Support Agreement” means that certain Restructuring Support Agreement and attached to the First
Day Declaration as Exhibit B, by and among the Debtors and the other parties thereto, including all schedules and exhibits thereto,
as it may be amended, supplemented, or otherwise modified from time to time in accordance with its terms. 18 170.
“Restructuring Transactions” has the meaning ascribed to it in the Restructuring Support Agreement. 171.
“Retained Causes of Action” means the Causes of Action listed on the Schedule of Retained Causes of Action. 172.
“Rights Offering Backstop Commitment” has the meaning set forth in the Backstop Commitment Agreement. 173.
“Schedule of Rejected Contracts” means a schedule, if any, of Executory Contracts or Unexpired Leases that
the Debtors intend to reject pursuant hereto, as the same may be amended, supplemented, or otherwise modified from time to time. 174.
“Schedule of Retained Causes of Action” means a schedule of certain Causes of Action, a copy of which is attached
to the Disclosure Statement, that are not released, exculpated, or waived pursuant to the Plan or otherwise, as the same may be amended,
supplemented, or otherwise modified from time to time. 175.
“Scheduling Motion” means a motion Filed in the Chapter 11 Cases seeking approval of the Debtors’ Chapter
11 solicitation and tabulation procedures. 176.
“Scheduling Order” means the Bankruptcy Court’s order approving the Scheduling Motion. 177.
“SEC” means the United States Securities and Exchange Commission. 178.
“Section 510(b) Claim” means a Claim or Cause of Action against any of the Debtors (a) arising from rescission
of a purchase or sale of shares, notes, or any other Securities of any of the Debtors or an Affiliate of any of the Debtors, (b) for
damages arising from the purchase or sale of any such Security, (c) for violations of the Securities laws, misrepresentations, or
any similar Claims related to the foregoing or otherwise subject to subordination under section 510(b) of the Bankruptcy Code, (d) for
reimbursement, contribution, or indemnification allowed under section 502 of the Bankruptcy Code on account of any such Claim, including
Claims based upon allegations that the Debtors made false and misleading statements or engaged in other deceptive acts in connection
with the offer or sale of Securities, or (e) for attorneys’ fees, other charges, or costs incurred on account of any of the
foregoing Claims or Causes of Action. 179.
“Secured” means a Claim that is (a) secured by a Lien on property in which any of the Debtors has an interest,
which Lien is valid, perfected, and enforceable pursuant to applicable law or by reason of a Final Order of the Bankruptcy Court, or
that is subject to a valid right of setoff pursuant to section 553 of the Bankruptcy Code, to the extent of the value of the creditor’s
interest in such property or to the extent of the amount subject to setoff, as applicable, as determined pursuant to section 506(a) of
the Bankruptcy Code or (b) Allowed pursuant to the Plan, or separate Final Order of the Bankruptcy Court, as a secured claim. 180.
“Securities Act” means the Securities Act of 1933, 15 U.S.C. §§ 77a–77aa, together with
the rules and regulations promulgated thereunder, as amended from time to time, or any similar federal, state, or local law. 19 181.
“Securities Exchange Act” means the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a–78nn,
as now in effect and hereafter amended, or any similar federal, state, or local law. 182.
“Security” has the meaning set forth in section 2(a)(1) of the Securities Act. 183.
“Senior Secured Notes” means the 8.00% Senior Secured Notes due 2025 issued by Spirit IP Cayman Ltd. and Spirit
Loyalty Cayman Ltd. under the Senior Secured Notes Indenture. 184.
“Senior Secured Notes Claim” means a Claim on account of the Senior Secured Notes or any other agreement, instrument
or document executed at any time in connection therewith, including all Obligations (as defined in the Senior Secured Notes Indenture). 185.
“Senior Secured Notes Documents” means the Senior Secured Notes Indenture and certain other documents related
to the Senior Secured Notes Indenture, including all “Transaction Documents” (as defined in the Senior Secured Notes Indenture). 186.
“Senior Secured Notes Equity Rights Offering Amount” means 78.75% of the New Equity Interests issued pursuant
to the Equity Rights Offering and the Backstop Commitment Agreement (other than the Backstop Premium Shares). 187.
“Senior Secured Notes Indenture” means that certain Indenture originally dated as of September 17, 2020, by
and among Spirit IP Cayman Ltd. and Spirit Loyalty Cayman Ltd., each as co-issuers, Spirit Airlines, Inc., as parent guarantor, the other
guarantors from time to time party thereto, and Wilmington Trust, National Association, as trustee and collateral custodian, as amended
by that certain First Supplemental Indenture, dated as of November 17, 2022, as further amended, restated, amended and restated, supplemented,
or otherwise modified from time to time in accordance with its terms. 188.
“Senior Secured Notes Subscription Rights” means the rights of Holders of the Senior Secured Notes Claims to
purchase their Pro Rata Share of the Senior Secured Notes Equity Rights Offering Amount, subject to the Equity Rights Offering Holdback
and on the terms and conditions set forth in the Restructuring Support Agreement and the Equity Rights Offering Documents. 189.
“Senior Secured Notes Trustee” means Wilmington Trust, National Association, as trustee under the Senior Secured
Notes Indenture, together with any permitted successors and assigns. 190.
“Senior Secured Noteholder” means a “Holder” as defined in the Senior Secured Notes Indenture. 191.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate
for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing
rate) on its website, currently at www.newyorkfed.org (or any successor source for the secured overnight financing rate identified as
such by the administrator of the secured overnight financing rate from time to time). 20 192.
“Solicitation” means the solicitation of votes with respect to this Plan. 193.
“Stated Pre-Money Plan Equity Value” means $456 million. 194.
“Subscription Rights” means, collectively, the Senior Secured Notes Subscription Rights and the Convertible
Notes Subscription Rights. 195.
“Tax Code” means the Internal Revenue Code of 1986, as amended from time to time. 196.
“Total Convertible Notes Equity Entitlement” means 24.0% of the New Equity Interests, subject to dilution by
the Equity Rights Offering (including the Equity Rights Offering Shares, the Equity Rights Offering Holdback Shares and the Backstop
Shares), the Backstop Premium Shares, and the MIP Interests. 197.
“Total Convertible Notes Exit Secured Notes Entitlement” means $140 million in principal value of Exit Secured
Notes, for distribution only to Eligible Convertible Noteholders upon the Effective Date. 198.
“Treasury Regulations” means the regulations promulgated under the Tax Code. 199.
“Unsubscribed Equity” means the Equity Rights Offering Shares that are not subscribed for in the Equity Rights
Offering. 200.
“U.S. Trustee” means the office of the United States Trustee for the Southern District of New York. 201.
“U.S. Trustee Fees” means fees arising under 28 U.S.C. § 1930(a)(6) and, to the extent applicable, accrued
interest thereon arising under 31 U.S.C. § 3717, or as otherwise agreed by the U.S. Trustee. 202.
“Unclaimed Distribution” means (a) any Plan Distribution returned to the Reorganized Debtors or a Distribution
Agent as undeliverable and remains unclaimed for 90 days thereafter, (b) any check issued on account of an Allowed Claim that is
not negotiated within 120 calendar days from and after the date of issuance thereof, or (c) any Plan Distribution that remains unclaimed
within 180 days of the later of the applicable Claim becoming an Allowed Claim and the Effective Date for any reason, including a Holder
failing to return or otherwise provide the Reorganized Debtors or a Distribution Agent, as applicable, with forms or information necessary
or requested to effectuate a Plan Distribution (e.g., tax identification information, properly completed distribution forms (to
the extent required)). 203.
“Unexpired Lease” means a nonresidential lease to which one or more of the Debtors is a party that is subject
to assumption, assumption and assignment, or rejection under section 365 or 1123 of the Bankruptcy Code. 204.
“Unimpaired” means, with respect to a Class of Claims or Interests, a Class consisting of Claims or Interests
that are not impaired within the meaning of section 1124 of the Bankruptcy Code. 21 205.
“Unliquidated” means, when used in reference to a Claim, any Claim, the amount of liability for which has not
been fixed, whether pursuant to an agreement, applicable law, or otherwise, as of the date on which such Claim is sought to be estimated. 206.
“Voting Classes” means Class 4 and Class 5. 207.
“Voting Deadline” has the meaning set forth in the Scheduling Order. 208.
“Voting Record Date” has the meaning set forth in the Scheduling Order. B.
Rules of Interpretation The
following rules for interpretation and construction shall apply to the Plan: (1) in the appropriate context, each term, whether
stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine,
or neuter gender shall include the masculine, feminine, and the neuter gender; (2) unless otherwise specified, any reference herein
to a contract, lease, instrument, release, indenture, or other agreement or document being in a particular form or on particular terms
and conditions means that such document shall be substantially in such form or substantially on such terms and conditions; (3) unless
otherwise specified, any reference herein to an existing document, schedule, or exhibit, whether Filed, to be Filed, or otherwise, shall
mean such document, schedule, or exhibit as it may have been or thereafter may be amended, modified, or supplemented; provided,
that any capitalized terms herein that are defined with reference to another document or other source, are defined with reference to
such other source as of the date hereof, without giving effect to any termination of such other document or amendments to such capitalized
terms in any such other source following the date hereof; (4) unless otherwise specified, all references herein to “Articles”
or “Sections” are references to articles or sections, respectively, hereof or hereto; (5) unless otherwise specified,
the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to any particular
portion hereof; (6) captions and headings to Articles, Sections, schedules, and exhibits are inserted for convenience of reference
only and are not intended to be a part of or to affect the interpretation hereof; (7) unless otherwise specified, the rules of construction
set forth in section 102 of the Bankruptcy Code shall apply; (8) any term used in capitalized form herein that is not otherwise
defined but that is used in the Bankruptcy Code or the Bankruptcy Rules shall have the meaning ascribed to such term in the Bankruptcy
Code or the Bankruptcy Rules, as applicable; (9) references to docket numbers of documents Filed in the Chapter 11 Cases are references
to the docket numbers under the Bankruptcy Court’s CM/ECF system; (10) references to “Proofs of Claim,” “Holders
of Claims,” “Disputed Claims,” and the like shall include “Proofs of Interest,” “Holders of Interests,”
“Disputed Interests,” and the like, as applicable; (11) references to “shareholders,” “directors,”
and “officers” shall also include “members” and “managers,” as applicable, as such terms are defined
under the applicable state limited liability company laws or applicable foreign law; (12) the words “include” and “including,”
and variations thereof, shall not be deemed to be terms of limitation, and are deemed to be followed by the words “without limitation”;
(13) unless otherwise stated, all references to statutes, regulations, orders, rules of courts, and the like shall mean as amended
from time to time; (14) any references herein to the Effective Date shall mean the Effective Date or as soon as reasonably practicable
thereafter; (15) any reference herein to an Entity as a Holder of a Claim or Interest includes that Entity’s successors and
assigns; (16) capitalized terms defined only in the plural or singular form shall 22 nonetheless
have their defined meanings when used in the opposite form; (17) “(Reorganized) Debtors” are deemed to be written as
“the Debtors or the Reorganized Debtors, as applicable”; and (18) unless otherwise specified, any section or exhibit
references to an existing document, schedule, or exhibit are deemed to reference the equivalent provisions in any amendment thereto,
whether or not such references herein are updated. Any
immaterial effectuating provisions may be interpreted by the (Reorganized) Debtors in such a manner that is consistent with the overall
purpose and intent of the Plan and without further notice to or action, order, or approval of the Bankruptcy Court or any other Entity;
provided, that no effectuating provision shall be immaterial or deemed immaterial if it has any substantive legal or economic
effect on any Entity. C.
Computation of Time Unless
otherwise specifically stated herein, the provisions of Bankruptcy Rule 9006(a) shall apply in computing any period of time prescribed
or allowed herein. Unless otherwise specified, all references herein to times of day shall be references to prevailing Eastern Time.
In the event that any payment or act hereunder is required to be made or performed on a date that is not a Business Day, then the making
of such payment or the performance of such act may be completed on or as soon as reasonably practicable after the next succeeding Business
Day, but shall be deemed to have been completed as of the required date. D.
Governing Law Unless
a rule of law or procedure is supplied by federal law (including the Bankruptcy Code and the Bankruptcy Rules), or unless otherwise specifically
stated, the laws of the State of New York, without giving effect to the principles of conflict of laws (other than section 5-1401 and
section 5-1402 of the New York General Obligations Law), shall govern the rights, obligations, construction, and implementation of the
Plan, any agreements, documents, instruments, or contracts executed or entered into in connection herewith (except as otherwise set forth
in those agreements, in which case the governing law of such agreement shall control), and corporate governance matters, without giving
effect to conflict of laws principles; provided, however, that corporate governance matters relating to the (Reorganized) Debtors
not incorporated in New York shall be governed by the laws of the state or other jurisdiction of incorporation of the applicable Debtor
or Reorganized Debtor, as applicable. E.
Reference to Monetary Figures All
monetary figures referenced herein are denominated in U.S. dollars, unless otherwise expressly provided. F.
Nonconsolidated Plan For
purposes of administrative convenience and efficiency, the Plan has been Filed as a joint plan for each of the Debtors and presents together
Classes of Claims against and Interests in the Debtors. The Plan does not provide for the substantive consolidation of any of the Debtors. 23 G.
Consent Rights Notwithstanding
anything to the contrary herein, the Confirmation Order, or the Disclosure Statement, all consent, consultation, and approval rights
set forth in the Restructuring Support Agreement and Plan Documents are incorporated herein by reference (including to the applicable
definitions in Article I.A) and are fully enforceable as if stated in full herein. In case of a conflict with respect to consent,
consultation, or approval rights between the Restructuring Support Agreement or a Plan Document, on the one hand, and the Plan, on the
other hand, the former shall control and govern. ARTICLE
II. All
Claims and Interests (except Administrative Claims, Professional Fee Claims, DIP Superpriority Claims, Priority Tax Claims, and U.S.
Trustee Fees) are placed in the Classes set forth in Article III. In accordance with section 1123(a)(1) of the Bankruptcy Code,
DIP Superpriority Claims, Administrative Claims, Professional Fee Claims, Priority Tax Claims, and U.S. Trustee Fees have not been classified,
and the Holders thereof are not entitled to vote on the Plan. A.
DIP Superpriority Claims In
accordance with the DIP Order, all DIP Superpriority Claims are Allowed Claims for all purposes under the Plan. Except to the extent
already paid, on the Effective Date, each Holder of an Allowed DIP Superpriority Claim shall receive, in full and final satisfaction,
compromise, settlement, discharge, and release of its Allowed DIP Superpriority Claim, either payment in full in Cash in accordance with
the terms of the applicable DIP Documents or such other treatment acceptable to such Holder, in each case, that results in the full satisfaction
of its Allowed DIP Superpriority Claims. In addition, on the Effective Date, any outstanding fees and expenses incurred by the DIP Agent,
the DIP Lenders, or their respective advisors, as required under the DIP Order, shall be paid in Cash in full. B.
Administrative Claims 1.
General Administrative Claims The
(Reorganized) Debtors shall have exclusive authority (with the consent of the Required Consenting Stakeholders) to settle Administrative
Claims without further Bankruptcy Court approval. The (Reorganized) Debtors and the Claims and Solicitation Agent are authorized to update
the Claims Register to reflect the foregoing without the need to File an application, motion, complaint, objection, or any other legal
proceeding seeking to adjust such Claim and without any further notice to or action, order, or approval of the Bankruptcy Court or the
Holder of such Claim, as applicable. Except
with respect to Other Administrative Claims, and except to the extent that (a) an Administrative Claim has already been paid during
the Chapter 11 Cases or (b) a Holder of an Allowed Administrative Claim agrees to a less favorable treatment, in full and final
satisfaction, 24 settlement,
discharge, and release of each Allowed Administrative Claim, each Holder of an Allowed Administrative Claim shall receive an amount of
Cash equal to the amount of such Allowed Administrative Claim in accordance with the following: (i) if an Administrative Claim is allowed
on or prior to the Effective Date, on the Effective Date or, if not then due, when such Allowed Administrative Claim is due or as soon
as reasonably practicable thereafter); (ii) if such Administrative Claim is not Allowed as of the Effective Date, no later than 30 days
after the date on which an order Allowing such Administrative Claim becomes a Final Order, or as soon as reasonably practicable thereafter;
(iii) if such Allowed Administrative Claim is based on liabilities incurred by the Debtors in the ordinary course of their business after
the Petition Date, in accordance with the terms and conditions of the particular transaction or course of business giving rise to such
Allowed Administrative Claim without any further action by the Holders of such Allowed Administrative Claim; (iv) at such time and upon
such terms as may be agreed upon by such Holder and the (Reorganized) Debtors; or (v) at such time and upon such terms as set forth in
an order of the Bankruptcy Court. For
the avoidance of doubt, the failure by a Holder of an Allowed Administrative Claim to properly object to this Article II.B.1 before
the Confirmation Objection Deadline shall be deemed to be such Holder’s consent, pursuant to section 1129(a)(9) of the Bankruptcy
Code, to be paid in accordance with the Plan following the Effective Date. Notwithstanding
the foregoing, requests for payment of Administrative Claims need not be Filed for Administrative Claims that (a) previously have been
Allowed by Final Order of the Bankruptcy Court or pursuant to this Article II.B, (b) the (Reorganized) Debtors (with the consent
of the Required Consenting Stakeholders) have otherwise agreed in writing (email being sufficient) do not require such a Filing, (c)
relate to post-petition ordinary course operations and are set forth in the (Reorganized) Debtors’ books and records, or (d) arise
pursuant to 28 U.S.C. § 1930. 2.
Professional Fee Claims Except
to the extent that an Allowed Professional Fee Claim has already been paid during the Chapter 11 Cases or except to the extent that a
Holder of an Allowed Professional Fee Claim agrees to a less favorable treatment with the (Reorganized) Debtors, each Holder of a Professional
Fee Claim shall be paid in full in Cash pursuant to the provisions of this Article II.B.2. All
applications for payment of Professional Fee Claims shall be Filed within 45 days of the Effective Date or as soon as reasonably practicable
thereafter. Distributions on account of Allowed Professional Fee Claims shall be made as soon as reasonably practicable after such applications
are approved by the Bankruptcy Court. Except
as otherwise specifically provided for herein, on the Confirmation Date, any requirement that Professionals comply with sections 327
through 331 of the Bankruptcy Code in seeking retention or compensation for services rendered after such date shall terminate, and the
(Reorganized) Debtors may employ and pay all professionals without any further notice to, action 25 by,
or order or approval of the Bankruptcy Court or any other party; provided, however, that each Professional shall provide,
during the period from the Confirmation Date to the Effective Date, its fee and expense statements or invoices, in summary form, which
shall not be required to contain time entries but shall include the number of hours billed by the applicable Professional (except for
financial advisors compensated on other than an hourly basis) and a summary statement of services provided and the expenses incurred
(which summary may be redacted or modified to the extent necessary to delete any information subject to the attorney-client or other
privilege, any information constituting attorney work product, or any other confidential or otherwise sensitive information, and the
provision of such invoices shall not constitute any waiver of the attorney-client privilege or of any benefits of the attorney work product
doctrine) to the (Reorganized) Debtors. The
(Reorganized) Debtors shall pay in Cash all such fees and expenses of any Professional, within ten days of presentment of such statements
or invoices, if no written objections to the reasonableness of the fees and expenses charged in any such statement or invoice (or portion
thereof) is made by the (Reorganized) Debtors. Any objection raised by the (Reorganized) Debtors with respect to such fee and expense
statements or invoices shall specify in writing the amount of the contested fees and expenses and the detailed basis for such objection.
To the extent an objection only contests a portion of an invoice, the undisputed portion thereof shall be promptly paid. If any such
objection to payment of an invoice (or any portion thereof) is not otherwise resolved between the (Reorganized) Debtors, on the one hand,
and the issuer of the invoice, on the other hand, either party may submit such dispute to the Bankruptcy Court for a determination as
to the reasonableness of the relevant disputed fees and expenses set forth in the invoice. All
Professionals shall (i) estimate their accrued and unpaid Professional Fee Claims (whether billed or unbilled) prior to and as of
the Effective Date and (ii) estimate their expected fees and expenses for professional services to be rendered or costs to be incurred
following the Effective Date (the aggregate amount of such estimated fees and expenses, the “Professional Fee Reserve Amount”);
provided, that such estimates shall not be considered an admission or limitation with respect to the fees and expenses incurred
or to be incurred by the Professionals. Each Professional shall deliver its respective estimates for its portion of the Professional
Fee Reserve Amount to the Debtors as soon as reasonably practicable before the Effective Date. If a Professional does not provide its
estimate, then the Debtors may estimate in good faith the unbilled fees and expenses for such Professional and shall fund such amount
into the Professional Fee Escrow Account. Within
ten business days following the Confirmation Date, but in no event later than the Effective Date, the Debtors shall fund the Professional
Fee Escrow Account with Cash in an amount equal to the Professional Fee Reserve Amount. Fees
owing to the applicable Holder of a Professional Fee Claim shall be paid in Cash to such Holder from funds held in the Professional Fee
Escrow Account when such Claims are Allowed by an order of the Bankruptcy Court or authorized to be paid pursuant to the Interim Compensation
Order; provided, that obligations with respect to Professional Fee Claims shall not 26 be
limited by nor deemed limited to the balance of funds held in the Professional Fee Escrow Account. To the extent that funds held in the
Professional Fee Escrow Account are insufficient to satisfy the amount of accrued Professional Fee Claims, the Reorganized Debtors shall
pay any such outstanding Professional Fee Claims. The
Professional Fee Escrow Account shall be maintained in trust solely for the benefit of the Professionals. Such funds shall not be considered
property of the (Reorganized) Debtors or their Estates, but shall revert to the Reorganized Debtors, without any further order or action
of the Bankruptcy Court, only after all Allowed Professional Fee Claims have been paid in full. No Liens, Claims, or interests shall
encumber the Professional Fee Escrow Account in any way. 3.
Treatment of Priority Tax Claims Except
to the extent that (a) a Priority Tax Claim has already been paid during the Chapter 11 Cases or (b) a Holder of an Allowed
Priority Tax Claim and the Debtors agree to a less favorable treatment, in full and final satisfaction, settlement, discharge, and release
of each Allowed Priority Tax Claim, each Holder of an Allowed Priority Tax Claim will receive, at the option of the applicable (Reorganized)
Debtor and the Required Consenting Stakeholders, in full satisfaction of its Allowed Priority Tax Claim that is due and payable on or
before the Effective Date, either (i) Cash equal to the amount of such Allowed Priority Tax Claim on the Effective Date or (ii) treatment
otherwise in accordance with the terms set forth in section 1129(a)(9)(C) of the Bankruptcy Code. To the extent any Allowed Priority
Tax Claim is not due and owing on the Effective Date, such Claim shall be paid in accordance with the terms of any agreement between
the (Reorganized) Debtors and the Holder of such Claim, as may be due and payable under applicable non-bankruptcy law, or in the ordinary
course of business. The Reorganized Debtors shall have the right to pay any Allowed Priority Tax Claim or any remaining balance of an
Allowed Priority Tax Claim (together with accrued but unpaid interest) in full at any time on or after the Effective Date without premium
or penalty. C.
U.S. Trustee Fees On
the Effective Date or as soon thereafter as reasonably practicable, the Reorganized Debtors shall pay all U.S. Trustee Fees that are
due and owing on the Effective Date. Following the Effective Date, the Reorganized Debtors shall pay the U.S. Trustee Fees for each open
Chapter 11 Case for each quarter (including any fraction thereof) until the first to occur of the Chapter 11 Cases being converted, dismissed,
or closed. ARTICLE
III. The
Plan groups the Debtors together solely for the purposes of describing treatment hereunder, Confirmation hereof, and making Plan Distributions
in accordance herewith in respect of Claims against and Interests in the Debtors under the Plan. Notwithstanding such groupings, the
Plan constitutes a separate chapter 11 plan for each Debtor. The Plan is not premised upon, and shall not cause, the substantive consolidation
of any of the Debtors. Except for the Claims addressed in Article II, all Claims and Interests are classified in the Classes set
forth below in accordance with section 1122 of the Bankruptcy Code. A Claim or an Interest is classified in a 27 particular
Class only to the extent that the Claim or Interest qualifies within the description of that Class. A Claim or an Interest also is classified
in a particular Class for the purpose of receiving Plan Distributions under the Plan only to the extent that such Claim or Interest is
an Allowed Claim or Interest in that Class and has not been paid, released, or otherwise satisfied prior to the Effective Date. The votes
of each Class shall be tabulated in accordance with the procedures contained in the Scheduling Order. Such classification shall not affect
any Debtor’s status as a separate legal entity, change the organizational structure of the Debtors’ business enterprise,
constitute a change of control of any Debtor for any purpose, cause a merger or consolidation of any legal entities, or cause the transfer
of any assets. Except as otherwise provided by or permitted hereunder, all Debtors shall continue to exist as separate legal entities. The
categories of Claims and Interests listed in the table below classify Claims and Interests for all purposes, including voting, confirmation,
and Plan Distributions pursuant to the Plan and pursuant to sections 1122 and 1123(a)(1) of the Bankruptcy Code.3
The treatment provided in this chart is for informational purposes only and is qualified in its entirety by this Plan, including
this Article III and the disclaimers included herein. The Class numbers assigned below are for purposes of identifying each separate
Class. A.
Classification and Treatment of Claims and Interests Unless
otherwise indicated, the Holder of an Allowed Claim or Allowed Interest, as applicable, shall receive such treatment on the Effective
Date, or as soon as reasonably practicable thereafter, in full and final satisfaction, compromise, settlement, discharge, and release
of such Holder’s Allowed Claim or Allowed Interest (except to the extent (1) an Allowed Claim has been paid or otherwise satisfied
or (2) a Holder has agreed to receive less favorable treatment than it would otherwise be entitled to), as specified below: 3
The claims contained in this Article III do not represent claims actually asserted by Holders in Proofs of Claim or otherwise.
Any controversies regarding the classification of any Claim herein shall be governed by the procedures set forth in the Scheduling Order.
If the Bankruptcy Court finds that the classification of any Claim is improper, then such Claim shall be reclassified and the Ballot previously
cast by the Holder of such Claim shall be counted in, and the Claim shall receive the treatment prescribed in, the Class in which the
Bankruptcy Court determines such Claim should have been classified, without the necessity of resoliciting any votes on the Plan. 28 1.
Class 1 — Other Secured Claims 2.
Class 2 — Other Priority Claims The failure
to object to Confirmation by a Holder of an Allowed Other Priority Claim shall be deemed to be such Holder’s consent to receive
treatment for such Claim that is different from that set forth in section 1129(a)(9) of the Bankruptcy Code. 29 3.
Class 3 — Prepetition RCF Claims The failure
to object to Confirmation by a Holder of an Allowed Prepetition RCF Claim shall be deemed to be such Holder’s consent to receive
treatment for such Claim that is different from that set forth in section 1129(a)(9) of the Bankruptcy Code. 4.
Class 4 — Senior Secured Notes Claims 30 5.
Class 5 — Convertible Notes Claims 6.
Class 6 — General Unsecured Claims 7.
Class 7 — Section 510(b) Claims 31 8.
Class 8 — Intercompany Claims 9.
Class 9 — Intercompany Interests 32 10.
Class 10 — Existing Interests B.
Special Provision Governing Unimpaired Claims Except
as otherwise provided herein, nothing under the Plan shall affect the Debtors’ rights regarding any Unimpaired Claims or Interests,
including all rights regarding legal and equitable defenses to, or setoffs or recoupments against, any such Unimpaired Claims or Interests. C.
Voting Classes; Presumed Acceptance or Rejection by Nonvoting Classes 1.
Voting Classes Under the Plan Under
the Plan, Classes 4 and 5 are Impaired, and each Holder of a Claim as of the Voting Record Date in such Classes is entitled to vote to
accept or reject the Plan. 2.
Acceptance of the Plan by Impaired Classes of Claims Pursuant
to section 1126(c) of the Bankruptcy Code, and except as otherwise provided in section 1126(e) of the Bankruptcy Code, an Impaired Class
of Claims has accepted the Plan if the Holders of at least two-thirds in dollar amount and more than one-half in number of the Allowed
Claims in such Class that actually voted on the Plan have voted to accept the Plan. 3.
Presumed Acceptance of the Plan Under
the Plan, (a) Classes 1, 2, 3, and 6 are Unimpaired, (b) the Holders of Claims in such Classes are conclusively presumed to
have accepted the Plan, and (c) such Holders are not entitled to vote to accept or reject the Plan and the votes of such Holders
shall not be solicited. 4.
Presumed Rejection of the Plan Under
the Plan, (a) Classes 7 and 10 are Impaired, (b) the Holders of Claims or Interests in such Classes are deemed to have rejected
the Plan and shall receive no Plan Distributions on account of their Claims or Interests, and (c) such Holders are not entitled
to vote to accept or reject the Plan and the votes of such Holders shall not be solicited. 33 5.
Presumed Acceptance or Rejection of the Plan Under
the Plan, Classes 8 and 9 are each either (a) Unimpaired, in which case the Holders of such Claims or Interests are conclusively
deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code, or (b) Impaired and receiving no Plan Distributions
(and retaining no interest in property), in which case the Holders of such Claims or Interests are presumed to have rejected the Plan
pursuant to section 1126(g) of the Bankruptcy Code. In either (a) or (b), as applicable, such Holders are not entitled to vote to accept
or reject the Plan and the votes of such Holders shall not be solicited. 6.
Presumed Acceptance by Voting Classes with No Votes If
a Class contains Claims eligible to vote on the Plan, and no Holder of Claims eligible to vote in such Class votes to accept or reject
the Plan, the Plan shall be presumed accepted by such Class. D.
Elimination of Vacant Classes Any
Class of Claims or Interests that does not contain a Holder of an Allowed Claim or Allowed Interest, or a Claim or Interest temporarily
Allowed by the Bankruptcy Court in an amount greater than zero as of the date of the Confirmation Hearing, may be deemed eliminated from
the Plan for purposes of voting to accept or reject the Plan and for purposes of determining acceptance or rejection of the Plan by such
Class pursuant to section 1129(a)(8) of the Bankruptcy Code. E.
Controversy Concerning Impairment If
a controversy arises as to whether any Claims or Interests, or any Class thereof, are Impaired, the Bankruptcy Court shall, after notice
and a hearing, determine such controversy on or before the Confirmation Date. ARTICLE
IV. A.
Continued Existence and Vesting of Assets 1.
Reorganized Debtors Unless
otherwise provided in the Restructuring Steps Memorandum, the Debtors shall continue to exist after the Effective Date as Reorganized
Debtors in accordance with the applicable laws of the respective jurisdictions in which they are incorporated or organized, and pursuant
to the New Organizational Documents, for the purposes of satisfying their obligations under the Plan and the continuation of their businesses. 34 Except
as otherwise provided herein (including in the Restructuring Steps Memorandum), on and after the Effective Date, all property of the
Estates, wherever located, including all claims, rights, and Causes of Action, shall vest in each respective Reorganized Debtor free
and clear of all Claims, Liens, charges, and other encumbrances and interests. On and after the Effective Date, the Reorganized Debtors
may operate their businesses and may use, acquire, and dispose of property, wherever located, and prosecute, compromise, or settle any
Claims (including any Administrative Claims) and Causes of Action without supervision of or approval by the Bankruptcy Court, and free
and clear of any restrictions of the Bankruptcy Code, the Bankruptcy Rules, other than restrictions expressly imposed by this Plan, and
the Confirmation Order. Such claims and Causes of Action include any of the Debtors’ rights to indemnification from third parties
and the Debtors’ rights in respect of any Insurance Contracts. 2.
Transfer of Books and Records; Privilege On
or prior to the Effective Date, all documents, books, and records of the Debtors shall be transferred and assigned to the Reorganized
Debtors, and such transfer or assignment shall not result in the destruction or waiver of any attorney-client privilege, work-product
protection, joint defense or common interest privilege, or other privilege or protection of immunity (a) held by any or all of the
Debtors or their Estates, (b) held by the board of directors (or similar body) or any subcommittee of the board of directors (or
similar body) of any of the Debtors, or (c) attaching to any document, communication, or thing (regardless of media); each such
privilege shall be transferred to and vest exclusively in the Reorganized Debtors. For
the avoidance of doubt, any communications prior to the Effective Date between the Debtors, the Prepetition Agents/Trustees (including
their predecessors), the Consenting Stakeholders, and their respective Related Parties shall be protected by common interest privilege. B.
Transactions Related to the Plan On,
before, or after the Effective Date, the (Reorganized) Debtors, with the consent of the Required Consenting Stakeholders, may take all
actions as may be deemed necessary or appropriate to effectuate the Plan or any transaction described in, approved by, contemplated by,
or necessary to effectuate the Plan, including the following: (1) the execution, filing, and delivery, as applicable, of any appropriate
agreements, instruments, or other documents of borrowing, financing, merger, amalgamation, consolidation, restructuring, conversion,
disposition, sale, transfer, formation, incorporation, partnership, organization, operation, governance, equity issuance, dissolution,
or liquidation containing terms that are consistent with the terms of the Plan, and that satisfy the requirements of applicable law and
any other terms to which the applicable Entities may agree, including the documents comprising the Plan Supplement; (2) the execution
and delivery of appropriate instruments of transfer, assignment, assumption, or delegation of any asset, property, right, liability,
debt, or obligation on terms consistent with the terms of the Plan; (3) the cancelation, extinguishment or transfer of any of the
Debtors’ interests in the equity of any non-Debtor Affiliates, if any; and (4) all other actions that the (Reorganized) Debtors
or the Required Consenting Stakeholders deem to be necessary or appropriate to implement the Plan and the transactions contemplated hereby
(including, for the avoidance of doubt, in a tax efficient manner), including making filings or recordings that may be required by applicable
law or retaining the corporate existence and structure of the Debtors and non-Debtor Affiliates. 35 C.
New Equity Interests 1.
Issuance of New Equity Interests On
the Effective Date or as soon as reasonably practicable thereafter, the New Equity Interests shall be issued by the Reorganized Parent
pursuant to the Plan and the Equity Rights Offering Documents, and the New Equity Interests shall be distributed by the Distribution
Agent to the Entities entitled to receive the New Equity Interests pursuant to, and in accordance with, the terms of the Plan, the Equity
Rights Offering Documents, the Restructuring Support Agreement, and the New Organizational Documents. All
such New Equity Interests, and all New Equity Interests issuable in accordance with this Plan shall, upon issuance, be duly authorized,
validly issued, fully paid, and nonassessable. The issuance of such New Equity Interests is authorized without the need for any further
corporate or other similar action and without any further action by any Holder of an Allowed Claim or Interest. In
connection with the foregoing, the (Reorganized) Debtors shall undertake and execute all necessary actions in order to comply with the
terms and conditions of the Plan, Equity Rights Offering Documents, Restructuring Support Agreement, and New Organizational Documents.
Any Entity’s receipt of New Equity Interests shall be deemed as its acceptance and agreement to be bound by the New Organizational
Documents, as the same may be amended or modified from time to time following the Effective Date in accordance with their terms. 2.
Exchange Act Registration and Listing Reorganized
Parent shall use its reasonable best efforts to, on or as soon as reasonably practicable after the Effective Date, (a) cause the
New Equity Interests to be registered under Section 12(b) of the Securities Exchange Act, (b) obtain a listing of the New Equity
Interests on the New York Stock Exchange or Nasdaq, and (c) register all of the New Equity Interests that constitute “restricted
securities” or “control securities” for purposes of Rule 144 under the Securities Act on a shelf registration statement
on Form S-1, which shall provide for offerings on a delayed or continuous basis pursuant to Rule 415 under the Securities Act. 3.
Exemption from Registration The
New Equity Interests are “securities,” as defined in section 2(a)(1) of the Securities Act, section 101 of the Bankruptcy
Code, and applicable state securities laws. After
the Petition Date, the Debtors will rely on (a) Bankruptcy Code section 1145(a) to exempt from registration under the Securities Act
and Blue-Sky Laws the offer, issuance, and distribution, if applicable, of New Equity Interests under the Plan (other than the Equity
Rights Offering Holdback Shares, the Backstop Shares, and the Backstop Premium Shares), and to the extent such exemption is not available,
then such New Equity Interests will be offered, issued, and distributed under the Plan pursuant to other applicable exemptions from registration
under the Securities Act and any other applicable securities laws and (b) Section 4(a)(2) of the Securities Act, Regulation D promulgated
thereunder, or Regulation S under the Securities Act, and similar Blue-Sky Laws provisions, to exempt from registration under the Securities
Act and Blue-Sky 36 Laws
the offer, issuance, and distribution, if applicable, of the Equity Rights Offering Holdback Shares, the Backstop Shares and the Backstop
Premium Shares to certain Holders of Senior Secured Notes Claims and certain eligible Holders of Convertible Notes Claims. Section
1145(a)(1) of the Bankruptcy Code exempts the issuance, offer, sale, and distribution of Securities under a plan of reorganization from
registration under section 5 of the Securities Act and state or local Securities laws if the following three principal requirements are
satisfied: (a) the Securities must be offered and sold under a plan of reorganization and must be Securities of the debtor, of an
affiliate participating in a joint plan with the debtor, or of a successor to the debtor under the plan; (b) the recipients of the Securities
must hold prepetition or administrative expense claims against the debtor or interests in the debtor; and (c) the Securities must be
issued entirely in exchange for the recipient’s claim against or interest in the debtor, or principally in exchange for such claim
or interest and partly for cash or property. See 11 U.S.C. § 1145(a)(1). The
offer, issuance, and distribution of the New Equity Interests (other than the Equity Rights Offering Holdback Shares, the Backstop Shares,
and the Backstop Premium Shares) satisfies the requirements of section 1145 of the Bankruptcy Code and, therefore, such offering, issuance,
and distribution are exempt from registration under the Securities Act and any state or local law requiring registration. To the extent
any “offer or sale” of New Equity Interests may be deemed to have occurred, such offer or sale is made under the Plan and
in exchange for Claims against one or more of the Debtors, or principally in exchange for such Claims and partly for cash or property,
within the meaning of section 1145(a)(1) of the Bankruptcy Code. The availability of the exemptions under section 1145 of the Bankruptcy
Code or any other applicable securities laws shall not be a condition to occurrence of the Effective Date of the Plan. To
the degree that section 1145 of the Bankruptcy Code is not available for the offer, issuance, and distribution of the New Equity Interests,
Section 4(a)(2) of the Securities Act provides that the issuance of securities by an issuer in transactions not involving a public offering
are exempt from registration under the Securities Act. Regulation D is a non-exclusive safe harbor from registration promulgated by the
SEC under the Securities Act. Regulation S provides that the offering or issuance of securities to persons that, at the time of the issuance,
were outside of the United States and were not “U.S. persons” (and were not purchasing for the account or benefit of a “U.S.
person”) within the meaning of Regulation S is exempt from registration under Section 5 of the Securities Act. The
Equity Rights Offering Holdback Shares, the Backstop Shares, and the Backstop Premium Shares may be offered and issued without registration
under the Securities Act in reliance upon the exemption from registration provided under Section 4(a)(2) of the Securities Act (including,
potentially, pursuant to the safe harbor provided by Regulation D promulgated under the Securities Act) or Regulation S or other applicable
exemptions. Each Holder of a Senior Secured Notes Claim or a Convertible Notes Claim that will receive the Equity Rights Offering Holdback
Shares, the Backstop Shares, and the Backstop Premium Shares is required to represent that it is an Institutional Accredited Investor,
a “qualified institutional buyer” (as defined under Rule 144A of the Securities Act) or a “non-U.S. person” within
the meaning of Regulation S of the Securities Act. 37 The
Equity Rights Offering Holdback Shares, the Backstop Shares, and the Backstop Premium Shares will be deemed “restricted securities”
(as defined by Rule 144 under the Securities Act), will bear customary legends and transfer restrictions, and may not be offered, sold,
exchanged, assigned, or otherwise transferred unless they are registered under the Securities Act, or an exemption from registration
under the Securities Act (such as Rule 144) is available, in each case, subject to the limitations in the applicable New Organizational
Documents. Any persons receiving restricted securities under the Plan should consult with their own counsel concerning the availability
of an exemption from registration for resale of these securities under the Securities Act and other applicable law. Subject
to any limitations in the New Organizational Documents, the New Equity Interests (other than the Equity Rights Offering Holdback Shares,
the Backstop Shares, and the Backstop Premium Shares) issued and distributed under the Plan in reliance on section 1145(a)(1) of the
Bankruptcy Code may be freely transferred by recipients following the initial issuance under the Plan without registration unless, as
more fully described below, the holder is an “underwriter” with respect to such securities. Generally,
an “underwriter” (for purposes of section 1145 of the Bankruptcy Code) is any person who: 11
U.S.C. § 1145(b)(1). Under section 2(a)(11) of the Securities Act, an “issuer” includes any person directly or
indirectly controlling or controlled by the issuer, or any person under direct or indirect common control of the issuer. “Control,”
as defined in Rule 405 of the Securities Act, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. 38 To
the extent that any Entities who receive New Equity Interests pursuant to the Plan are deemed to be “underwriters” as defined
in section 1145(b) of the Bankruptcy Code, resales of such New Equity Interests by such Entities would not be exempted by section 1145
of the Bankruptcy Code from registration under the Securities Act or other applicable law. However, resales of such New Equity Interests
satisfying the applicable requirements of Rule 144 under the Securities Act with respect to “control securities” (or another
available exemption under the Securities Act) may be permitted. Rule 144 permits the public resale of Securities received by such persons
if current information regarding the issuer is publicly available and if volume limitations and certain other conditions are met. Whether
or not any particular person may be deemed to be an “underwriter” with respect to the New Equity Interests or any other Security
issued pursuant to the Plan depends upon various facts and circumstances applicable to that Entity. Accordingly, the Debtors express
no view as to whether any particular Entity receiving New Equity Interests or other Securities hereunder may be an “underwriter”
with respect to such New Equity Interests or other Securities. Any
transfer agent, or other similarly situated agent, trustee, or other non-governmental Entity shall accept and rely upon the Plan and
Confirmation Order in lieu of a legal opinion for purposes of determining whether the initial offer and sale of the New Common Interests
were exempt from registration under section 1145(a) of the Bankruptcy Code, and whether the New Common Interests were, under the Plan,
validly issued, fully paid, and non-assessable. The
Reorganized Debtors need not provide any further evidence other than the Plan or the Confirmation Order to any Entity (including DTC
and any transfer agent for the New Equity Interests) with respect to the treatment of the New Equity Interests to be issued under the
Plan under applicable securities laws. DTC and any transfer agent for the New Equity Interests shall be required to accept and conclusively
rely upon the Plan and Confirmation Order in lieu of a legal opinion regarding whether the New Equity Interests to be issued under the
Plan are exempt from registration or eligible for DTC book-entry delivery, settlement, and depository services, and whether the New Equity
Interests are, under the Plan, validly issued, fully paid, and non-assessable. Notwithstanding anything to the contrary in the Plan,
no Entity (including DTC and any transfer agent for the New Equity Interests) may require a legal opinion regarding the validity of any
transaction contemplated by the Plan, including, for the avoidance of doubt, whether the New Equity Interests to be issued under the
Plan are exempt from registration, and whether the New Equity Interests were, under the Plan, validly issued, fully paid, and non-assessable. D.
Equity Rights Offering The
Plan provides that the Equity Rights Offering Amount will be raised through the Equity Rights Offering. On the Effective Date, the Debtors
shall consummate the Equity Rights Offering, subject to the terms and conditions set forth in the Backstop Commitment Agreement, the
other Equity Rights Offering Documents and the Plan. Upon
exercise of the Subscription Rights by the Equity Rights Offering Participants pursuant to the terms of the Backstop Commitment Agreement,
the Equity Rights Offering Procedures, the Plan, and the other Equity Rights Offering Documents, the Reorganized Debtors shall be authorized
to issue the Equity Rights Offering Shares (including the Equity Rights 39 Offering
Holdback Shares) issuable pursuant to the exercise of Subscription Rights in accordance with the Plan, the Backstop Commitment Agreement,
the Equity Rights Offering Procedures, and the other Equity Rights Offering Documents. The
Equity Rights Offering Amount will be 100% backstopped by the Backstop Commitment Parties, and the Backstop Commitment Parties shall
be obligated on a several, but not joint and several, basis to purchase the Unsubscribed Equity in accordance with and subject to the
terms and conditions of the Backstop Commitment Agreement. Subject
to, and in accordance with the Backstop Commitment Agreement, as consideration for the Rights Offering Backstop Commitment, (a) on the
Effective Date, the Backstop Commitment Parties shall receive the Backstop Premium Shares, which will be payable on, and as a condition
to, the Effective Date in New Equity Interests in accordance with and subject to the terms of the Backstop Commitment Agreement, subject
to dilution on account of the MIP Interests or (b) in the circumstances provided in the Backstop Commitment Agreement and subject to
the terms thereof, shall receive the Backstop Cash Premium, and shall have been fully earned as of the effective date of the Backstop
Commitment Agreement. For
the avoidance of doubt, the Equity Rights Offering Holdback Shares, the Backstop Shares, and the Backstop Premium Shares shall be solely
on account of the new money provided through the Equity Rights Offering Holdback and the Rights Offering Backstop Commitments and not
on account of any Holder’s Senior Secured Notes Claims or Convertible Notes Claims. Notwithstanding
any other provision of this Plan, any Backstop Commitment Party that will hold, on a pro forma basis, 5.00% or more of the New Equity
Interests may elect at any time prior to the Closing Date to receive, in lieu of all or a portion of the Backstop Shares, Backstop Premium
Shares, or Equity Rights Offering Holdback Shares that would otherwise be issuable to it, pre-funded warrants to acquire such Backstop
Shares, Backstop Premium Shares, or Equity Rights Offering Holdback Shares exercisable for an exercise price equal to the par value of
the New Equity Interests (the “Pre-Funded Warrants”). The Pre-Funded Warrants will include customary beneficial ownership
limitation provisions prohibiting the exercise of the Pre-Funded Warrants to the extent that, after giving effect to an exercise of the
Pre-Funded Warrants, the Backstop Commitment Party, together with any affiliates and any members of a Section 13(d) group with the Backstop
Commitment Party and/or its affiliates, would beneficially own (as such term is defined under Rule 13d-3 under the Securities Exchange
Act of 1934, as amended) in excess either 4.99% or 9.99% of the outstanding New Equity Interests (which threshold shall be specified
by the applicable Backstop Commitment Party). E.
Exit Financing 1.
Entry into Exit Financing Documents On
the Effective Date, the Reorganized Debtors shall be authorized to enter into the Exit Financing Documents (including, for the avoidance
of doubt, all documentation allowing for the issuance of (i) the Exit Secured Notes and (ii) the Exit Revolving Credit Facility) without
the need for any further corporate or other similar action. The material Exit Financing Documents shall have terms acceptable to the
Required Consenting Stakeholders and the agents for and lenders under each respective Exit Financing Facility, the forms of which shall
be set forth in the Plan Supplement. 40 The
entry of the Confirmation Order shall be deemed approval of the Exit Financing Documents (including the transactions contemplated thereby,
and all actions taken, to be taken, undertakings to be made, and obligations to be incurred by the (Reorganized) Debtors in connection
therewith, including the payment of all fees, indemnities, and expenses provided for therein and the grant of all guarantees, Liens,
and other security interests contemplated thereby) and authorization for the (Reorganized) Debtors to enter into and execute the Exit
Financing Documents and such other documents as the agents and lenders thereunder may reasonably require, subject to such modifications
as the (Reorganized) Debtors may deem to be reasonably necessary to consummate the Exit Financing Facilities. The Reorganized Debtors
may use the Exit Financing Facilities for any purpose permitted thereunder. On
the effective date of each Exit Financing Facility, (a) the (Reorganized) Debtors are authorized to execute and deliver the applicable
Exit Financing Documents and perform their obligations thereunder, including the payment or reimbursement of any fees, expenses, losses,
damages, or indemnities, (b) the applicable Exit Financing Documents shall constitute the legal, valid, and binding obligations
of the Reorganized Debtors that are parties thereto, enforceable in accordance with their terms, and (c) no obligation, payment,
transfer, or grant of security under the applicable Exit Financing Documents shall be stayed, restrained, voidable, or recoverable under
the Bankruptcy Code or under any applicable law or subject to any defense, reduction, recoupment, setoff, or counterclaim. The Reorganized
Debtors and the other persons granting any Liens and security interests to secure the obligations under the applicable Exit Financing
Documents are authorized to make all filings and recordings, and to obtain all governmental approvals and consents deemed necessary or
desirable to establish and further evidence perfection of such Liens or security interests under the provisions of any applicable federal,
state, provincial, or other law (whether domestic or foreign) (it being understood that perfection shall occur automatically by virtue
of the occurrence of the Effective Date, subject to the satisfaction in full or waiver of all DIP Obligations in accordance with the
terms of the DIP Documents, and any such filings, recordings, approvals, and consents shall not be required), and will thereafter cooperate
to make all other filings and recordings that otherwise would be necessary under applicable law to give notice of such Liens and security
interests to third parties. 2.
Exemption from Registration In
connection with the Exit Secured Notes Financing, the Plan provides for the offering, issuance, and distribution of the Exit Secured
Notes, which are “securities,” as defined in section 2(a)(1) of the Securities Act, section 101 of the Bankruptcy Code, and
applicable state securities laws. The
Debtors are relying on Section 4(a)(2) of the Securities Act, Regulation D promulgated thereunder, or Regulation S under the Securities
Act, and similar Blue-Sky Laws provisions, to exempt from registration under the Securities Act and Blue-Sky Laws the offer, issuance,
and distribution under the Plan of the Exit Secured Notes to Holders of Senior Secured Notes Claims and certain eligible Holders of Convertible
Notes Claims, including in connection with the Solicitation. 41 Section
4(a)(2) of the Securities Act provides that the offering or issuance of securities by an issuer in transactions not involving a public
offering are exempt from registration under Section 5 of the Securities Act. Regulation D is a non-exclusive safe harbor from registration
promulgated by the SEC under the Securities Act. Regulation S provides that the offering or issuance of securities to persons that, at
the time of the issuance, were outside of the United States and were not “U.S. persons” (and were not purchasing for the
account or benefit of a “U.S. person”) within the meaning of Regulation S is exempt from registration under Section 5 of
the Securities Act. The
Exit Secured Notes may be offered and issued without registration under the Securities Act in reliance upon the exemption from registration
provided under section 4(a)(2) of the Securities Act (including, potentially, pursuant to the safe harbor provided by Regulation D promulgated
under the Securities Act) or Regulation S or other applicable exemptions. Each Holder of a Senior Secured Notes Claim is a “qualified
institutional buyer” (as defined under Rule 144A of the Securities Act) or a “non-U.S. person” within the meaning of
Regulation S of the Securities Act. Each Holder of a Convertible Notes Claim that will receive the Exit Secured Notes is required to
represent that it is an Institutional Accredited Investor, a “qualified institutional buyer” (as defined under Rule 144A
of the Securities Act) or a “non-U.S. person” within the meaning of Regulation S of the Securities Act. The
Exit Secured Notes will be deemed “restricted securities” (as defined by Rule 144 of the Securities Act) that may not be
offered, sold, exchanged, assigned, or otherwise transferred unless they are registered under the Securities Act, or an exemption from
registration under the Securities Act (such as Rule 144A or Regulation S) is available, and in compliance with any applicable state or
foreign securities laws. Any and all of the Exit Secured Notes offered, issued, or distributed under the Plan pursuant to Regulation
S under the Securities Act shall be subject to any applicable restrictions on transfer set forth in Regulation S and may not be offered,
sold, exchanged, assigned, or otherwise transferred unless they are registered under the Securities Act, or an exemption from registration
under the Securities Act (such as Rule 144A or Regulation S) is available, and in compliance with any applicable state or foreign securities
laws. Any
persons receiving restricted securities under the Plan should consult with their own counsel concerning the availability of an exemption
from registration for resale of these securities under the Securities Act and other applicable law. The
Reorganized Debtors need not provide any further evidence other than the Plan or the Confirmation Order to any Entity (including DTC)
with respect to the treatment of the Exit Secured Notes to be issued under the Plan under applicable securities laws. DTC shall be required
to accept and conclusively rely upon the Plan and Confirmation Order in lieu of a legal opinion regarding whether the Exit Secured Notes
to be issued under the Plan are exempt from registration and/or eligible for DTC book-entry delivery, settlement, and depository services.
Notwithstanding anything to the contrary in the Plan, no Entity (including DTC) may require a legal opinion regarding the validity of
any transaction contemplated by the Plan, including, for the avoidance of doubt, whether the Exit Secured Notes to be issued under the
Plan are exempt from registration. 42 F.
Boards of Directors/Managers The
number of directors or managers that initially, on the Effective Date, shall be members of the Reorganized Debtors’ boards of directors
or managers (or similar governing entities) shall be as set forth in the New Organizational Documents or otherwise set forth in the Plan
Supplement, and shall be consistent with the terms set forth in the Governance Term Sheet. Pursuant to section 1129(a)(5) of the Bankruptcy
Code, to the extent known, the Debtors shall disclose, in the Plan Supplement, the identity and affiliations of the Persons proposed
to serve on the Reorganized Debtors’ boards of directors or managers (or similar governing entities). Commencing on the Effective
Date, each of the Reorganized Debtors’ directors or managers shall serve pursuant to the terms of applicable law and the applicable
organizational documents of such Reorganized Debtor and may be replaced or removed in accordance therewith. Unless
reappointed pursuant to the preceding paragraph, the members of the boards of directors or managers (or similar governing entities) of
the Debtors prior to the Effective Date shall have no continuing obligations to the Company in their capacities as such on and after
the Effective Date, and each such member shall be deemed to have resigned or shall otherwise cease to be a director or manager of the
applicable Debtor on the Effective Date. G.
New Organizational Documents; No Further Action On
the Effective Date, the New Organizational Documents of each of the Reorganized Debtors shall be deemed executed and authorized in all
respects (including by the holders of New Equity Interests). Notwithstanding
any requirement under non-bankruptcy law, except as set forth herein, upon the Effective Date, (1) all actions contemplated by the
Plan (including the New Organizational Documents, the Exit Financing Documents, and any other document contemplated by the Plan Supplement)
and (2) all matters provided for hereunder involving the (Reorganized) Debtors’ corporate structure, or corporate action to
be taken by or required of the (Reorganized) Debtors, shall be deemed authorized and approved in all respects and shall be deemed to
have occurred (unless contemplated hereunder to occur after the Effective Date) and be effective as provided herein, without the need
for further approval, act, action (including corporate, board, shareholder, manager, or similar action), consent, or authorizations under
any applicable law, order, rule, or regulation with respect thereto. On
the Effective Date, the Reorganized Debtors may—and, to the extent required under this Plan or applicable non-bankruptcy law, shall—file
the New Organizational Documents with the applicable Secretary of State or other applicable authorities in its respective state or country
of incorporation or organization. After the Effective Date, the Reorganized Debtors may amend and restate the New Organizational Documents
in accordance with their terms, the Plan, and applicable law. Pursuant
to, and only to the extent required by, section 1123(a)(6) of the Bankruptcy Code, except as required by applicable law, the New Organizational
Documents shall include a provision prohibiting the issuance of nonvoting equity securities. 43 On
the Effective Date, the Reorganized Parent shall enter into and deliver the Registration Rights Agreement to each Holder of New
Equity Interests, which shall become effective and binding in accordance with its terms and conditions upon the parties thereto
without further notice to or order of the Bankruptcy Court, act or action under applicable law, regulation, order, or rule, or the vote,
consent, authorization, or approval of any Entity. Holders of New Equity Interests shall be deemed to have executed the Registration
Rights Agreement and be parties thereto, without the need to deliver signature pages thereto. H.
Cancellation of Instruments, Certificates, and Other Documents On
the Effective Date, except as otherwise provided in the Plan or the Confirmation Order, (1) the DIP Facility, the Senior Secured
Notes Documents, the Convertible Notes Documents, and any Interest, Certificate, share, note, bond, indenture, purchase right, option,
warrant, or other instrument or document, directly or indirectly, evidencing or creating any indebtedness or obligation of, or ownership
interest in, the Debtors giving rise to any Claim or Interest, including, for the avoidance of doubt, any and all shareholder or similar
agreements related to Interests and the DIP Documents, Senior Secured Notes Documents, and Convertible Notes Documents shall terminate,
be cancelled, discharged, and deemed surrendered, as applicable; none of the Reorganized Debtors shall have any continuing obligations
thereunder, and the Prepetition Agents/Trustees, and its respective agents, successors, and assigns shall each be automatically and fully
released and discharged of and from all duties and obligations thereunder, and (2) the obligations of the Debtors pursuant, relating,
or pertaining to any agreements, indentures, certificates of designation, bylaws, certificate or articles of incorporation, or similar
documents governing the shares, Certificates, notes, bonds, purchase rights, options, warrants, or other instruments or documents evidencing
or creating any indebtedness or obligation of the Debtors shall be released; provided, that notwithstanding such termination,
cancellation, discharge, Confirmation, Consummation, or anything to the contrary contained in the Plan, any such agreement that governs
the rights of the Holder of an Allowed Claim (including the DIP Documents, Senior Secured Notes Documents, and Convertible Notes Documents)
shall continue in effect solely for purposes of: (1) enabling (A) such Holder to receive Plan Distributions on account of such Allowed
Claim, as provided herein and (B) the Prepetition Agents/Trustees to exercise their respective charging liens for the payment of fees
and expenses and for indemnification as provided in the applicable indenture; (2) preserving all rights (including rights of enforcement),
remedies, exculpations, indemnities (including with respect to any indemnification or contribution from the respective Holders of Allowed
Claims under the DIP Documents, Senior Secured Notes Documents, and Convertible Notes Documents), powers, and protections of the Prepetition
Agents/Trustees against any Entity, pursuant to and subject to the terms of the DIP Documents, the Senior Secured Notes Documents, and
Convertible Notes Documents; (3) permitting the Prepetition Agents/Trustees to enforce the respective obligations owed to them or
their respective Holders of Claims under the Plan or the Confirmation Order, in accordance with the DIP Documents, Senior Secured Notes
Documents, and Convertible Notes Documents; and (4) permitting the Prepetition Agents/Trustees to perform any functions that are
necessary to effectuate the foregoing, including appearing in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any
other court; provided, further, that the preceding proviso shall not affect the resolution of Claims or Interests pursuant to
the Bankruptcy Code, the Confirmation Order, or the Plan or result in any expense or liability to the (Reorganized) Debtors, as applicable,
except to the extent set forth in or provided for under the Plan or the Confirmation 44 Order.
For the avoidance of doubt, to the extent any Senior Secured Notes Document is, upon Consummation, either (a) an Exit Secured Notes Document
or (b) is otherwise agreed by the Debtors and the Required Consenting Noteholders to remain in full force and effect on the Effective
Date (a “Continuing Senior Secured Notes Document”), this Article IV.H shall not apply with respect to such
Senior Secured Notes Document. I.
Subordination The
allowance, classification, and treatment of all Claims and Interests under the Plan takes into consideration any and all subordination
rights, whether arising by contract or under general principles of equitable subordination, section 510 of the Bankruptcy Code, or otherwise.
On the Effective Date, any and all subordination rights or obligations that a Holder of a Claim or Interest may have with respect to
any Plan Distributions shall be terminated, and all actions related to the enforcement of such subordination rights shall be enjoined
permanently. Accordingly, Plan Distributions to Holders of Allowed Claims shall not be subject to turnover or payment to a beneficiary
of such terminated subordination rights, or to levy, garnishment, attachment, or other legal process by a beneficiary of such terminated
subordination rights; provided, that any such subordination rights shall be preserved in the event the Confirmation Order is vacated,
the Effective Date does not occur in accordance with the terms hereunder, or the Plan is revoked or withdrawn. J.
Structural Simplification At
any time after the Confirmation Date, with the consent of the Required Consenting Stakeholders, the (Reorganized) Debtors may take any
action reasonably designed to simplify the corporate structure of the (Reorganized) Debtors without the need for (1) a further order
of the Bankruptcy Court, (2) any other or further actions to be taken by or on behalf of the (Reorganized) Debtors, or (3) any
payments to be made in connection therewith. Such action may include causing any (Reorganized) Debtor to merge with and into any
other (Reorganized) Debtor or causing any (Reorganized) Debtor to liquidate or dissolve. Each of the (Reorganized) Debtors may execute
and file documents, and take all other actions as each deems appropriate, relating to the allowance of and to effect the prompt corporate
restructuring of the (Reorganized) Debtors as provided herein without the payment of any fee, tax, or charge and without the need for
the filing of reports or certificates. Moreover,
on and after the first day following the date of any such action, the applicable (Reorganized) Debtor(s) (1) shall be deemed to
have withdrawn business operations from any jurisdiction in which they were previously conducting, or are registered or licensed to conduct,
their business operations, and shall not be required to file any document, pay any sum, or take any other action in order to effectuate
such withdrawal and (2) shall not be liable in any manner to any taxing or other authority for franchise, business, license, or
similar taxes accruing on or after such the date of any such action. K.
Management Incentive Plan Promptly
after the Effective Date, the New Board shall adopt the Management Incentive Plan, which will provide for the grants of equity and equity-based
awards to employees, directors, 45 consultants,
and other service providers of the Reorganized Debtor(s), as determined at the discretion of the New Board. The terms and conditions,
including with respect to participants, allocation, timing, and the form and structure of the equity or equity-based awards, shall be
determined at the discretion of the New Board after the Effective Date. L.
DTC Eligibility The
Debtors and the Reorganized Debtors, as applicable, shall use commercially reasonable efforts to promptly make the New Equity Interests,
other than any New Equity Interests required to bear a “restricted” legend under applicable securities laws (which shall
be deposited in DTC to the extent permitted by DTC, otherwise in book entry form), and the Exit Secured Notes eligible for deposit with
DTC. ARTICLE
V. A.
Timing and Calculation of Amounts to Be Distributed Subject
to any reserves or holdbacks established pursuant to the Plan, on the applicable Distribution Date or as soon as practicable thereafter,
Holders of Allowed Claims shall receive the full amount of Plan Distributions provided for Allowed Claims in the applicable Classes as
of such date. Because of the size and complexities of the Chapter 11 Cases, the Debtors at the present time cannot accurately predict
the timing of the Distribution Dates. In the event that any payment or act under the Plan is required to be made or performed on a date
that is not a Business Day, then the making of such payment or the performance of such act may be completed on the next succeeding Business
Day, but shall be deemed to have been completed as of the required date. If
and to the extent there are Disputed Claims, Plan Distributions on account of any such Disputed Claims (which shall only be made if and
when they become Allowed Claims) shall be made pursuant to the provisions set forth in the Plan with respect to the treatment of Allowed
Claims on or as soon as reasonably practicable after the next Distribution Date that is at least 20 calendar days after each such Claim
is Allowed; provided, that Plan Distributions on account of Professional Fee Claims shall be made as soon as reasonably practicable
after such Claims are Allowed by the Bankruptcy Court or as provided in any other applicable order of the Bankruptcy Court. For
all purposes associated with Plan Distributions, all guarantees by any Debtor of the obligations of any other Debtor, as well as any
joint and several liability of any Debtor with respect to any other Debtor, shall be deemed eliminated so that any obligation that could
otherwise be asserted against more than one Debtor shall result in a single Plan Distribution. For the avoidance of doubt, Claims held
by a single Entity at different Debtors that are not based on guarantees or joint and several liability shall be entitled to the applicable
distribution for such Claim at each applicable Debtor. Any such Claims shall be released and discharged pursuant to Article VIII
and shall be subject to all potential objections, defenses, and counterclaims, and to estimation pursuant to section 502(c) of the Bankruptcy
Code. 46 B.
Sources for Plan Distributions and Transfers of Funds Among Debtors Plan
Distributions shall be funded, as applicable, with (1) Cash on hand, including any proceeds from the Equity Rights Offering and
the Exit Financing Facilities, and (2) the other Assets of the Reorganized Debtors. The (Reorganized) Debtors shall be entitled
to transfer funds between and among the Debtors and non-Debtor subsidiaries as the (Reorganized) Debtors as deemed necessary or appropriate
to enable the payments and Plan Distributions required by the Plan. C.
Distribution Agent The
(Reorganized) Debtors may serve as the Distribution Agent or may retain and direct another Entity as Distribution Agent to assist with
the Plan Distributions. A Distribution Agent may make all Plan Distributions and shall be empowered to effect all actions and execute
all agreements, instruments, and other documents necessary to perform its duties hereunder and to exercise such other powers as may be
vested in such Distribution Agent by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by such Distribution Agent to
be necessary and proper to carry out its duties. Except
as otherwise set forth herein, the Reorganized Debtors shall be authorized, without further Bankruptcy Court, to reimburse any Entity
for its reasonable, documented, and customary out-of-pocket expenses incurred in providing post-Confirmation services directly related
to Plan Distributions. If
a Distribution Agent is an independent third party designated to serve in such capacity, the Reorganized Debtors shall be permitted to
provide to such Distribution Agent, without further Bankruptcy Court approval, reasonable compensation for distribution services rendered
pursuant to the Plan and reimbursement of reasonable, actual, and documented out-of-pocket expenses incurred in providing post-Confirmation
services directly related to Plan Distributions. D.
De Minimis Distributions Notwithstanding
anything herein to the contrary, neither the Reorganized Debtors nor any Distribution Agent shall be required to make Plan Distributions
or payments of less than $250 (whether Cash or otherwise), and Cash that otherwise would be payable under the Plan to Holders of Allowed
Claims but for this provision shall be available for Plan Distributions to other Holders of Allowed Claims. E.
Delivery of Plan Distributions—Allowed Claims The
Distribution Record Date shall not apply to Securities held through DTC for which a Plan Distribution is made in exchange for such Securities.
Distributions to claims other than with respect to Securities held through DTC shall only be made to the record Holders of Allowed Claims
as of the Distribution Record Date, at which time the Claims Register shall be deemed closed for purposes of determining whether a Holder
of such a Claim is a record Holder entitled to Plan Distributions. The (Reorganized) Debtors, any Distribution Agent, the Prepetition
Agents/Trustees, and each of the foregoing’s respective Related Parties shall have no obligation to recognize, for purposes of
Plan Distributions pursuant to, or in any way arising from, the Plan 47 (or
for any other purpose), any Claims that are transferred after the Distribution Record Date. Instead, the foregoing parties shall be entitled
to recognize only those record Holders set forth in the registers as of the Distribution Record Date. Furthermore, if a Claim is transferred
20 or fewer calendar days before the Distribution Record Date, Plan Distributions shall be made to the transferee only if the transfer
form contains an unconditional and explicit certification and waiver of any objection to the transfer by the transferor. With
respect to a Plan Distribution to be made with Cash, if any dispute arises as to the identity of a Holder of an Allowed Claim that is
entitled to receive a Plan Distribution, in lieu of making such Plan Distribution to such person, the Plan Distributions may be made
into an escrow account until the disposition thereof is determined by Final Order or by written agreement among the interested parties
to such dispute. Subject
to Bankruptcy Rule 9010, a Plan Distribution to a Holder of an Allowed Claim to be sent by mail may be delivered to (1) the address
provided by such Holder, if any, (2) the address set forth on the first page of any Proof of Claim Filed by such Holder, (3) the
last known address of such Holder on the books and records of the Debtors or their agents if such Holder did not File a Proof of Claim,
(4) the address set forth in any written notice of an address change delivered to the (Reorganized) Debtors or any Distribution
Agent, (5) in the case of a Holder whose Claim is governed by an agreement and administered by an agent, the address contained in
the official records of such Entity, or (6) the address of any counsel that has appeared in the Chapter 11 Cases on such Holder’s
behalf. The foregoing shall also apply with respect to any forms or notices related to Plan Distributions that, for the avoidance of
doubt, may be sent via email to an email address that satisfies any of subclauses (1)–(6) in the previous sentence. All
distributions on account of the Senior Secured Notes Claims shall be made to, or at the direction of, the Senior Secured Notes Trustee
for further distribution to the Senior Secured Noteholders in accordance with the Senior Secured Notes Documents, and subject to the
rights of the Senior Secured Notes Trustee to assert its charging lien under the Senior Secured Notes Documents. If the Senior Secured
Notes Trustee is unable to make, or consents to the Reorganized Debtors making, such distributions, the Reorganized Debtors, with the
cooperation of the Senior Secured Notes Trustee, shall make such distributions to the extent practicable to do so, provided that any
charging lien of the Senior Secured Notes Trustee shall attach to the property to be distributed in the same manner as if such distributions
were made through the Senior Secured Notes Trustee. The Senior Secured Notes Trustee shall have no duties or responsibility relating
to any form of distribution that is not DTC eligible and the Debtors or the Reorganized Debtors, as applicable, shall seek the cooperation
of DTC so that any distribution on account of a Senior Secured Notes Claim that is held in the name of, or by a nominee of, DTC, shall
be made through the facilities of DTC on the Effective Date or as soon as practicable thereafter. The Reorganized Debtors shall reimburse
the Senior Secured Notes Trustee for any reasonable and documented fees and expenses incurred after the Effective Date in connection
with making distributions pursuant to and in accordance with the Plan. F.
Fractional New Equity Interests Notwithstanding
any other provision herein to the contrary, no fractional New Equity Interests shall be issued or distributed pursuant to this Plan.
Whenever any Plan Distribution of a 48 fraction
of a New Equity Interest would otherwise be required hereunder, the actual Plan Distribution made shall reflect a rounding of such fraction
to the nearest whole New Equity Interest (up or down), with fractions half or less being rounded down and fractions in excess of a half
being rounded up. If two or more Holders are entitled to equal fractional entitlements and the number of Holders so entitled exceeds
the number of whole New Equity Interests, as the case may be, which remain to be allocated, the (Reorganized) Debtors shall allocate
the remaining whole New Equity Interests to such Holders by random lot or such other impartial method as the (Reorganized) Debtors deem
fair (in the (Reorganized) Debtors’ sole discretion). Upon the allocation of all the whole New Equity Interests authorized hereunder,
all remaining fractional portions of the entitlements shall be cancelled and shall be of no further force and effect. G.
Manner of Payment Under the Plan Any
Cash payment may be made by check, wire transfer, or any other customary payment method. In the case of non-U.S. creditors, Cash payments
may be made in such funds and by such means as are necessary or customary in the applicable jurisdiction. H.
Allocation of Plan Distributions Between Principal and Interest Plan
Distributions in respect of Allowed Claims shall be allocated first to the principal amount of the Allowed Claim (as determined for federal
income tax purposes) and then, to the extent the consideration exceeds the principal amount of an Allowed Claim, to any portion of such
Allowed Claim for accrued but unpaid interest for all purposes, including federal income tax purposes. I.
Compliance Matters In
connection with the Plan, each Reorganized Debtor and any Distribution Agent, as applicable, shall comply with all tax deduction, withholding,
payment, and reporting requirements imposed by applicable law, and all Allowed Claims and Plan Distributions shall be subject to any
such deduction, withholding, and reporting requirements as determined in the good-faith discretion of the Reorganized Debtors or a Distribution
Agent, as applicable. In connection with the Plan and all Plan Distributions, the (Reorganized) Debtors and any Distribution Agent are
authorized to take any and all actions that may be deemed necessary or appropriate to comply with the foregoing requirements (including,
in the case of a non-Cash issuance that is subject to withholding, liquidating a portion of the Plan Distributions to generate sufficient
funds to pay applicable withholding taxes; provided, however, that, in such case, the Distribution Agent shall first notify the
intended recipient in writing of such contemplated sale and offer the intended recipient a reasonable opportunity to provide sufficient
Cash to satisfy such withholding tax in lieu of such liquidation, and withholding Plan Distributions pending receipt of information necessary
to facilitate such Plan Distributions) and establish any other mechanisms that the (Reorganized) Debtors or any Distribution Agent, as
applicable, believe are reasonable and appropriate, and all Allowed Claims and Plan Distributions shall be subject to any such withholding
and reporting requirements. All Holders of Claims shall be required to provide an IRS Form W-9 or an appropriate IRS Form W-8 and any
other IRS Form and any other information (including information with respect to any underlying Beneficial Owners) necessary to allow
the Reorganized Debtors to comply with all withholding, payment, and reporting requirements with respect to such 49 taxes.
The Reorganized Debtors and any Distribution Agent, as applicable, reserve the right to withhold the full amount required by law on any
Plan Distribution on account of any Holder of an Allowed Claim that fails to timely provide the required information to a Distribution
Agent or the Reorganized Debtors. The Reorganized Debtors and any Distribution Agent each reserve the right to allocate and distribute
all Plan Distributions in compliance with all applicable wage garnishments, alimony, child support and other spousal awards, Liens, and
similar encumbrances. Any amounts deducted, withheld, or reallocated pursuant to this Article V shall be treated as if distributed
to the Holder of the Allowed Claim. J.
Foreign Currency Exchange Rate As
of the Confirmation Date, any Claim denominated in a currency other than U.S. dollars shall be automatically deemed converted to the
equivalent U.S. dollar value using the exchange rate on the Petition Date, as quoted at 4:00 p.m. (prevailing Eastern Time), midrange
spot rate of exchange for the applicable currency as published in the Wall Street Journal, National Edition, on the day after
the Petition Date. The (Reorganized) Debtors and the Claims and Solicitation Agent are authorized to update the Claims Register to reflect
the foregoing without the need to File an application, motion, complaint, objection, or any other legal proceeding seeking to adjust
such Claim and without any further notice to or action, order, or approval of the Bankruptcy Court or the Holder of such Claim, as applicable. K.
Fractional Dollars Notwithstanding
any other provision of the Plan, Plan Distributions or payments pursuant to the Plan need not be made in fractions of dollars. Whenever
any payment of a fraction of a dollar under the Plan would otherwise be called for, the actual payment shall reflect a rounding of such
fraction down to the nearest whole dollar. L.
Undeliverable, Unclaimed, or Non-Negotiated Plan Distributions Plan
Distributions shall not be made to a Holder who is the intended recipient of an Unclaimed Distribution. The underlying Claim of an Unclaimed
Distribution shall be automatically discharged and cancelled, and may be expunged from the Claims Register by the Reorganized Debtors
or the Claims and Solicitation Agent without the need to File an application, motion, complaint, objection, or any other legal proceeding
seeking to expunge such Claim and without any further notice to or action, order, or approval of the Bankruptcy Court or the Holder of
such Claim, as applicable. The Holder of such Claim shall be deemed to have forfeited its Claim and shall be forever barred and enjoined
from asserting any such claim against the (Reorganized) Debtors and their Estates, any Distribution Agent, and each of the foregoing’s
respective agents, attorneys, representatives, employees, or independent contractors or any of its or their property. Unclaimed Distributions
shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code. All title to and all beneficial interests in the Cash
relating to such Unclaimed Distribution, including any dividends or interest attributable thereto, shall remain with or revert to the
Reorganized Debtors; checks previously delivered with respect to a now-Unclaimed Distribution shall be null and void; Unclaimed Distributions
that are New Equity Interests shall be cancelled notwithstanding any state or other escheat or similar laws to the contrary. The reversion
of such Cash shall be free of any restrictions thereon notwithstanding any 50 applicable
federal or state escheat, abandoned, or unclaimed property laws, or any provisions in any document governing the Plan Distribution that
is an Unclaimed Distribution, to the contrary. Nothing contained in the Plan shall require the (Reorganized) Debtors or any Distribution
Agent to attempt to locate any Holder of an Allowed Claim. M.
Claims Paid by Third Parties To
the extent a Holder of an Allowed Claim receives a Plan Distribution on account of a Claim and also receives payment from a party that
is not a (Reorganized) Debtor or a Distribution Agent on account of such Claim, such Holder shall, within 14 calendar days of receipt
thereof, repay or return the Plan Distribution to the applicable Reorganized Debtor, to the extent that the Holder’s total recovery
on account of such Claim from the third party and under the Plan exceeds the amount of the Claim as of the date of any such Plan Distribution.
The failure of such Holder to timely repay or return such Plan Distribution shall result in the Holder owing the Reorganized Debtors
annualized interest at the Federal Judgment Rate on such amount owed for each calendar day after the 14-day grace period specified
above until the amount is repaid. To
the extent that a Holder receives payment in full or in part on account of a Claim, such Claim may be adjusted or expunged on the Claims
Register without a claims objection having to be Filed and without any further notice to or action, order, or approval of the Bankruptcy
Court or the Holder of such Claim, as applicable; provided, that, to the extent the non-Debtor party making the payment is subrogated
to the Holder’s Claim, the non-Debtor party shall have a 30-calendar-day grace period following payment in full to notify the Claims
and Solicitation Agent and the Reorganized Debtors of such subrogation rights. N.
Claims Payable by Third Parties To
the extent that one or more of the Debtors’ Insurers satisfies any Claim in full or in part, then immediately upon such satisfaction,
such Claim may be expunged from or reduced on (to the extent of such satisfaction) the Claims Register without a Claims objection having
to be Filed and without any further notice to or action, order, or approval of the Bankruptcy Court or the Holder of such Claim, as applicable.
Nothing contained herein shall constitute or be deemed a waiver of any Cause of Action that a Debtor or any Entity may hold against any
other non-Debtor Entity (including Insurers) under any Insurance Contract, nor shall anything contained herein constitute or be deemed
a waiver by such Insurers of any defenses, including coverage defenses, held by such Insurers under any such Insurance Contract. ARTICLE
VI. This
Article VI shall not apply to DIP Superpriority Claims, Senior Secured Notes Claims, and Convertible Notes Claims, which Claims
shall be Allowed in accordance with the Plan and not be subject to any avoidance, reductions, setoff, offset, recharacterization, subordination
(whether equitable, contractual, or otherwise), counterclaims, crossclaims, defenses, disallowance, impairment, objection, or any other
challenges under any applicable law or regulation by any Entity. This Article VI shall also not apply to Professional Fee Claims,
objections to which shall be governed by the Bankruptcy Rules, Local Rules, or an order of the Bankruptcy Court. 51 A.
Objections to Claims Notwithstanding
section 502(a) of the Bankruptcy Code, and in light of the Unimpaired status of all Allowed General Unsecured Claims under the Plan,
except as required by the Plan, Holders of Claims need not File Proofs of Claim, and the (Reorganized) Debtors and the Holders of Claims
shall determine, adjudicate, and resolve any disputes over the validity and amounts of such Claims in the ordinary course of business
as if the Chapter 11 Cases had not been commenced, except that (unless expressly waived pursuant to the Plan) the Allowed amount of such
Claims shall be subject to the limitations or maximum amounts permitted by the Bankruptcy Code, including sections 502 and 503 of the
Bankruptcy Code, to the extent applicable. If a Holder of a Claim Files or submits a Proof of Claim in the Chapter 11 Cases, such Claim
shall be considered objected to and Disputed without further action by the Debtors, and the Holder electing to File such Claim shall
be deemed to have consented to the jurisdiction of the Bankruptcy Court for all purposes with respect to the Claim. After
the Effective Date, the Reorganized Debtors shall have the exclusive authority to object to all Claims that are not Allowed Claims. If
any objection to a Claim Filed by the Debtors remains pending as of the Effective Date, the Reorganized Debtors shall be deemed substituted
for the Debtors as the objecting party. Except
as otherwise provided herein, agreed to by the (Reorganized) Debtors (in their or its sole discretion), or otherwise approved by the
Bankruptcy Court, each Proof of Claim Filed after the Effective Date shall be deemed Disallowed and forever barred, estopped, and enjoined
from assertion, and shall not be enforceable against any Reorganized Debtor; such Proofs of Claim shall be Disallowed without the need
for any objection by the Reorganized Debtors or any further notice to or action, order, or approval of the Bankruptcy Court and can be
expunged from the Claims Register (including by the Claims and Solicitation Agent). Holders of such Claims may not receive any Plan Distributions
on account of such Claims, unless, on or before the Confirmation Hearing, such late-Filed Claim has been deemed timely Filed by a Final
Order or as agreed by the Debtors in writing (email being sufficient). The
Reorganized Debtors shall have the exclusive authority to determine, without the need for notice to or action, order, or approval of
the Bankruptcy Court, that any Unimpaired Claim is Allowed. The Reorganized Debtors shall also be entitled to assert all of the (Reorganized)
Debtors’ rights, claims, defenses, offsets, rights of recoupment, setoffs, rights of disallowance, subrogation, recharacterization,
and equitable subordination and counterclaims with respect to Claims. B.
Resolution of Disputed Claims On
and after the Effective Date, the Reorganized Debtors shall have the exclusive authority to File, litigate, compromise, settle, otherwise
resolve, or withdraw any objections to Claims, to compromise and settle any such Claims, and to administer and adjust the Claims Register
to reflect any such settlement or compromise, in each case, without notice to or approval by the Bankruptcy Court or any other party. 52 C.
Estimation of Claims and Interests Before
the Effective Date, the Debtors, and on or after the Effective Date, the Reorganized Debtors, in consultation with the Required Consenting
Stakeholders, may (but are not required to) determine, resolve, and otherwise adjudicate all Contingent Claims, Unliquidated Claims,
and Disputed Claims in the Bankruptcy Court or such other court of the (Reorganized) Debtors’ choice having jurisdiction over the
validity, nature, or amount thereof. At any time, the (Reorganized) Debtors may request that the Bankruptcy Court estimate any Contingent
Claim, Unliquidated Claim, or Disputed Claim pursuant to section 502(c) of the Bankruptcy Code for any reason or purpose, regardless
of whether any party in interest has previously objected to such Claim or whether the Bankruptcy Court has ruled on any such objection.
The Bankruptcy Court shall retain jurisdiction to estimate any Claim at any time during litigation concerning any objection to any Claim,
including during the pendency of any appeal relating to any such objection. Notwithstanding any provision to the contrary in the Plan,
a Claim that has been expunged from the Claims Register, but either is subject to appeal or has not become a Final Order, shall be deemed
to be estimated at zero dollars unless otherwise ordered by the Bankruptcy Court. If the Bankruptcy Court estimates any Contingent Claim,
Unliquidated Claim, or Disputed Claim, that estimated amount shall constitute the maximum limitation on such Claim for all purposes and
may be used as evidence in any supplemental proceedings, and the (Reorganized) Debtors may pursue supplementary proceedings to object
to the ultimate allowance of such Claim; provided, that such limitation shall not apply to Claims requested by the Debtors to
be estimated for voting purposes only. Each
of the foregoing Claims and objection, estimation, and resolution procedures are cumulative and not exclusive of one another. Claims
may be estimated and subsequently compromised, settled, withdrawn, or resolved by any mechanism approved by the Bankruptcy Court. Notwithstanding
section 502(j) of the Bankruptcy Code, in no event shall any Holder of a Claim that has been estimated pursuant to section 502(c) of
the Bankruptcy Code or otherwise be entitled to seek reconsideration of such Claim unless such Holder has Filed a motion requesting the
right to seek such reconsideration on or before 20 calendar days after the date such Claim is estimated by the Bankruptcy Court. D.
No Distributions Pending Allowance or Settlement of Causes of Action Notwithstanding
any other provision hereof, no payments or Plan Distributions shall be made (1) for a Disputed Claim, unless and until all objections
to such Disputed Claim have been settled or withdrawn or have been determined by a Final Order and the Disputed Claim has become an Allowed
Claim, (2) to a specific Holder of an Allowed Claim, if such Holder is also the Holder of a Disputed Claim, unless and until all
objections to such Disputed Claim(s) have been settled or withdrawn or have been determined by a Final Order and each Disputed Claim
has become an Allowed Claim, or (3) to a specific Holder of an Allowed Claim, if such Holder is or may be liable to the (Reorganized)
Debtors on account of a Cause of Action, unless and until such Cause of Action (to the extent applicable and without prejudice to the
rights of any Holder of an Allowed Administrative Claim to argue that section 502(d) of the Bankruptcy Code is inapplicable to its Administrative
Claim) has been settled or withdrawn or has been determined by Final Order of the Bankruptcy Court or such other court having jurisdiction
over the matter; provided, that if only a portion of an Allowed Claim is Disputed, such Claim shall be deemed Allowed in the amount
not 53 Disputed
and payment or distribution shall be made on account of such undisputed amount. Following any such settlement or determination in clause
(3) of the preceding sentence where the Holder of a Claim is liable to the (Reorganized) Debtors on account of any Cause of Action, any
such payment or Plan Distribution to such Holder may be offset against the liability such Holder has to the (Reorganized) Debtors. Notwithstanding
the foregoing or any other provision in the Plan or the Plan Documents, nothing in the Plan or the Plan Documents shall (1) constitute
a determination that section 502(d) of the Bankruptcy Code is, or is not, applicable to Administrative Claims or (2) prejudice the
rights of (a) any Holder of an Allowed Administrative Claim to File a motion (or prosecute a pending motion) before or after the
Effective Date, seeking entry of an order compelling payment of its Allowed Administrative Claim on or after the Effective Date on the
basis that section 502(d) of the Bankruptcy Code is inapplicable to its Allowed Administrative Claim or (b) the (Reorganized) Debtors
to oppose any such motion on any grounds. E.
No Amendments to Claims On
and after the Confirmation Date, the Holder of a Claim (other than a Professional Fee Claim) must obtain the (Reorganized) Debtors’
written consent (email being sufficient) or a Final Order of the Bankruptcy Court to amend a Claim. Unless otherwise permitted by a Final
Order of the Bankruptcy Court, any Proofs of Claim that violate this Article VI.E shall be Disallowed without the need for any
objection by the (Reorganized) Debtors or any further notice to or action, order, or approval of the Bankruptcy Court and can be expunged
from the Claims Register (including by the Claims and Solicitation Agent). F.
No Late-Filed Claims All
Claims Filed after the Effective Date and for which no Final Order has been entered by the Bankruptcy Court determining that such Claims
were timely Filed shall be Disallowed and expunged from the Claims Register (including by the Claims and Solicitation Agent) at the direction
of the (Reorganized) Debtors to reflect the same, without the need to File an application, motion, complaint, objection, or any other
legal proceeding seeking to adjust or expunge such Claim and without any further notice to or action, order, or approval of the Bankruptcy
Court or the Holder of such Claim, as applicable. The (Reorganized) Debtors have no obligation to review or respond to any Claim Filed
after the Effective Date unless (1) the filer has obtained a Final Order from the Bankruptcy Court authorizing it to File such Claim
after the Effective Date or (2) the (Reorganized) Debtors have consented to the Filing of such Claim in writing. G.
No Interest Other
than as provided by section 506(b) of the Bankruptcy Code or as specifically provided for in the DIP Order, the Plan, or the Confirmation
Order, post-petition interest shall not accrue or be paid on Claims and no Holder of a Claim shall be entitled to interest accruing on
or after the Petition Date on any Claim or right. Additionally, and without limiting the foregoing, interest shall not accrue or be paid
on any Claim or Disputed Claim for the period from and after the Effective Date; provided, that nothing in this Article VI
shall limit any rights of any Governmental Unit to interest under section 503, 506(b), 1129(a)(9)(A), or 1129(a)(9)(C) of the Bankruptcy
Code or as otherwise provided for under applicable law. 54 H.
Adjustment to Claims Without Objection Any
Claim that has been paid or otherwise satisfied (in whole or in part), amended, superseded, cancelled, or otherwise Disallowed (including
pursuant to the Plan), any Claim that has been Filed against the wrong Debtor, and any Claim that is duplicative or redundant of another
Claim against the same Debtor, may, on or after the Confirmation Date, be adjusted on or expunged from the Claims Register (including
by the Claims and Solicitation Agent) at the direction of the (Reorganized) Debtors to reflect the same, without the need to File an
application, motion, complaint, objection, or any other legal proceeding seeking to adjust or expunge such Claim and without any further
notice to or action, order, or approval of the Bankruptcy Court or the Holder of such Claim, as applicable. I.
Reservation of Rights to Object to Claims The
failure of the (Reorganized) Debtors to object to any Claim shall not be construed as an admission to the amount, priority, character,
or validity of any such Claim, any portion thereof, or any other claim related thereto, whether or not such claim is asserted in any
currently pending or subsequently initiated proceeding, and shall be without prejudice to the right of the (Reorganized) Debtors to contest,
challenge the validity of, or otherwise defend against, any such Claim in the Bankruptcy Court or non-bankruptcy forum. J.
Disallowance of Claims Any
Claims held by an Entity from which the Bankruptcy Court has determined that property is recoverable under section 542, 543, 550, or
553 of the Bankruptcy Code, or that is a transferee of a transfer that the Bankruptcy Court has determined is avoidable under section
522(f), 522(h), 544, 545, 547, 548, 549, or 724(a) of the Bankruptcy Code, unless such Entity has paid the amount, or turned over any
such property, for which such Entity is liable under section 522(i), 542, 543, 550, or 553 of the Bankruptcy Code, shall be deemed Disallowed
pursuant to section 502(d) of the Bankruptcy Code, and Holders of such Claims may not receive any Plan Distributions on account of such
Claims until such time as all Causes of Action against that Entity have been settled or a Final Order of the Bankruptcy Court with respect
thereto has been entered and the full amount of such obligation to the Debtors has been paid or turned over in full. K.
Reimbursement or Contribution If
the Bankruptcy Court disallows a Claim for reimbursement or contribution of an Entity pursuant to section 502(e)(1)(B) of the Bankruptcy
Code, then to the extent that such Claim is Contingent as of the Effective Date, such Claim, notwithstanding section 502(j) of the Bankruptcy
Code, (1) shall be deemed Disallowed as of the Effective Date without the need for any objection thereto or any further notice to
or action, order, or approval of the Bankruptcy Court and (2) can be expunged from the Claims Register (including by the Claims
and Solicitation Agent) unless, in each case, prior to the Effective Date (1) such Claim has been adjudicated as noncontingent or
(2) the Holder of such Claim has Filed a noncontingent Proof of Claim on account of such Claim and a Final Order has been entered
determining such Claim as no longer Contingent. 55 ARTICLE
VII. A.
Assumption and Rejection of Executory Contracts and Unexpired Leases Except
as otherwise provided in the Plan or a Final Order, each Executory Contract and Unexpired Lease shall be deemed automatically assumed
(subject to the payment of any applicable Cure Cost), pursuant to sections 365 and 1123 of the Bankruptcy Code, as of the Effective Date,
without the need for any further notice to or action, order, or approval of the Bankruptcy Court, unless such Executory Contract or Unexpired
Lease: (1) has been previously assumed, assumed and assigned, or rejected by the Debtors pursuant to a Final Order of the Bankruptcy
Court, in which case, such Final Order shall control; (2) previously expired or was terminated pursuant to its terms; (3) is
the subject of a motion or notice of intent to assume, assume and assign, or reject pending as of the Effective Date; or (4) is
otherwise rejected pursuant to the terms hereof (including any Schedule of Rejected Contracts), in which case such rejections shall be
deemed effective on the Effective Date (or earlier, if so set forth herein or on any Schedule of Rejected Contracts). Except as otherwise
provided herein, each Executory Contract or Unexpired Lease to be assumed pursuant to the Plan shall revest in and be fully enforceable
by the applicable Reorganized Debtor(s) in accordance with its terms, except as modified hereby. Contracts
and leases entered into after the Petition Date by any Debtor will be performed by the applicable (Reorganized) Debtor liable thereunder
in the ordinary course of its business or as authorized by the Bankruptcy Court. Accordingly, such contracts and leases (including any
assumed Executory Contracts and Unexpired Leases) shall survive and remain unaffected by entry of the Confirmation Order and, on the
Effective Date, shall revest in and be fully enforceable by the applicable Reorganized Debtor in accordance with its terms, except as
such terms may have been modified by a Final Order of the Bankruptcy Court. Except
as otherwise provided herein, or agreed to by the (Reorganized) Debtors and the applicable counterparty, each assumed Executory Contract
or Unexpired Lease shall include all modifications, amendments, supplements, restatements, or other agreements related thereto, and all
rights related thereto, if any, including all easements, licenses, permits, rights, privileges, immunities, indemnities, options, rights
of first refusal, and any other interests. To the maximum extent permitted by law, and to the extent any provision in any Executory Contract
or Unexpired Lease assumed pursuant to the Plan restricts or prevents, or purports to restrict or prevent, or is breached or deemed breached
by, the assumption of such Executory Contract or Unexpired Lease, then such provision shall be deemed modified such that the transactions
contemplated by the Plan shall not entitle the non-Debtor party thereto to terminate such Executory Contract or Unexpired Lease or to
exercise any other default-related rights with respect thereto. Modifications,
amendments, supplements, and restatements to prepetition Executory Contracts and Unexpired Leases that have been executed by the Debtors
during the Chapter 11 Cases and actions taken in accordance therewith (1) do not alter in any way the prepetition nature of the
Executory Contracts and Unexpired Leases, or the validity, priority, or amount of any Claims that may arise under the same, (2) are
not and do not create post-petition contracts or leases, (3) do not elevate to administrative expense priority any prepetition Claims
of the counterparties to the Executory Contracts and Unexpired Leases against any of the Debtors, and (4) do not entitle any 56 Entity
to a Claim under any section of the Bankruptcy Code on account of the difference between the terms of any prepetition Executory Contracts
and Unexpired Leases and subsequent modifications, amendments, supplements, or restatements. The
Restructuring Support Agreement shall be assumed upon Confirmation and the Debtors and Consenting Stakeholders shall continue to perform
thereunder and comply therewith in all respects during the period through and including the Effective Date. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving the assumptions, assumptions and assignments, and rejections
described in this Article VII, pursuant to sections 365 and 1123 of the Bankruptcy Code, as of the date made applicable by the
preceding paragraph. B.
Cure of Defaults for Assumed Executory Contracts and Unexpired Leases All
Cure Costs shall be satisfied, pursuant to section 365(b)(1) of the Bankruptcy Code, by payment of the default amount in Cash on the
Effective Date or in the ordinary course of business, subject to the limitations described herein, or on such other terms as the parties
to such Executory Contract or Unexpired Lease may otherwise agree. In the event of a dispute regarding (1) the amount of any Cure Claim,
(2) the ability of the Reorganized Debtors or any assignee to provide “adequate assurance of future performance” (within
the meaning of section 365 of the Bankruptcy Code) under the Executory Contract or Unexpired Lease to be assumed, or (3) any other matter
pertaining to assumption (each, an “Assumption Dispute”), the Bankruptcy Court shall hear such dispute prior to the
assumption becoming effective; provided, that the (Reorganized) Debtors may settle any such dispute and shall pay any agreed upon
cure amount without any further notice to any party or any action, order, or approval. To
the extent an Assumption Dispute relates solely to proposed Cure Costs, the applicable (Reorganized) Debtor may assume or assume and
assign the applicable Executory Contract or Unexpired Lease prior to the resolution of the Assumption Dispute; provided, that
such (Reorganized) Debtor reserves Cash in an amount sufficient to pay the full amount asserted as the required cure payment by the non-Debtor
party to such Executory Contract or Unexpired Lease (or such smaller amount as may be fixed or estimated by the Bankruptcy Court). Notwithstanding
anything to the contrary herein, (1) no pending Assumption Dispute shall prevent or delay Plan Consummation and (2) to the
extent an Assumption Dispute is resolved or determined against the applicable (Reorganized) Debtor, within 45 days of such resolution
or determination, such (Reorganized) Debtor may reject the applicable Executory Contract or Unexpired Lease, and the non-Debtor counterparty
may thereafter File a Proof of Claim for any purported Rejection Damages in accordance with the Plan. Assumption
of any Executory Contract or Unexpired Lease pursuant to the Plan or otherwise, and full payment of any applicable Cure Costs pursuant
to this Article VII.B, shall result in the full release and satisfaction of any Cure Costs, other Claims, or defaults, whether
monetary or nonmonetary, including defaults of provisions restricting the change in control or ownership interest composition or other
bankruptcy-related defaults, arising under any assumed Executory Contract or Unexpired Lease at any time prior to the effective date
of assumption. Any and all 57 Proofs
of Claim based upon Executory Contracts or Unexpired Leases that have been assumed in the Chapter 11 Cases, including pursuant to the
Confirmation Order, and for which any Cure Cost has been fully satisfied, shall be deemed Disallowed upon the later of entry of the Confirmation
Order or such satisfaction in full without the need for any objection thereto or any further notice to or action, order, or approval
of the Bankruptcy Court and can be expunged from the Claims Register (including by the Claims and Solicitation Agent). C.
Employment-Related Provisions 1.
Employment Agreement and Benefit Programs Each
of the Debtors may, prior to the Effective Date, enter into new employment or similar agreements with employees that become effective
on or prior to the Effective Date and survive Consummation of the Plan; provided, that the consent of the Required Consenting
Senior Secured Noteholders shall be required with respect to any such agreement with an insider (as defined in the Bankruptcy Code). Notwithstanding
anything to the contrary herein, all employment, confidentiality, and non-competition agreements (including, for the avoidance of doubt,
any agreements with third-party personnel vendors or any agreements with independent contractors), offer letters (including any severance
set forth therein), bonus, gainshare, and incentive programs (including short-term and long-term cash incentive programs), vacation,
holiday pay, paid-time off, leaves, retention, change in control, sale bonus, severance, retirement, supplemental retirement, indemnity,
executive retirement, pension, deferred compensation, medical, dental, vision, life and disability insurance, flexible spending account,
and other health and welfare benefit plans, programs, agreements and arrangements, and all other wage, compensation, employee expense
reimbursement, unemployment insurance, workers’ compensation, and all other compensation or benefit obligations (including, for
the avoidance of doubt, letter agreements with respect to certain employees’ rights and obligations in the event of certain terminations
of their employment in connection with and following the Consummation of the Plan) in each case with the Debtors as of immediately prior
to the Effective Date (the “Compensation and Benefit Programs”) are deemed to be, and will be treated as, Executory
Contracts under this Plan and, on the Effective Date, shall be deemed assumed pursuant to sections 365 and 1123 of the Bankruptcy Code
(as amended prior to or on the Effective Date, in each case, as applicable) except for: (a) all (1) equity or equity-based incentive
plans, employee stock purchase plans, and any other agreements or awards, or provisions set forth in the Compensation and Benefits Programs
that provide for rights to acquire Interests or New Equity Interests and (2) any agreement or plan whose value is related to Interests
or New Equity Interests or other ownership interests of the Debtors, in each case, shall not constitute or be deemed to constitute Executory
Contracts and shall be deemed terminated on the Effective Date; (b) Compensation and Benefits Programs that have been rejected pursuant
to an order of a Bankruptcy Court; (c) Compensation and Benefits Programs that, as of the entry of the Confirmation Order, have been
specifically waived by the beneficiaries of any employee benefit plan or contract; and (d) Compensation and Benefit Programs that have
been superseded by a new agreement that has been executed with the counterparty thereto prior to Consummation of the Plan in accordance
with the first paragraph of this Article VII.C.1. 58 2.
Collective Bargaining Agreements Subject
to the occurrence of the Effective Date, the Debtors’ collective bargaining agreements with (a) the Aircraft Mechanics Fraternal
Association, (b) the Transportation Workers Union of America, (c) the International Association of Machinists and Aerospace
Workers, (d) the Professional Airline Flight Control Association, (e) the Association of Flight Attendants, and (f) the
Air Line Pilots Association, International, and (g) with respect to each of the foregoing entities in clauses (a) through (f), each
of their affiliated local unions, as applicable, shall be deemed assumed pursuant to sections 365 and 1123 of the Bankruptcy Code and
the Reorganized Debtors shall be bound by all obligations thereunder in all respects, with Cure Costs relating to such agreements being
determined and paid in the ordinary course. D.
Rejection Claims Any
Rejection Claim must be Filed with the Claims and Solicitation Agent by the Rejection Damages Bar Date. Any Rejection Claim for which
a Proof of Claim is not properly and timely Filed and served in accordance with the Plan, the Bankruptcy Rules, or the Local Rules shall
be Disallowed as of the Rejection Damages Bar Date without the need for any objection thereto or any further notice to or action, order,
or approval of the Bankruptcy Court and can be expunged from the Claims Register (including by the Claims and Solicitation Agent). The
(Reorganized) Debtors may contest any Rejection Claim in accordance herewith. Allowed Rejection Claims shall be classified as General
Unsecured Claims and shall be treated in accordance with Article III. E.
Reservation of Rights Nothing
contained in the Plan (including the Plan Supplement) constitutes an admission by the Debtors or any other party that any contract or
lease is in fact an Executory Contract or Unexpired Lease or that any Debtor, any Reorganized Debtor, or any other Entity has any liability
thereunder. If there is a dispute regarding whether a contract or lease is or was executory or unexpired at the time of assumption, the
(Reorganized) Debtors shall have 90 days following entry of a Final Order resolving such dispute to alter their treatment of such contract
or lease. If any such dispute is not timely resolved, either party may submit the dispute to the Bankruptcy Court for adjudication. F.
Transferred Cure Costs With
respect to payment of any Cure Costs or disputes over any Cure Costs, none of the (Reorganized) Debtors, any Distribution Agent, or any
other Entity, as applicable, shall have any obligation to recognize or deal with any party other than the non-Debtor party to the applicable
executory contract or unexpired lease as of the Distribution Record Date, even if such non-Debtor party has sold, assigned, or otherwise
transferred its Cure Cost. 59 G.
Indemnification 1.
Debtor Indemnification Obligations Each
Indemnification Obligation shall be deemed to be and treated as an Executory Contract under the Plan. Subject to the occurrence of the
Effective Date, each Indemnification Obligation shall (a) be deemed assumed by the (Reorganized) Debtors in accordance with Article
VII.A pursuant to sections 365 and 1123 of the Bankruptcy Code, (b) remain intact, in full force and effect, (c) not be
modified, reduced, discharged, impaired, revoked, or otherwise affected in any way, (d) not be limited, reduced, or terminated after
the Effective Date, and (e) survive unaffected irrespective of whether such indemnification is owed for an act or event occurring
before, on, or after the Petition Date; provided, that the immediately preceding subclauses (a)–(e) shall not apply to any
obligation of any Debtor to indemnify, hold harmless, or any obligation of similar import that is on account of conduct determined in
a Final Order as constituting fraud, willful misconduct, gross negligence, bad faith, self-dealing, or breach of the duty of loyalty.
For the avoidance of doubt, subject to the occurrence of the Effective Date, the indemnification obligations in the proviso of the immediately
preceding sentence shall be deemed rejected by the (Reorganized) Debtors pursuant to section 365 of the Bankruptcy Code. 2.
Third-Party Indemnities All
of the Debtors’ rights to indemnification by third parties shall vest in the Reorganized Debtors on the Effective Date. H.
Insurance-Related Provisions Notwithstanding
anything to the contrary in the Plan, the Plan Documents, the Confirmation Order, any Claim objection, any other document related to
any of the foregoing, or any other order of the Bankruptcy Court (including any other provision that purports to be preemptory or supervening,
grants an injunction, discharge, or release, confers Bankruptcy Court jurisdiction, or requires a party to opt out of any releases): 60 or other
payment arising, at any time, out of or under the Insurance Contracts, regardless of whether such rights or obligations arise or become
due before or after the Effective Date, shall vest with the Reorganized Debtors, (c) the Reorganized Debtors shall have standing
to pursue the Insurance Coverage Rights, and (d) the Reorganized Debtors shall be authorized to perform any administrative responsibilities
on behalf of any named insured under the Insurance Contracts. For
the avoidance of doubt, each Insurer is prohibited and enjoined from denying, refusing, altering, or delaying coverage on any basis regarding
or related to the Chapter 11 Cases or the Plan, including the treatment set out herein for any insured claim or Causes of Action. After
the Confirmation Date, none of the (Reorganized) Debtors shall terminate or otherwise reduce the “side-A” coverage under
any D&O Liability Insurance Policy in effect on the Confirmation Date with respect to conduct occurring prior thereto. Each such
Entity shall be entitled to the full benefits of any such side-A coverage for the full term of such policy, subject to the terms and
conditions thereof and hereof, regardless of whether such Entity is an “insured” on or after the Effective Date. At
all times after the Effective Date, the Reorganized Debtors shall purchase or maintain “side-A” liability tail coverage for
the six-year period following the Effective Date on terms no less favorable than, and with an aggregate limit of liability upon the Effective
Date of no less than the aggregate limit of liability under, the “side-A” coverage provided through the Debtors’ existing
D&O Liability Insurance Policies. From and after the Effective Date, reasonable directors’ and officers’ insurance policies
shall remain in place in the ordinary course. ARTICLE
VIII. A.
Release of Liens Except
as otherwise provided in the Plan or in any contract, instrument, release, or other agreement or document created pursuant to the Plan
or the Confirmation Order, on the Effective Date and concurrently with the applicable Plan Distributions being made and, in the case
of a Secured Claim, satisfaction in full of the portion of the Secured Claim that is Allowed as of the Effective Date in accordance with
the Plan, all mortgages, deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall be fully
released, settled, discharged, and compromised, without any further approval or order of the Bankruptcy Court and without any action
or filing being required to be made by the (Reorganized) Debtors, and all rights, titles, and interests of any Holder of such mortgages,
deeds of trust, Liens, pledges, or other security interests against any property of the Estates shall revert to the Reorganized Debtors
and their successors and assigns. On and after the Effective Date, each party secured by such pre-Effective Date mortgages, deeds of
trust, Liens, pledges, or other security interests (including the Prepetition Agent) shall execute and deliver (at the request and expense
of the Reorganized Debtors), and the Reorganized Debtors shall be authorized to file, any documents deemed necessary or appropriate to
evidence such release in the name of such party secured by such pre-Effective Date mortgages, deeds of trust, Liens, pledges, or other
security interests. With respect to the security interests securing the DIP Obligations, the release and termination of such security
interests shall be subject to satisfaction in full or waiver of all DIP Obligations in accordance with the terms of the applicable DIP
Documents. 61 To
the extent that any Holder of a Secured Claim that has been satisfied in full pursuant to the Plan, or any agent for such Holder, has
filed or recorded publicly any Liens or security interests to secure such Holder’s Secured Claim, then as soon as practicable on
or after the Effective Date, such Holder (or its agent) shall take any and all steps requested by the Reorganized Debtors that are deemed
reasonable, necessary, or appropriate to record or effectuate the cancellation or extinguishment of such Liens or security interests,
including the making of any applicable filings or recordings, and the Reorganized Debtors shall be entitled to make any such filings
or recordings on such Holder’s behalf. B.
Releases; Discharges The
releases and discharges of Claims, Interests, and Causes of Action described in the Plan, including releases by the Debtors and by Holders,
constitute good-faith compromises and settlements of the matters covered thereby and such releases are consensual. Such compromises and
settlements are made in exchange for consideration, are in the best interest of Holders, are fair, equitable, and reasonable, and are
integral elements of the resolution of the Chapter 11 Cases in accordance with the Plan. Each
of the release, indemnification, discharge, and exculpation provisions set forth in the Plan or in the Confirmation Order (1) is
within the jurisdiction of the Bankruptcy Court under sections 1334(a), 1334(b), and 1334(e) of title 28 of the United States Code, (2) is
an essential means of implementing the Plan, (3) is an integral and non-severable element of the transactions incorporated into
the Plan, (4) confers a material benefit on, and is in the best interests of, the Debtors, their Estates, and their creditors, (5) is
important to the overall objectives of the Plan to finally resolve all claims among or against the parties in interest in the Chapter
11 Cases with respect to the Debtors, (6) is fair, equitable, and reasonable and in exchange for good and valuable consideration,
and (7) is consistent with sections 105, 1123, 1129, 1141, and other applicable provisions of the Bankruptcy Code. Notwithstanding
anything to the contrary herein, the releases, stipulations, and exculpation provisions hereof are in addition to and do not replace,
the release, stipulations, and other provisions of any Final Order of the Bankruptcy Court. To
the fullest extent provided under section 1141(d)(1)(A) of the Bankruptcy Code and other applicable provisions of the Bankruptcy Code,
except as otherwise expressly provided in the Plan or the Confirmation Order: (1) all consideration distributed under the Plan shall
be in complete satisfaction, settlement, discharge, and release of, or in exchange for (as applicable), all Claims and Interests of any
kind or nature whatsoever against the Debtors or any of their assets or properties, regardless of whether any property shall have been
distributed or retained pursuant to the Plan on account of such Claims or Interests; (2) the Plan shall bind all Entities who have
held, hold, or may hold Claims against or Interests in the Debtors; and (3) all Entities shall be precluded from asserting against
the (Reorganized) Debtors, their Estates, their successors and assigns, and their assets and properties any other Claims or Interests
based upon any documents, instruments, act, omission, transaction, or other activity of any kind or nature that occurred prior to the
Effective Date. Except as otherwise expressly provided for in the Plan or the Confirmation Order, upon the Effective Date, the Debtors
shall be deemed discharged and released under and to the fullest extent 62 provided
under section 1141(d)(1)(A) of the Bankruptcy Code from any and all Claims and Interests of any kind or nature whatsoever, including
demands and liabilities that arose on or before the Effective Date, and all debts of the kind specified in section 502(g), 502(h), or
502(i) of the Bankruptcy Code. C.
Term of Injunctions or Stays Unless
otherwise provided in the Plan or in the Confirmation Order, all injunctions or stays in effect in the Chapter 11 Cases (pursuant to
sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court) and existing on the Confirmation Date (excluding any
injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the later of (1) the
Effective Date or (2) the date indicated in the order providing for such injunction or stay. All injunctions or stays contained
in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms. D.
Exculpation Pursuant
to section 1123(b) and 105(a) of the Bankruptcy Code, to the fullest extent permitted by applicable law, and except as otherwise specifically
provided for in the Plan or Confirmation Order, none of the Exculpated Parties shall have or incur any liability for, and each Exculpated
Party is released, discharged, and exculpated from any Cause of Action for any claim related to, any act or omission in connection with,
related to, or arising out of the Chapter 11 Cases, the formulation, preparation, marketing, dissemination, negotiation, filing, or pursuit
of approval, confirmation, or consummation of the DIP Facility, the DIP Documents, the Restructuring Support Agreement, the Plan (including
the Plan Supplement and other Plan Documents), the Disclosure Statement, the Exit Financing Facilities, the Exit Financing Documents,
the Equity Rights Offering, the Equity Rights Offering Documents, any settlement, contract, instrument, release, or other agreement or
document created or entered into in connection therewith or in the Chapter 11 Cases, and any other act taken or omitted to be taken in
connection with or in contemplation of the Chapter 11 Cases, the reorganization of the Debtors, or the administration of, or property
to be distributed under, the Plan (including the issuance and distribution of any interests (including the New Equity Interests) issued
or to be issued under or in connection with the Plan), except for claims related to any act or omission that is determined in a Final
Order to have constituted willful misconduct (including actual fraud) or gross negligence. Each Exculpated Party shall be entitled to
reasonably rely upon the advice of counsel concerning its duties and responsibilities pursuant to, or in connection with, the Plan. The
Exculpated Parties have, and upon Confirmation of the Plan shall be deemed to have, participated in good faith and in compliance with
the applicable provisions of the Bankruptcy Code with regard to the solicitation of votes on, and distribution of consideration (including
the New Equity Interests) pursuant to, the Plan and, therefore, are not, and on account of such distributions shall not be, liable at
any time for the violation of any applicable law, rule, or regulation governing the solicitation of acceptances or rejections of the
Plan or such distributions made pursuant to the Plan. To the extent that any of the Exculpated Parties owed fiduciary duties to the Debtors,
their Estates, or the Bankruptcy Court in connection with the Chapter 11 Cases, the Exculpated Parties have, and upon Confirmation of
the Plan shall be deemed to have, fully, completely, professionally, and admirably satisfied such duties. 63 E.
Releases by the Debtors Pursuant
to section 1123(b) of the Bankruptcy Code, and except as otherwise specifically provided for in the Plan or Confirmation Order, on and
after the Effective Date, for good and valuable consideration, including their cooperation and contributions to the Chapter 11 Cases,
the Released Parties shall be deemed released and discharged by the Debtors, the Reorganized Debtors, and their Estates from any and
all claims, obligations, debts, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown,
foreseen or unforeseen, asserted or unasserted, existing or hereinafter arising, in law, equity, or otherwise, whether for tort, fraud,
contract, violations of federal, state, foreign, or other applicable laws, or otherwise, including Avoidance Actions, those Causes of
Action based on veil piercing or alter-ego theories of liability, contribution, indemnification, lender liability, joint liability, or
otherwise that the Debtors, the Reorganized Debtors, their Estates, and their respective Affiliates would have been legally entitled
to assert in their own right (whether individually or collectively) or that any Holder of a Claim or Interest or other Entity would have
been legally entitled to assert derivatively for or on behalf of the Debtors, the Reorganized Debtors, their Estates, or their respective
Affiliates, based on, relating to, or in any manner arising from, in whole or in part, the following: 64 The
foregoing releases in this Article VIII.E shall not apply to any Retained Causes of Action or any claims or liabilities arising
out of or relating to any act or omission of a Released Party that constitutes willful misconduct (including actual fraud) or gross negligence.
Notwithstanding anything contained herein to the contrary, the foregoing releases shall not release any obligation of any party under
the Plan or any document, instrument, or agreement executed to implement the Plan (including the Plan Supplement and any of the Continuing
Senior Secured Notes Documents). Entry
of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the releases described
in the Plan, which includes by reference each of the related provisions and definitions contained in the Plan and, further, 65 shall
constitute its finding that each release described in the Plan is (1) in exchange for the good and valuable consideration provided
by the Released Parties (including the Released Parties’ contributions to facilitate the resolution of the Chapter 11 Cases and
implementation of the Plan), a good-faith settlement, and compromise of such claims, (2) in the best interests of the Debtors and
all Holders of Claims, (3) fair, equitable, and reasonable, (4) given and made after due notice and opportunity for hearing,
and (5) subject to the occurrence of the Effective Date, a bar to the Debtors or the Reorganized Debtors asserting any Covered Claim
released under or pursuant to the Plan against any of the applicable Released Parties or their respective property. F.
Voluntary Releases by the Releasing Parties Except
as otherwise specifically provided for in the Plan or Confirmation Order, on and after the Effective Date, for good and valuable consideration,
including their cooperation and contributions to the Chapter 11 Cases, each Releasing Party shall be deemed to have conclusively, absolutely,
unconditionally, irrevocably, and forever released and discharged the Released Parties from any and all claims, interests, obligations,
debts, rights, suits, damages, Causes of Action, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen,
asserted or unasserted, existing or hereinafter arising, in law, equity, or otherwise, whether for tort, fraud, contract, violations
of federal, state, or other applicable laws, or otherwise, including Avoidance Actions, those Causes of Action based on veil piercing
or alter-ego theories of liability, contribution, indemnification, joint liability, or otherwise that such Releasing Party would have
been legally entitled to assert (whether individually or collectively), based on, relating to, or in any manner arising from, in whole
or in part, the following: 66 The
foregoing releases in this Article VIII.F shall not apply to any (1) Retained Causes of Action, (2) claims or liabilities
arising out of or relating to any act or omission of a Released Party that constitutes willful misconduct (including actual fraud) or
gross negligence, or (3) rights, remedies, exculpations, indemnities, powers, and protections under the DIP Documents preserved
in Article IV.H. Notwithstanding anything contained herein to the contrary, the foregoing releases shall not release any obligation
of any party under the Plan or any document, instrument, or agreement executed to implement the Plan (including the Plan Supplement and
any the Continuing Senior Secured Notes Documents). 67 Entry
of the Confirmation Order shall constitute the Bankruptcy Court’s approval, pursuant to Bankruptcy Rule 9019, of the releases described
in the Plan, which includes by reference each of the related provisions and definitions contained in the Plan and, further, shall constitute
its finding that each release described in the Plan is (1) in exchange for the good and valuable consideration provided by the Released
Parties, a good-faith settlement, and compromise of such claims, (2) in the best interests of the Debtors and all Holders of Claims,
(3) fair, equitable, and reasonable, (4) given and made after due notice and opportunity for hearing, and (5) subject
to the occurrence of the Effective Date, a bar to the Releasing Party asserting any Covered Claim released under or pursuant to the Plan
against any of the applicable Released Parties or their respective property. G.
Injunction Except
as otherwise specifically provided in the Plan, the Confirmation Order, or any Final Order entered by the Bankruptcy Court in the Chapter
11 Cases, all Entities who have held, hold, or may hold claims or interests that arose prior to the Effective Date, and all other parties
in interest, along with their respective Related Parties, are permanently enjoined, from and after the Effective Date, on account of,
in connection with, or with respect to any such claim or interest for which an Exculpated Party has been exculpated under Article
VIII.D of the Plan or for which a Released Party has been released under Article VIII.E or Article VIII.F of the Plan
(as applicable), from (1) commencing or continuing in any manner any action or other proceeding on account of, in connection with,
or with respect to any such claims or interests released, exculpated, or settled pursuant to the Plan, other than to enforce any right
to a Plan Distribution, (2) the enforcement, attachment, collection, or recovery by any manner or means of any judgment, award,
decree, or order against any Released Party or Exculpated Party, or the property or interest in property thereof, on account of, in connection
with, or with respect to any such claims or interests released, exculpated, or settled pursuant to the Plan, other than to enforce any
right to a Plan Distribution, (3) creating, perfecting, or enforcing any Lien or encumbrance against any Released Party or Exculpated
Party, or the property or interest in property thereof, on account of, in connection with, or with respect to any such claims or interests
released, exculpated, or settled pursuant to the Plan, other than to enforce any right to a Plan Distribution, (4) asserting any
right of setoff or subrogation against any obligation due from any Released Party or Exculpated Party, or against the property or interest
in property thereof, on account of, in connection with, or with respect to any such claims or interests released, exculpated, or settled
pursuant to the Plan, notwithstanding an indication of a claim or interest or otherwise that such Entity asserts, has, or intends to
preserve any right of setoff pursuant to applicable law or otherwise, except to the extent that (a) a right to setoff is asserted
with respect to a Proof of Claim that explicitly preserves such setoff and is timely and properly Filed by the Effective Date or pursuant
to section 502(h) of the Bankruptcy Code and Bankruptcy Rule 3002(c)(3) or (b) such Entity was excused from Filing or otherwise
not required to File a Proof of Claim pursuant to a Final Order of the Bankruptcy Court, and (5) interfering with the implementation
or Consummation of the Plan or any of the Plan Documents. Such injunction shall extend to any successors or assignees of the Released
Parties and Exculpated Parties and their respective properties and interest in properties. Each of the Debtors, the Reorganized Debtors,
the Exculpated Parties, and the Released Parties is expressly authorized hereby to seek the enforcement of such injunctions. 68 No
Entity may commence, continue, amend, or otherwise pursue, join in, or support any other Entity commencing, continuing, amending, or
pursuing, a Cause of Action, Covered Claim, or claim of any kind against any Released Party or Exculpated Party, as applicable, that
arose, arises from, or is reasonably likely to arise from, or relates to or is reasonably likely to relate to, any Covered Claim subject
to Articles VIII.D, E, or F of the Plan without first (1) requesting a determination from the Bankruptcy Court,
after notice (to all affected parties) and a hearing, that such claim, Cause of Action, or Covered Claim, as applicable, represents a
colorable claim against a Debtor or a Released Party, as applicable, and is not a claim, Cause of Action, or Covered Claim that was released
or exculpated under or pursuant to the Plan, which request must attach the complaint or petition proposed to be filed by the requesting
Entity (which complaint or petition must satisfy the applicable Rules of Federal Procedure), and (2) obtaining from the Bankruptcy
Court, in the form of a Final Order, specific authorization for such Entity to bring such claim, Cause of Action, or Covered Claim, as
applicable, against a Debtor or any other Released Party or Exculpated Party, as applicable. Any such request shall include a proposed
attorney fee reserve, subject to modification by the Bankruptcy Court, that shall be deposited to the Bankruptcy Court’s registry
to indemnify all potential defendants against costs associated with the successful defense of any claim that is allowed to proceed. For
the avoidance of doubt, any Entity that obtains such determination and authorization and subsequently wishes to amend the authorized
complaint or petition to add any claim, Cause of Action, or Covered Claim not explicitly included in the authorized complaint or petition
must first obtain authorization from the Bankruptcy Court before filing any such amendment in the court where such complaint or
petition is pending. The Bankruptcy Court shall have sole and exclusive jurisdiction to determine whether a claim, Cause of Action, or
Covered Claim is colorable and, only to the extent legally permissible, shall have jurisdiction to adjudicate the underlying colorable
claim, Cause of Action, or Covered Claim. H.
Setoff and Recoupment Except
as otherwise expressly provided for in the Plan or the Confirmation Order, each (Reorganized) Debtor, as applicable, pursuant to the
Bankruptcy Code (including section 553 of the Bankruptcy Code), applicable non-bankruptcy law, or as may be agreed to by the Holder of
a Claim, may, but shall not be required to, set off or recoup (to the extent applicable) against any Allowed Claim and any Plan Distribution
to be made on account of such Claim, any and all claims, rights, and Causes of Action of any nature that such Debtor or Reorganized Debtor,
as applicable, may have against the Holder of such Claim pursuant to the Bankruptcy Code or applicable non-bankruptcy law, to the extent
such Claims, rights, or Causes of Action against such Holder have not been otherwise compromised or settled on or prior to the Effective
Date (whether pursuant to the Plan or otherwise); provided, that neither the failure to effect such a setoff or recoupment nor
the allowance of any Claim shall constitute a waiver, abandonment, or release by such Debtor, such Reorganized Debtor, of any such claims,
rights, and Causes of Action that they may have against such Holder. Except as otherwise specifically provided in the Plan, including
Article VIII.G, nothing herein shall (1) alter any rights of setoff or recoupment (to the extent available under applicable
law) of any Holder of an Allowed Claim or Allowed Administrative Claim against the (Reorganized) Debtors or (2) constitute a waiver
of the rights, claims, or defenses of the (Reorganized) Debtors or any other party in interest to dispute such rights of setoff or recoupment
on any 69 grounds. In no
event shall any Holder of a Claim be entitled to set off any such Claim against any Claim, right, or Cause of Action of the Debtor, unless
(1) such Holder has indicated in any timely- and properly-Filed Proof of Claim or otherwise that such Holder asserts, has, or intends
to preserve any right of setoff pursuant to section 553 of the Bankruptcy Code or otherwise or (2) such Holder was not required to File
a Proof of Claim pursuant to a Final Order of the Bankruptcy Court. I.
Preservation of Causes of Action The
Debtors, the Reorganized Debtors, and their Estates retain all Retained Causes of Action and may enforce all rights related thereto that
they may have or choose to assert on behalf of their respective Estates, as applicable, under any provision of the Bankruptcy Code or
any applicable analogous statute or non-bankruptcy law, whether such Cause of Action arose before or after the Petition Date. For the
avoidance of doubt, and notwithstanding anything to the contrary herein, the Retained Causes of Action shall not include any Causes of
Action of any kind that were released pursuant to a Final Order of the Bankruptcy Court or any other claims against any DIP Agent or
DIP Lender. Upon Consummation, the Reorganized Debtors shall have, retain, reserve, and be entitled to commence, assert, and pursue all
Retained Causes of Action. Except
as set forth in the Plan, the Confirmation Order, or a Final Order of the Bankruptcy Court, nothing contained in the Plan or the Confirmation
Order shall, or shall be deemed to, release any post-Effective Date obligations of any party under the Plan, or any document, instrument,
or agreement (including those set forth in the Plan Supplement) executed to implement the Plan or in connection with Consummation. The
Debtors’ inclusion or failure to include or describe with sufficient specificity any Retained Cause of Action herein, on any Schedule
of Retained Causes of Action, or in the Confirmation Order shall not be deemed an admission, denial, or waiver of any Retained Cause
of Action that the Debtors or their Estates may hold. No preclusion doctrine, including the doctrines of res judicata, collateral estoppel,
issue preclusion, claim preclusion, estoppel (judicial, equitable, or otherwise), or laches, shall apply to such Causes of Action upon,
after, or as a consequence of Confirmation or Consummation, including any argument of waiver on account of the failure to include or
describe with sufficient specificity any Retained Cause of Action herein, on any Schedule of Retained Causes of Action, or in the Confirmation
Order. For the avoidance of doubt, in no instance shall “Retained Causes of Action” include any claim or Cause of Action
with respect to, or against, a Released Party that was released pursuant to the Plan. No
Entity may rely on the absence of a specific reference herein, on any Schedule of Retained Causes of Action, or in the Confirmation Order
to any Cause of Action against them as any indication that the (Reorganized) Debtors will not pursue any and all available Causes of
Action against them. J.
Compromise and Settlement of Claims and Controversies Pursuant
to sections 363 and 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the Plan Distributions and other benefits
provided under the Plan and as a mechanism to effect a fair distribution of value to the Debtors’ constituencies, the provisions
of the Plan shall also constitute a good-faith compromise and settlement of all Claims, Causes of Action, and controversies incorporated
in the Plan. 70 The
entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the compromise or settlement of all such Claims,
Interests, controversies, and Causes of Action and the Bankruptcy Court’s finding that such compromise or settlement is in the
best interests of the Debtors, their Estates, and the Holders of such Claims, and is fair, equitable, and reasonable. Subject to Article
V, all Plan Distributions made to or for the benefit of Holders of Allowed Claims in any Class are intended to be and shall be final.
In accordance with the provisions of the Plan, pursuant to sections 363 and 1123 of the Bankruptcy Code and Bankruptcy Rule 9019(a),
without any further notice or action, order, or approval of the Bankruptcy Court, the Debtors, with the consent of the Required Consenting
Stakeholders, may compromise and settle claims and Causes of Action against other Entities and, upon Consummation, such right shall pass
to the Reorganized Debtors. K.
Protection Against Discriminatory Treatment In
accordance with section 525 of the Bankruptcy Code, and consistent with paragraph 2 of Article VI of the United States Constitution,
no Governmental Unit shall discriminate against any (Reorganized) Debtor or any Entity with which a (Reorganized) Debtor has been or
is associated, solely because such (Reorganized) Debtor (1) is or was a debtor under chapter 11, (2) may have been insolvent
before the commencement of the Chapter 11 Cases or during the Chapter 11 Cases prior to the Effective Date, or (3) has not paid
a debt that is dischargeable in the Chapter 11 Cases. ARTICLE
IX. A.
Conditions Precedent to the Effective Date The
following are conditions precedent to the occurrence of the Effective Date, each of which must be satisfied on or prior to the Effective
Date or waived in accordance with Article IX.B: 71 72 B.
Waiver of Conditions to Effectiveness The
Debtors, with the consent of the Required Consenting Stakeholders, may waive or modify any of the conditions set forth in Article
IX.A at any time (other than the conditions set forth in Article IX.A.4 and IX.A.10), without any notice to other parties
in interest or the Bankruptcy Court and without any further notice to or formal action other than proceeding to confirm or consummate
the Plan; provided, that the condition in Articles IX.A.6–A.8 may only be waived with the express written consent
of each affected professional or agent. The condition set forth in Article IX.A.10 may be waived by the Debtors at any time, in consultation
with the Consenting Stakeholders. The failure to satisfy any condition before the Confirmation Date or the Effective Date may be asserted
by the Debtors as a reason not to seek Confirmation or declare an Effective Date, regardless of the circumstances giving rise to the
failure of such condition to be satisfied (including any action or inaction by the Debtors). The failure of the Debtors to exercise any
of the foregoing rights shall not be deemed a waiver of such rights or any other rights, and each such right shall be deemed an ongoing
right, which may be asserted at any time. C.
Effect of Non-Occurrence of Conditions to the Effective Date If
the Effective Date does not occur on or before the termination of the Restructuring Support Agreement, then: (1) the Plan shall be null
and void in all respects; (2) any settlement or compromise embodied in the Plan, assumption or rejection of Executory Contracts or Unexpired
Leases effected under the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (3) nothing
contained in the Plan, the Confirmation Order, or the Disclosure Statement shall (i) constitute a waiver or release of any Claims, Interests,
or Causes of Action, (ii) prejudice in any manner the rights of the Debtors, any Holders of Claims or Interests, or any other Entity,
or (iii) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors, any Holders of Claims or Interests,
or any other Entity in any respect; provided, however, that such termination of the Restructuring Support Agreement and rendering
of the Plan null and void shall not affect the validity or enforceability of any other order entered by the Bankruptcy Court or of any
agreement, instrument, or other documents executed by any Debtor prior to the date of such termination, including the DIP Documents and
any other agreement, instrument, or other document executed in connection therewith. ARTICLE
X. A.
Plan Modifications Subject
to certain restrictions and requirements set forth in section 1127(a) of the Bankruptcy Code and Bankruptcy Rule 3019, the Debtors, with
the consent of the Required Consenting Stakeholders, may alter, amend, or modify the Plan, including the Plan Supplement, in its entirety,
in part, or as to a particular Debtor, without additional disclosure pursuant to section 1125 of the Bankruptcy Code prior to the Confirmation
Date. In addition, should the Plan fail to be accepted by the requisite number and amount of Claims voting, as required to satisfy section
1129 of the Bankruptcy Code, and notwithstanding any other provision of the Plan to the contrary, the Debtors reserve the right to reclassify
Claims and Interests. 73 After
the Confirmation Date and before substantial consummation of the Plan, the Debtors, in consultation with the Required Consenting Stakeholders,
may institute proceedings in the Bankruptcy Court pursuant to section 1127(b) of the Bankruptcy Code to remedy any defect or omission
or reconcile any inconsistencies in the Plan, including the Plan Supplement or the Confirmation Order, relating to such matters as may
be necessary to carry out the purposes and effects of the Plan. After
the Confirmation Date but before the Effective Date, the Debtors, in consultation with the Consenting Stakeholders, may make appropriate
technical adjustments and modifications to the Plan, including the Plan Supplement, without further order or approval of the Bankruptcy
Court; provided, that such adjustments and modifications do not materially and adversely affect the treatment of Holders or their
Claims or Interests. After
the Effective Date, the Reorganized Debtors may amend, supplement, or otherwise modify the Plan Documents in accordance with their terms
and applicable non-bankruptcy law. Entry
of the Confirmation Order shall constitute approval of all modifications to the Plan occurring after the solicitation of votes thereon,
pursuant to section 1127(a) of the Bankruptcy Code, and a finding that such modifications to the Plan do not require additional disclosure
or solicitation under Bankruptcy Rule 3019. B.
Revocation or Withdrawal of Plan and Effects of Nonoccurrence of Confirmation or Effective Date The
Debtors, with the consent of the Required Consenting Stakeholders, reserve the right to revoke, withdraw, or delay consideration of the
Plan prior to the Confirmation Date and to File subsequent plans. If the Debtors revoke or withdraw the Plan, or if the Confirmation
Order is vacated pursuant to a Final Order, in each case, in its entirety, in part, or as to a particular Debtor, or if the Confirmation
Date or the Effective Date does not occur, then, absent further order of the Bankruptcy Court and as to all or such Debtors, as applicable,
(1) the Plan shall be null and void in all respects, (2) any settlement or compromise not previously approved by Final Order
of the Bankruptcy Court embodied in the Plan (including the fixing or limiting to an amount certain any Claim or Interest or Class of
Claims or Interests), assumption or rejection of Executory Contracts or Unexpired Leases affected by the Plan, and any document or agreement
executed pursuant hereto shall be deemed null and void, and (3) nothing contained in the Plan or the Confirmation Order, and no
acts taken in preparation for Consummation of the Plan, shall (a) constitute or be deemed to constitute a waiver or release of any
Claims or Interests, (b) prejudice in any manner the rights of such Debtors or any other Entity (including the application of res
judicata or collateral estoppel), or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by the Debtors
or any other Entity. If
the Effective Date does not occur, the Bankruptcy Court shall retain jurisdiction over any request to extend the deadline for assuming
or rejecting Executory Contracts or Unexpired Leases. 74 ARTICLE
XI. Notwithstanding
the entry of the Confirmation Order and the occurrence of the Effective Date, on or after the Effective Date, the Bankruptcy Court shall
retain exclusive jurisdiction over all matters arising out of, or relating to, the Chapter 11 Cases and the Plan pursuant to, and
for the purposes of, sections 105(a) and 1142 of the Bankruptcy Code to: 75 the Confirmation
Order, the Plan Documents, and contracts, instruments, releases, and other agreements or documents created or entered into in connection
with the Plan; 76 Unless
otherwise specifically provided herein or in a prior order of the Bankruptcy Court, the Bankruptcy Court shall have jurisdiction to hear
and determine disputes concerning Claims that arose prior to the Effective Date. ARTICLE
XII. A.
Exemption from Transfer Taxes and Recording Fees To
the fullest extent permitted by section 1146(a) of the Bankruptcy Code, (1) the issuance, distribution, transfer, or exchange of
any securities, instruments, or documents (including the New Equity Interests, Exit Secured Notes, and Subscription Rights), (2) the
creation, filing, or recording of any lien, mortgage, deed of trust, or other security interest, (3) the making, assignment, filing
or recording of any lease or sublease or the making or delivery of any deed or other instrument of transfer under, pursuant to, in furtherance
of, or in connection with the Plan, including any deeds, 77 bills
of sale, or assignments executed in connection with any of the transactions contemplated under the Plan or the reinvesting, transfer,
or sale of any real or personal property of the Debtors pursuant to, in implementation of, or as contemplated in the Plan, (4) the
grant of collateral under the Exit Financing Documents, and (5) the issuance, renewal, modification, or securing of indebtedness by such
means, and the making, delivery, or recording of any deed, bill of sale, assignment, or other instrument of transfer under, in furtherance
of, contemplated by, arising out of, or in any way related to, the Plan, and Plan Documents, or the Confirmation Order, shall not be
subject to any document recording tax, stamp tax, conveyance fee, intangibles or similar tax, mortgage tax, personal or real property
tax (including real estate transfer tax), mortgage recording tax, Uniform Commercial Code filing or recording fee, regulatory filing
or recording fee, sales tax, use tax, or other similar tax or governmental assessment. Upon entry of the Confirmation Order, the appropriate
federal, state, or local governmental officials or agents shall forgo the collection of any such tax or governmental assessment and accept
for filing and recordation any of the foregoing instruments or other documents without the payment of any such tax, recordation fee,
or governmental assessment. All filing or recording officers (or any other Entity with authority over any of the foregoing), wherever
located and by whomever appointed, shall comply with the requirements of section 1146(a) of the Bankruptcy Code, shall forgo the collection
of any such tax or governmental assessment, and shall accept for filing and recordation any of the foregoing instruments or other documents
without the payment of any such tax or governmental assessment. B.
Request for Expedited Determination of Taxes The
Debtors shall have the right to request an expedited determination under section 505(b) of the Bankruptcy Code with respect to tax returns
filed, or to be filed, for any and all taxable periods ending after the Petition Date through the Effective Date, and in the case of
any Debtor that is to be dissolved in accordance with the Restructuring Steps Memorandum or the Plan, through the completion of its dissolution. C.
Dissolution of Any Committee On
the Effective Date, any appointed Committee shall dissolve automatically and the members thereof shall be released and discharged from
all rights, duties, responsibilities, and liabilities arising from, or related to, the Chapter 11 Cases and under the Bankruptcy Code,
except for the limited purposes of (1) prosecuting requests for payment of Professional Fee Claims for services and reimbursement
of expenses incurred prior to the Effective Date by any Committee and its Professionals and (2) appearing in connection with any
appeals taken of the Confirmation Order. Notwithstanding anything herein, the Reorganized Debtors shall not be responsible for paying
any fees or expenses incurred by the members of, or advisors to, any Committee after the Effective Date. D.
Plan Supplement and Other Plan Documents Draft
forms of certain Plan Documents and certain other documents, agreements, instruments, schedules, and exhibits specified in the Plan shall,
where expressly so provided for in the Plan, be contained in the Plan Supplement and Filed from time to time. Unless otherwise expressly
provided in the Plan, the Debtors may alter, modify, or amend any Plan Supplement document in accordance with Article X. 78 On
or before the Confirmation Date, the Debtors may File with the Bankruptcy Court such agreements and other documents as may be necessary
or appropriate to effectuate and further evidence the terms and conditions of the Plan. Once Filed, copies of such Filings shall be available
for free download on the Debtors’ Case Information Website. The
(Reorganized) Debtors, all Holders of Claims receiving Plan Distributions, and all other parties in interest shall, from time to time,
prepare, execute, and deliver any agreements or documents and take any other actions as may be necessary or advisable to effectuate the
provisions and intent of the Plan. E.
No Admission Other
than as expressly provided under the Plan or in the Confirmation Order, nothing in the Plan, Disclosure Statement, or any document or
pleading Filed in connection therewith shall constitute or be deemed to constitute an admission that any of the Debtors are subject to
or liable for any Claim. F.
Substantial Consummation On
the Effective Date, the Plan shall be deemed to be “substantially consummated,” as defined in section 1101 of the Bankruptcy
Code. G.
Section 1125 of the Bankruptcy Code As
of, and subject to the occurrence of, the Confirmation Date, the Debtors and their Related Parties shall be deemed to have solicited
votes on the Plan and participated in the issuance or distribution of any Securities and interests (including the New Equity Interests)
under the Plan in good faith and in compliance with the applicable provisions of the Bankruptcy Code (including sections 1125(a) and
1125(e) of the Bankruptcy Code) and any applicable non-bankruptcy law, rule, or regulation, including those governing the adequacy of
disclosure in connection with such solicitation; therefore, none of the Debtors nor their Related Parties shall have any liability for
the violation of any applicable law, rule, or regulation governing the solicitation of votes on the Plan or the issuance or distribution
of any Securities and interests (including the New Equity Interests) under the Plan. No
Entity may commence, continue, amend, or otherwise pursue, join in, or support any other party commencing, continuing, amending, or pursuing,
a claim or Cause of Action subject to the terms of the immediately preceding paragraph against any Debtor or any of their Related Parties,
without first (1) requesting a determination from the Bankruptcy Court, after notice (to all affected parties) and a hearing, that
such claim or Cause of Action, as applicable, represents a colorable claim against a Debtor or one of their Related Parties, as applicable,
and is not a claim or Cause of Action that was released or exculpated pursuant to the immediately preceding paragraph, which request
must attach the complaint or petition proposed to be filed by the requesting party (which complaint or petition must satisfy the applicable
Rules of Federal Procedure), and (2) obtaining from the Bankruptcy Court, in the form of a Final Order, specific authorization for
such party to bring such claim or Cause of Action, as applicable, against a Debtor or any of their Related Parties, as applicable. Any
such request shall include a proposed attorney fee reserve, subject to modification by the Bankruptcy Court, that shall be deposited
to the 79 Bankruptcy
Court’s registry to indemnify all potential defendants against costs associated with the successful defense of any claim that is
allowed to proceed. For the avoidance of doubt, any party that obtains such determination and authorization and subsequently wishes to
amend the authorized complaint or petition to add any claim or Cause of Action not explicitly included in the authorized complaint or
petition must first obtain authorization from the Bankruptcy Court before filing any such amendment in the court where such complaint
or petition is pending. The Bankruptcy Court shall have sole and exclusive jurisdiction to determine whether a claim or Cause of Action
is colorable and, only to the extent legally permissible, shall have jurisdiction to adjudicate the underlying colorable claim or Cause
of Action. H.
Non-Severability If,
before Confirmation, any term or provision of the Plan or any other Plan Document is held by the Bankruptcy Court to be invalid, void,
or unenforceable, the Bankruptcy Court, at the request of the Debtors, shall have the power to alter and interpret such term or provision
to make it valid or enforceable to the maximum extent practicable, consistent with the original purpose of the term or provision held
to be invalid, void, or unenforceable, and such term or provision shall then be applicable as altered or interpreted; provided,
that any such alteration or interpretation shall be acceptable to the Debtors and the Required Consenting Stakeholders. Entry
of the Confirmation Order shall constitute a judicial determination that each term and provision of the Plan and each Plan Document,
as it may have been altered or interpreted in accordance with the foregoing, is (1) valid and enforceable pursuant to its terms,
(2) integral to the Plan and may not be deleted or modified without the consent of the Debtors, as well as the Required Consenting
Stakeholders, and (3) non-severable and mutually dependent. I.
Binding Effect Notwithstanding
any Bankruptcy Rule (including Bankruptcy Rules 3020(e), 6003, and 6004(h)) or Local Rule to the contrary, upon the occurrence of the
Effective Date (or, to the extent expressly provided herein or in the Confirmation Order, the Confirmation Date), the Plan shall be binding
upon and inure to the benefit of the (Reorganized) Debtors, all present and former Holders of Claims or Interests (whether or not such
Holders shall receive or retain any property or interest in property under the Plan and irrespective of whether such Claims or Interests
are deemed to have accepted the Plan), all Entities that are parties to or are subject to the settlements, compromises, releases, or
injunctions described in the Plan, each Entity acquiring property under the Plan, any and all non-Debtor parties to Executory Contracts
and Unexpired Leases with the Debtors, all other parties in interest in the Chapter 11 Cases, and their respective Related Parties. J.
Service of Documents After
the Effective Date, to be effective, any notice, request, or demand to or upon, as applicable, the Reorganized Debtors, the Consenting
Stakeholders, or the DIP Agent must be in writing (email being sufficient) and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when actually received and confirmed by the relevant party as follows: 80 Davis Polk &
Wardwell LLP 450 Lexington
Avenue New York, New
York 10017 Attention: Marshall
Huebner, Darren S. Klein, Christopher S. Robertson, Moshe Melcer, Kayleigh Yerdon Email: spirit.notice@davispolk.com Akin Gump Strauss
Hauer & Feld LLP New York, New
York 10036 Paul Hastings
LLP Chicago,
IL 60606 Paul
Hastings LLP 1170
Peachtree Street N.E. Suite
100 Atlanta,
GA 30309 Attention:
Zach Cochran Email:
zachcochran@paulhastings.com After
the Effective Date the Reorganized Debtors are authorized to limit the list of Entities receiving documents pursuant to Bankruptcy Rule
2002 to those Entities who have Filed a renewed request to receive documents pursuant to Bankruptcy Rule 2002. In
accordance with Bankruptcy Rules 2002 and 3020(c), within 14 calendar days of the date of entry of the Confirmation Order, the (Reorganized)
Debtors shall serve a notice of Confirmation to all parties served with the Confirmation Hearing Notice in the same manner so served;
provided, that no notice or service of any kind shall be required to be mailed or made upon any Entity to whom the Debtors mailed
a Confirmation Hearing Notice, but received such notice returned marked “undeliverable as addressed,” “moved, left
no forwarding address,” or “forwarding order expired,” or similar reason, unless the Debtors have been informed in
writing by such Entity, or are otherwise aware, of that Entity’s new address. K.
Waiver or Estoppel Each
Holder of a Claim or an Interest shall be deemed to have waived any right to assert any argument, including the right to argue that its
Claim or Interest should be Allowed 81 in
a certain amount, in a certain priority, Secured, or not subordinated by virtue of an agreement made with the Debtors or their counsel
or any other Entity, if such agreement was not disclosed herein or in papers Filed with the Bankruptcy Court prior to the Confirmation
Date. L.
Conflicts Except
as set forth herein (including Article I.G), (1) to the extent that any provision of any Plan Document (though subject to
clause (2) of this Article XII.L) or any Final Order of the Bankruptcy Court (other than the Confirmation Order) conflicts with
or is in any way inconsistent with any provision of the Plan or the Confirmation Order, the Plan or the Confirmation Order, as applicable,
shall govern and control, (2) to the extent that any provision of the Plan (excluding the Plan Supplement) conflicts with or is
in any way inconsistent with any provision of the Plan Supplement, the Plan Supplement shall govern and control (unless otherwise set
forth in such Plan Supplement document), and (3) to the extent that any provision of the Plan conflicts with or is in any way inconsistent
with any provision of the Confirmation Order, the Confirmation Order shall govern and control. M.
Entire Agreement Except
as otherwise indicated, the Plan supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings,
and representations on such subjects, all of which have become merged and integrated into the Plan. [Remainder
of page intentionally left blank] 82 Respectfully
submitted, November
17, 2024 EXHIBIT B [Reserved] Exhibit
C Backstop Commitment Agreement Exhibit
D Company
Acknowledgment With respect to the Restructuring
Support Agreement, dated as of November [•], 2024, as the same has been or may be hereafter amended, restated, or otherwise modified
from time to time in accordance with the provisions thereof (the “Agreement”), the undersigned (the “Company
Party”) hereby acknowledges, agrees and confirms that, by its execution of this Agreement, from and after the Effective
Date (as defined below), the Company Party: The Company Acknowledgment
shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to any conflicts of law
provisions which would require the application of the law of any other jurisdiction. Capitalized terms used in
this Company Acknowledgment but not otherwise defined shall have the respective meanings set forth in the Agreement. The Agreement
shall control over any provision in this Company Acknowledgment that is inconsistent with the Agreement. [Signature page to follow] Name: Authorized Signatory [Company Party’s Signature Page to the
Company Acknowledgment] EXHIBIT E DIP Term Sheet EXHIBIT F Company Parties to Sign Company Acknowledgment Spirit Finance Cayman 1 Ltd. Spirit Finance Cayman 2 Ltd. Spirit IP Cayman Ltd. Spirit Loyalty Cayman Ltd. EXHIBIT G Exit Secured Notes Facility Term Sheet SPIRIT AIRLINES, INC. 11.00% / 12.00% SENIOR SECURED NOTES DUE 2030 This Summary of Terms and Conditions (this “Exit
Secured Notes Facility Term Sheet”) sets forth certain terms of the Exit Secured Notes Facility referred to the Restructuring
Support Agreement to which this Exit Secured Notes Facility Term Sheet is attached. This Exit Secured Notes Facility Term Sheet does not
address all of the terms and conditions of the Exit Secured Notes Facility and the applicable Definitive Exit Secured Notes Documentation,
and all terms and conditions not set forth herein shall be subject to the Documentation Principles set forth herein. Capitalized terms
used but not defined in this Exit Secured Notes Facility Term Sheet shall have the meanings ascribed to such terms in the Restructuring
Support Agreement or the Plan (as defined in the Restructuring Support Agreement). Section 1.02 of the Restructuring Support Agreement
shall apply to this Exit Secured Notes Facility Term Sheet, mutatis mutandis. Spirit Airlines, Inc. (the “Issuer”),
a Delaware corporation. Each of the direct and indirect subsidiaries
of the Issuer existing on the Issue Date (as defined below) or subsequently acquired and/or formed subsidiaries (collectively, the “Guarantors”;
together with the Issuer, individually, an “Obligor” and, collectively, the “Obligors”). Trustee and Collateral Agent: An institution reasonably acceptable to the
Required Noteholders and the Issuer will serve as indenture trustee and notes collateral agent (in such capacity, together with its successors
and assigns, the “Trustee”). The Exit Secured Notes will be issued on
the Issue Date to each Holder of Allowed Senior Secured Notes Claims and each Holder of Allowed Convertible Notes Claims that is either
(i) a “qualified institutional buyer,” as such term is defined in Rule 144A under the Securities Act, (ii) a non-U.S. person
as defined under Regulation S under the Securities Act, or (iii) an institutional “accredited investor” within the meaning
of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act (collectively, the “Exit Secured Noteholders”)
in accordance with the Plan of Reorganization. Effective Date (the “Issue Date”). Amount: $840.0 million aggregate principal amount
of senior secured notes due 2030 to be issued on the Issue Date (the “Exit Secured Notes”), of which (i) $700.0 million
would be issued to Holders of Allowed Senior Secured Notes Claims and (ii) $140.0 million would be issued to Holders of Allowed Convertible
Notes Claims, in each case, in accordance with the terms of the Plan of Reorganization. Interest shall accrue on the Exit Secured
Notes from the Issue Date, at the option of the Issuer, to be publicly announced prior to the beginning of each quarter, (x) at 12.00%
per annum, of which 8.00% per annum shall be payable in cash and 4.00% per annum shall be payable in-kind or (y) at 11.00% per annum
payable in cash, in each case, in arrears on a quarterly basis on the last day of each fiscal quarter. Interest shall be calculated on
the basis of a 360-day year composed of twelve 30-day months. During the continuance of an Event of Default
(as defined below), all overdue Exit Secured Notes Obligations (as defined below) will bear interest at an additional 2.00% per annum,
payable in cash on demand. All obligations under the Exit Secured Notes,
including the principal of, and accrued interest on (including any interest on interest), the Exit Secured Notes and all other amounts
owing to the Trustee and the Exit Secured Noteholders with respect to the Exit Secured Notes (collectively, the “Exit Secured
Notes Obligations”), will be due and payable in full in cash on the earlier of (i) the fifth anniversary of the Issue Date
(the “Maturity Date”) and (ii) the date of any acceleration of the Exit Secured Notes following the occurrence and
continuation of an Event of Default (as defined below), by operation of law or otherwise (such earlier date, the “Termination
Date”). As set forth in the Plan of Reorganization. The indenture and other definitive documentation
for the Exit Secured Notes (collectively, the “Definitive Exit Secured Notes Documentation”) shall be consistent with
the terms and conditions set forth in this Exit Secured Notes Facility Term Sheet and otherwise in form and substance reasonably satisfactory
to the Required Noteholders and the Issuer, it being understood and agreed that the starting precedent for the Definitive Exit Secured
Notes Documentation shall be a combination of (x) the Prepetition Secured Notes Indenture and the other Prepetition Secured Notes Documents
(each, as defined in the Adequate Protection Order) and (y) the Prepetition RCF Credit Agreement (as defined in the Adequate Protection
Order) and the Collateral Documents (as defined in the Prepetition RCF Credit Agreement), as applicable. The provisions of this paragraph
are referred to herein as the “Documentation Principles”. Collateral: The Exit Secured Notes Obligations shall
be secured by liens on and security interest in the Prepetition Secured Notes Collateral (as 2 The Issuer may redeem the Exit Secured Notes
at its option, in whole or in part, at any time prior to the second anniversary of the Issue Date at a redemption price equal to 100%
of the principal amount of the Exit Secured Notes redeemed, plus accrued and unpaid interest to the redemption date plus a customary
T+50 basis point make-whole premium; provided that, notwithstanding the foregoing, the Issuer may redeem the Exit Secured Notes at its
option, in whole, at any 3 time on or prior to the date that is ninety (90)
days after the Issue Date, at a redemption price equal to 100% of the principal amount of the Exit Secured Notes redeemed, plus accrued
and unpaid interest to the redemption date, plus an 8.0% premium. At any time on or after the second anniversary
of the Issue Date and prior to the third anniversary of the Issue Date, the Issuer may redeem the Exit Secured Notes, in whole or in part,
at a redemption price equal to 100% of the principal amount of the Exit Secured Notes redeemed, plus accrued and unpaid interest to the
redemption date, plus a 6.0% premium. Thereafter, the Issuer may redeem the Exit Secured Notes, in whole or in part, at par, plus accrued
and unpaid interest to the redemption date. The premiums described in this section shall
also be immediately due and payable upon the acceleration of the Exit Secured Notes after the occurrence of an Event of Default, by operation
of law or otherwise. The premiums described in this section shall be presumed to be the liquidated damages sustained by each Exit Secured
Noteholder as the result of the early termination of the Exit Secured Notes and the Issuer agrees that it is reasonable under the circumstances
currently existing. The Issuer will be required to offer to purchase
the Exit Secured Notes upon the occurrence of a change of control (to be defined in a manner reasonably acceptable to the Required Noteholders,
and which shall include a merger with, acquisition by or other business combination with, another public company), which offer shall
be at 101% of the principal amount of the Exit Secured Notes plus accrued and unpaid interest to the date of any such redemption. Subject to the Documentation Principles,
the Issuer will be required to offer to purchase the Exit Secured Notes (x) upon the occurrence of certain non-ordinary course asset
sales of Exit Secured Notes Collateral and (y) in an amount equal to excess cash flow (to be defined in a manner reasonably acceptable
to the Required Noteholders and the Issuer) for periods to be mutually agreed, in each case, which offer shall be at 100% of the principal
amount of the Exit Secured Notes plus accrued and unpaid interest to the date of any such redemption. The Definitive Exit Secured Notes Documentation
will contain affirmative covenants, negative covenants, financial covenants and events of default subject to the Documentation Principles. In addition, the negative covenants in the
Definitive Exit Secured 4 Notes Documentation shall include a Liability
Management Transaction (the “LMT Covenant”) covenant that does not permit the Issuer to, and shall not permit any of
its Subsidiaries to, enter into any Liability Management Transaction; provided however, the Issuer and its subsidiaries shall be permitted
to enter into a Liability Management Transaction so long as each Exit Secured Noteholders is offered a bona fide right to participate
in such transaction, on a pro rata basis, on not less than ten (10) Business Days’ notice prior to the deadline to so elect. Liability Management Transaction shall mean any
of the following: (i) any exchange (or any transaction primarily designed to circumvent the restrictions set forth in the covenants hereof
or contemporaneously achieve the same effect as an exchange) of any existing debt of the Issuer or any of its Subsidiaries (the “Existing
LMT Debt”) with any other debt (including preferred equity) of the Issuer or any of its Subsidiaries (the “New LMT
Debt”) in a transaction that is not primarily for a bona fide business purpose and instead is primarily designed to “uptier”
holders of such Existing LMT Debt on a non-pro rata basis into New LMT Debt that is contractually or structurally senior to the Existing
LMT Debt, (ii) any investment, asset sale or other disposition of assets to an Affiliate of the Issuer or any of its Subsidiaries that
is not an Obligor (including any non-Obligor Subsidiary, Affiliate that is not an Obligor or unrestricted Subsidiary), in each case, to
(a) facilitate a new debt financing (including any preferred equity) incurred by such non-Obligor Person under such debt (including a
debtor-in-possession financing or preferred equity financing) or (b) to guarantee an existing debt financing or (iii) any transaction
whereby an obligation owed to an Affiliate of a Loan Party (other than another Loan Party) would directly or indirectly be pari passu
or senior (in right of payment or security) to the Exit Secured Notes. The Definitive Exit Secured Notes Documentation
will contain reporting requirements subject to the Documentation Principles. As of any time of determination, (i) on or
prior to the Issue Date, collectively, the Required Consenting Senior Secured Noteholders and the Required Consenting Convertible Noteholders
and (ii) after the Issue Date, holders of at least a majority in aggregate principal amount of the Exit Secured Notes outstanding at
such time (the “Required Noteholders”). 5 consent of the Required Noteholders, no such amendment,
waiver or other modification shall, without the prior written consent of: (i) each
holder of Exit Secured Notes directly and adversely affected thereby, (A) reduce the principal amount of, premium, if any, or interest,
if any, on the Exit Secured Notes, (B) extend the stated maturity, date of any principal payment or interest payment periods of the Exit
Secured Notes, (C) reduce the make-whole or any prepayment premium or any other fee due to an Exit Secured Noteholder, (D) amend, waive
or modify, or have the effect of amending, waiving or modifying, any legal right of an Exit Secured Noteholder to receive any fee, principal
or interest payment or to institute suit for the enforcement of such payment, (E) amend, waive or modify, or have the effect of amending,
waiving or modifying, a default or Event of Default for non-payment of principal or interest (whether in cash or paid in-kind), including
the cure periods applicable to any such default, and/or (F) amend, waive or modify, or have the effect of amending, waiving or modifying,
any right to receive interest or any fee payable in cash when due; (ii) all
of the holders of Exit Secured Notes, (A) amend, waive or modify, or have the effect of amending, waiving or modifying, (i) the amendment
provision of the Exit Secured Notes Definitive Documentation or (ii) any other provision of the Exit Secured Notes Definitive Documentation
which provides for the unanimous consent or approval of the holders of Exit Secured Notes to reduce the percentage of principal amount
of holders of Exit Secured Notes required thereunder, (B) release, or have the effect of releasing, all or substantially all of the liens
on the Exit Secured Notes Collateral, (C) release, or have the effect of releasing, all or substantially all of the value of the guarantees
by the Guarantors, (D) amend, waive or modify, or have the effect of amending, waiving or modifying, the priority or terms of any waterfall
provisions (whether in connection with proceeds from Exit Secured Notes Collateral or otherwise), (E) amend, waive or modify, or have
the effect of amending, waiving or modifying, the LMT Covenant, and/or (F) amend, waive or modify, or have the effect of amending, waiving
or modifying, the Exit Secured Notes Definitive Documentation to permit additional debt or commitments thereunder for the purpose of influencing
voting thresholds; (iii) holders
of no less than 85% of the outstanding principal amount of the Exit Secured Notes, (A) subordinate the liens on the Exit Secured Notes
Collateral to liens securing any other debt (other 6 than the Exit Revolving Credit Facility
or refinancings or replacements thereof), (B) subordinate the Exit Secured Notes in right of payment to the payment of any other debt
or (C) release, or have the effect of releasing, through one or a series of related transactions, liens on Exit Secured Notes Collateral
having a fair market value (as reasonably determined by the Issuer) in excess of 20% of the total fair market value of all Exit Secured
Notes Collateral; provided that, notwithstanding the foregoing, (x) the liens on the Exit Secured Notes Collateral may be subordinated
to the liens securing any other debt, (y) the Exit Secured Notes may be subordinated to other debt and/or (z) liens on Exit Secured Notes
Collateral having a fair market value in excess of 20% of the total fair market value of all Exit Secured Notes Collateral may be released,
in each case, with the consent of holders of not less than 67% of the Exit Secured Notes if each Exit Secured Noteholder is offered a
bona fide opportunity to participate in such other debt or transaction closed in connection with such release on a pro rata basis on not
less than ten (10) Business Days’ notice prior to the deadline to participate therein; or (iv) holders
of no less than [67/85]% of the outstanding principal amount of the Exit Secured Notes to amend, waive or modify, or have the effect of
amending, waiving or modifying, any financial covenant or Event of Default for failure to comply with a financial covenant. Neither the Issuer, nor any of its subsidiaries,
shall, directly or indirectly, pay or cause to be paid any consideration to any Exit Secured Noteholder for or as an inducement to any
consent, waiver or amendment unless such consideration is offered to be paid and is paid to all Exit Secured Noteholders that consent
to such transaction in the applicable time frame set forth in the solicitation documents relating to such transaction. The Issuer shall provide a copy of each amendment
to each of the Exit Secured Noteholders (whether their consent is needed or not for such amendment), for their consent, no less than three
(3) Business Days prior to the proposed execution of such amendment. Notwithstanding anything set forth above,
no amendment or modification of the Exit Secured Notes Definitive Documentation may be effected that would adversely change (x) the economic
terms, (y) the interests in the Exit Secured Notes Collateral or (z) the legal remedies, in each case, of a particular Exit Secured Noteholder
in a manner disproportionate to the rights or interests of any other Exit 7 The Issuer shall not be required to file
a registration statement with the Securities and Exchange Commission (“SEC”) relating to the initial issuance or any
resale of the Exit Secured Notes and shall not be required to commence an offer to exchange the Exit Secured Notes for SEC registered
notes or other notes. The Exit Secured Notes will be subject to
restrictions on transfer and may only be offered or sold in transactions exempt from or not subject to the registration requirements
of the Securities Act, including resales pursuant to Rule 144A under the Securities Act or Regulation S under the Securities Act. The
Issuers do not intend to list the Exit Secured Notes on any securities exchange. The New Indenture will not be qualified under,
or required to comply with the provisions of, the United States Trust Indenture Act of 1939 (as amended from time to time). The Issuer shall use commercially reasonable
efforts to obtain, at the expense of the Issuer, public ratings (but no specific ratings) of the Exit Secured Notes and the Issuer from
Moody’s and S&P within 30 days after the Issue Date. The State of New York (except for security/collateral documentation
that the Trustee determines should be governed by federal law or local law).
8 EXHIBIT H Governance Term Sheet SPIRIT AIRLINES, INC. GOVERNANCE TERM SHEET This term sheet (this “Term Sheet”)
describes certain corporate governance provisions to be in effect after the Restructuring of Spirit Airlines, Inc. and the other Debtors.
Capitalized terms used in this Term Sheet but not defined herein shall have the meanings set forth in the RSA and the Restructuring Term
Sheet, as applicable, of which this Term Sheet forms a part. Reorganized Company (the “Company”) will be a Delaware
corporation. It is intended that the Company will be a public reporting company on a National Securities Exchange. “National Securities Exchange” means The New
York Stock Exchange, The Nasdaq Global Select Market or The Nasdaq Global Market. The New Board shall consist of up to nine (9) directors composed of:
(i) the chief executive officer of the Company; and (ii) up to eight directors selected by a committee (the “Selection Committee”)
comprised of five (5) Consenting Senior Secured Noteholders and three (3) Consenting Convertible Noteholders. The Selection Committee
shall approve each director by the affirmative vote of a majority of the members of the Selection Committee, which majority shall include
at least a majority of the Consenting Senior Secured Noteholder members and a majority of the Consenting Convertible Noteholder members.
No institution may serve as both a Consenting Senior Secured Noteholder member and as a Consenting Convertible Noteholder member of the
Selection Committee. Notwithstanding the foregoing, if the Selection Committee cannot reach agreement on directors pursuant to clause
(ii), the New Board shall consist of (a) the chief executive officer of the Company, (b) six (6) directors selected by the Required Consenting
Senior Secured Noteholders and (c) two (2) directors selected by the Required Consenting Convertible Noteholders. All members of the New Board other than the chief executive officer
of the Company shall meet the independence requirements of a National Securities Exchange. After the Plan Effective Date, the members of the New Board will
be in a single class elected by the holders of the New Common Stock annually. Common Stock (provided that after the New Common Stock is listed on
a National Securities Exchange, such approval shall be of the holders of a relevant majority standard of the shares of New Common Stock
as specified under the voting standard of such National Securities Exchange), the Company shall not authorize, adopt or amend any equity
incentive plan other than the Management Incentive Plan or authorize any increase in the amount of shares or equity awards permitted to
be granted under the Management Incentive Plan or any other equity incentive plan or equity compensation plan. In addition, until such time as the New Common Stock is listed on a
National Securities Exchange, without the approval of the holders of a majority of outstanding New Common Stock, the Company shall not: (i) issue
shares of New Common Stock for cash in excess of 5% of the fully-diluted number of shares of New Common Stock outstanding and authorized
for issuance under the Plan on the Plan Effective Date (including all shares contemplated under the claims recovery, the Rights Offering,
the Backstop Commitment Agreement and the Management Incentive Plan) or authorize or issue any shares of preferred stock; provided
that this limitation shall not apply in connection with the adoption of a bona fide stockholder rights plan by the Company’s
board of directors; (ii) enter
into any sales, transfers or licenses of any Company subsidiary, division, operation, business, line of business, assets or property,
in each case, held by the Company or any of its subsidiaries with any person other than the Company or one or more of its wholly-owned
subsidiaries involving consideration in excess of $50,000,000 per transaction or series of related transactions; provided that
this limitation shall not apply to sales, transfers or licenses in the ordinary course of business involving any aircraft, aircraft engines
or simulators; or (iii) make
any acquisition, by merger, consolidation or stock or asset purchase or investment with respect to any business, assets, property or any
corporation or other entity, involving consideration in excess of $50,000,000 per transaction or series of related transactions; provided
that this limitation shall not apply to any acquisition or investment in the ordinary course of business involving any aircraft, aircraft
engines or simulators. Following such time as the New Common Stock is listed on a National
Securities Exchange, the approvals required under applicable law and regulation (including the requirements of the applicable National
Securities Exchange) shall apply in connection with the foregoing actions. The New Common Stock will be transferable without Company consent,
subject to (i) compliance with applicable securities laws and (ii) limitations 2 of ownership by non-U.S. citizens, which shall be included in the New
Organizational Documents in substantially similar form as the Company’s organizational documents existing as of the date hereof
(subject to such changes as the Required Consenting Stakeholders may reasonably request consistent with DOT regulations) and the language
thereof shall be acceptable to the Consenting Senior Secured Noteholders and the Consenting Convertible Noteholders in accordance with
Section 3.02 of the RSA. If requested by the Required Consenting Stakeholders before the
Plan Effective Date, the New Organizational Documents will include transfer restrictions designed to limit an ownership change for purposes
of Section 382 of the U.S. Internal Revenue Code or otherwise the Company may implement a stockholder rights plan designed for such purpose,
in each case effective upon the Plan Effective Date. On the Plan Effective Date, the Company will enter into, and all initial
holders of the New Common Stock will be deemed pursuant to the Prepackaged Plan and the Confirmation Order to enter into, a registration
rights agreement (the “Registration Rights Agreement”) providing for the following: · Direct
Listing and S-1 Resale Shelf. The Company shall use commercially reasonable efforts to, on or as soon as reasonably practicable after
the Plan Effective Date: o cause
the New Common Stock to be registered under Section 12(b) of the Securities Exchange Act of 1934, as amended; o obtain
a listing of the New Common Stock on a National Securities Exchange; and o obtain
a listing of the New Common Stock on a National Securities Exchange; and o register
all of the New Common Stock that is not issued and distributed pursuant to Section 1145(a) and therefore constitute “restricted
securities” or that are “control securities” for purposes of Rule 144 or applicable successor rule (“Rule
144”) under the Securities Act of 1933, as amended (the “Securities Act”) (such New Common Stock, together
with any securities issued or issuable in respect of such New Common Stock by way of conversion, exchange, stock dividend, split or combination,
recapitalization, merger, consolidation or otherwise, the “Registrable Securities”) on a shelf registration statement
(the “S-1 Resale Shelf”) on Form S-1 or applicable successor form (“Form S-1”); provided that any
Registrable Securities shall cease to be Registrable Securities on the first date that (i) all such securities shall have become freely
tradable under Rule 144 without a holding period, current public 3 information requirement, limitation on volume, manner of sale
restrictions or notice requirements and (ii) any and all restrictive legends or designations associated with such shares have been removed.
The S-1 Resale Shelf shall provide for offerings on a delayed or continuous basis pursuant to Rule 415 under the Securities Act or applicable
successor rule (“Rule 415”). The Company shall prepare and file such amendments, post-effective
amendments and supplements to the S-1 Resale Shelf as may be necessary to keep the S-1 Resale Shelf effective until the earlier of (1)
the date that no Registrable Securities remain, (2) the date that all Registrable Securities have been sold pursuant to Rule 144 or a
registration statement or (3) the date the S-3 Resale Shelf (as defined below) has become effective. · S-3
Resale Shelf. Once the Company has qualified for the use of a registration statement on Form S-3 or applicable successor form (“Form
S-3”), the Company shall as promptly as practicable register all of the remaining Registrable Securities that have not been
sold pursuant to Rule 144 or a registration statement, on a shelf registration statement on Form S-3 (the “S-3 Resale Shelf”).
The S-3 Resale Shelf shall provide for offerings on a delayed or continuous basis pursuant to Rule 415. The Company shall use commercially
reasonable efforts to prepare and make all such filings as may be necessary to keep the S-3 Resale Shelf effective until the earlier of
(1) the date that no Registrable Securities remain and (2) the date that all such Registrable Securities have been sold pursuant to Rule
144 or a registration statement. · Shelf
Takedowns. If requested by holders of Registrable Securities representing at least 10% of the then-outstanding Registrable Securities,
the Company shall conduct a shelf takedown off of the S-1 Resale Shelf or S-3 Resale Shelf, as applicable, covering New Common Stock requested
by such holders (a “Takedown Request”). Such holders may specify the type of offering to be covered by the Takedown
Request, such as an underwritten offering or registered block trade. The number of Takedown Requests shall be limited to no more than
three in any twelve-month period for all holders and only if the gross proceeds of such offering are expected to be greater than $35 million. · Piggyback
Registrations. Each holder of Registrable Securities who holds at least 3% of the then-outstanding New Common Stock will have the
right to include its New Common Stock each time the Company conducts an offering pursuant to a Takedown Request (other than a registered
block trade) or proposes for any reason to register any of its New Common Stock under the Securities Act, subject to customary exceptions
(such as registrations on Form S-4 4 · or
Form S-8). · Other Provisions. The Registration Rights Agreement will
also contain customary provisions relating to the registration procedures to be followed by the Company, indemnification obligations,
delay and suspension rights, selection of underwriters, priority, cutbacks, lock-ups (to the extent requested by an applicable underwriter)
and payment of expenses of registrations by the Company (including reasonable fees and disbursements of counsel for the selling holders
of Registrable Securities, but excluding underwriter discounts and commissions). 5 EXHIBIT I Form of Joinder JOINDER With respect to the Restructuring
Support Agreement, dated as of [•], 2024, as the same has been or may be hereafter amended, restated, or otherwise modified from
time to time in accordance with the provisions thereof (the “Agreement”), the undersigned (the “Joinder
Party”) hereby acknowledges, agrees and confirms that, by its execution of this Agreement, from and after the Effective
Date (as defined below), the Joinder Party: (1)
becomes and shall be treated for all purposes under the Agreement as a Consenting Stakeholder as appropriate, with respect to (i) all
Company Claims/Interests that the Joinder Party holds and (ii) the Transferred Company Claims/Interests (if applicable) to the same extent
the transferor was bound by the Agreement; (2)
agrees to be subject to and bound by all of the terms of the Agreement, a copy of which is attached to this Joinder as Annex
1 (as such terms may be amended from time to time in accordance with the terms thereof) and by the vote of the transferor with
respect to any Transferred Company Claims/Interests, if the transferor of the Company Claims/Interests voted on the Plan before the effectiveness
of the Transfer of the Company Claims/Interests to be Transferred in connection with the execution of this Joinder; and (3)
is deemed, without further action, to make to the other Parties as of the Effective Date the representations and warranties that
the Parties make in Section 8 and Section 9 of the
Agreement. The Joinder shall be governed
by and construed in accordance with the internal laws of the State of New York, without regard to any conflicts of law provisions which
would require the application of the law of any other jurisdiction. Capitalized terms used in
this Joinder but not otherwise defined shall have the respective meanings set forth in the Agreement. The Agreement shall control over
any provision in this Joinder that is inconsistent with the Agreement. ______________________________________ Name: Title: Address: E-mail address(es): Exhibit 10.2 BACKSTOP COMMITMENT
AGREEMENT BY AND AMONG SPIRIT AIRLINES
INC. THE OTHER DEBTORS
PARTY HERETO AND THE BACKSTOP
COMMITMENT PARTIES PARTY HERETO Dated
as of November 18, 2024 TABLE OF CONTENTS Page ii iii SCHEDULES Company Disclosure Schedules EXHIBITS iv BACKSTOP
commitment AGREEMENT THIS
BACKSTOP COMMITMENT AGREEMENT (this “Agreement”), dated as of November 18, 2024, is made by and among Spirit
Airlines Inc. a Delaware corporation (the “Company”), and each of its direct or indirect subsidiaries that
executes and delivers a acknowledgment and joinder to this Agreement substantially in the form attached to this Agreement as Exhibit
C (“Company Acknowledgment”) after the date hereof in accordance with this Agreement, and that become thereafter debtors
and debtors-in-possession that file chapter 11 cases under title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
(as it may be amended from time to time, the “Bankruptcy Code”) in the Bankruptcy Court (as defined below)
(together with the Company, each, a “Debtor” and collectively, the “Debtors”), each
Convertible Noteholder party hereto (collectively, the “Convertible Backstop Commitment Parties”), and each
Senior Secured Noteholder party hereto (collectively, the “Senior Secured Backstop Commitment Parties” and,
together with the Convertible Backstop Commitment Parties, the “Backstop Commitment Parties”). The Company,
the other Debtors and each Backstop Commitment Party are referred to herein, collectively, as the “Parties,”
and each, individually, a “Party.” Capitalized terms that are used but not otherwise defined in this Agreement
shall have the respective meanings given to them in Section 1.1 hereof or, if not defined therein, shall have the meanings given
to them in the Restructuring Support Agreement (as defined below). RECITALS WHEREAS,
the Company has entered into a restructuring support agreement (including the terms and conditions set forth in the Plan attached as
Exhibit A thereto) dated as of November 18, 2024, by and among the Debtors and the Consenting Stakeholders party thereto (together
with all exhibits and schedules thereto, as may be amended, supplemented, or otherwise modified from time to time, the “Restructuring
Support Agreement”), which provides for the restructuring of the Debtors’ capital structure and financial obligations
pursuant to a joint plan of reorganization to be filed in bankruptcy cases voluntarily commenced under the Bankruptcy Code on November
18, 2024 in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court,”
and such cases, the “Chapter 11 Cases”), implementing the terms and conditions of the Restructuring Transactions; WHEREAS,
pursuant to the Restructuring Support Agreement and the Plan, the Company intends to issue New Common Equity for an aggregate purchase
price of $350 million (such New Common Equity, the “Offering Shares”), of which (i) Offering Shares (the “Senior
Secured Direct Allocation Shares”) representing an aggregate purchase price equal to the Senior Secured Holdback Amount
(as defined below) shall be allocated to the Senior Secured Backstop Commitment Parties (the “Senior Secured Direct Allocation”),
(ii) Offering Shares (the “Convertible Direct Allocation Shares”) representing an aggregate purchase price
equal to the Convertible Holdback Amount (as defined below) shall be allocated to the Convertible Backstop Commitment Parties (the “Convertible
Direct Allocation” and, together with the Senior Secured Direct Allocation, the “Direct Allocation”),
(iii) Offering Shares will be offered in a rights offering (the “Rights Offering”) to Eligible Participants
(as defined below) pursuant to which (A) Offering Shares representing an aggregate purchase price equal to the Senior Secured Rights
Offering Amount (as defined below) will be offered to Senior Secured Noteholders on a ratable basis based on such holder’s amount
of Senior Secured Notes Claims (the “Senior Secured Rights 1 Offering
Shares”), and (B) Offering Shares representing an aggregate purchase price equal to the Convertible Rights Offering Amount
will be offered to Convertible Noteholders on a ratable basis based on such holder’s amount of Convertible Notes Claims (the “Convertible
Rights Offering Shares” and, together with Senior Secured Rights Offering Shares, the “Rights Offering Shares”),
in each case on, and subject to, the terms and conditions set forth herein and subject to such procedures, terms, conditions and documentation
acceptable to the Company and the Required Backstop Commitment Parties; WHEREAS,
subject to the terms and conditions contained in this Agreement, each Backstop Commitment Party has agreed severally, and not jointly
and severally, to fund its respective Direct Allocation Commitment (as defined below) and Rights Offering Backstop Commitment (as defined
below), if any, based on its respective Commitment Percentage (as defined below) and each Backstop Commitment Party will be entitled
to receive its respective Direct Allocation Shares (as defined below), Backstop Shares (as defined below) and Backstop Premium Shares
(as defined below) in amounts as described herein and subject to the terms and conditions hereof and thereof; and NOW,
THEREFORE, in consideration of the mutual promises, agreements, representations, warranties and covenants contained herein, the Parties
hereby agree as follows: Article
I Section
1.1 Definitions.
Except as otherwise expressly provided in this Agreement, whenever used in this Agreement (including any Schedules hereto), the following
terms shall have the respective meanings specified therefor below or in the Restructuring Support Agreement, as applicable: “Ad
Hoc Group of Convertible Noteholders Advisors” has the meaning set forth in the Restructuring Support Agreement. “Ad
Hoc Group of Senior Secured Noteholders Advisors” has the meaning set forth in the Restructuring Support Agreement. “Advisor
Fees” has the meaning set forth in Section 3.2(a). “Affiliate”
means, with respect to any Person, any other Person that, directly or indirectly, Controls or is Controlled by or is under common Control
with such Person, and shall include the meaning of “affiliate” set forth in section 101(2) of the Bankruptcy Code as if such
person were a debtor. “Affiliated” has a correlative meaning. “Affiliated
Fund” means which respect to any Backstop Commitment Party, (a) any Affiliates (including at the institutional level) of
such Backstop Commitment Party or any fund, account (including any separately managed accounts) or investment vehicle that is controlled,
managed, advised or sub-advised by such Backstop Commitment Party, an Affiliate of such Backstop Commitment Party or by the same investment
manager, advisor or subadvisor as such Backstop Commitment Party or an Affiliate of such Backstop Commitment Party or any fund, 2 account
(including any separately managed accounts) or investment vehicle which is controlled, managed, advised or sub-advised by an Affiliate
of a Backstop Commitment Party’s investment manager, advisor or sub-advisor, (b) one or more special purpose vehicles that are
wholly owned by such Backstop Commitment Party and its Affiliates, created for the purpose of holding the Direct Allocation Amount and/or
the Rights Offering Backstop Commitment or (c) any Person, or any of its Affiliates, that is party to a derivative or participation transaction
with such Backstop Commitment Party pursuant to which there is a transfer of the economics of ownership of Senior Secured Notes Claims,
Convertible Notes Claims or any securities to or from such Person. “Agreement”
has the meaning set forth in the preamble. “Alternative
Restructuring Proposal” has the meaning set forth in the Restructuring Support Agreement. “Anti-Corruption
Laws” has the meaning set forth in Section 4.24. “Antitrust
Authorities” means the United States Federal Trade Commission, the Antitrust Division of the United States Department of
Justice, the attorneys general of the several states of the United States, and any other Governmental Entity, whether domestic, foreign
or supranational, having jurisdiction pursuant to, or enforcing, the Antitrust Laws, and “Antitrust Authority”
means any of them. “Antitrust
Laws” means the Sherman Antitrust Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the HSR Act,
the Federal Trade Commission Act of 1914, as amended, and any other Law, whether domestic or foreign, governing agreements in restraint
of trade, monopolization, pre-merger notification, the lessening of competition through merger or acquisition or anticompetitive conduct,
and any foreign investment Laws. “Applicable
Consent” has the meaning set forth in Section 4.7. “Backstop
Cash Premium” means $35,000,000. “Backstop
Commitment Parties” has the meaning set forth in the preamble. “Backstop
Order” has the meaning set forth in the Restructuring Support Agreement. “Backstop
Premium” means the Senior Secured Backstop Premium and the Convertible Backstop Premium. “Backstop
Premium Shares” means the Senior Secured Backstop Premium Shares and the Convertible Backstop Premium Shares. “Backstop
Shares” means the Senior Secured Backstop Shares and the Convertible Backstop Shares. “Bankruptcy
Code” has the meaning set forth in the preamble. 3 “Bankruptcy
Court” has the meaning set forth in the Recitals. “Bankruptcy
Rules” means the Federal Rules of Bankruptcy Procedure as promulgated under section 2075 of title 28 of the United
States Code, 28 U.S.C. §§ 1–4001, as amended from time to time, as applicable to the Chapter 11 Cases and the general,
local, and chambers rules of the Bankruptcy Court, each as amended from time to time. “BCA
Approval Obligations” means, subject to the Backstop Order, the obligations of Company and the other Debtors under this
Agreement and the Backstop Order. “BCA
Joinder” means the form of joinder agreement attached hereto as Exhibit A. “Breaching
Consenting Stakeholder” has the meaning set forth in Section 9.4(b). “Business
Day” means any day, other than a Saturday, Sunday or legal holiday, as defined in Bankruptcy Rule 9006(a). “Chapter
11 Cases” has the meaning set forth in the Recitals. “Claim”
has the meaning set forth in section 101(5) of the Bankruptcy Code. “Closing”
has the meaning set forth in Section 2.7(a). “Closing
Date” has the meaning set forth in Section 2.7(a). “Collective
Bargaining Agreement” has the meaning set forth in Section 4.13(a). “Commitment
Amount” means a Senior Secured Commitment Amount or a Convertible Commitment Amount, as applicable. “Commitment
Party Default” means either a Senior Secured Commitment Party Default or a Convertible Commitment Party Default, as applicable. “Commitment
Party Replacement” means a Senior Secured Commitment Party Replacement or a Convertible Commitment Party Replacement, as
applicable. “Commitment
Party Subscription Deadline” means the Subscription Tender Deadline as set forth and defined in the Subscription Form. “Commitment
Party Transfer Form” means that certain form attached hereto as Exhibit B. “Commitment
Percentage” means a Senior Secured Commitment Percentage or a Convertible Commitment Percentage, as applicable. “Company”
has the meaning set forth in the preamble. “Company
Acknowledgement” has the meaning set forth in the preamble. 4 “Company
Aircraft” has the meaning set forth in Section 4.31(a). “Company
Aircraft Finance Contract” has the meaning set forth in Section 4.31(e). “Company
Aircraft Purchase Contract” has the meaning set forth in Section 4.31(d). “Company
Airport” has the meaning set forth in Section 4.33. “Company
Benefit Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), whether
or not subject to ERISA, and any other compensation or benefits plan, policy, program, arrangement or payroll practice, and each other
stock or equity purchase, stock or equity option, or other equity or equity based award, severance, retention, employment, consulting,
change of control, bonus, incentive, deferred compensation, employee loan, retirement, fringe benefit and other benefit plan, agreement,
program, policy, legally binding commitment or other arrangement, other than a Foreign Plan or a Multiemployer Plan, in each case, established,
sponsored, maintained or contributed to or required to be contributed to by any Debtor or any Debtor Subsidiary. “Company
Claims/Interests” has the meaning set forth in the Restructuring Support Agreement. “Company
Disclosure Schedules” means the disclosure schedules delivered by the Company to the Backstop Commitment Parties on the
date of this Agreement. “Company
Organizational Documents” means collectively, the organizational documents of the Company, including any certificate of
formation, articles of incorporation, limited liability company agreement, bylaws or any similar documents, as applicable. “Company
Permits” means all authorizations, permits, certificates, exemptions, waivers, approvals, orders, consents, franchises,
variances, deviations, registrations, licenses and clearances of any Governmental Entity applicable to the Debtors and necessary for
them to own, lease and operate their assets and properties and to operate the Debtors’ business as currently conducted. “Company
SEC Documents” means all of the reports, schedules, forms, statements and other documents (including exhibits and other
information incorporated therein) filed with or furnished to the SEC by the Company. “Company
Slots” has the meaning set forth in Section 4.33(a). “Confirmation
Order” has the meaning set forth in the Restructuring Support Agreement. “Consenting
Stakeholders” has the meaning set forth in the Restructuring Support Agreement. 5 “Contract”
means any agreement, contract or instrument, including any loan, note, bond, mortgage, indenture, guarantee, deed of trust, license,
sublicense, settlement agreement, franchise, commitment, lease, franchise agreement, letter of intent, memorandum of understanding or
other obligation, and any amendments thereto, whether written or oral, but excluding the Plan. “Control”
means, with respect to any Person, the possession, directly or indirectly, of the right or 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. “Convertible
Available Shares” means the Direct Allocation Shares, Rights Offering Shares and Backstop Shares that a Defaulting Convertible
Backstop Commitment Party has failed to fund as a result of a Convertible Commitment Party Default. “Convertible
Backstop Commitment Parties” has the meaning set forth in the preamble. “Convertible
Backstop Funding Notice” has the meaning set forth in Section 2.4(b). “Convertible
Backstop Premium” has the meaning set forth in Section 3.1(b)(i). “Convertible
Backstop Premium Shares” has the meaning set forth in Section 3.1(b)(i). “Convertible
Backstop Shares” has the meaning set forth in Section 2.2(b). “Convertible
Commitment Amount” has the meaning set forth in Section 2.2(b). “Convertible
Commitment Party Default” means the failure by any Convertible Backstop Commitment Party or its Related Purchasers (as
applicable) to deliver and pay any portion of its respective Funding Amount by the Escrow Account Funding Date in accordance with Section
2.4(e). “Convertible
Commitment Party Replacement” has the meaning set forth in Section 2.6(a). “Convertible
Commitment Party Replacement Period” has the meaning set forth in Section 2.6(a). “Convertible
Commitment Percentage” means, with respect to each Convertible Backstop Commitment Party, the percentage set forth opposite
such Convertible Backstop Commitment Party’s name on the Convertible Commitment Schedule. “Convertible
Commitment Schedule” means Schedule 2 hereto. “Convertible
Direct Allocation” has the meaning set forth in the Recitals. 6 “Convertible
Direct Allocation Amount” has the meaning set forth in the Section 2.1(a). “Convertible
Direct Allocation Commitments” has the meaning set forth in the Section 2.1(a). “Convertible
Direct Allocation Shares” has the meaning set forth in the Recitals. “Convertible
Funding Amount” has the meaning set forth in Section 2.4(b). “Convertible
Holdback Amount” means (i) if the Convertible Notes RSA Condition has not been met, $37,187,500 and (ii) if the Convertible
Notes RSA Condition has been met, $7,437,500. “Convertible
Noteholders” has the meaning set forth in the Restructuring Support Agreement. “Convertible
Notes Claims” has the meaning set forth in the Restructuring Support Agreement. “Convertible
Notes RSA Condition” means that, no later than 11:59 p.m., New York City time, on November 25, 2024, as such time may be
extended with the consent of the Required Convertible Backstop Commitment Parties, Convertible Noteholders (as such term is defined in
the Restructuring Support Agreement) holding, in the aggregate, at least 90.00% of the aggregate principal amount of the Convertible
Notes Claims shall have executed the Restructuring Support Agreement. “Convertible
Replacing Commitment Parties” has the meaning set forth in Section 2.6(a). “Convertible
Rights Offering Amount” means (i) if the Convertible Notes RSA Condition has not been met, $37,187,500 and (ii) if the
Convertible Notes RSA Condition has been met, $66,937,500. “Convertible
Rights Offering Backstop Commitment” has the meaning set forth in Section 2.2(b). “Convertible
Rights Offering Shares” has the meaning set forth in the Recitals. “Convertible
Unsubscribed Shares” has the meaning set forth in Section 2.2(b). “Data
Protection Laws” means all Laws pertaining to the protection, privacy, security, breach notification, and cross-border
transfer of Personal Data. “Debtors”
has the meaning set forth in the preamble. “Defaulting
Commitment Party” means, in respect of a Senior Secured Commitment Party Default or Convertible Commitment Party Default,
as applicable, in each case, that is continuing, the applicable Defaulting Senior Secured Backstop Commitment Party or Defaulting Convertible
Backstop Commitment Party. 7 “Defaulting
Convertible Backstop Commitment Party” means, in respect of a Convertible Commitment Party Default that is continuing,
the applicable defaulting Convertible Backstop Commitment Party. “Defaulting
Senior Secured Backstop Commitment Party” means, in respect of a Senior Secured Commitment Party Default that is continuing,
the applicable defaulting Senior Secured Backstop Commitment Party. “Deferred
Compensation Liability” means the amount, as of immediately prior to the date hereof and on and as of the Closing Date,
of all distributions that may become payable in respect of any non-qualified deferred compensation plan established, maintained, sponsored,
or contributed, or required to be contributed, by a Debtor or any of its Subsidiaries, including any supplemental retirement plan, and
account balances thereunder. “Defined
Benefit Pension Plan” means any plan that is subject to Section 412 of the Tax Code, Section 302 of ERISA or Title IV of
ERISA (including a Multiemployer Plan) maintained, sponsored or contributed to, or for which there is an obligation to contribute to,
by any of the Debtors or any ERISA Affiliate at any time during the preceding six (6) plan years. “Definitive
Documents” has the meaning set forth in the Restructuring Support Agreement. “DIP
Claim” means a claim under the DIP Facility. “DIP
Facility” has the meaning set forth in the Restructuring Support Agreement. “DIP
Orders” has the meaning set forth in the Restructuring Support Agreement. “Direct
Allocation” has the meaning set forth in the Recitals. “Direct
Allocation Amount” means (i) for each Senior Secured Backstop Commitment Party such Senior Secured Backstop Commitment
Party’s Senior Secured Direct Allocation Amount and (ii) for each Convertible Backstop Commitment Party such Convertible Backstop
Commitment Party’s Convertible Direct Allocation Amount. “Direct
Allocation Commitment” means a Senior Secured Direct Allocation Commitment or a Convertible Direct Allocation Commitment,
as applicable. “Direct
Allocation Shares” means the Senior Secured Direct Allocation Shares or the Convertible Direct Allocation Shares, as applicable. “Disclosure
Statement” has the meaning set forth in the Restructuring Support Agreement. 8 “Disclosure
Statement Order” means the Solicitation Procedures Order, as such term is defined in the Restructuring Support Agreement. “DTC”
means The Depository Trust Company. “Eligible
Participant” means a Convertible Noteholder or a Senior Secured Noteholder, as applicable. “Environmental
Laws” means all applicable Laws and Orders relating in any way to the protection of the environment, preservation of natural
resources, health and safety matters (to the extent relating to exposure to Hazardous Materials), or pollution, including such Laws relating
to the presence, use, manufacturing, production, generation, handling, management, transportation, treatment, recycling, storage, importing,
Release or threatened Release, or cleanup of Hazardous Materials. “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder, in each case, as in effect from time to time. “ERISA
Affiliate” means any trade or business (whether or not incorporated) that, together with any of the Debtors or any of its
subsidiaries, is, or at any relevant time during the past six (6) years was, treated as a single employer or under common control under
or within the meaning of Section 414 of the Tax Code or Section 4001 of ERISA. “Escrow
Account” has the meaning set forth in Section 2.4(a). “Escrow
Account Funding Date” has the meaning set forth in Section 2.4(e). “EU/UK
Qualified Investor” has the meaning set forth in Article 2(e) of the Prospectus Regulation. “Event”
means any event, development, occurrence, circumstance, effect, condition, result, state of facts or change. “Ex-Im
Laws” means, (a) applicable Laws related to export controls, including the U.S. Export Administration Regulations administered
by the U.S. Department of Commerce; and (b) applicable Laws related to the importation of goods, including those administered by U.S.
Customs and Border Protection. “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and including any rule or regulation promulgated thereunder. “Exit
Financing Facility” has the meaning set forth in the Restructuring Support Agreement. “Expense
Reimbursement” has the meaning set forth in Section 3.2(a). “FAA”
means the Federal Aviation Administration. 9 “Federal
Aviation Act” means Subtitle VII of Title 49 of the U.S. Code. “Filing
Party” has the meaning set forth in Section 6.10(b). “Final
Order” means, as applicable, an order or judgment of the Bankruptcy Court or other court of competent jurisdiction with
respect to the relevant subject matter, which has not been reversed, vacated, stayed, modified, or amended, and as to which the time
to appeal, seek certiorari, or move for a new trial, reargument, or rehearing has expired and no appeal, petition for certiorari, or
other proceeding for a new trial, reargument, or rehearing thereof has been timely sought, or if an appeal, writ of certiorari, new trial,
reargument, or rehearing thereof has been sought, such order or judgment shall have been affirmed by the highest court to which such
order was appealed, or certiorari shall have been denied, or a new trial, reargument, or rehearing shall have been denied or resulted
in no modification of such order, and the time to take any further appeal, petition for certiorari, or move for a new trial, reargument,
or rehearing shall have expired; provided, however, that no order or judgment shall fail to be a “Final Order” solely because
of the possibility that a motion under Rules 59 or 60 of the Federal Rules of Civil Procedure or any analogous Bankruptcy Rule (or any
analogous rules applicable in another court of competent jurisdiction) or sections 502(j) or 1144 of the Bankruptcy Code has been or
may be filed with respect to such order or judgment. “Financial
Reports” has the meaning set forth in Section 6.4. “Financial
Statements” has the meaning set forth in Section 4.9. “Foreign
Plan” means any employee benefit plan, program, policy, arrangement, scheme or agreement established, sponsored, maintained
or contributed to or required to be contributed to by any Debtor or any Debtor Subsidiary or with respect to which any Debtor or Debtor
Subsidiary has or could reasonably be expected to have liability, contingent or otherwise, in each case, primarily for the benefit of
employees or service providers employed outside the United States. “Funding
Amount” means the Senior Secured Funding Amount or Convertible Funding Amount, as applicable. “Funding
Notice” means the Senior Secured Backstop Funding Notice or Convertible Backstop Funding Notice, as applicable. “GAAP”
means the generally accepted accounting principles in the United States of America set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board. “Governmental
Entity” means any “governmental unit” set forth in section 101(27) of the Bankruptcy Code and foreign governmental
authorities. “Hazardous
Materials” means all pollutants, contaminants, wastes, chemicals, materials, substances and constituents which are regulated
by Environmental Law or which can give rise to liability under any Environmental Law due to their dangerous or deleterious properties 10 or
characteristics, including explosive or radioactive substances or petroleum or any fraction thereof, petroleum distillates, petroleum
products, natural gas, asbestos or asbestos containing materials, per- or polyfluoroalkyl substances, polychlorinated biphenyls, toxic
mold or radon gas. “HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended from time to time. “Immediate
Family Member” means, with respect to any Person, any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of such Person, and any person (other than a tenant or employee)
sharing the household of such Person. “Indemnified
Claim” has the meaning set forth in Section 8.2. “Indemnified
Person” has the meaning set forth in Section 8.1. “Indemnifying
Party” has the meaning set forth in Section 8.1. “Intellectual
Property Rights” means all right, title, and interest in and to the following worldwide: (i) patents, patent applications,
patent disclosures and inventions and all improvements thereto (whether or not patentable or reduced to practice), and any reissue, continuation,
continuation-in-part, renewals, renewal applications, revision, divisional, extension or reexamination thereof; (ii) trademarks, service
marks, and trade dress, trade names, corporate names, certification marks, collective marks, d/b/a’s, logos, slogans, and other
indicia of origin and all registrations, applications, and renewals in connection therewith (and all goodwill associated therewith);
(iii) domain names and social media handles, and all registrations therefor; (iv) rights in all works of authorship (whether copyrightable
or not), copyrights and all registrations, applications, and renewals thereof, and all derivative works, and moral rights; (v) trade
secrets, know-how, technologies, algorithms, processes, techniques, protocols, methods, layouts, templates, tools, designs, customer
lists and supplier lists, and specifications (“Trade Secrets”); and (vi) intellectual property rights in Software. “Intended
Tax Treatment” has the meaning set forth in Section 3.3. “Equity
Interests” has the meaning set forth in the Restructuring Support Agreement. “Investment
Company Act” has the meaning set forth in Section 4.27. “IP
Contracts” means all written Contracts pursuant to which the Debtors or any of their Subsidiaries (i) grant any license,
sublicense, covenant not to assert, release, agreement not to enforce or prosecute, or other immunity to any Person, other than to the
Debtors or any of their Subsidiaries, under or to any Intellectual Property Rights (except Ordinary Course Licenses) or (ii) are granted
a license, sublicense, covenant not to assert, release, agreement not to enforce or prosecute, or immunity to or under any Person’s
Intellectual Property Rights (other than Ordinary Course Licenses or licenses for non-customized, off-the-shelf software), in the case
of both clauses (i) or (ii), that are material to the conduct of the business of the Debtors and their Subsidiaries, taken as a whole. 11 “IRS”
means the United States Internal Revenue Service. “Knowledge
of the Company” means the actual knowledge, after reasonable inquiry of their direct reports as such individuals would
normally conduct in the ordinary course of their business, of the President and Chief Executive Officer and Class III Director (Ted Christie
III), the Executive Vice President and Chief Operating Officer (John Bendoraitis), the Executive Vice President and Chief Financial Officer
(Fred Cromer), Executive Vice President and Chief Commercial Officer (Matthew H. Klein), Senior Vice President, General Counsel and Secretary
(Thomas C. Canfield) of the Company. “Law”
has the meaning set forth in the Restructuring Support Agreement. “Leased
Real Property” means any and all parcels of or interests in real property leased, subleased or licensed by, or for which
a right to use or occupy has been granted to, any of the Debtors or their respective Subsidiaries, as of the date of this Agreement and
the Closing Date, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and
appurtenant fixtures incidental to the lease, license or occupancy right thereof, which is used or intended to be used in the business
of any of the Debtors or their respective Subsidiaries. “Legal
Proceedings” has the meaning set forth in Section 4.12. “Legend”
has the meaning set forth in Section 6.9. “Lien”
means any lien, adverse claim, charge, option, warrant, right of first refusal or first offer, escrow, servitude, security interest,
mortgage, pledge, reservation, equitable interest, deed of trust, indenture, easement, encumbrance, restriction on transfer, conditional
sale or other title retention agreement, lease, sublease, license, preemptive right, community property interest, collateral assignment,
hypothecation, right of way, defect in title, lien or judicial lien as defined in sections 101(36) and (37) of the Bankruptcy Code, or
other restrictions or encumbrances of any kind. “Lookback
Date” means January 1, 2022. “Losses”
has the meaning set forth in Section 8.1. “Management
Incentive Plan” means any post-Plan Effective Date incentive plan providing for the issuance of equity and equity-based
awards with respect to New Common Equity, as approved by the board of directors of the Company, in accordance with and subject to the
terms and conditions of the Plan and the Restructuring Support Agreement. “Material
Adverse Effect” means any Event occurring after the date hereof that individually, or together with all other Events, has
had a material and adverse effect on (a) the business, assets, liabilities, finances, properties, prospects, results of operations
or condition (financial or otherwise) of the Debtors and their Subsidiaries, taken as a whole, or (b) the ability of the Debtors
and their Subsidiaries, taken as a whole, to perform their obligations under, or to consummate the transactions contemplated by, the
Transaction Agreements, including the Rights Offering; provided, that in the case of clause (a), except to the extent such Event
results from, 12 arises
out of, or is attributable to, the following (either alone or in combination): (i) any change after the date hereof in global, national
or regional political conditions (including hostilities, acts of war, sabotage, terrorism or military actions, or any escalation or material
worsening of any such hostilities, acts of war, sabotage, terrorism or military actions existing or underway) or in the general business,
market, financial or economic conditions affecting the industries, regions and markets in which the Debtors or their Subsidiaries operate,
including any change in the United States or applicable foreign economies or securities, commodities or financial markets, or force majeure
events or “acts of God”; (ii) any changes after the date hereof in applicable Law or GAAP, or in the interpretation
or enforcement thereof; (iii) the negotiation, execution, announcement or performance of this Agreement or the other Transaction
Agreements or the transactions contemplated hereby or thereby; (iv) changes in the market price or trading volume of the claims
or equity or debt securities of the Debtors or their Subsidiaries (but not the underlying facts giving rise to such changes unless such
facts are otherwise excluded pursuant to the clauses contained in this definition); (v) the filing of the Chapter 11 Cases or actions
taken in connection with the Chapter 11 Cases that are directed by the Bankruptcy Court and made in compliance with the Bankruptcy Code
and the Transaction Agreements; (vi) declarations of national emergencies in the United States or natural disasters in the United
States; (vii) the Events leading up to the filing of the Chapter 11 Cases that were publicly disclosed prior to the date hereof; (viii)
the occurrence of a Commitment Party Default and any Events that directly arise out of such Commitment Party Default; (ix) any epidemic,
pandemic or disease outbreak (including the COVID-19 pandemic, its variants or any other similar pandemic), or any Law, regulation, statute,
directive, pronouncement or guideline issued by a Governmental Entity, the Centers for Disease Control and Prevention, the World Health
Organization or industry group providing for business closures, “sheltering-in-place” or other restrictions that relate to,
or arise out of, an epidemic, pandemic or disease outbreak (including the COVID-19 pandemic) or any change in such Law, regulation, statute,
directive, pronouncement or guideline or interpretation thereof following the date of this Agreement; (x) any actions taken by the Debtors
and their Subsidiaries that are directed or instructed by the FAA, and (xi) any Event disclosed or described in the Company Disclosure
Schedules; provided, that the exceptions set forth in clauses (i), (ii), (vi), (ix) and (x) shall not apply to the extent that
such Event is disproportionately adverse to the Debtors and their Subsidiaries, taken as a whole, as compared to other companies in the
industries in which the Debtors or their Subsidiaries operate. “Material
Contracts” means all “plans of acquisition, reorganization, arrangement, liquidation or succession” and “material
contracts” (as such terms are defined in Items 601(b)(2) and 601(b)(10) of Regulation S-K under the Exchange Act) to which any
of the Debtors is a party. For the avoidance of doubt, the term “Material Contracts” shall include any Contract containing
any indemnification, warranty, support, maintenance or service obligation on the part of the Debtors, other than any such Contract entered
in the ordinary course of the business of the Debtors. “Money
Laundering Laws” has the meaning set forth in Section 4.25(a). “Multiemployer
Plan” means a multiemployer plan as defined in Sections 4001(a)(3) and (3)(37) of ERISA to which any of the Debtors or
any of their Subsidiaries or any respective ERISA Affiliate is making or accruing an obligation to make contributions, has within any
of the preceding six (6) plan years made or accrued an obligation to make contributions, or each such plan with respect to which any
such entity has any actual or contingent liability or obligation. 13 “New
Common Equity” has the meaning set forth in the Restructuring Support Agreement. “Offering
Shares” has the meaning set forth in the Recitals. “Order”
means any judgment, order, award, injunction, writ, permit, license or decree of any Governmental Entity or arbitrator of applicable
jurisdiction. “Ordinary
Course License” means any of the following agreements of the Company or any other Debtor: (i) any license contained in
a customer subscription, license or service agreement, (ii) any standard confidentiality or non-disclosure agreement, or (iii) any other
license with respect to Intellectual Property Rights that is non-exclusive and entered into in the ordinary course of business, consistent
with past practice. “Outside
Date” means the date set forth in Section 4(l) of the Restructuring Support Agreement, as such date may be extended pursuant
to the terms of the Restructuring Support Agreement. “Owned
Real Property” means, collectively, all real property owned in fee by any of the Debtors or their respective Subsidiaries,
together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures
incidental to the ownership or lease thereof. “Party”
has the meaning set forth in the preamble. “PCI
DSS” means the Payment Card Industry Data Security Standard, issued by the Payment Card Industry Security Standards Council,
as may be revised from time to time. “Per
Share Subscription Price” means (i) the product of (a) 70% and (b) Plan Equity Value, divided by (ii) Total Shares Outstanding. “Permitted
Investor” means that such Person is either (i) a “qualified institutional buyer,” as such term is defined in
Rule 144A under the Securities Act, (ii) a non-U.S. person as defined under Regulation S under the Securities Act, or (iii) an institutional
“accredited investor” within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act;
or if the Person is resident, located or has a registered office in any member state of the European Economic Area or the United Kingdom,
such Person must be an EU/UK Qualified Investor. “Permitted
Liens” means (a) with respect to assets or property constituting Prepetition RCF Collateral, Liens permitted by clauses
(3), (4), (5), (7), (8), (9), (10), (11) and/or (13) of the definition of “Permitted Liens” in the Prepetition RCF, (b) with
respect to assets or property constituting Prepetition Senior Secured Notes Collateral, Liens permitted by clauses (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (14), (15) and/or (16) of the definition of “Permitted Liens” in the Senior Secured Notes
Indenture, (c) with respect to assets or property not constituting Prepetition RCF Collateral or Prepetition Senior Secured Notes Collateral,
(i) statutory Liens for 14 current Taxes that (x) are not delinquent,
(y) are being contested in good faith by appropriate proceedings and for which adequate reserves have been made with respect thereto
in accordance with GAAP and reflected in the Financial Statements, or (z) for U.S. Taxes only, the nonpayment of which is permitted or
required by the Bankruptcy Code or the Bankruptcy Court, (ii) statutory Liens of the landlords, if any, under the Real Property Leases,
and operator’s, vendors’, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s
and other similar statutory Liens for labor, materials or supplies, provided any such Lien is incurred in the ordinary course of business
consistent with past practice and as otherwise not prohibited under this Agreement, for amounts that are not delinquent and that do not
materially detract from the value of, or materially impair the use of, any of the Real Property or personal property of any of the Debtors,
(iii) zoning, building codes and other similar land use Laws regulating the use or occupancy of any Real Property or the activities conducted
thereon that are imposed by any Governmental Entity having jurisdiction over such Real Property; provided, that no such zoning,
building codes and other land use Laws individually or in the aggregate, materially and adversely affect, impair or interfere with the
use, occupancy, ownership, value and/or maintenance of or the access to such Real Property or any property affected thereby or, the operation
of the business of the Company, the other Debtors and/or their respective subsidiaries as presently conducted, (iv) easements, covenants,
conditions, restrictions of record, and other similar recorded matters affecting title to any Real Property that do not, individually
or in the aggregate, materially interfere with the use, occupancy, ownership, value and/or maintenance of or the access to the property
burdened thereby or the conduct of the business of the Company, the other Debtors, and/or their respective subsidiaries as presently
conducted or as presently planned to be conducted or their use of any of their respective assets, (v) matters that would be disclosed
by an accurate survey or inspection of the Real Property, (vi) any Ordinary Course License, and (vii) Liens listed on Section 1.1 of
the Company Disclosure Schedules, (d) Liens that, pursuant to the Confirmation Order, will not survive beyond the Plan Effective Date
and (e) Liens securing the DIP Facility. “Permitted
Transfer” has the meaning set forth in Section 2.3(b). “Permitted
Transferees” has the meaning set forth in Section 2.3(c). “Person”
means any natural person, corporation, limited liability company, professional association, limited partnership, general partnership,
joint stock company, joint venture, association, company, trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, and any governmental authority. “Personal
Data” means any and all information that can reasonably be used to identify an individual natural person, household or
device, including name, physical address, telephone number, email address, financial account number, password or PIN, device identifier
or unique identification number, government-issued identifier (including Social Security Number and driver’s license number), medical,
health or insurance information, gender, data of birth, educational or employment information, religious or political view or affiliation
and marital or other status (to the extent any of these data elements can reasonably be associated with an individual natural person
or is linked to any such data element that can reasonably be associated with an individual natural person, household or device). Personal
Data also includes any information not listed above if such information is defined as “personal data,” “personally
identifiable information,” “individually identifiable health information,” “protected health information,”
or “personal information” under any Data Protection Laws. 15 “Petition
Date” has the meaning set forth in the Restructuring Support Agreement. “Plan”
has the meaning set forth in the Restructuring Support Agreement. “Plan
Effective Date” has the meaning set forth in the Restructuring Support Agreement. “Plan
Equity Value” means $806,451,613. “Plan
Supplement” has the meaning set forth in the Restructuring Support Agreement. “Pre-Closing
Period” has the meaning set forth in Section 6.2(a). “Prepetition
RCF” has the meaning set forth in the DIP Orders. “Prepetition
RCF Collateral” has the meaning set forth in the DIP Orders. “Prepetition
Senior Secured Notes Collateral” has the meaning set forth in the DIP Orders. “Privacy
Statements” means, collectively, all of the Debtors’ and their Subsidiaries’ external privacy policies or privacy
statements made to customers and publicly posted privacy policies regarding the collection, use, disclosure, transfer, storage, maintenance,
retention, deletion, disposal, modification or other processing of data protected under Data Protection Laws . “Pro
Rata Share” means (i) with respect to the Senior Secured Notes Claims, a fraction (expressed as a percentage), the numerator
of which is the principal amount of Senior Secured Notes Claims held by the applicable Senior Secured Noteholder and the denominator
of which is the aggregate principal amount of all Senior Secured Notes Claims, and (ii) with respect to the Convertible Notes Claims,
a fraction (expressed as a percentage), the numerator of which is the principal amount of the Convertible Notes Claims held by the applicable
Convertible Noteholder and the denominator of which is the aggregate principal amount of all Convertible Notes Claims. “Prospectus
Regulation” means Regulation (EU) No 2017/1129 of the European Parliament and of the European Council of 14 June 2017,
and as such regulation forms part of United Kingdom domestic law pursuant to the European Union (Withdrawal) Act 2018, or such other
successor rule, regulation or legislation as may apply in the European Economic Area or the United Kingdom. “Real
Property” means, collectively any and all Owned Real Property and Leased Real Property. 16 “Real
Property Lease” and “Real Property Leases” have the meanings set forth in Section 4.17(b). “Registration
Rights Agreement” has the meaning set forth in Section 6.6(a). “Regulation
S” has the meaning set forth in Section 5.11(b). “Related
Party” has the meaning given to “related person” in Item 404 of Regulation S-K. “Related
Party Transaction” has the meaning set forth in Section 6.2(b)(iii). “Related
Purchaser” means, with respect to any Backstop Commitment Party, any reasonably creditworthy Affiliate or Affiliated Fund
of such Backstop Commitment Party (other than any portfolio company of such Backstop Commitment Party or its Affiliates). “Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migrating in, into, onto or through the environment. “Released” has a correlative meaning. “Replacement
Funding Notice” has the meaning set forth in Section 2.5(a). “Replacing
Commitment Parties” means either the Senior Secured Replacing Commitment Parties or the Convertible Replacing Commitment
Parties, as applicable. “Representatives”
means, with respect to any Person, such Person’s directors, officers, members, partners, managers, employees, agents, investment
bankers, attorneys, accountants, advisors, consultants and other representatives. “Required
Backstop Commitment Parties” means, collectively, the Required Senior Secured Backstop Commitment Parties and the Required
Convertible Backstop Commitment Parties. “Required
Convertible Backstop Commitment Parties” means, at any time, Convertible Backstop Commitment Parties holding Commitment
Percentages representing commitments to purchase at least 50.1% of the Convertible Backstop Shares. “Required
Senior Secured Backstop Commitment Parties” means, at any time, Senior Secured Backstop Commitment Parties holding Commitment
Percentages representing commitments to purchase at least 50.1% of the Senior Secured Backstop Shares. “Required
Consenting Convertible Noteholders” has the meaning set forth in the Restructuring Support Agreement. “Required
Consenting Senior Secured Noteholders” has the meaning set forth in the Restructuring Support Agreement. “Restricted
Period” has the meaning set forth in Section 5.11(d). 17 “Restructuring
Support Agreement” has the meaning set forth in the Recitals. “Restructuring
Transactions” has the meaning set forth in the Restructuring Support Agreement. “Rights
Offering” has the meaning set forth in the Recitals. “Rights
Offering Backstop Commitment” means a Senior Secured Rights Offering Backstop Commitment or a Convertible Rights Offering
Backstop Commitment, as applicable. “Rights
Offering Procedures” means the procedures with respect to the Rights Offering, including any modifications thereto, that
are approved by the Bankruptcy Court pursuant to the Disclosure Statement Order, which procedures shall be in form and substance satisfactory
to the Required Backstop Commitment Parties and the Company. “Rights
Offering Shares” has the meaning set forth in the Recitals. “Rights
Offering Subscription Agent” means Epiq Corporate Restructuring, LLC , or another subscription agent appointed by the Company
and satisfactory to the Required Backstop Commitment Parties. “RSA
Joinder” means a joinder to the Restructuring Support Agreement in the form of Exhibit C thereto. “Rule
144A” has the meaning set forth in Section 5.11(b). “Sanctioned
Country” means any country or territory that is itself the target of comprehensive Sanctions (as of the execution of the
Agreement, Crimea, Cuba, Iran, North Korea, Syria, and those portions of the Donetsk People’s Republic or Luhansk People’s
Republic regions and such other regions of Ukraine over which any Sanctions authority imposes comprehensive Sanctions). “Sanctioned
Person” means any Person that is (a) the target of Sanctions, including any Person identified on U.S. Department of the
Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions
Identifications List, or any other Sanctions-related list maintained by a Sanctions authority; (b) a Person that is organized, located,
resident, or primarily doing business in a Sanctioned Country; or (c ) any Person owned or controlled by any Person(s) described in clause(s)
(a) and/or (b) to the extent such owned or controlled Person is subject to the same restrictions or prohibitions as the Person(s) described
in clause(s) (a) and/or (b). “Sanctions”
means any economic, financial and trade sanctions administered or enforced by the U.S. government (including without limitation, the
U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State and the U.S. Department of Commerce),
the United Nations Security Council, the European Union and each member state thereof, the Cayman Islands or the United Kingdom (including
His Majesty’s Treasury). 18 “SEC”
means the U.S. Securities and Exchange Commission. “Securities
Act” means the Securities Act of 1933, as amended, and including any rule or regulation promulgated thereunder. “Security
Incident” means any unauthorized or unlawful access, acquisition, exfiltration, manipulation, erasure, loss, use, or disclosure
that compromises the confidentiality, integrity, availability or security of Personal Data, or that triggers any reporting requirement
under any breach notification Law or contractual provision. “Senior
Secured Available Shares” means the Direct Allocation Shares, Rights Offering Shares and Backstop Shares that a Defaulting
Senior Secured Backstop Commitment Party has failed to fund as a result of a Senior Secured Commitment Party Default. “Senior
Secured Backstop Commitment Parties” has the meaning set forth in the preamble. “Senior
Secured Backstop Funding Notice” has the meaning set forth in Section 2.4(a). “Senior
Secured Backstop Premium” has the meaning set forth in Section 3.1(a)(i). “Senior
Secured Backstop Premium Shares” has the meaning set forth in Section 3.1(a)(i). “Senior
Secured Backstop Shares” has the meaning set forth in Section 2.2(a). “Senior
Secured Commitment Amount” has the meaning set forth in Section 2.2(a). “Senior
Secured Commitment Party Default” means the failure by any Senior Secured Backstop Commitment Party or its Related Purchasers
(as applicable) to deliver and pay any portion of its respective Funding Amount by the Escrow Account Funding Date in accordance with
Section 2.4(e). “Senior
Secured Commitment Party Replacement” has the meaning set forth in Section 2.5(a). “Senior
Secured Commitment Party Replacement Period” has the meaning set forth in Section 2.5(a). “Senior
Secured Commitment Percentage” means, with respect to each Senior Secured Backstop Commitment Party, the percentage set
forth opposite such Senior Secured Backstop Commitment Party’s name on the Senior Secured Commitment Schedule. “Senior
Secured Commitment Schedule” means Schedule 1 hereto. 19 “Senior
Secured Direct Allocation” has the meaning set forth in the Recitals. “Senior
Secured Direct Allocation Amount” has the meaning set forth in the Section 2.1(a). “Senior
Secured Direct Allocation Commitment” has the meaning set forth in the Section 2.1(a). “Senior
Secured Direct Allocation Shares” has the meaning set forth in the Recitals. “Senior
Secured Funding Amount” has the meaning set forth in the Section 2.4(a). “Senior
Secured Holdback Amount” means (i) if the Senior Secured Notes RSA Condition has not been met, $137,812,500 and (ii) if
the Senior Secured Notes RSA Condition has been met, $27,562,500. “Senior
Secured Noteholders” has the meaning set forth in the Restructuring Support Agreement. “Senior
Secured Notes Claims” has the meaning set forth in the Restructuring Support Agreement. “Senior
Secured Notes Indenture” has the meaning set forth in the Restructuring Support Agreement. “Senior
Secured Notes RSA Condition” means that, no later than 11:59 p.m., New York City time, on November 25, 2024, as such time
may be extended with the consent of the Required Senior Secured Backstop Commitment Parties, Senior Secured Noteholders (as such term
is defined in the Restructuring Support Agreement) holding, in the aggregate, at least 90.00% of the aggregate principal amount of the
Senior Secured Notes Claims shall have executed the Restructuring Support Agreement. “Senior
Secured Replacing Commitment Parties” has the meaning set forth in Section 2.5(a). “Senior
Secured Rights Offering Backstop Commitment” has the meaning set forth in Section 2.2(a). “Senior
Secured Rights Offering Amount” means (i) if the Senior Secured Notes RSA Condition has not been met, $137,812,500 and
(ii) if the Senior Secured Notes RSA Condition has been met, $248,062,500. “Senior
Secured Rights Offering Shares” has the meaning set forth in the Recitals. 20 “Senior
Secured Unsubscribed Shares” has the meaning set forth in Section 2.2(a). “Software”
means any and all (a) computer programs and applications, architectures, libraries, codes, firmware and middleware, including any and
all software implementations of algorithms, analytics, models and methodologies, whether in Source Code or object code, (b) databases
and compilations, including any and all data and collections of data, whether machine readable or otherwise, (c) descriptions, flow-charts
and other work product used to design, plan, organize and develop any of the foregoing, (d) all programmer and user documentation, including
user manuals and training materials, relating to any of the foregoing and (e) any of the foregoing used or included in software or application
for wireless mobile communication devices. “Source
Code” means computer software and code, in form other than object code or machine readable form, including related programmer
comments and annotations, help text, data and data structures, instructions and procedural, object-oriented and other code, which may
be printed out or displayed in human readable form. “SOX”
has the meaning set forth in Section 4.29. “Subscription
Form” means that certain Convertible Notes Subscription Form and/or certain Senior Secured Notes Subscription Form (each
as defined in the Rights Offering Procedures), as applicable, to be used by any Eligible Participant electing to purchase Rights Offering
Shares in the Rights Offering. “Subscription
Rights” means the subscription rights to fund and purchase the Rights Offering Shares. “Subsidiary”
means, with respect to any Person, any corporation, partnership, joint venture or other legal entity as to which such Person (either
alone or through or together with any other subsidiary), (a) owns, directly or indirectly, more than fifty percent (50%) of the stock
or other Equity Interests, (b) has the power to elect a majority of the board of directors or similar governing body, or (c) has the
power to direct the business and policies. For the avoidance of doubt, a “Subsidiary” of the Company includes any non-Debtor
subsidiary. “Systems”
means the operational technology systems, information technology and related infrastructure used, owned, leased or licensed by or for
the business of the Debtors and their Subsidiaries, including industrial control systems, firmware, hardware, networks, interfaces, platforms
and related systems. “Tax”
or “Taxes” means all taxes, assessments, duties, levies or other mandatory governmental charges paid to a Governmental
Entity, including all U.S. federal, state, local, and non-U.S. and other income, franchise, profits, gross receipts, capital gains, capital
stock, transfer, property, sales, use, value-added, occupation, excise, severance, windfall profits, stamp, payroll, social security,
withholding and other taxes, assessments, duties, levies or other mandatory governmental charges in the nature of a tax paid to a Governmental
Entity (whether payable directly or by withholding and whether or not requiring the filing of a return), all estimated taxes, deficiency
assessments, additions to tax, penalties and interest thereon and shall include any 21 liability
for such amounts as a result of being a member of a combined, consolidated, unitary or affiliated group, as successor, or by contract. “Tax
Code” means the Internal Revenue Code of 1986, as amended from time to time. “Tax
Return” means any return, declaration, report, election, estimates, claim for refund, information return or other documents
(including any related or supporting schedules or statements, and including any attachment thereto or amendment thereof) filed or required
to be filed with any Governmental Entity in connection with the determination, assessment or collection of any Taxes, or the administration
of any Laws. “Total
Shares Outstanding” means the total number of shares of New Common Equity outstanding on the Plan Effective Date after
giving effect to the consummation of the transactions contemplated by the Plan and this Agreement, including, for the avoidance of doubt,
the Offering Shares and the Backstop Premium Shares, but without giving effect to any New Common Equity issued or reserved for issuance
pursuant to the Management Incentive Plan. “Transaction
Agreements” has the meaning set forth in Section 4.2. “Transfer”
means to sell, resell, reallocate, transfer, assign, pledge, hypothecate, participate, donate, or otherwise encumber or dispose of, directly
or indirectly (including through derivatives, options, swaps, pledges, forward sales or other transactions). “Transfer”
used as a noun has a correlative meaning. “Treasury
Regulations” means the regulations promulgated under the Tax Code. “Union”
has the meaning set forth in Section 4.13(a). “WARN
Act” has the meaning set forth in Section 4.13(b). “Willful
or intentional breach” has the meaning set forth in Section 9.4(a). Section
1.2 Construction.
In this Agreement, unless the context otherwise requires: (a)
references to Articles, Sections and Schedules are references to the articles and sections or subsections of, and the schedules
attached to, this Agreement; (b)
references in this Agreement to “writing” or comparable expressions include a reference to a written document transmitted
by means of electronic mail in portable document format (pdf), facsimile transmission or comparable means of communication; (c)
words expressed in the singular number shall include the plural and vice versa; words expressed in the masculine shall include
the feminine and neuter gender and vice versa; 22 (d)
the words “hereof,” “herein,” “hereto,” “hereunder,” and words of similar import,
when used in this Agreement, shall refer to this Agreement as a whole, including all Schedules and Exhibits attached to this Agreement,
and not to any provision of this Agreement; (e)
the term “this Agreement” shall be construed as a reference to this Agreement as the same may have been, or may from
time to time be, amended, modified, varied, novated, or supplemented; (f)
“include,” “includes” and “including” are deemed to be followed by “without limitation”
whether or not they are in fact followed by such words; (g)
references to “day” or “days” are to calendar days; (h)
references to “the date hereof” means the date of this Agreement; (i)
unless otherwise specified, references to a statute means such statute as amended from time to time and includes any successor
legislation thereto and any rules or regulations promulgated thereunder in effect from time to time; and (j)
references to “dollars” or “$” refer to currency of the United States of America, unless otherwise expressly
provided. Section
1.3 Consent
Rights under the Restructuring Support Agreement. For
the avoidance of doubt, nothing in this Agreement shall be interpreted in any way to limit in any manner any consent right of the Consenting
Stakeholders or any other party under the Restructuring Support Agreement. Article
II Section
2.1 The
Direct Allocation; The Rights Offering; Rights Offering Shares. (a)
On and subject to the terms and conditions hereof, the Company shall conduct the Direct Allocation pursuant to which, at the
Closing, (i)(A) the Company shall issue and sell to each Senior Secured Backstop Commitment Party, and (B) each Senior Secured
Backstop Commitment Party hereby agrees, severally, and not jointly and severally, to purchase from the Company, a number of
Offering Shares equal to its Senior Secured Commitment Percentage of the Senior Secured Direct Allocation Shares at the Per Share
Subscription Price (such Senior Secured Backstop Commitment Party’s “Senior Secured Direct Allocation
Amount” and such obligations to purchase the Senior Secured Direct Allocation Shares, the “Senior Secured
Direct Allocation Commitments”), and (ii)(A) the Company shall issue and sell to each Convertible Backstop Commitment
Party, and (B) each Convertible Backstop Commitment Party hereby agrees, severally, and not jointly and severally, to purchase from
the Company, a number of Offering Shares equal to its Convertible Commitment Percentage of the 23 Convertible
Direct Allocation Shares at the Per Share Subscription Price (such Convertible Backstop Commitment Party’s “Convertible
Direct Allocation Amount” and such obligations to purchase the Convertible Direct Allocation Shares, the “Convertible
Direct Allocation Commitments”). (b)
On and subject to the terms and conditions hereof, the Company shall conduct the Rights Offering pursuant to and in accordance
with the Rights Offering Procedures, this Agreement, the Restructuring Support Agreement, the Disclosure Statement Order and the Backstop
Order, as applicable, in all material respects. (c)
(i) Each Eligible Participant that exercises its Subscription Rights to fund Rights Offering Shares, shall be entitled to elect
to receive up to its Pro Rata Share of the Rights Offering Shares, (ii) each Senior Secured Backstop Commitment Party shall exercise
its Subscription Rights to purchase its Pro Rata Share of the Senior Secured Rights Offering Shares, and (iii) each Convertible Backstop
Commitment Party shall exercise its Subscription Rights to purchase its Pro Rata Share of the Convertible Rights Offering Shares. (d)
No later than the Commitment Party Subscription Deadline, each Backstop Commitment Party shall arrange to tender its Senior Secured
Notes and/or Convertible Notes, as applicable, in accordance with the Rights Offering Procedures. (e)
The Rights Offering will be conducted and the Rights Offering Shares will be offered, issued and distributed, in each case under
the Plan without registration under the Securities Act or any similar federal or local Law in reliance on Bankruptcy Code section 1145(a),
to the extent permitted. The Direct Allocation Shares, the Backstop Shares and the Backstop Premium Shares issued to the
Backstop Commitment Parties pursuant to this Agreement, will be exempt from the registration requirements of the Securities Act pursuant
to Rule 506(b) of Regulation D promulgated under the Securities Act or
Section 4(a)(2) of the Securities Act, Regulation S under the Securities Act or another available exemption under the Securities Act. Section
2.2 The
Rights Offering Backstop Commitment. (a)
Senior Secured Backstop Commitment Parties. On and subject to the terms and conditions hereof, including entry of the Backstop
Order, each Senior Secured Backstop Commitment Party agrees, severally, and not jointly and severally, to purchase, and the Company agrees
to issue to such Senior Secured Backstop Commitment Party, on the Closing Date at the Per Share Subscription Price, an aggregate number
of Senior Secured Rights Offering Shares equal to (i) such Senior Secured Backstop Commitment Party’s Senior Secured Commitment
Percentage multiplied by (ii) the aggregate number of Senior Secured Rights Offering Shares that Senior Secured Noteholders did not elect
to purchase in the Rights Offering (the “Senior Secured Unsubscribed Shares”) as set forth on such Senior Secured
Backstop Commitment Party’s Funding Notice delivered pursuant to Section 2.4 (the aggregate purchase price of such Senior
Secured Backstop Commitment Party’s Senior Secured Unsubscribed Shares, its “Senior Secured Commitment Amount”
and such Senior Secured Unsubscribed Shares, such Senior Secured Backstop Commitment Party’s “Senior Secured Backstop
Shares” and such obligation to purchase Senior Secured Backstop Shares, such Senior Secured Backstop Commitment Party’s
“Senior Secured Rights Offering Backstop Commitment”). 24 (b)
Convertible Backstop Commitment Parties. On and subject to the terms and conditions hereof, including entry of the Backstop
Order, each Convertible Backstop Commitment Party agrees, severally, and not jointly and severally, to purchase, and the Company agrees
to issue to such Convertible Backstop Commitment Party, on the Closing Date at the Per Share Subscription Price, an aggregate number
of Convertible Rights Offering Shares equal to (i) such Convertible Backstop Commitment Party’s Convertible Commitment Percentage
multiplied by (ii) the aggregate number of Convertible Rights Offering Shares that Convertible Noteholders did not elect to purchase
in the Rights Offering (the “Convertible Unsubscribed Shares”) as set forth on such Convertible Backstop Commitment
Party’s Funding Notice pursuant to Section 2.4 (the aggregate purchase price of such Convertible Backstop Commitment Party’s
Convertible Unsubscribed Shares, its “Convertible Commitment Amount” and such Convertible Unsubscribed Shares,
such Convertible Backstop Commitment Party’s “Convertible Backstop Shares” and, such obligation to purchase
Convertible Backstop Shares, such Convertible Backstop Commitment Party’s “Convertible Rights Offering Backstop Commitment”). Section
2.3 Assignment
& Designation of Commitment Rights. (a)
From the date hereof until the Commitment Party Subscription Deadline, each Backstop Commitment Party shall have the right to: (i)
by written notice to the Company and the Rights Offering Subscription Agent, require that all or any portion of its (1) Direct
Allocation Shares, (2) Rights Offering Shares, (3) Backstop Shares, and/or (4) Backstop Premium Shares, in each case, at the Closing
Date, be issued in the name(s) of, and delivered to one or more of, its Related Purchasers without the need for such Backstop Commitment
Party to Transfer any portion of its Direct Allocation Commitment, Rights Offering Backstop Commitment, Senior Secured Notes Claims,
Convertible Notes Claims and/or Subscription Rights to such Related Purchaser(s) which notice of designation by the applicable Backstop
Commitment Party, shall (i) specify the amount of such Direct Allocation Shares, Rights Offering Shares, Backstop Shares, and/or Backstop
Premium Shares, as applicable, to be delivered to or issued in the name of each such Related Purchaser at the Closing Date; and (ii)
contain a confirmation (as set forth in the Subscription Form) by each such Related Purchaser of the accuracy of the representations
and warranties made by each Backstop Commitment Party under this Agreement or the Rights Offering Procedures as applied to such Related
Purchaser; provided, that no such designation shall relieve such Backstop Commitment Party from any of its obligations under this
Agreement; and (ii)
by written notice to the Company and the Rights Offering Subscription Agent elect to have one or more of its Related Purchasers
or other Affiliates or Affiliated Funds fund all or any portion of its Funding Amount at the Closing Date, without the need for such
Backstop Commitment Party to transfer any portion of its Direct Allocation Commitment, Rights Offering Backstop Commitment, Senior Secured
Notes Claims, Convertible Notes Claims and/or Subscription Rights to such Related Purchaser(s) or other Affiliate(s) or Affiliated Fund(s),
which notice shall (i) specify the applicable Funding Amount to be 25 delivered
by each such Related Purchaser or other Affiliate or Affiliated Fund on behalf of its respective Backstop Commitment Party at the Closing
Date; and (ii) contain a confirmation by each such Related Purchaser or other Affiliate or Affiliated Fund of the accuracy of the representations
and warranties made by each Backstop Commitment Party under this Agreement or the Rights Offering Procedures as applied to such Related
Purchaser or other Affiliate or Affiliated Fund; provided, that no such designation shall relieve such Backstop Commitment Party from
any of its obligations under this Agreement. (b)
From the date hereof until the Commitment Party Subscription Deadline, each Backstop Commitment Party may Transfer (each, a “Permitted
Transfer”) (A) the rights and obligations of such Backstop Commitment Party to participate in the Direct Allocation and
purchase the Direct Allocation Shares and (B) the rights and obligations of such Backstop Commitment Party to provide the Rights Offering
Backstop Commitment and to purchase any Backstop Shares and receive Backstop Premium Shares, provided, that, any transfer of any of the
foregoing must comply with the requirements of this Section 2.3. (c)
Any Permitted Transfer pursuant to Section 2.3(b) must be to any other Backstop Commitment Party or its Related Purchasers
(provided, that such Related Purchaser is also a Permitted Investor) (collectively, the “Permitted Transferees”).
Each such Permitted Transferee must execute and provide to the Rights Offering Subscription Agent, the Company, the Ad Hoc Group of Senior
Secured Noteholders Advisors and the Ad Hoc Group of Convertible Noteholders Advisors promptly (no later than two (2) Business Days after
any Permitted Transfer) a BCA Joinder (unless already party to this Agreement), and an RSA Joinder (unless already party to the Restructuring
Support Agreement). Each transferring Backstop Commitment Party and Permitted Transferee must provide to the Rights Offering Subscription
Agent, the Company, the Ad Hoc Group of Senior Secured Noteholders Advisors and the Ad Hoc Group of Convertible Noteholders Advisors
promptly (no later than two (2) Business Days after any Permitted Transfer) a Commitment Party Transfer Form with such Permitted Transferee
being deemed a Backstop Commitment Party. Upon the receipt of a Commitment Party Transfer Form, including, as set forth therein, an executed
BCA Joinder and an executed RSA Joinder (if applicable), which shall constitute notice of such Permitted Transfer, the Rights Offering
Subscription Agent shall note such Permitted Transfer in the respective records maintained by the Rights Offering Subscription Agent
pursuant to Section 2.3(f) promptly but no later than three (3) Business Days following receipt of such notice of Transfer. If
a Funding Notice has been issued to any such transferring Backstop Commitment Party, the Rights Offering Subscription Agent shall issue
updated Funding Notices to such transferring Backstop Commitment Party and Permitted Transferee, as applicable, and the Permitted Transferee
will be required to deliver and pay an amount equal to its respective Funding Amount by wire transfer of immediately available funds
in U.S. dollars into the Escrow Account no later than three (3) Business Days prior to the Closing Date. (d)
Any Transfer in violation of this Section 2.3 shall be void ab initio. (e)
In the event a Backstop Commitment Party acquires any additional Senior Secured Notes Claims or Convertible Notes Claims after
the date hereof, such acquisition shall not increase such Backstop Commitment Party’s Commitment Percentage, provided, that, this
Section 2.3(e) shall not in any way limit the right of any Backstop Commitment Party to complete Permitted Transfers in accordance with
Section 2.3(b). 26 (f)
Upon request of the Ad Hoc Group of Senior Secured Noteholders Advisors or the Ad Hoc Group of Convertible Noteholders Advisors,
the Company shall direct the Rights Offering Subscription Agent to provide, to the extent such information has been provided to the Rights
Offering Subscription Agent or is in its possession, as soon as commercially reasonably practicable but in no event later than five (5)
Business Days following receipt of such request, the Ad Hoc Group of Senior Secured Noteholders Advisors or Ad Hoc Group of Convertible
Noteholders Advisors, as applicable, with copies of the records (which may be in electronic format) identifying, as of the close of business
on the date of such request, the names of the Persons who are recorded to receive and the amounts (to the extent calculable as of the
date of such request) that such Persons are recorded to receive on the Closing Date of the Direct Allocation Shares, the Rights Offering
Shares, the Backstop Shares, and the Backstop Premium Shares. For the avoidance of doubt, the Company shall direct the Rights Offering
Subscription Agent to maintain records of each of the foregoing (to the extent such information has been provided to the Rights Offering
Subscription Agent or is in its possession) and for purposes of determining whether any consent threshold set forth herein has been met,
and the Parties agree to rely on such records. Section
2.4 Escrow
Account Funding. (a)
Senior Secured Backstop Funding Notice. No later than the fifth (5th) calendar day following the Commitment
Party Subscription Deadline, upon instruction and on behalf of the Company and subject to the prior written consent (with delivery by
electronic mail being sufficient) of the Required Consenting Senior Secured Noteholders (which consent shall not be unreasonably withheld,
delayed or conditioned) the Rights Offering Subscription Agent shall deliver to each Senior Secured Backstop Commitment Party a written
notice (each, a “Senior Secured Backstop Funding Notice,”) setting forth (i) the aggregate amount of Senior
Secured Unsubscribed Shares; (ii) such Senior Secured Backstop Commitment Party’s aggregate number of Senior Secured Rights Offering
Shares subscribed for in the Rights Offering; (iii) such Senior Secured Backstop Commitment Party’s Senior Secured Commitment Amount;
(iv) such Senior Secured Backstop Commitment Party’s Senior Secured Direct Allocation Amount; (v) the aggregate purchase price
for such Senior Secured Backstop Commitment Party’s Senior Secured Rights Offering Shares subscribed for in the Rights Offering;
(vi) the sum of clauses (iii), (iv), and (v) (such sum, such Senior Secured Backstop Commitment Party’s “Senior Secured
Funding Amount”); and (vii) subject to the last sentence of Section 2.4(e), the non-interest bearing escrow
account (the “Escrow Account”) designated in an escrow agreement acceptable to the Company and the Required
Backstop Commitment Parties (the “Escrow Agreement”) and corresponding wire instructions, to which such Backstop
Commitment Party (other than those that are registered investment companies under the Investment Company Act or whose investment management
arrangements otherwise preclude funding into escrow (“Investment Companies”), unless such Backstop Commitment
Party shall so choose) shall deliver and pay its Senior Secured Funding Amount. On the Plan Effective Date, each Senior Secured Backstop
Commitment Party that is an Investment Company shall, at its option, deliver and pay its respective Senior Secured Funding Amount by
wire transfer of immediately available funds in U.S. dollars to a segregated bank account of the Rights Offering Subscription Agent designated
by the Rights Offering Subscription Agent in the Senior Secured Backstop Funding Notice, or make other arrangements that are acceptable
to the applicable Investment Company and the Debtors, in satisfaction of such Senior Secured Backstop Commitment Party’s Senior
Secured Commitment Amount and its obligations to fully exercise the Subscription Rights. 27 (b)
Convertible Backstop Funding Notice. No later than fifth (5th) calendar day following the Commitment Party Subscription
Deadline, upon instruction and on behalf of the Company and subject to the prior written consent (with delivery by electronic mail being
sufficient) of the Required Consenting Convertible Noteholders (which consent shall not be unreasonably withheld, delayed or conditioned)
the Rights Offering Subscription Agent shall, on behalf of the Company, deliver to each Convertible Backstop Commitment Party a written
notice (each, a “Convertible Backstop Funding Notice”) setting forth (i) the aggregate amount of Convertible
Unsubscribed Shares; (ii) such Convertible Backstop Commitment Party’s aggregate number of Convertible Rights Offering Shares subscribed
for in the Rights Offering; (iii) such Convertible Backstop Commitment Party’s Convertible Commitment Amount; (iv) such Convertible
Backstop Commitment Party’s Convertible Direct Allocation Amount; (v) the aggregate purchase price for such Convertible Backstop
Commitment Party’s Convertible Rights Offering Shares subscribed for in the Rights Offering; (vi) the sum of clauses (iii), (iv),
and (v) (such sum, such Convertible Backstop Commitment Party’s “Convertible Funding Amount”); and (vii) subject
to the last sentence of Section 2.4(e), the Escrow Account designated in the Escrow Agreement and corresponding wire instructions,
to which such Convertible Backstop Commitment Party (other than those that are Investment Companies, unless such Backstop Commitment
Party shall so choose) shall deliver and pay its Convertible Funding Amount. On the Plan Effective Date, each Convertible Backstop Commitment
Party that is an Investment Company shall, at its option, deliver and pay its respective Convertible Funding Amount by wire transfer
of immediately available funds in U.S. dollars to a segregated bank account of the Rights Offering Subscription Agent designated by the
Rights Offering Subscription Agent in the Convertible Backstop Funding Notice, or make other arrangements that are acceptable to the
applicable Investment Company and the Debtors, in satisfaction of such Convertible Backstop Commitment Party’s Convertible Commitment
Amount and its obligations to fully exercise the Subscription Rights. (c)
Funding Notice Information. The Company shall promptly direct the Rights Offering Subscription Agent to provide any written
backup, information and documentation in its possession relating to the information contained in any applicable Funding Notice as any
Backstop Commitment Party may reasonably request. (d)
[Reserved]. (e)
Escrow Account Funding. Subject to the Escrow Agreement but no later than three (3) Business Days following receipt of
the Funding Notice (as such date may be extended with the consent of the Company and the Required Backstop Commitment Parties, but in
no event later than two (2) Business Days before the Plan Effective Date, the “Escrow Account Funding Date”),
each Backstop Commitment Party shall deliver and pay an amount equal to its respective Funding Amount, by wire transfer of immediately
available funds in U.S. dollars into the Escrow Account in satisfaction of such Backstop Commitment Party’s Direct Allocation
Amount, Rights Offering Backstop Commitment and the Subscription Rights that such Backstop Commitment Party exercised. If the Closing
does not occur within ten (10) Business Days following the Escrow Account Funding Date, all amounts deposited by the Backstop Commitment
Parties in the Escrow Account shall be returned to the Backstop Commitment Parties in accordance with the terms and conditions of the
Escrow Agreement. 28 Section
2.5 Senior
Secured Commitment Party Default; Replacement of Defaulting Senior Secured Backstop Commitment Parties. (a)
Upon the occurrence of a Senior Secured Commitment Party Default, the other Senior Secured Backstop Commitment Parties and their
respective Related Purchasers (other than any Defaulting Senior Secured Backstop Commitment Party) shall have the right and opportunity
(but not the obligation), within three (3) Business Days (or such longer period as may be provided by the Company with the consent of
the Required Backstop Commitment Parties (which shall not be unreasonably withheld)) after receipt of written notice from the Company
to all Senior Secured Backstop Commitment Parties of such Senior Secured Commitment Party Default, which notice shall be given promptly
following the occurrence of such Senior Secured Commitment Party Default and to all Senior Secured Backstop Commitment Parties substantially
concurrently (such period, the “Senior Secured Commitment Party Replacement Period”), to make arrangements
for one or more of the Senior Secured Backstop Commitment Parties and their respective Related Purchasers (other than the Defaulting
Senior Secured Backstop Commitment Party) to fund all or any portion of the Senior Secured Available Shares (such funding, a “Senior
Secured Commitment Party Replacement”) on the terms and subject to the conditions set forth in this Agreement and in such
amounts as may be agreed upon by all of the Senior Secured Backstop Commitment Parties electing to fund all or any portion of the Senior
Secured Available Shares, or, if no such arrangements are made, based upon the relative applicable Commitment Amounts of any such Senior
Secured Backstop Commitment Parties (other than any Defaulting Commitment Party) and their respective Related Purchasers (such Senior
Secured Backstop Commitment Parties, the “Senior Secured Replacing Commitment Parties”). Following the expiration
of the Senior Secured Commitment Party Replacement Period, the Company shall promptly, but no later than one (1) Business Day provide
each Senior Secured Replacing Commitment Party with a revised Funding Notice (the “Replacement Funding Notice”)
that reflects the updated Funding Amount of such Senior Secured Replacing Commitment Party and the amount that each Senior Secured Replacing
Commitment Party is required to fund pursuant to Section 2.7(c) after taking into consideration the Senior Secured Commitment
Party Replacement. Within two (2) Business Days following receipt of the Replacement Funding Notice, each Senior Secured Replacing Commitment
Party shall fund any unfunded Funding Amount to the Escrow Account. Any Senior Secured Available Shares funded by a Senior Secured Replacing
Commitment Party shall be included, among other things, in the determination of (i) the Senior Secured Backstop Shares (and the
corresponding right to receive Senior Secured Backstop Shares) of such Senior Secured Replacing Commitment Party for all purposes hereunder,
(ii) the Senior Secured Direct Allocation Amount and/or the Senior Secured Commitment Amount of such Senior Secured Replacing Commitment
Party for purposes of Section 2.5(d), Section 2.4(e), Section 2.7(c), Section 3.1 (as applicable) and Section
3.2 (as applicable), and (iii) the Senior Secured Commitment Amount of such Senior Secured Replacing Commitment Party for purposes
of the definition of “Required Backstop Commitment Parties”. If a Senior Secured Commitment Party Default occurs, the Outside
Date shall be extended to the extent necessary to allow for the Senior Secured Commitment Party Replacement and the Closing Date to be
completed and occur prior to the Outside Date. 29 (b)
The Convertible Backstop Commitment Parties shall have the right (but not the obligation) to make arrangements for one or more
of the Convertible Backstop Commitment Parties to fund any portion of the Senior Secured Available Shares not otherwise funded by any
Senior Secured Replacing Commitment Parties (in such case, each such funding Convertible Backstop Commitment Party shall constitute a
Senior Secured Replacing Commitment Party and shall be bound by the funding period as set forth under above Section 2.5(a)). (c)
Notwithstanding anything in this Agreement to the contrary, if a Senior Secured Backstop Commitment Party is a Defaulting Senior
Secured Backstop Commitment Party, or if this Agreement is terminated with respect to such Senior Secured Backstop Commitment Party as
a result of its default hereunder, such Defaulting Senior Secured Backstop Commitment Party shall not be entitled to any of the Senior
Secured Direct Allocation Shares, Backstop Shares, Backstop Premium Shares, or expense reimbursement (including the Expense Reimbursement
other than the Advisor Fees) or indemnification provided, or to be provided, under or in connection with this Agreement or any other
Transaction Agreement. (d)
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be deemed to require a Senior Secured
Backstop Commitment Party to pay more than its Senior Secured Direct Allocation Amount for its Senior Secured Direct Allocation Shares,
its Senior Secured Commitment Amount for its Senior Secured Backstop Shares, or the aggregate purchase price calculated based on the
Per Share Subscription Price for its Pro Rata Share of the Senior Secured Rights Offering Shares, as applicable. (e)
For the avoidance of doubt, notwithstanding anything to the contrary set forth in Section 9.4, but subject to Section
10.11, no provision of this Agreement shall relieve any Defaulting Senior Secured Backstop Commitment Party from liability hereunder,
or limit the availability of the remedies set forth in Section 10.10 or any other remedy available under applicable Laws, in connection
with any such Defaulting Senior Secured Backstop Commitment Party’s Senior Secured Commitment Party Default, and the Parties hereto
may enforce rights of money damages and/or specific performance upon such Senior Secured Commitment Party Default. Any Defaulting Senior
Secured Backstop Commitment Party shall be liable to each other Senior Secured Backstop Commitment Party that is not a Defaulting Senior
Secured Backstop Commitment Party, and to the Company, as a result of any breach of its obligations hereunder. For the avoidance of doubt,
nothing in this provision shall require the Company to issue any New Common Equity (including any Senior Secured Backstop Premium Shares)
to any Defaulting Senior Secured Backstop Commitment Party. Section
2.6 Convertible
Commitment Party Default; Replacement of Defaulting Convertible Backstop Commitment Parties. (a)
Upon the occurrence of a Convertible Commitment Party Default, the other Convertible Backstop Commitment Parties and their respective
Related Purchasers (other than any Defaulting Convertible Backstop Commitment Party) shall have the right and opportunity (but not the
obligation), within three (3) Business Days (or such longer period as may be provided by the Company with the consent of the Required
Backstop Commitment Parties (which shall not be unreasonably withheld)) after receipt of written notice from the Company to all Convertible
Backstop Commitment Parties of such Convertible Commitment Party Default, which notice shall 30 be
given promptly following the occurrence of such Convertible Commitment Party Default and to all Convertible Backstop Commitment Parties
substantially concurrently (such period, the “Convertible Commitment Party Replacement Period”), to make arrangements
for one or more of the Convertible Backstop Commitment Parties and their respective Related Purchasers (other than the Defaulting Convertible
Backstop Commitment Party) to fund all or any portion of the Convertible Available Shares (such funding, a “Convertible Commitment
Party Replacement”) on the terms and subject to the conditions set forth in this Agreement and in such amounts as may be
agreed upon by all of the Convertible Backstop Commitment Parties electing to fund all or any portion of the Convertible Available Shares,
or, if no such arrangements are made, based upon the relative applicable Commitment Amounts of any such Convertible Backstop Commitment
Parties (other than any Defaulting Commitment Party) and their respective Related Purchasers (such Convertible Backstop Commitment Parties
the “Convertible Replacing Commitment Parties”). Following the expiration of the Convertible Commitment Party
Replacement Period, the Company shall promptly, but no later than one (1) Business Day, provide each Convertible Replacing Commitment
Party with a Replacement Funding Notice that reflects the updated Funding Amount of such Convertible Replacing Commitment Party and the
amount that each Convertible Replacing Commitment Party is required to fund pursuant to Section 2.7(c) after taking into consideration
the Convertible Commitment Party Replacement. Within two (2) Business Days following receipt of the Replacement Funding Notice, each
Convertible Replacing Commitment Party shall fund any unfunded Funding Amount to the Escrow Account. Any Convertible Available Shares
funded by a Convertible Replacing Commitment Party shall be included, among other things, in the determination of (i) the Convertible
Backstop Shares (and the corresponding right to receive Convertible Backstop Shares) of such Convertible Replacing Commitment Party for
all purposes hereunder, (ii) the Convertible Direct Allocation Amount and/or the Convertible Commitment Amount of such Convertible
Replacing Commitment Party for purposes of Section 2.5(d), Section 2.4(e), Section 2.7(c), Section 3.1 (as
applicable) and Section 3.2 (as applicable), and (iii) the Convertible Commitment Amount of such Convertible Replacing Commitment
Party for purposes of the definition of “Required Backstop Commitment Parties”. If a Convertible Commitment Party Default
occurs, the Outside Date shall be extended to the extent necessary to allow for the Convertible Commitment Party Replacement and the
Closing Date to be completed and occur prior to the Outside Date. (b)
The Senior Secured Backstop Commitment Parties shall have the right (but not the obligation) to make arrangements for one or more
of the Senior Secured Backstop Commitment Parties to fund any portion of the Convertible Available Shares not otherwise funded by any
Convertible Replacing Commitment Parties (in such case, each such funding Senior Secured Backstop Commitment Party shall constitute a
Convertible Replacing Commitment Party and shall be bound by the funding period as set forth under above Section 2.6(a)). (c)
Notwithstanding anything in this Agreement to the contrary, if a Convertible Backstop Commitment Party is a Defaulting Convertible
Backstop Commitment Party, or if this Agreement is terminated with respect to such Convertible Backstop Commitment Party as a result
of its default hereunder, such Defaulting Convertible Backstop Commitment Party shall not be entitled to any of the Convertible Direct
Allocation Shares, Backstop Shares, Backstop Premium Shares, or expense reimbursement (including the Expense Reimbursement other than
the Advisor Fees) or indemnification provided, or to be provided, under or in connection with this Agreement or any other Transaction
Agreement. 31 (d)
Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall be deemed to require a Convertible
Backstop Commitment Party to pay more than its Convertible Direct Allocation Amount for its Convertible Direct Allocation Shares, its
Convertible Commitment Amount for its Convertible Backstop Shares, or the aggregate purchase price calculated based on the Per Share
Subscription Price for its Pro Rata Share of the Convertible Rights Offering Shares, as applicable. (e)
For the avoidance of doubt, notwithstanding anything to the contrary set forth in Section 9.4, but subject to Section
10.11, no provision of this Agreement shall relieve any Defaulting Convertible Backstop Commitment Party from liability hereunder,
or limit the availability of the remedies set forth in Section 10.10 or any other remedy available under applicable Laws, in connection
with any such Defaulting Convertible Backstop Commitment Party’s Convertible Commitment Party Default, and the Parties hereto may
enforce rights of money damages and/or specific performance upon such Convertible Commitment Party Default. Any Defaulting Convertible
Backstop Commitment Party shall be liable to each other Convertible Backstop Commitment Party that is not a Defaulting Convertible Backstop
Commitment Party, and to the Company, as a result of any breach of its obligations hereunder. For the avoidance of doubt, nothing in
this provision shall require the Company to issue any New Common Equity (including any Convertible Backstop Premium Shares) to any Defaulting
Convertible Backstop Commitment Party. Section
2.7 Closing. (a)
Subject to Article VII, and Article IX, and unless otherwise mutually agreed in writing between the Debtors and
the Required Backstop Commitment Parties, the closing of the Rights Offering and the Direct Allocation (the “Closing”)
shall take place electronically on the date on which all of the conditions set forth in Article VII shall have been satisfied
or waived in accordance with this Agreement (other than conditions that by their terms are to be satisfied at the Closing, but subject
to the satisfaction or waiver of such conditions). The date on which the Closing actually occurs shall be referred to herein as the “Closing
Date.” (b)
On the Closing Date, the Company will issue: (i)
to each Senior Secured Backstop Commitment Party, such Senior Secured Backstop Commitment Party’s Direct Allocation Shares,
the Senior Secured Rights Offering Shares, the Senior Secured Backstop Shares and the Senior Secured Backstop Premium Shares. (ii)
to each Convertible Backstop Commitment Party, such Convertible Backstop Commitment Party’s Direct Allocation Shares, the
Convertible Rights Offering Shares, the Convertible Backstop Shares and the Convertible Backstop Premium Shares. (c)
On the Closing Date, the Debtors will deliver to the Backstop Commitment Parties, to the satisfaction of the Required Backstop
Commitment Parties: 32 (i)
a certificate of the chief financial officer or chief accounting officer of the Company with respect to solvency matters, in form
and substance acceptable to the Required Backstop Commitment Parties; and (ii)
any documentation and other information reasonably requested in connection with Sanctions or Money Laundering Laws, including,
without limitation, “know-your-customer” rules and regulations. (d)
Subject to Section 2.7(b), at the Closing, the funds held in the Escrow Account (and any amounts paid to a Rights Offering
Subscription Agent bank account pursuant to the Rights Offering Procedures) shall, as applicable, be released and utilized in accordance
with the Plan or Confirmation Order, as applicable. (e)
Subject to Article VII, at the Closing, issuance of the Direct Allocation Shares, Rights Offering Shares, Backstop Shares
and Backstop Premium Shares will be made by the Company to each Backstop Commitment Party (or its designee in accordance with Section
2.3, as applicable) against payment for such shares (or, in the case of the Backstop Premium Shares, as consideration for each Backstop
Commitment Party’s obligations hereunder) to be funded by such Backstop Commitment Party, in satisfaction of such Backstop Commitment
Party’s obligations under this Agreement. Section
2.8 Withholding.
The Company and each of its designees and Affiliates shall be entitled to deduct or withhold any Taxes or other amounts with respect
to any amounts payable pursuant to this Agreement that are required to be deducted or withheld under applicable Law. The Company shall
cooperate in good faith with the Backstop Commitment Parties to reduce or eliminate, to the extent reasonably possible and permitted
by applicable Law, any such amounts required to be deducted or withheld. The Company and each of its designees and Affiliates will be
authorized to take any actions that may be reasonably necessary or appropriate to comply with such deduction or withholding requirements,
including to request any reasonably necessary Tax forms, including IRS form W-9 or the appropriate series of IRS form W-8, as applicable,
or any similar information for the purpose of determining whether any such withholding is required. Any such deducted or withheld amounts
shall be treated as paid to the Person to whom such amounts would otherwise have been paid for purposes of this Agreement. Section
2.9 Pre-funded Warrants. Notwithstanding any other provision of this
Agreement, a Backstop Commitment Party may elect at any time prior to the Closing Date to receive, in lieu of all or a portion of the
Backstop Shares, Backstop Premium Shares or Direct Allocation Shares that would otherwise be issuable to it, pre-funded warrants to acquire
such Backstop Shares, Backstop Premium Shares or Direct Allocation Shares exercisable for an exercise price equal to the par value of
the New Common Equity (the “Pre-Funded Warrants”). The Pre-Funded Warrants will include customary beneficial ownership
limitation provisions prohibiting the exercise of the Pre-Funded Warrants to the extent that, after giving effect to an exercise of the
Pre-Funded Warrants, the Backstop Commitment Party, together with any affiliates and any members of a Section 13(d) group with the Backstop
Commitment Party and/or its affiliates, would beneficially own (as such term is defined under Rule 13d-3 under the Exchange Act) in excess
of either 4.99% or 9.99% of the outstanding New Common Equity (which threshold shall be specified by the applicable Backstop Commitment
Party). 33 Article
III Section
3.1 Backstop
Premium Payable by the Debtors. (a)
Senior Secured Backstop Commitment Parties. (i)
Subject to Section 3.2, in consideration for the Senior Secured Direct Allocation Commitments and the Senior Secured Rights
Offering Backstop Commitments and the other agreements and undertakings of the Senior Secured Backstop Commitment Parties in respect
of the Rights Offering and the Senior Secured Direct Allocation under this Agreement, and pursuant to and in accordance with the Rights
Offering Procedures, this Agreement, the Restructuring Support Agreement, the Disclosure Statement Order and the Backstop Order, the
Debtors shall pay or cause to be paid to each Senior Secured Backstop Commitment Party (including any Senior Secured Replacing Commitment
Party, but excluding any Defaulting Senior Secured Backstop Commitment Party) or such Senior Secured Backstop Commitment Party’s
designee(s), as applicable, a non-refundable premium (the “Senior Secured Backstop Premium”) equal to a number
of shares of New Common Equity equal to the product of (i) such Senior Secured Backstop Commitment Party’s Senior Secured Commitment
Percentage and (ii) of 4.8825% of the Total Shares Outstanding (the “Senior Secured Backstop Premium Shares”)
to the Senior Secured Backstop Commitment Parties; provided, that if the Closing does not occur, the Senior Secured Backstop Premium
shall be payable only in cash and only to the extent provided in (and in accordance with) Section 9.4(b). (ii)
The provisions for the payment of the Senior Secured Backstop Premium, the Expense Reimbursement and the indemnification provided
herein, are an integral part of the transactions contemplated by this Agreement and without these provisions the Senior Secured Backstop
Commitment Parties would not have entered into this Agreement. (iii)
Subject to Section 9.4(b), the Company shall cause the Senior Secured Backstop Premium to be paid to the applicable Senior
Secured Backstop Commitment Parties on (and as a condition to) the Plan Effective Date. (iv)
The Senior Secured Backstop Premium and the Expense Reimbursement shall, pursuant to the Backstop Order, constitute allowed administrative
expenses of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code and shall not be subject to set-off, recharacterization,
avoidance or disallowance. 34 (v)
The Senior Secured Backstop Premium (including the applicable portion of the Backstop Cash Premium (in satisfaction of the Backstop
Premium pursuant to Section 9.4(b)) shall be fully earned, non-refundable and non-avoidable upon the execution of this Agreement,
and, subject to Section 9.4(b), shall be paid by the Debtors on the Closing Date as set forth above. (b)
Convertible Backstop Commitment Parties. (i)
Subject to Section 3.2, in consideration for the Convertible Direct Allocation Commitments and the Convertible Rights Offering
Backstop Commitments and the other agreements and undertakings of the Convertible Backstop Commitment Parties in respect of the Rights
Offering and the Convertible Direct Allocation under this Agreement, and pursuant to and in accordance with the Rights Offering Procedures,
this Agreement, the Restructuring Support Agreement, the Disclosure Statement Order and the Backstop Order, the Debtors shall pay or
cause to be paid to each Convertible Backstop Commitment Party (including any Convertible Replacing Commitment Party, but excluding any
Defaulting Convertible Backstop Commitment Party) or such Convertible Backstop Commitment Party’s designee(s), as applicable, a
non-refundable premium (the “Convertible Backstop Premium”) equal to a number of shares of New Common Equity
equal to the product of (i) such Convertible Backstop Commitment Party’s Convertible Commitment Percentage and (ii) of 1.3175%
of the Total Shares Outstanding (the “Convertible Backstop Premium Shares”) to the Convertible Backstop Commitment
Parties; provided that if the Closing does not occur, the Convertible Backstop Premium shall be payable only in cash and only to the
extent provided in (and in accordance with) Section 9.4(b). (ii)
The provisions for the payment of the Convertible Backstop Premium, the Expense Reimbursement and the indemnification provided
herein, are an integral part of the transactions contemplated by this Agreement and without these provisions the Convertible Backstop
Commitment Parties would not have entered into this Agreement. (iii)
Subject to Section 9.4(b), the Company shall cause the Convertible Backstop Premium to be paid to the applicable Convertible
Backstop Commitment Party on (and as a condition to) the Plan Effective Date. (iv)
The Convertible Backstop Premium and the Expense Reimbursement shall, pursuant to the Backstop Order, constitute allowed administrative
expenses of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code and shall not be subject to set-off, recharacterization,
avoidance or disallowance. (v)
The Convertible Backstop Premium (including the applicable portion of the Backstop Cash Premium (in satisfaction of the Backstop
Premium pursuant to Section 9.4(b)), shall be fully earned, non-refundable and non-avoidable upon the execution of this Agreement
and, subject to Section 9.4(b), shall be paid by the Debtors on the Closing Date as set forth above. 35 Section
3.2 Expense
Reimbursement. (a)
Whether or not the transactions contemplated hereunder are consummated, in accordance with and subject to the Backstop Order,
the Debtors agree to pay, in accordance with Section 3.2(b) below, and to the extent such fees and expenses remain unpaid,
(i) all reasonable and documented out-of-pocket fees and expenses (other than Taxes but including travel costs and expenses) of
the Backstop Commitment Parties and the Ad Hoc Group of Senior Secured Noteholders Advisors and Ad Hoc Group of Convertible Noteholders
Advisors incurred on behalf of the Backstop Commitment Parties in connection with the Chapter 11 Cases and/or the Restructuring Transactions
(whether incurred before or after the Petition Date), including the negotiation, preparation and implementation of the Transaction Agreements
and the other agreements and transactions contemplated hereby and thereby (the “Advisor Fees”) and (ii) any
applicable filing or other similar fees required to be paid by the Backstop Commitment Parties in all applicable jurisdictions (such
payment obligations, the “Expense Reimbursement”). The Expense Reimbursement shall, pursuant to the Backstop
Order, constitute allowed administrative expenses against each of the Debtors’ estates under sections 503(b) and 507
of the Bankruptcy Code and shall not be subject to set-off, recharacterization, avoidance or disallowance. For the avoidance of doubt,
the amount payable pursuant to this Section 3.2 shall be determined without duplication of recovery under the Restructuring Support
Agreement or other Transaction Agreements. (b)
The Expense Reimbursement accrued through the date on which the Backstop Order is entered shall be paid in accordance with the
Backstop Order as promptly as reasonably practicable after the date of entry of the Backstop Order. The Expense Reimbursement shall thereafter
be payable in accordance with the procedures set forth in the Backstop Order; provided, that the Debtors’ final payment
shall be made contemporaneously with the Closing or the earlier termination of this Agreement pursuant to Article IX. Section
3.3 Tax
Treatment of Backstop Premium. The Backstop Commitment Parties and the Debtors agree that for U.S. federal and applicable U.S. state,
local and territory income Tax purposes, (a) the entering into of the Rights Offering Backstop Commitments pursuant to this Agreement
shall be treated as the sale of put options by the Backstop Commitment Parties to the Debtors and (b) the Backstop Premium shall be treated
as “put premium” in respect of such options and shall not be treated as a fee (collectively, the “Intended Tax Treatment”).
Each Debtor and Backstop Commitment Party shall prepare its respective U.S. federal, and applicable U.S. state, local and territory income
Tax Returns in a manner consistent with the Intended Tax Treatment, and none of the Backstop Commitment Parties or any Debtor shall take
any position or action with respect to U.S. Taxes (whether in audits, Tax Returns or otherwise) inconsistent with the Intended Tax Treatment,
except as otherwise required by a “determination” within the meaning of Section 1313(a) of the Tax Code. The Parties agree
that, as of the date hereof, no deduction or withholding of Tax is required by Law with respect to the payment of the Backstop Premium
under this Agreement. 36 Article
IV Except
(a) as set forth in the corresponding section of the Company Disclosure Schedules (it being understood that any information, item or
matter set forth in one section or subsection of the Company Disclosure Schedules shall be deemed a disclosure with respect to, and shall
be deemed to apply to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section
or subsection of this Agreement (i) to which there is an explicit cross-reference to such information, item or matter or (ii) to the
extent that it is reasonably apparent based upon the content of such disclosure that such information, item or matter is relevant to
such other section or subsection) or (b) as disclosed in the Company SEC Documents filed with (or furnished to) the SEC on or after December
31, 2021 and no later than two (2) Business Days prior to the date hereof (excluding any cautionary, predictive or forward-looking disclosures
contained in the “Forward-Looking Statements” or “Risk Factors” sections thereof), the Company (or, in the case
of each Debtor that becomes a party hereto after the date of this Agreement, as of the date such Debtor becomes a Party to this Agreement
by executing and delivering a Company Acknowledgement) hereby represents and warrants to the Backstop Commitment Parties as of the date
of this Agreement, as set forth below. Section
4.1 Organization
and Qualification. Each of the Debtors and each of their Subsidiaries (a) is a duly organized and validly existing corporation,
limited liability company, or limited partnership, as the case may be, and, if applicable, in good standing (or the equivalent thereof
to the extent such concept is recognized in the applicable jurisdiction) under the Laws of the jurisdiction of its incorporation or organization,
(b) has the corporate, limited liability company or other applicable power and authority to own its property and assets and to transact
the business in which it is currently engaged and presently proposes to engage and (c) except where the failure to have such authority
or qualification would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, is duly qualified
and is authorized to do business and is in good standing in each jurisdiction where the conduct of its business as currently conducted
requires such qualifications. Section
4.2 Corporate
Power and Authority. Each of the Debtors has the requisite corporate, limited liability company or other applicable power and authority
(a) (i) subject to entry of the Backstop Order and the Confirmation Order, to enter into, execute and deliver this Agreement
and to perform the BCA Approval Obligations and (ii) subject to entry of the Backstop Order and the Confirmation Order, to perform
each of its other obligations hereunder and (b) subject to entry of the Backstop Order, the Disclosure Statement Order, and the
Confirmation Order, to consummate the transactions contemplated herein and in the Plan, to enter into, execute and deliver all agreements
to which it will be a party as contemplated by this Agreement and the Plan (including the Definitive Documents, the Restructuring Support
Agreement and this Agreement, collectively, the “Transaction Agreements”) and to perform its obligations under
each of the Transaction Agreements (other than this Agreement). Subject to the receipt of the foregoing Orders, as applicable, the execution
and delivery of this Agreement and each of the other Transaction Agreements and the consummation of the transactions contemplated 37 hereby
and thereby have been or will be duly authorized by all requisite corporate action on behalf of the Company and the Debtors and no other
corporate proceedings on the part of the Company or the Debtors are or will be necessary to authorize this Agreement or any of the other
Transaction Agreements or to consummate the transactions contemplated hereby or thereby. Section
4.3 Execution
and Delivery; Enforceability. This Agreement has been duly executed and delivered by each of the Company and the other Debtors. Subject
to entry of the Backstop Order, the Disclosure Statement Order, and the Confirmation Order, as applicable, each other Transaction Agreement
will be, duly executed and delivered by the Company and the other Debtors party thereto. Upon entry of the Backstop Order and assuming
due authorization and valid execution and delivery hereof by the Backstop Commitment Parties, the BCA Approval Obligations will constitute
the valid and legally binding obligations of the Company and, to the extent applicable, the other Debtors, enforceable against the Company
and, to the extent applicable, the other Debtors, in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar Laws now or hereafter in effect relating to creditors’ rights generally
and subject to general principles of equity. Upon entry of the Backstop Order and assuming due authorization and valid execution and
delivery of this Agreement and the other Transaction Agreements by the Backstop Commitment Parties and, to the extent applicable, any
other parties hereof and thereof, each of the obligations of the Company and, to the extent applicable, the other Debtors hereunder and
thereunder will constitute the valid and legally binding obligations of the Company and, to the extent applicable, the other Debtors,
enforceable against the Company and, to the extent applicable, the other Debtors, in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws now or hereafter in effect relating
to creditor’s rights generally and subject to general principles of equity. Section
4.4 Authorized
and Issued Interests. (a)
On the Closing Date, (i) the total issued Equity Interests of the Company will consist solely of the New Common Equity issued
pursuant to the Plan, the New Common Equity issued as Rights Offering Shares under the Rights Offering, the New Common Equity issued
as Direct Allocation Shares under the Direct Allocation, the New Common Equity issued as Backstop Shares pursuant to Article II
and the New Common Equity issued as Backstop Premium Shares pursuant to Article III, (ii) no Equity Interests will be held by
the Company in its treasury, (iii) no Equity Interests of the Company will be reserved for issuance upon exercise of stock options and
other rights to purchase or acquire Equity Interests of the Company granted in connection with any employment arrangement entered into
in accordance with Section 6.3, except as reserved in respect of the Management Incentive Plan, and (iv) no warrants to purchase
Equity Interests of the Company will be issued and outstanding. Except as set forth in the prior sentence, as of the Closing Date, no
units or shares of capital stock or other equity securities or voting interest in the Company or any securities convertible into or exchangeable
or exercisable for securities or other equity securities of the Company or any of its Subsidiaries will have been issued, reserved for
issuance or outstanding. 38 (b)
Except as described in this Section 4.4 and except as set forth in the Registration Rights Agreement, the Company Organizational
Documents, this Agreement, the Restructuring Support Agreement or as required under the Plan as of the Closing Date, none of the Debtors
or any of their respective Subsidiaries will be party to or otherwise bound by or subject to any outstanding option, warrant, call, right,
security, commitment, Contract, arrangement, or undertaking (including any preemptive right) that (i) obligates the Debtors or their
respective Subsidiaries to issue, deliver, sell or transfer, or repurchase, redeem, or otherwise acquire, or cause to be issued, delivered,
sold or transferred, or repurchased, redeemed, or otherwise acquired, any units or shares of the capital stock of, or other equity or
voting interests in, any of the Debtors or their respective Subsidiaries or any security convertible or exercisable for or exchangeable
into any units or capital stock of, or other equity or voting interest in, any of the Debtors or their respective Subsidiaries, (ii) obligates
any of the Debtors or their respective Subsidiaries to issue, grant, extend, or enter into any such option, warrant, call, right, security,
commitment, Contract, arrangement, or undertaking, (iii) restricts the transfer of any units or shares of capital stock of any of
the Debtors or their respective Subsidiaries (other than any restrictions included in the Exit Financing Facility or any corresponding
pledge agreement), or (iv) relates to the voting of any Equity Interests in any of the Debtors or their respective Subsidiaries,
except as to voting rights attendant to any such Equity Interests or as set forth in the organizational documents thereof. Section
4.5 Issuance.
The New Common Equity to be issued pursuant to the Plan by the Company on the Closing Date, the Direct Allocation Shares to be issued
in the Direct Allocation, the Rights Offering Shares to be issued in connection with the consummation of the Rights Offering and the
Backstop Shares and Backstop Premium Shares to be issued pursuant to the terms hereof, will, when issued and delivered on the Closing
Date, be duly and validly authorized, issued and delivered and shall be fully paid and non-assessable, Liens (other than transfer restrictions
imposed hereunder or under the Company Organizational Documents or by applicable Law), preemptive rights, rights of first refusal, subscription
and similar rights (other than any rights set forth in the Company Organizational Documents and the Registration Rights Agreement). Section
4.6 No
Conflict. Assuming the consents described in clauses (a) through (h) of Section 4.7 are obtained, the execution and delivery
by the Company and, if applicable, any Debtor, of this Agreement, the Plan and the other Transaction Agreements, the compliance by the
Company and, if applicable, any other Debtor, with the provisions hereof and thereof and the consummation of the transactions contemplated
herein and therein will not (i) conflict with, or result in a breach, modification or violation of, any of the terms or provisions of,
or constitute a default under (with or without notice or lapse of time, or both), or result, except to the extent specified in the Plan,
in the acceleration of, or the creation of any Lien under, or cause any payment or consent to be required under any Contract to which
the Company or any Debtor will be bound as of the Closing Date after giving effect to the Plan or to which any of the property or assets
of the Company or any Debtor will be subject as of the Closing Date after giving effect to the Plan, (ii) result in any violation
of the provisions of any of the Company’s or the Debtors’ organizational documents (other than, for the avoidance of doubt,
a breach or default that would be triggered as a result of the Chapter 11 Cases or the Company’s or any Debtor’s undertaking
to implement the Restructuring Transactions through the Chapter 11 Cases), or (iii) result in any violation of any Law or Order
applicable to the 39 Company
or any Debtor or any of their properties, except in each of the cases described in clauses (i) and (iii) for any conflict, breach,
modification, violation, default or acceleration which would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Section
4.7 Consents
and Approvals. No consent, approval, authorization, Order, registration, or qualification of or with any Governmental Entity having
jurisdiction over the Company or any of the other Debtors or any of their properties (each, an “Applicable Consent”)
is required for the execution and delivery by the Company and, to the extent relevant, the other Debtors, of this Agreement, the Plan
and the other Transaction Agreements, the compliance by the Company and, to the extent relevant, the Debtors, with the provisions hereof
and thereof and the consummation of the transactions contemplated herein and therein, except for (a) entry of the Backstop Order authorizing
the Company and the Debtors to enter into this Agreement and perform the BCA Approval Obligations, (b) entry of the Disclosure Statement
Order, (c) entry by the Bankruptcy Court, or any other court of competent jurisdiction, of Orders as may be necessary in the Chapter
11 Cases from time-to-time, (d) entry of the Confirmation Order, (e) filings, notifications, authorizations, approvals, consents,
or clearances from the FAA, (f) filings, notifications, authorizations, approvals, consents, clearances or termination or expiration
of all applicable waiting periods under any Antitrust Laws in connection with the transactions contemplated by this Agreement, (g) such
consents, approvals, authorizations, registrations or qualifications as may be required under local or state securities or “Blue
Sky” Laws in connection with the issuance of the Subscription Rights, the issuance of the Rights Offering Shares pursuant to the
exercise of the Subscription Rights or the issuance of the Backstop Shares or Backstop Premium Shares, and (h) any Applicable Consents
that, if not made or obtained, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section
4.8 Arm’s-Length.
The Company and the Debtors acknowledge and agree that (a) each of the Backstop Commitment Parties is acting solely in the capacity
of an arm’s-length contractual counterparty to the Company and the Debtors with respect to the transactions contemplated hereby
(including in connection with determining the terms of the Rights Offering) and not as a financial advisor or a fiduciary to, or an agent
of, the Company or any of its Subsidiaries and (b) no Backstop Commitment Party is advising the Company or any of its Subsidiaries
as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. Section
4.9 Financial
Statements. (i) The audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2023 and the related
audited consolidated statements of income, cash flows and shareholders’ equity of the Company and its Subsidiaries for such fiscal
year then ended, and (ii) the unaudited consolidated balance sheets of the Company and its Subsidiaries as of June 30, 2024 and the related
consolidated statements of income, cash flows and shareholders’ equity of the Company and its Subsidiaries for such quarter then
ended, were prepared, in all material respects, in accordance with GAAP (except as disclosed therein), and represent a true and fair
view, in all material respects, of the consolidated financial condition, financial position and results of operations and cash flows
of the Company and its consolidated Subsidiaries as 40 of
the dates thereof and for such period covered thereby (collectively, the “Financial Statements”). All such Financial
Statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP, as applicable, consistently
throughout the periods involved (except as disclosed therein). Section
4.10 Absence of Certain
Changes. Except as set forth in Section 4.10 of the Company Disclosure Schedules, since the Lookback Date until the date of this
Agreement, no Event has occurred or exists that has had or would be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. Section
4.11 No Violation; Compliance
with Laws. (a) The Company is not in violation of its certificate of incorporation or bylaws and (b) no other Debtor or
any of its respective Subsidiaries is in violation of its respective charter and bylaws, certificate of formation and limited liability
company operating agreement or similar organizational document, as applicable. None of the Debtors or their Subsidiaries is or has been
at any time since the Lookback Date in violation of any Law or Order, except for any such violations that have not had and would not
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section
4.12 Legal Proceedings.
Other than as set forth in Section 4.12 of the Company Disclosure Schedules, the anticipated Chapter 11 Cases and any adversary
proceedings or contested motions commenced in connection therewith, (a) there are no material legal, governmental, administrative, judicial
or regulatory investigations, audits, actions, suits, claims, arbitrations, demands, demand letters, claims, notices of noncompliance
or violations, or proceedings (“Legal Proceedings”) pending or, to the Knowledge of the Company, threatened to which
any of the Debtors or their Subsidiaries is a party or to which any property of any of the Debtors or their Subsidiaries is the subject
which, if adversely determined, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(b) no Event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Legal Proceeding, in each case
that in any manner draws into question the validity or enforceability of this Agreement, the Plan or the other Transaction Agreements
or that would reasonably be expected to have, in the aggregate, a Material Adverse Effect. Section
4.13 Labor Relations. (a)
Except as set forth in Section 4.13(a)(i) of the Company Disclosure Schedules, as of the date of this Agreement, none of the Debtors
or their respective Subsidiaries is a party or subject to any collective bargaining agreements, works council agreements, labor union
Contracts, trade union agreements, and other similar agreements (each a “Collective Bargaining Agreement”)
with any union, works council, or labor organization (each a “Union” and collectively “Unions”).
Except as set forth in Section 4.13(a)(ii) of the Company Disclosure Schedules, (i) since the Lookback Date, to the Knowledge of the
Debtors, no Union or group of employees of any of the Debtors or their respective Subsidiaries has made a written demand for recognition
or certification as the bargaining representative of the Debtors’ or their respective Subsidiaries’ employees, or filed a
petition for recognition as the bargaining representative of the Debtors’ or their respective Subsidiaries’ employees with
any Governmental Entity; (ii) as of the 41 date
of this Agreement, no Collective Bargaining Agreement is being negotiated by any of the Debtors or their respective Subsidiaries; and
(iii) since the Lookback Date, there have been no actual or, to the Knowledge of the Company, threatened strikes, lockouts, slowdowns,
work stoppages, boycotts, handbilling, picketing, walkouts, labor demonstrations, leafleting, sit-ins, sick-outs, or other forms of organized
labor with respect to any of the Debtors or their respective Subsidiaries that are material to the Debtors, taken as a whole. The consummation
of the transactions contemplated by the Transaction Agreements will not give rise to a right of termination or right of renegotiation
on the part of any Union under any Collective Bargaining Agreement to which any of the Debtors (or any predecessor) or any of their respective
Subsidiaries is a party or otherwise bound. (b)
Except as set forth in Section 4.13(b) of the Company Disclosure Schedules since the Lookback Date, the Debtors or their respective
Subsidiaries have been in material compliance with all applicable Laws relating to labor and employment, including but not limited to
all Laws relating to employment practices; the hiring, promotion, assignment, and termination of employees; plant closures, layoffs,
and furloughs (including the Worker Adjustment and Retraining Notification Act of 1988 and any similar state, local or foreign Laws (the
“WARN Act”); discrimination; harassment (including sexual harassment); retaliation; equal employment opportunities;
automated employment decision tools and other artificial intelligence; employee trainings and notices; disability; labor relations; wages
and hours; the Fair Labor Standards Act; classification of independent contractors; hours of work; payment of wages; restrictive covenants;
immigration; workers’ compensation; employee benefits; background and credit checks; working conditions; occupational safety and
health; and family and medical leave. Section
4.14 Intellectual Property. (a)
Except as set forth in Section 4.14(a) of the Company Disclosure Schedules, the Debtors or their respective Subsidiaries or Affiliates
exclusively own, or have the enforceable right under written licenses to use, all the Intellectual Property Rights that are material
to and necessary for the operation of their respective businesses as currently conducted (“Material Intellectual Property
Rights”). (b)
Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) the Material
Intellectual Property Rights owned by the Debtors are owned free and clear of all Liens, other than Permitted Liens, and all registrations
and applications included in such Material Intellectual Property Rights are, as applicable, subsisting and have not expired (except subject
to applicable statutory terms), been canceled, or been abandoned, (ii) to the Knowledge of the Company, each item of the Material Intellectual
Property Rights is valid and enforceable and (iii) no Legal Proceeding (other than office actions issued by the applicable Governmental
Entity in connection with the prosecution of applications) is pending or, to the Knowledge of the Company, threatened by or before any
Governmental Entity, that challenges the legality, validity, enforceability, registration, use or ownership of any item of such Material
Intellectual Property Rights. (c)
Except as set forth in Section 4.14(c) of the Company Disclosure Schedules or as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, neither the Debtors nor their respective Subsidiaries have granted, conveyed or 42 transferred
(or is obligated to grant, convey or transfer) to any Person or has permitted (or is obligated to permit) any Person to retain any ownership
interest, including any joint or partial ownership interest, or any exclusive licensed rights, in any of the Material Intellectual Property
Rights. (d)
Except as set forth in Section 4.14(d) of the Company Disclosure Schedules or as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, as of the date hereof, no Legal Proceedings are pending or, to the Knowledge of the Company,
are threatened against the Debtors or any of their Subsidiaries, alleging that any of the Material Intellectual Property Rights or the
operation of the businesses of the Debtors or any of their Subsidiaries (i) have or are infringing, misappropriating, diluting or otherwise
violating the Intellectual Property Rights of any Person or (ii) constituted unfair competition or unfair trade practices. (e)
Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the Knowledge
of the Company, (i) no Person is infringing, misappropriating, diluting, or otherwise violating any Material Intellectual Property Rights
owned by the Debtors or any of their Subsidiaries, and (ii) neither the Debtors nor any of their Subsidiaries has instituted or threatened
to institute any Legal Proceeding against any Person alleging such Person is infringing, misappropriating, diluting, using in an unauthorized
manner or otherwise violating any Material Intellectual Property Rights owned by the Debtors or any of their Subsidiaries. (f)
Since the Lookback Date, and except as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (i) the Debtors and each of their Subsidiaries have taken commercially reasonable actions, at least consistent with industry
standards, to maintain and protect (A) all confidential information of the Debtors and each of their Subsidiaries that derives independent
economic value, actual or potential, from not being known to other Persons, and (B) all Trade Secrets of the Debtors and each of their
Subsidiaries; (ii) to the Knowledge of the Company, there has been no unauthorized disclosure, access, or theft of the Trade Secrets
of the Debtors or any of their Subsidiaries, or unauthorized disclosure by the Debtors or any of their Subsidiaries of any third party
information that has been supplied to the Debtors or any of their Subsidiaries in confidence; and (iii) neither the Debtors nor any of
their Subsidiaries has disclosed, delivered, or licensed to any Person, agreed to disclose, deliver, or license to any Person, or deposited
or agreed to deposit with any Person, any owned Source Code or any other Trade Secrets of the Debtors or any of their Subsidiaries, other
than to Persons and third parties bound by confidentiality obligations. (g)
Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) neither the
execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will result in a material breach,
violation, modification, cancellation, termination, or suspension of any IP Contract, (ii) all IP Contracts shall remain in full force
and effect immediately following the Closing in accordance with their terms, and, as of immediately after the Closing, the Debtors will
be entitled to exercise all of their respective rights under all IP Contracts to the same extent as prior to the Closing and (iii) the
consummation of the transactions contemplated hereby shall not require any consents, approvals, or other authorization by any third party
concerning any IP Contracts. 43 Section
4.15 Privacy and Data Protection. (a)
Since the Lookback Date and except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, (i) the Debtors and their Subsidiaries are and have been in compliance with all applicable Data Protection Laws, the Privacy
Statements, PCI DSS and the obligations under their Contracts; (ii) the Debtors and their Subsidiaries have (A) taken appropriate steps
reasonably designed to implement and maintain such policies, procedures, and practices governing Personal Data as are required to comply
with all applicable Data Protection Laws, the Privacy Statements, PCI DSS and the obligations under their Contracts, and (B) followed
such policies, procedures, and practices in the conduct of the business of the Debtors and their Subsidiaries. (b)
Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Debtors and
their Subsidiaries have adopted commercially reasonable information security and privacy programs, including reasonable and appropriate
administrative, physical, and technical safeguards, to protect the confidentiality, integrity, availability and security of Personal
Data against unauthorized access, use, modification, disclosure or other misuse. (c)
Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Debtors and
their Subsidiaries have used commercially reasonable efforts to prevent the introduction into the Systems , and, to the Knowledge of
the Company, such Systems do not contain, any ransomware, disabling codes or instructions, spyware, Trojan horses, worms, viruses or
other software routines that permit or cause unauthorized access to, or disruption, impairment, disablement, or destruction of, Software,
data or other materials. Since the Lookback Date, the Systems (i) have not suffered any unplanned or critical failures, continued substandard
performance, errors, breakdowns or other adverse Events that have caused any disruption or interruption in the operation of the business
of the Debtors and their Subsidiaries; (ii) have been in good working order; (iii) have functioned in accordance with all specifications
and any other descriptions under which they were supplied; (iv) to the Knowledge of the Company, have been substantially free of any
defects, bugs and errors; and (v) have been sufficient for the needs of the business of the Debtors and their Subsidiaries, except, for
each of (i)-(v), as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (d)
Since the Lookback Date, (i) the Debtors and their Subsidiaries have not suffered any Security Incident, and to the Knowledge
of the Company, no service provider (in the course of providing services for or on behalf of the Debtors or any of their Subsidiaries)
has suffered any Security Incident, except, for each of (i) and (ii), as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. To the Knowledge of the Company, there are no pending complaints, actions, fines, or other
penalties facing the Debtors or their Subsidiaries in connection with any such Security Incident or other adverse Events relating to
Personal Data, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section
4.16 Certain Aircraft Matters.
The Debtors and their Subsidiaries hold all material air operator’s certificates (or such similar document as is applicable in
the relevant jurisdiction) sufficient in all material respects to operate aircraft in the manner and jurisdiction in which its aircraft
are currently operated. 44 Section
4.17 Real and Personal Property. (a)
Except as has not had, and would not reasonably be expected to have, a Material Adverse Effect, the applicable Debtor, or the
applicable Subsidiary of the Debtors, has good, marketable and exclusive fee simple title to, and the valid and enforceable power and
unqualified right to use and sell, transfer, convey or assign each parcel of Owned Real Property, free and clear of all Liens other than
Permitted Liens. The Debtors or their respective Subsidiaries have not leased, licensed or otherwise granted any Person the right to
use or occupy the Owned Real Property, which lease, license or grant is currently in effect. (b)
Except as has not had, and would not reasonably be expected to have, a Material Adverse Effect, the applicable Debtor, or the
applicable Subsidiary of the Debtors, has a valid, binding and enforceable leasehold interest under each lease, sublease, license or
other similar document or instrument under which such Leased Real Property is occupied or used (individually, a “Real Property
Lease” and collectively, the “Real Property Leases”), free and clear of all Liens other than
Permitted Liens, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting
creditor’s rights generally or general principles of equity, including the Chapter 11 Cases and any limitations of the Chapter
11 Cases as may be applied under non-U.S. law. Except as has not had, or would not reasonably be expected to have, a Material Adverse
Effect, each Real Property Lease is in full force and effect and is the valid, binding and enforceable obligation of each party thereto
in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
laws affecting creditor’s rights generally or general principles of equity, including the Chapter 11 Cases. None of the Debtors
or their Subsidiaries has received written notice of any good faith claim asserting that such leases are not in full force and effect,
except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. (c)
There are no outstanding agreements, options, rights of first offer or rights of first refusal, or other contractual (or other)
right or obligation on the part of any party to purchase, sell, assign or dispose any Real Property. There are not pending or, to the
Knowledge of the Company, threatened any condemnation proceedings with respect to any Real Property. The Real Property constitutes all
interests in real property (i) currently used, occupied or held for use in connection with the business of the Debtors and their respective
Subsidiaries, as presently conducted, and (ii) necessary for the continued operation of the business of the Debtors and their respective
Subsidiaries, as presently conducted. (d)
Each of the Debtors and each of their respective Subsidiaries has valid title to all of its respective personal property and assets,
except for Permitted Liens, and except where the failure (or failures) to have such title would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect. To the Knowledge of the Company, all such personal property and assets are free and clear
of Liens, other than Permitted Liens. Other than as a consequence of the Chapter 11 Cases, each of the Debtors and each of their respective
Subsidiaries owns or possesses the right to use all of its personal property, and all licenses and 45 rights
with respect to any of the foregoing used in the conduct of their businesses, without any conflict (of which any of the Debtors and any
of their Subsidiaries has been notified in writing) with the rights of others, and free from any burdensome restrictions on the present
conduct of the Debtors or their respective Subsidiaries, as the case maybe, except where such conflicts and restrictions would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect. Section
4.18 Licenses and Permits.
The Debtors or their Subsidiaries possess all licenses, certificates, permits and other authorizations issued by, have made all declarations
and filings with and have maintained all financial assurances required by, the appropriate Governmental Entities that are necessary for
the ownership or lease of their respective properties and the conduct of the business, except where the failure to possess, make or give
the same would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect. None of the Debtors or their Subsidiaries (a) has received notice of any revocation or modification of any such
license, certificate, permit or authorization or (b) has any reason to believe that any such license, certificate, permit, or authorization
will not be renewed in the ordinary course, except to the extent that any of the foregoing would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. The execution, delivery and consummation, as applicable, by the Company
and, if applicable, any other Debtor, of this Agreement, the Plan and the other Transaction Agreements, the compliance by the Company
and, if applicable, any other Debtor, with the provisions hereof and thereof and the consummation of the transactions contemplated herein
and therein will not give rise to (a) any obligations to obtain the consent of any Governmental Entity or (b) any action to revoke, terminate,
withdraw, cancel, limit, condition, appeal or otherwise review, or any other adverse effect on, any license, certificate, permit or other
authorization required by the Debtors or their Subsidiaries to conduct their respective business and occupy each of their properties,
in each case, which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Section
4.19 Environmental..
Except as set forth in Section 4.19 of the Company Disclosure Schedules or as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (a) no unresolved written notice, claim, demand, request for information, Order,
complaint or penalty has been received by any of the Debtors or their Subsidiaries, and there are no Legal Proceedings pending or, to
the Knowledge of the Company, threatened, in each case, which allege a violation of or liability under any Environmental Laws (including
with respect to exposure to Hazardous Materials), in each case relating to any of the Debtors or their Subsidiaries, (b) each Debtor
and each of their respective Subsidiaries has received and maintained in full force and effect all environmental permits, licenses and
other approvals, and has maintained all financial assurances, in each case to the extent necessary for its operations to comply with
all applicable Environmental Laws and is, and since the Lookback Date, has been, in compliance with the terms of such permits, licenses
and other approvals and with all applicable Environmental Laws, (c) none of the Debtors or their Subsidiaries are subject to any Order
applicable to it or with respect to its assets arising under Environmental Law, (d) to the Knowledge of the Company, no Hazardous Material
is located at, on or under any property currently or formerly owned, operated or leased by 46 any
of the Debtors or their Subsidiaries that has given rise or would reasonably be expected to give rise to any cost, liability or obligation
of any of the Debtors or their Subsidiaries under any Environmental Laws, (e) no Hazardous Material has been Released, generated, treated,
stored, transported or handled by any of the Debtors or their Subsidiaries, and none of the Debtors or their Subsidiaries has arranged
for or permitted the disposal of Hazardous Material at any location, in each case, in a manner that has given rise or would reasonably
be expected to give rise to any cost, liability or obligation of any of the Debtors or their Subsidiaries has under any Environmental
Laws, and (f) none of Debtors or their Subsidiaries has, either expressly or by operation of Law, assumed any liabilities or obligations
of any other Person arising under or relating to Environmental Laws that remains unresolved. Section
4.20 Taxes. Except as
set forth on Section 4.20 of the Company Disclosure Schedules and in each case, except as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (a)
Each of the Debtors and their Subsidiaries have filed or caused to be filed all U.S. federal, state, and local and non-U.S. Tax
Returns required to have been filed by it under applicable Laws (taking into account extensions) and each such Tax Return is true and
correct and was prepared in compliance with all applicable Laws. (b)
Each of the Debtors and their Subsidiaries has timely paid or caused to be timely paid (taking into account extensions) all Taxes
due and payable by it (whether or not shown as due on the Tax Returns referred to in clause (a)) (or made adequate provision (in accordance
with GAAP) for the payment of all Taxes due) with respect to all periods or portions thereof ending on or before the date hereof, excluding
Taxes (i) being contested in good faith by appropriate proceedings and for which the Debtors or their Subsidiaries have set aside on
their books adequate reserves in accordance with GAAP or (ii) the nonpayment of which is permitted or required by the Bankruptcy Code. (c)
As of the date hereof, with respect to the Debtors, other than in connection with the Chapter 11 Cases and other than Taxes or
assessments that are being contested in good faith by appropriate proceedings and for which the Debtors or their Subsidiaries have set
aside on their books adequate reserves in accordance with GAAP, (i) no claims have been asserted in writing with respect to any Taxes
that have not be fully paid, settled or otherwise resolved, (ii) no presently effective waivers or extensions of statutes of limitation
with respect to Taxes have been given or requested (other than any waivers or extensions obtained in the ordinary course of business)
and (iii) no Tax Returns are currently being examined by, and no written notification of intention to examine any such Tax Returns has
been received from, the IRS or any other Governmental Entity. (d)
The Debtors and each Subsidiary have, within the time and in the manner prescribed by Law, withheld all amounts required to be
withheld from all payments made (or treated as made) by the Debtors and each Subsidiary to employees, independent contractors, creditors,
and other third parties; to the extent required by applicable Law, paid such withheld amounts to the proper Governmental Entity; and
complied with all information reporting requirements related thereto in all material respects. 47 (e)
There are no Liens for Taxes (other than statutory liens for Taxes not yet due and payable that constitute Permitted Liens) upon
any of the assets of the Debtors or their Subsidiaries. (f)
No claim has ever been made in writing by any Tax authority or other Governmental Entity in a jurisdiction where any of the Debtors
or Subsidiaries has not filed a Tax Return that it is or may be required to file a Tax Return or may be subject to Tax by such jurisdiction
that has not been settled or otherwise resolved. (g)
None of the Debtors nor any Subsidiary has distributed stock of another Person, or has had its stock distributed by another Person,
in a transaction that was purported or intended to be governed by Section 355 or Section 361 of the Tax Code within the three (3) years
preceding the date of this Agreement. (h)
None of the Debtors nor their Subsidiaries is party to any Tax sharing, allocation, indemnity or similar agreement or arrangement
that is currently in effect, other than any such agreement as to which only the Debtors, the Company or any of their Subsidiaries are
parties or that was entered into the ordinary course of business and the principal purpose is not related to Taxes. (i)
None of the Debtors nor their Subsidiaries (i) has in the last ten (10) years, (and, to the Company’s knowledge, ever) been
a member of an “affiliated group” within the meaning of Section 1504(a) of the Tax Code filing a consolidated U.S. federal
income Tax return (other than the “affiliated group” the common parent of which is or was any of the Debtors) or (ii) has
any liability for Taxes of any Person (other than any of the Debtors or any of their Subsidiaries) (A) under Treasury Regulations Section
1.1502-6 (or any similar provision of U.S. state, local or non-U.S. Law) or (B) as a Transferee or successor, or by Contract (other than
any such agreement as to which only the Debtors, the Company or any of their Subsidiaries are parties or that was entered into the ordinary
course of business and the principal purpose is not related to Taxes). (j)
No Debtor nor any Subsidiary is or has been a party to any “listed transaction,” as defined in Section 6707A of the
Tax Code and Treasury Regulations Section 1.6011-4 or any similar transaction requiring disclosure to a Tax authority under any similar
provision of Law. Section
4.21 Employee Benefit Plans. (a)
Except as set forth in Section 4.21(a)(i) of the Company Disclosure Schedules, none of the Debtors or their respective Subsidiaries
nor any of their respective ERISA Affiliates sponsor, maintain, contribute to, or has an obligation to contribute to, or has any outstanding
liability (contingent or otherwise) to any (x) Multiemployer Plan, (y) Defined Benefit Pension Plan or (z) non-qualified deferred compensation
plan subject to Section 409A of the Code and in which employees subject to U.S. federal income taxes participate, in each case that are
material to the Debtors, taken as a whole. Except as set forth in Section 4.21(a)(ii) of the Company Disclosure Schedules, none of the
Company Benefit Plans or any Multiemployer Plans set forth in Section 4.21(a)(i) could reasonably be expected to result, individually
or in the aggregate, in a material liability. No conditions exist that could reasonably be expected to result in any material 48 liability
or obligation (contingent or otherwise) to the Debtors or their respective Subsidiaries under Title IV of ERISA. Within the past six
(6) years, none of the Debtors nor any of their ERISA Affiliates has incurred any withdrawal liability with respect to a Multiemployer
Plan under Subtitle E of Title IV of ERISA that has not been satisfied in full, and, to the Knowledge of the Company, no condition or
circumstance exists that presents a reasonable risk of the occurrence of any other withdrawal from or the partition, termination or insolvency
of any such Multiemployer Plan that are material to the Debtors, taken as a whole. (b)
Except as would not reasonably be expected to result, individually or in the aggregate, in material liability to Debtors, no employee
pension benefit plan or any other material employee benefit, plan, program, practice, policy, agreement or arrangement governed by or
subject to the Laws of a jurisdiction other than the United States of America to which Debtors have an obligation. (c)
Except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, each Foreign
Plan complies with all applicable local laws and regulations thereto and there are no pending, or to the Knowledge of the Company, threatened
in writing claims, sanctions, actions or lawsuits, asserted or instituted against any Company Benefit Plan or Foreign Plan in each case
other than claims for benefits in the normal course. (d)
Except as would not reasonably be expected to have, individually or in the aggregate, in material liability to Debtors, none of
the Company Benefit Plans or Foreign Plans obligates any Debtor or any of their Subsidiaries to provide, nor has any Debtor or any of
their Subsidiaries promised or agreed to provide or otherwise has any liability (contingent or otherwise) with respect to, retiree or
post-employment health, welfare or life insurance or benefits, other than as required under Part 6 of Subtitle B of Title I of ERISA,
Section 4980B of the Code or any similar Law. (e)
Except as set forth on Section 4.21(e)(i) of the Company Disclosure Schedules or as would not reasonably be expected to result,
individually or in the aggregate, in a material liability, (A) all compensation and benefit arrangements of the Debtors and their respective
Subsidiaries and all Company Benefits Plans comply and have complied in both form and operation with their terms and all applicable Laws
and legal requirements, in all material respects, and (B) none of the Debtors has any obligation to provide any individual with a “gross
up” or similar payment in respect of any Taxes that may become payable under Section 409A or 4999 of the Code. Except as set forth
on Section 4.21(e)(ii) of the Company Disclosure Schedules, no Company Benefit Plan or compensation or benefit plan, practice, program,
policy, agreement or arrangement exists that, as a result of the Chapter 11 Cases or any transactions related thereto, including the
transactions contemplated by this Agreement, could reasonably be expected to (A) result in the acceleration of the time of payment or
vesting of or (B) a material increase in the amount of compensation or benefits due to, in each case, any employee, director or other
individual service provider of any of the Debtors or any of their Subsidiaries. Section
4.22 Internal Control Over
Financial Reporting. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
the Company has established and maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f)
promulgated under 49 the
Exchange Act) that complies with the requirements of the Exchange Act and has been designed to provide reasonable assurances regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and
to the Knowledge of the Company, there are no weaknesses in the Company’s internal control over financial reporting as of the date
hereof. Section
4.23 Material Contracts.
Other than as a result of a rejection motion filed by any of the Debtors in the Chapter 11 Cases, all Material Contracts are valid, binding
and enforceable by and against the Debtor party thereto (except for where the failure to be valid, binding or enforceable would reasonably
be expected to be material to the Debtors, taken as a whole), and, to the Knowledge of the Company, each other party thereto, and no
written notice to terminate, in whole or part, any Material Contract has been delivered to any of the Debtors (except where such termination
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect). Other than as a result of the
filing of the Chapter 11 Cases or any rejection motion filed by any of the Debtors in the Chapter 11 Cases, none of the Debtors
nor, to the Knowledge of the Company, any other party to any Material Contract, is in material default or breach under the terms thereof,
in each case, except for such instances of material default or breach that would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Section
4.24 No Unlawful Payments.
Except as set forth in Section 4.24 of the Company Disclosure Schedules, during the past five years, none of the Debtors or their respective
Subsidiaries nor any of their respective directors, officers, or employees, or to the Knowledge of the Company, any of their agents or
Representatives authorized to act on behalf of any Debtor or its Subsidiary, in each case in their capacity as such, has: (a) used any
funds of any of the Debtors or their respective Subsidiaries for any unlawful contribution, gift, entertainment or other unlawful expense,
in each case relating to political activity; (b) made any direct or indirect unlawful payment to any foreign or domestic government official
or employee; (c) otherwise violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder, the UK Bribery Act 2010, or any other applicable laws, rules and regulations related to corruption
or bribery (“Anti-Corruption Laws”); or (d) made any bribe, rebate, payoff, influence payment, kickback or other similar
unlawful payment, in each case of (a) – (d) in violation of any Anti-Corruption Law. No Legal Proceeding by or before any Governmental
Entity or any arbitrator involving any of the Debtors or their respective Subsidiaries with respect to the Anti-Corruption Laws is pending
or, to the Knowledge of the Company, threatened, and no Event has occurred or circumstances exist that may give rise to, or serve as
a basis for, any such Legal Proceeding. The Company, the Debtors and their respective Subsidiaries have implemented and maintain in effect
policies and procedures reasonably designed to ensure compliance by the Debtors and their Subsidiaries and their respective Representatives
with Anti-Corruption Laws. Section
4.25 Compliance with Money
Laundering, Ex-Im Laws and Sanctions Laws. 50 (a)
Debtors and their respective Subsidiaries, and their respective directors, officers, employees and, to the Knowledge of the Company,
agents and Representatives authorized to act on behalf of any Debtor or Subsidiary, in each case in their capacity as such, are and,
during the past five years have been, in compliance in all respects with the U.S. Currency and Foreign Transactions Reporting Act of
1970, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Money Laundering Control Act of 1986,
the UK Proceeds of Crime Act 2022, the UK Terrorism Act 2000, and all other applicable Laws, rules and regulations of any jurisdiction
related to terrorist financing or money laundering, including “know-your-customer” and financial recordkeeping and reporting
requirements (collectively, the “Money Laundering Laws”). No Legal Proceeding by or before any Governmental
Entity or any arbitrator involving any of the Debtors or their respective Subsidiaries with respect to Money Laundering Laws is pending
or to the Knowledge of the Company threatened and no Event has occurred or circumstances exist that may give rise to, or serve as a basis
for, any such Legal Proceeding. The Debtors and their respective Subsidiaries have implemented and maintain in effect policies and procedures
reasonably designed to ensure compliance by the Debtors and their Subsidiaries and their respective Representatives with Money Laundering
Laws. (b)
None of the Debtors or their Subsidiaries nor any of their respective directors, officers, or employees, or to the Knowledge of
the Company, any agents or Representatives authorized to act on behalf of any Debtor or its Subsidiary, is currently or has been during
the past six (6) years a Sanctioned Person. Each Debtor and each of its Subsidiaries have for the past six (6) years complied and are
in compliance with Ex-Im Laws. Each Debtor and each of its Subsidiaries have for the past six (6) years complied and are in compliance
with Sanctions. None of the Debtors or their respective Subsidiaries has had during the past six (6) years or currently has assets located
in any Sanctioned Country in violation of Sanctions, or otherwise directly or indirectly derives or has derived within the past six (6)
years revenues, or is engaged or has engaged within the past six (6) years in any transaction(s), investments, dealings or activities
(i) in or with, any Sanctioned Country or Sanctioned Person in each case in violation of Sanctions or (ii) in any manner which would
result in a material violation of Sanctions. The Debtors will not, and will not permit any of their respective Subsidiaries to, directly
or knowingly indirectly, use the proceeds of the Rights Offering, or lend, contribute or otherwise make available such proceeds to any
other Debtor, its Subsidiaries, joint venture or other Person, (i) for the purpose of financing the transactions, investments, dealings
or activities involving any Sanctioned Country or Sanctioned Person; or (ii) in any manner in violation of Sanctions, Ex-Im Laws, Anti-Corruption
Laws or Money Laundering Laws by any Person (including any agent, Backstop Commitment Parties, arranger, advisor or other individual
or entity participating in a transaction). No Legal Proceeding by or before any Governmental Entity or any arbitrator involving any of
the Debtors or their respective Subsidiaries with respect to Sanctions or Ex-Im Laws is pending or, to the Knowledge of the Company,
threatened, and no Event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Legal Proceeding.
The Company, the Debtors and their respective Subsidiaries have implemented and maintain in effect policies and procedures reasonably
designed to ensure compliance by the Debtors and their Subsidiaries Sanctions and Ex-Im Laws. Section
4.26 No Broker’s Fees.
None of the Debtors or any of their respective Subsidiaries is a party to any Contract with any Person (other than this Agreement) that
would give rise to a valid claim against the Backstop Commitment Parties 51 for
a brokerage commission, finder’s fee or like payment in connection with the Rights Offering or the transactions contemplated by
this Agreement. Section
4.27 Investment Company
Act. None of the Debtors or any of their respective Subsidiaries is, or immediately after giving effect to the consummation of the
Restructuring Transactions and the application of proceeds thereof will be, an “investment company” required to register
as such under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and this conclusion is
based on one or more bases or exclusions other than Sections 3(c)(1) and 3(c)(7) of the Investment Company Act. Section
4.28 Insurance. Except
as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (a) the Debtors and their respective
Subsidiaries have insured their properties and assets against such risks and in such amounts as are customary for companies engaged in
similar businesses in similar geographies; (b) all premiums due and payable in respect of insurance policies maintained by the Debtors
and their respective Subsidiaries have been paid; (c) the Company reasonably believes that the insurance maintained by or on behalf of
the Debtors and their respective Subsidiaries is adequate in all material respects; and (d) as of the date hereof, to the Knowledge of
the Company, none of the Debtors and their respective Subsidiaries has received notice from any insurer or agent of such insurer with
respect to any insurance policies of the Debtors and their respective Subsidiaries of any cancellation or termination of such policies,
other than such notices which are received in the ordinary course of business or for policies that have expired in accordance with their
terms. Section
4.29 Disclosure, Company
SEC Documents and Disclosure Statement. Other than as set forth in Section 4.29 of the Company Disclosure Schedules, the Company
has filed with or furnished to the SEC all reports, schedules, forms, statements, and other documents (including exhibits and other information
incorporated therein) required to be filed or furnished by the Company since the Lookback Date under the Exchange Act or the Securities
Act. As of their respective dates, and, if amended, as of the date of the last such amendment, each of the Company SEC Documents, (including
exhibits and other information incorporated therein) including any financial statements or schedules included therein, (a) did not contain
any untrue statement of a material fact or omit to state a material fact required to be stated in such Company SEC Document or necessary
in order to make the statements in such Company SEC Document, in light of the circumstances under which they were made, not misleading
and (b) complied in all material respects with the applicable requirements of the Exchange Act, the Securities Act and the Sarbanes-Oxley
Act of 2002 (“SOX”), as the case may be, and the applicable rules and regulations of the SEC under the Exchange Act,
the Securities Act and SOX, as the case may be. Section
4.30 Securities Registration
Exemption; No Integration; No General Solicitation. Assuming the truth and
accuracy of the representations of each Backstop Commitment Party set
forth in Article V, the offer, sale and delivery of the Direct Allocation Shares, the Backstop Shares and any Backstop Premium
Shares to the Backstop Commitment Parties in the manner contemplated
by this Agreement and the 52 Plan
shall be exempt from registration under Rule 506(b) of Regulation D promulgated under the Securities Act or Section 4(a)(2) of the Securities
Act, Regulation S under the Securities Act or another available exemption under the Securities Act. The offer, sale and delivery of the
Rights Offering Shares in the manner contemplated by this Agreement and the Plan shall be exempt from registration under Section 1145(a)
of the Bankruptcy Code. The Company and
the Debtors have not and will not, directly or through any agent, sell, offer for sale, solicit offers to buy or otherwise negotiate
in respect of, any security (as defined in the Securities Act), that is or will be integrated with the Rights Offering and this Agreement
in a manner that would require registration of the Direct Allocation Shares, Backstop Shares or Backstop Premium Shares to be issued
on the Plan Effective Date under the Securities Act. Neither the Company,
Debtors nor any other Person acting on their behalf have or will solicit offers for, or offer or sell, any Direct Allocation Shares,
Backstop Shares or Backstop Premium Shares by means of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D promulgated under the Securities Act or directed selling efforts within the meaning of Regulation S under
the Securities Act, or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act, and all
such persons have complied and will comply with the offering restrictions of Regulation S. Section
4.31 Aircraft. (a)
Section 4.31(a) of the Company Disclosure Schedules set forth, as of the date of this Agreement, a true and complete list of (i)
all aircraft operated under the operating certificate of any Debtor and (ii) all aircraft owned or leased by any Debtor, (collectively,
the “Company Aircraft”), including, for each Company Aircraft, a description of the type, manufacturer’s
model name, manufacturer’s serial number, FAA registration number, the delivery date, the manufacture date or age, and whether
it is owned or leased and by which Debtor. (b)
As of the date of this Agreement, all Company Aircraft are properly registered on the FAA aircraft registry, in airworthy condition
(except for any Company Aircraft undergoing maintenance or in storage), and have validly issued and current FAA certificates of airworthiness
that are in full force and effect (except for the period of time any Company Aircraft may be out of service and such certificate is suspended
in connection therewith). (c)
As of the date of this Agreement, all Company Aircraft have been and are being maintained in all material respects according to
applicable Laws, applicable FAA regulatory standards and FAA-approved maintenance programs of the Debtors. The Debtors have implemented
maintenance schedules with respect to Company Aircraft and engines that, if complied with, result in the satisfaction of all requirements
under all applicable airworthiness directives of the FAA and Federal Aviation Regulations required to be complied with and which are
in accordance with the FAA-approved maintenance program of the Debtors, and the Debtors, as of the date of this Agreement, are in compliance
with such maintenance schedules in all material respects (except with respect to Company Aircraft in storage as identified on Section
4.31(c) of the Company Disclosure Schedules), and the Debtors, as of the date of this Agreement, have no reason to believe that the Debtors
will not satisfy in any material respect any component of such maintenance schedules on or prior to the dates specified in such maintenance
schedules (except with respect to Company Aircraft in storage). As of the date of this Agreement, each Company 53 Aircraft’s
structure, Systems and components are functioning in all material respects in accordance with their intended use, except for Company
Aircraft that are undergoing maintenance and temporarily deferred maintenance items that are permitted by the Debtors’ maintenance
programs. All deferred maintenance items and temporary repairs with respect to each such Company Aircraft, as of the date of this Agreement,
have been or will be made in all material respects in accordance with the Debtors’ maintenance programs. (d)
Section 4.31(d) of the Company Disclosure Schedules set forth, as of the date of this Agreement, a true and complete list of all
Contracts (other than Contracts that may be terminated or cancelled by any Debtor without incurring any material penalty) pursuant to
which the Debtors have a binding obligation following the date hereof to purchase or lease aircraft, engines or simulators where the
reasonably expected expenditures under any such Contract exceed $5,000,000 per annum (together with all amendments, modifications and
supplements thereto, each, a “Company Aircraft Purchase Contract”), including the manufacturer and model of
all aircraft, engines or simulators subject to each Contract, the nature of the purchase or lease obligation (i.e., firm commitment,
subject to reconfirmation or otherwise) and the anticipated year of delivery of the aircraft, engines or simulators subject to such Contract. (e)
Section 4.31(e) of the Company Disclosure Schedules set forth, as of the date of this Agreement, a true and complete list of all
Contracts pursuant to which the Debtors have financed, or have commitments to finance, Company Aircraft (including leases, mortgages
and deferred or conditional sales agreements) involving amounts in excess of $5,000,000 (together with all amendments, modifications
and supplements thereto, each, a “Company Aircraft Finance Contract”). (f)
[Reserved]. (g)
As of the date of this Agreement, no Debtor is a party to any interchange or pooling agreements with respect to the Company Aircraft,
other than pooling agreements in the ordinary course of business. (h)
As of the date of this Agreement, all Company Aircraft are insured (i) as required by Law, (ii) for “Hull All Risks”,
“All Risks” and “Hull War and Allied Perils” insurance of loss or damage whilst flying and on the ground on an
agreed value basis for an amount at least equal to the market value of such Company Aircraft, and for liability insurances, in each case
in extent and value as expected for a reputable large airline operating in the U.S., and (iii) as required by any financing or leasing
documents in respect of such Company Aircraft. Section
4.32 Company Slots and Operating
Authorizations. (a)
Section 4.32(a) of the Company Disclosure Schedules set forth a true and complete list as of the date of this Agreement of all
takeoff and landing slots, slot exemptions, and operating authorizations from the FAA or any other Governmental Entity and other similar
designated takeoff and landing rights used or held by any Debtor (the “Company Slots”) at any domestic or international
airport and such list indicates (i) any Company Slots that have been permanently allocated to the Debtors from another air carrier and
(ii) any Contracts concerning specific Company Slots. 54 (b)
Since the Lookback Date, the Debtors have complied in all material respects and is in compliance in all material respects with
all regulations issued under the Federal Aviation Act and any other Laws (including any waivers or exemptions therefrom) promulgated
in the United States or in any country in which the Debtors operate by either a civil aviation authority, airport authority or slot coordinator
with respect to the Company Slots. The Company has not (a) received any written notice of any proposed withdrawal of any Company Slot
by the FAA, any other Governmental Entity or any slot coordinator, or (b) agreed to any future slide, trade, purchase, sale, exchange,
lease, or transfer of any of the Company Slots (except, in each case, for seasonal swaps and temporary returns to the FAA). The Company
Slots have not been designated for the provision of essential air service under the regulations of the FAA, were not acquired pursuant
to 14 C.F.R. Section 93.219, and have not been designated for international operations, as more fully detailed in 14 C.F.R. Section 93.217.
To the extent covered by 14 C.F.R. Section 93.227 or any Order, notice, or requirement of the FAA, any other Governmental Entity or any
slot coordinator, the Debtors have used the Company Slots (or the Company Slots have been used by other operators) either at least 80%
of the maximum amount that each Company Slot could have been used during each full reporting period (as described in 14 C.F.R. Section
93.227(i) or any such Order, notice, or requirement) or such greater or lesser amount of minimum usage as may have been required to protect
such Company Slots from termination or withdrawal under regulations or waivers established by the FAA, any other Governmental Entity,
or any slot coordinator. All material reports required by the FAA, any other Governmental Entity or any slot coordinator relating to
the Company Slots have been filed in a timely manner. Section
4.33 Company Airports.
As of the date of this Agreement, no airport authority at any airport at which the Debtors operate more than five (5) departures per
day (each such airport, a “Company Airport”) has taken any action, nor, to the Knowledge of the Company, is any such
action threatened, that would reasonably be expected to materially interfere with the ability of any Debtor to conduct its respective
operations at any Company Airport in substantially the manner as currently conducted. Section
4.34 U.S. Citizen;
Air Carrier. The Company is a “citizen of the United States” as defined in 49 U.S.C. § 40102(a)(15) of the Federal
Aviation Act and as interpreted by DOT, and the Company is fully authorized and qualified to operate as an “air carrier”
within the meaning of the Federal Aviation Act operating under certificates and exemptions issued pursuant to the Federal Aviation Act
(49 U.S.C. §§ 40102(a)(2), 40109, and 41101-41112). Section
4.35 No Other Representations or Warranties. Except
for the representations and warranties of the Company and where applicable, its Subsidiaries expressly contained in this Article IV (including
the related portions of the Company Disclosure Schedules, the Restructuring Support Agreement, the Plan and the Definitive Documents),
neither the Company, nor any other Person makes any express or implied representations or warranties regarding the Company, the Debtors
or their Subsidiaries, and the Company and each Debtor hereby disclaims any such representation or warranty with respect to the execution
and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, including any representation
or warranty as to the accuracy or completeness of any information regarding the Debtors or their Subsidiaries furnished or made available
to the Backstop Commitment Parties and their 55 Affiliates
or as to the future revenue, profitability or success of the Company, the Debtors or their Subsidiaries, or any representation or warranty
arising from statute or otherwise in Law. Article
V Each
Backstop Commitment Party, severally, and not jointly and severally, represents and warrants as to itself only (unless otherwise set
forth herein, as of the date of this Agreement) as set forth below. Section
5.1 Organization.
Such Backstop Commitment Party is a legal entity duly organized, validly existing and, if applicable, in good standing (or the equivalent
thereof) under the Laws of its jurisdiction of incorporation or organization. Section
5.2 Organizational
Power and Authority. Such Backstop Commitment Party has the requisite power and authority (corporate, partnership or otherwise) to
enter into, execute and deliver this Agreement and each other Transaction Agreement to which such Backstop Commitment Party is a party
and to perform its obligations hereunder and thereunder and has taken all necessary action (corporate or otherwise) required for the
due authorization, execution, delivery and performance by it of this Agreement and the other Transaction Agreements. Section
5.3 Execution
and Delivery; Enforceability. This Agreement and each other Transaction Agreement to which such Backstop Commitment Party is a party
(a) has been, or prior to its execution and delivery will be, duly and validly executed and delivered by such Backstop Commitment
Party and (b) upon entry of the Backstop Order and assuming due and valid execution and delivery hereof and thereof by the Company
and the other Debtors (as applicable), will constitute valid and legally binding obligations of such Backstop Commitment Party, enforceable
against such Backstop Commitment Party in accordance with their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar Laws limiting creditors’ rights generally or by equitable principles relating to enforceability. Section
5.4 No
Conflict. Assuming that the consents referred to in clauses (a) and (b) of Section 5.5 are obtained, the execution and delivery
by such Backstop Commitment Party of this Agreement and each other Transaction Agreement to which such Backstop Commitment Party is a
party, the compliance by such Backstop Commitment Party with all of the provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein (a) will not conflict with, or result in breach, modification, termination or violation of, any
of the terms or provisions of, or constitute a default under (with or without notice or lapse of time or both), or result in the acceleration
of, or the creation of any Lien under, any Contract to which such Backstop Commitment Party is party or is bound or to which any of the
property or assets or such 56 Backstop
Commitment Party are subject, (b will not result in any violation of the provisions of the certificate of incorporation or bylaws (or
comparable constituent documents) of such Backstop Commitment Party and (c) will not result in any material violation of any Law
or Order applicable to such Backstop Commitment Party or any of its properties, except in each of the cases described in clauses (a)
or (c), for any conflict, breach, modification, termination, violation, default, acceleration or Lien which would not reasonably
be expected, individually or in the aggregate, to prohibit, materially delay, or materially and adversely impact such Backstop Commitment
Party’s performance of its obligations under this Agreement. Section
5.5 Consents
and Approvals. No consent, approval, authorization, Order, registration or qualification of or with any Governmental Entity having
jurisdiction over such Backstop Commitment Party or any of its properties is required for the execution and delivery by such Backstop
Commitment Party of this Agreement and each other Transaction Agreement to which such Backstop Commitment Party is a party, the compliance
by such Backstop Commitment Party with the provisions hereof and thereof and the consummation of the transactions (including the funding
by such Backstop Commitment Party of its Direct Allocation Amount and Commitment Amount of the Backstop Shares) contemplated herein and
therein, except (a) any consent, approval, authorization, Order, registration or qualification which, if not made or obtained, would
not reasonably be expected, individually or in the aggregate, to prohibit, materially delay, or materially and adversely impact such
Backstop Commitment Party’s performance of its obligations under this Agreement and each other Transaction Agreement to which such
Backstop Commitment Party is a party and (b) filings, notifications, authorizations, approvals, consents, clearances or termination or
expiration of all applicable waiting periods under any Antitrust Laws in connection with the transactions contemplated by this Agreement. Section
5.6 No
Registration. Such Backstop Commitment Party understands that (a) the Rights Offering Shares, Direct Allocation Shares, Backstop
Shares and the Backstop Premium Shares have not been registered under the Securities Act or any state or foreign securities or “Blue
Sky” laws and no prospectus has been prepared in accordance with the requirements of the Prospectus Regulation by reason of a specific
exemption from the registration provisions of the Securities Act and the Prospectus Regulation, the availability of which depends on,
among other things, the bona fide nature of the investment intent and the accuracy of such Backstop Commitment Party’s representations
as expressed herein or otherwise made pursuant hereto, and (b) the Rights Offering Shares, Direct Allocation Shares, Backstop Shares
and Backstop Premium Shares cannot be sold unless subsequently registered under the Securities Act or an exemption from registration
or an exemption from the requirement to publish a prospectus under the Prospectus Regulation is available. Section
5.7 Purchasing
Intent. Such Backstop Commitment Party is acquiring the Rights Offering Shares, Direct Allocation Shares, Backstop Shares and Backstop
Premium Shares for its own account or accounts or funds over which it holds voting discretion, not otherwise as a nominee or agent, and
not otherwise with the view to, or for resale in connection with, any distribution thereof not in compliance with the 57 Securities
Act, any applicable securities or “Blue Sky” laws of any state of the United States or other applicable securities Laws,
and such Backstop Commitment Party has no present intention of selling, granting any other participation in, or otherwise distributing
the same, except in compliance with the Securities Act, any applicable securities or “Blue Sky” laws of any state of the
United States and any applicable securities Laws. Such Backstop Commitment Party has not engaged in any short selling of or any hedging
transaction with respect to the Backstop Shares or Backstop Premium Shares in violation of the Securities Act. Section
5.8 Sophistication; Investigation.
Such Backstop Commitment Party has such knowledge and experience in financial and business matters such that it is capable of evaluating
the merits and risks of its investment in the Rights Offering Shares, Direct Allocation Shares, Backstop Shares and Backstop Premium
Shares. Such Backstop Commitment Party understands and accepts that its investment in the Rights Offering Shares, Direct Allocation Shares,
Backstop Shares and Backstop Premium Shares involve risks. Such Backstop Commitment Party has received such documentation as it has deemed
necessary to make an informed investment decision in connection with its investment in the Rights Offering Shares, Direct Allocation
Shares, Backstop Shares and the Backstop Premium Shares has had adequate time to review such documents prior to making its decision to
invest, has had a full opportunity to ask questions of and receive answers from the Company or any person or persons acting on behalf
of the Company concerning the terms and conditions of an investment in the Company and has made an independent decision to invest in
the Rights Offering Shares, Direct Allocation Shares, Backstop Shares and Backstop Premium Shares based upon the foregoing and other
information available to it, which it has deemed adequate for this purpose. With the assistance of each Backstop Commitment Party’s
own professional advisors, to the extent that such Backstop Commitment Party has deemed appropriate, such Backstop Commitment Party has
made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Rights Offering Shares,
Direct Allocation Shares, Backstop Shares and any New Common Equity (including Backstop Shares and Backstop Premium Shares). Such Backstop
Commitment Party understands and is able to bear any economic risks associated with such investment (including the necessity of holding
such shares for an indefinite period of time). Except for the representations and warranties expressly set forth in this Agreement (including
the related portions of the Company Disclosure Schedules), any other Transaction Agreement or Plan, such Backstop Commitment Party has
independently evaluated the merits and risks of its decision to enter into this Agreement and disclaims reliance on any representations
or warranties, either express or implied, by or on behalf of any of the Debtors. Section
5.9 No Broker’s Fees.
Such Backstop Commitment Party is not a party to any Contract with any Person (other than the Transaction Agreements, the Ad Hoc Group
of Senior Secured Noteholders Advisors and Ad Hoc Group of Convertible Noteholders Advisors and any Contract giving rise to the Expense
Reimbursement hereunder) that would give rise to a valid claim against any of the Debtors for a brokerage commission, finder’s
fee or like payment in connection with the Rights Offering or the sale of the Backstop Shares and issuance of the Backstop Shares and
Backstop Premium Shares. 58 Section
5.10 Sufficient Funds.
Such Backstop Commitment Party has, or has ready access to, sufficient assets and the financial capacity to perform all of its obligations
under this Agreement, including, to the extent applicable, the ability (or ability to cause its Related Purchasers) to fully exercise
all Subscription Rights that are issued to it pursuant to the Rights Offering, fund such Backstop Commitment Party’s Rights Offering
Backstop Commitment and purchase the Direct Allocation Shares. Section
5.11 Additional Securities
Law Matters. (a)
Such Backstop Commitment Party has been advised by the Company that the Direct Allocation Shares, Backstop Shares and Backstop
Premium Shares are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and that such Backstop Commitment Party must continue to bear the economic
risk of the investment in its Direct Allocation Shares, Backstop Shares and Backstop Premium Shares unless the offer and sale of its
Direct Allocation Shares, Backstop Shares and Backstop Premium Shares is subsequently registered under the Securities Act and all applicable
state or non-U.S. securities or “Blue Sky” laws or an exemption from such registration is available. (b)
Such Commitment Party (i) is either (x) a “qualified institutional buyer” within the meaning of Rule 144A of the Securities
Act (“Rule 144A”) or an institutional “accredited investor” within the meaning of Rule 501(a)
(1), (2), (3), (7), (8), (9), (12), or (13) of the Securities Act or (y) not a “U.S. Person” as such term is defined in Regulation
S under the Securities Act (“Regulation S”) and is not acquiring the Backstop Shares or Backstop Premium Shares
for the account or benefit of a U.S. person (as defined in Regulations S) or for the account, benefit of, or with a view to the resale
or distribution of the Backstop Shares or Backstop Premium Shares to, any Person, located or with a registered office in any member state
of the European Economic Area or the United Kingdom other than an EU/UK Qualified Investor and (ii) has the knowledge, skill and experience
in business, financial and investment matters so that the undersigned is capable of evaluating the merits, risks and consequences of
an investment in the Backstop Shares and any Backstop Premium Shares and is able to bear the economic risk of loss of such investment,
including the complete loss of such investment. Such Backstop Commitment Party further represents that it fully understands the limitations
on transfer and restrictions on sales and other dispositions set forth in this Agreement. (c)
Such Backstop Commitment Party is either (i) not resident or located or has its registered office in any member state of the European
Economic Area or the United Kingdom; or (ii) if such Backstop Commitment Party is resident or located or has its registered office in
any member state of the European Economic Area or the United Kingdom, is an EU/UK Qualified Investor. (d)
If such Backstop Commitment Party is being issued the Direct Allocation Shares, Backstop Shares and Backstop Premium Shares pursuant
to Regulation S, such Backstop Commitment Party has been advised and acknowledges that: (a) in issuing and selling the securities to
such person who is not a “U.S. person” (as defined in Regulation S) (a “Non-U.S. person”) pursuant
hereto, the Company and the Debtors are relying upon the “safe harbor” provided by Regulation S; (b) it is a condition to
the availability of the Regulation S “safe harbor” 59 that
the Direct Allocation Shares, Backstop Shares and Backstop Premium Shares not be offered or sold in the United States (as defined in
Regulation S) or to a U.S. person until the expiration of a one-year “distribution compliance period” (or a six-month “distribution
compliance period,” if the issuer is a “reporting issuer,” as defined in Regulation S) following the Closing Date;
and (c) notwithstanding the foregoing, prior to the expiration of the one-year “distribution compliance period” (or six-month
“distribution compliance period,” if the issuer is a “reporting issuer,” as defined in Regulation S) after the
Closing (the “Restricted Period”), Direct Allocation Shares, Backstop Shares and Backstop Premium Shares may
be offered and sold by the holder thereof only if such offer and sale is made in compliance with the terms of this Agreement and either:
(X) if the offer or sale is within the United States or to or for the account of a U.S. person, the securities are offered and sold pursuant
to an effective registration statement or pursuant to Rule 144 under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act; or (Y) the offer and sale is outside the United States and to other than a U.S. person; or (Z) if
to a person or undertaking resident, located or with a registered office in any member state of the European Economic Area or the United
Kingdom, such Person is an EU/UK Qualified Investor. Such Backstop Commitment Party agrees that with respect to the Direct Allocation
Shares, Backstop Shares and Backstop Premium Shares being issued pursuant to Regulation S, until the expiration of the Restricted Period:
(a) such Non-U.S. person, its agents or its Representatives have not and will not solicit offers to buy, offer for sale or sell any of
the Direct Allocation Shares, Backstop Shares and Backstop Premium Shares, or any beneficial interest therein in the United States or
to or for the account of a U.S. person; (b) notwithstanding the foregoing, the Direct Allocation Shares, Backstop Shares and Backstop
Premium Shares may be offered and sold by the holder thereof only if such offer and sale is made in compliance with the terms of this
Agreement and either: (X) if the offer or sale is within the United States or to or for the account of a U.S. person, the securities
are offered and sold pursuant to an effective registration statement or pursuant to Rule 144 under the Securities Act or pursuant to
an exemption from the registration requirements of the Securities Act; or (Y) the offer and sale is outside the United States and to
other than a U.S. person, provided, that any offer or sale to a Person resident, located or with a registered office in any member
state of the European Economic Area or the United Kingdom is only made to an EU/UK Qualified Investor; and (c) such Non-U.S. person shall
not engage in hedging transactions with regard to the securities unless in compliance with the Securities Act. The restrictions in this
Agreement applicable to such Backstop Commitment Parties are binding upon subsequent Transferees of the applicable Direct Allocation
Shares, Backstop Shares and Backstop Premium Shares, except for Transferees pursuant to an effective registration statement. Each Backstop
Commitment Party agrees that after the Restricted Period, the Direct Allocation Shares, Backstop Shares and Backstop Premium Shares being
issued pursuant to Regulation S may be offered or sold within the United States or to or for the account of a U.S. person only pursuant
to applicable securities Laws. Each Backstop Commitment Party acknowledges that, to the extent any Direct Allocation Shares, Backstop
Shares and Backstop Premium Shares are being issued to such Backstop Commitment Party pursuant to Regulation S, the offer and sale of
such Direct Allocation Shares, Backstop Shares and Backstop Premium Shares is made in an “offshore transaction” under Regulation
S. (e)
Such Backstop Commitment Party is not funding the Backstop Shares as a result of any advertisement, article, notice or other communication
regarding the Backstop Shares or Backstop Premium Shares published in any newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or, to such Backstop Commitment Party’s knowledge, any other general solicitation or general
advertisement or directed selling efforts. 60 Section
5.12 Legal Proceedings.
As of the date hereof, there are no Legal Proceedings pending or threatened to which such Backstop Commitment Party is a party or to
which any property of such Backstop Commitment Party is the subject that would reasonably be expected to prevent, materially delay or
materially impair the ability of such Backstop Commitment Party to consummate the transactions contemplated hereby. Section
5.13 Arm’s Length.
Such Backstop Commitment Party acknowledges and agrees that the Company and the Debtors are acting solely in the capacity of an arm’s-length
contractual counterparty to such Backstop Commitment Party with respect to the transactions contemplated hereby (including in connection
with determining the terms of the Rights Offering). Section
5.14 No Other Representations
or Warranties. Except for the representations and warranties of such Backstop Commitment Party expressly contained in this Article
V, neither such Backstop Commitment Party nor any other Person makes any express or implied representations or warranties regarding such
Backstop Commitment Party, and such Backstop Commitment Party hereby disclaims any such representation or warranty with respect to the
execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, including any representation
or warranty as to the accuracy or completeness of any information regarding such Backstop Commitment Party furnished or made available
to the Company, the Debtors or their Subsidiaries, or any representation or warranty arising from statute or otherwise in Law. Article
VI Section
6.1 Orders
Generally. The Debtors shall use commercially reasonable efforts to take all steps reasonably necessary and desirable, consistent
with the Restructuring Support Agreement, and the Plan to (a) obtain entry of the Backstop Order, the Disclosure Statement Order,
and the Confirmation Order, and (b) cause the Backstop Order, the Disclosure Statement Order, and the Confirmation Order supported
by the Required Backstop Commitment Parties to become Final Orders (and request that such Orders become effective immediately upon entry
by the Bankruptcy Court pursuant to a waiver of Rules 3020 and 6004(h) of the Bankruptcy Rules, as applicable). Section
6.2 Conduct
of Business. (a)
Except as expressly set forth in this Agreement, the Restructuring Support Agreement or the Plan, or as required by applicable
Law, Collective Bargaining Agreement or with the prior written consent of Required Backstop Commitment Parties (requests for which, including
related information, shall be directed to the Ad Hoc Group of Senior Secured Noteholders Advisors and Ad Hoc Group of Convertible Noteholders
Advisors, and which consent 61 will
not be unreasonably withheld, delayed or conditioned), during the period from the date of this Agreement to the earlier of the Closing
Date and the date on which this Agreement is terminated in accordance with its terms (the “Pre-Closing Period”),
the Debtors and their Subsidiaries shall, taking into account the Restructuring Transactions and the commencement and pendency of the
Chapter 11 Cases, operate in the ordinary course of business consistent with past practice and the operations contemplated by the Company’s
business plan (as may be updated from time to time, with the consent of the Required Backstop Commitment Parties for any material updates
(which consent shall not be unreasonably withheld, delayed or conditioned)), including using commercially reasonable efforts to (i) preserve
substantially intact its business organization, operations and assets, (ii) keep available the services of its executive officers and
key employees on commercially reasonable terms, (iii) maintain in effect all Company Permits, (iv) maintain satisfactory relationships
of the Company with any persons with which the Company has material business relations and with Governmental Entities that have jurisdiction
over its business and operations, and (v) protect and maintain material Intellectual Property Rights owned by the Company, including
avoiding the cancellation of any such material registered Intellectual Property Rights. (b)
For the avoidance of doubt, the following shall be deemed to occur outside of the ordinary course of business of the Debtors and
their Subsidiaries and shall require the prior written consent (delivery by electronic mail will be deemed sufficient) of the Required
Backstop Commitment Parties (which shall not be unreasonably withheld, delayed or conditioned) unless the same would otherwise be permissible
under the Restructuring Support Agreement, the Plan, this Agreement or required by any Material Contract existing on the date hereof
or applicable Law: (i)
entry into, or any material amendment, modification, termination, waiver, supplement, restatement or other change to, any Material
Contract (including, for the avoidance of doubt, (a) any contracts for the sale of aircrafts, (b) any contracts in connection with enhanced
equipment trust certificate (EETC) transactions, and (c) any agreements with RTX Corporation or Pratt & Whitney regarding compensation
for the loss of utilization related to removal of engines from service) or any assumption of any Material Contract in connection with
the Chapter 11 Cases (other than (A) any Material Contracts that are otherwise addressed by clause (vii) below, (B) any such amendment
modification, waiver, supplement, restatement or other change that, taken as a whole, is no less favorable to the Debtors than the Contract
prior thereto, or (C) any extension of a Material Contract on substantially similar terms in the ordinary course of business); (ii)
breach any obligation under or seek to amend, suspend, waive, or terminate any Material Contract; (iii)
entry into any transaction with a Related Party, including the entry into, or any amendment, modification, waiver, supplement,
restatement or other change to, any Contract between any Debtor, on the one hand, and any Related Party of any of the Debtors, or Affiliate
thereof, on the other hand (each a “Related Party Transaction”); 62 (iv)
entry into, or any material amendment, modification, waiver, supplement, restatement or other change to, any employment agreement
or consulting or arrangement with its officers or members of senior management (which, for the sake of clarity, means any “insider”
(as defined in the Bankruptcy Code) to which any of the Debtors or any of their respective Subsidiaries is a party; (v)
any (A) material increase in the compensation (whether in the form of salary, hourly rate, bonus, target bonus, equity award,
severance or otherwise) payable to any “insider” (as defined in the Bankruptcy Code), or granting of any bonus, benefit payment
(contingent or otherwise) to any such individual, except annual compensation increases and merit-based adjustments in the ordinary course
of business or as required by the terms of and in accordance with any written employment or engagement agreement currently in effect
between the Debtors and such person or (B) adoption or amendment of any material agreement that has the effect of the foregoing; (vi)
any (A) hiring, transfer or termination by any of the Debtors without cause, or (B) material reduction by any of the Debtors without
cause in the title or responsibilities, in each case, of any employee who, as of the date of this Agreement, is at the level of Senior
Vice President or above; (vii)
the adoption, termination or material amendment of any material Company Benefit Plan (including any plans that if adopted as of
the date hereof would be “Company Benefit Plans”) by any of the Debtors, other than in the ordinary course of business; (viii)
making, rescinding or changing any material election in respect of income or other material Taxes or accounting policies of any
Debtor (other than making elections that are consistent with the Debtor’s past practice or in the ordinary course of business);
changing an annual accounting period; changing any material method of accounting in respect of income or other material Taxes; amending
any material Tax return; entering into any “closing agreement” (as defined in Section 7121 of the Tax Code) or similar Contract
in respect of material amount of income or other material Taxes with any Governmental Entity; settling or compromising any income or
other material Tax claim, action or assessment in respect of income or other material Taxes; surrendering any right to claim a material
refund of Taxes; seek any ruling with respect to material Taxes from any governmental authority; consenting to any extension or waiver
of the limitation period applicable to any income or other material Tax claim or assessment (other than any extension or waiver in the
ordinary course of business); in each case, except (a) such actions being taken in the ordinary course of business and as required by
applicable Law, (b) only to the extent such action would be binding on any of the Debtors after the Closing and (c) with respect to the
matter set forth on Section 6.2(b)(viii) of the Company Disclosure Schedules (which shall not be deemed to occur outside of the ordinary
course of business); 63 (ix)
commencement, release, assignment, compromise, discharge, waiver, settlement, agreement to settle or satisfaction of any material
Legal Proceeding (other than any Legal Proceeding with respect to any Tax matters); (x)
(A) entry into any lease or sublease for real property or amendment of any Real Property Lease in any material respect, or (B)
the failure to perform, in any material respect, all applicable obligations under each material Real Property Lease as and when required
under each such material Real Property Lease; (xi)
entry into any agreement to sell, transfer, assign, pledge, lease, burden or encumber any Owned Real Property, or permitting any
new encumbrance to attach to, or be recorded against, title to any Owned Real Property; (xii)
[Reserved]; (xiii)
any exclusive licensing of Material Intellectual Property Rights to third parties; and (xiv)
directly or indirectly, create, issue, incur, assume, suffer to exist or become liable in respect of any material indebtedness
for borrowed money, evidenced by bonds, notes, debentures or capitalized lease obligations, or Lien of any kind, including any local
law liens, on any property or asset (other than Permitted Liens and any debt secured by such Permitted Liens outstanding as of the date
hereof). (c)
Except as otherwise provided in this Agreement, nothing in this Agreement shall give the Backstop Commitment Parties, directly
or indirectly, any right to control or direct the operations of the Debtors prior to the Closing Date. Prior to the Closing Date, the
Debtors shall exercise, consistent with the terms and conditions of this Agreement, control and supervision of the business of the Debtors. Section
6.3 Access
to Information; Confidentiality. (a)
Subject to applicable Law and Section 6.3(b), upon reasonable notice during the Pre-Closing Period, the Debtors shall afford
the Backstop Commitment Parties and their Representatives upon request reasonable access, during normal business hours and without unreasonable
disruption or interference with the Debtors’ business or operations, to the Debtors’ employees, properties, books, Contracts
and records and, during the Pre-Closing Period, the Debtors shall furnish promptly to such parties all reasonable information concerning
the Debtors’ business, properties, Collective Bargaining Agreements and personnel as may reasonably be requested by any such party;
provided, that the foregoing shall not require the Debtors (i) to permit any inspection, or to disclose any information,
that in the reasonable judgment of the Company, would cause any of the Debtors to violate any of their respective obligations with respect
to confidentiality to a third party if the Company shall have used its commercially reasonable efforts to obtain, but failed to obtain,
the consent of such third party to such inspection or disclosure, (ii) to disclose any legally privileged information of any of
the Debtors or their Subsidiaries or (iii) to violate any applicable Laws or Orders; provided, further, that such
access shall not include any invasive or environmental investigation, sampling, testing or analysis (other than a Phase I environmental
site assessment). All requests for information and access made in accordance with this Section 6.3 shall be directed to an Executive
Officer of the Company or such Person as may be designated by the executive officers of the Company. 64 (b)
From and after the date hereof until the date that is one (1) year after the expiration of the Pre-Closing Period, each Backstop
Commitment Party shall, and shall cause its Representatives to, (i) keep confidential and not provide or disclose to any Person any documents
or information received or otherwise obtained by such Backstop Commitment Party or its Representatives pursuant to Section 6.3(a),
Section 6.4 or in connection with a request for approval pursuant to Section 6.2 (except that provision or disclosure may
be made to any Affiliate, Affiliated Fund or Representative of such Backstop Commitment Party who needs to know such information for
purposes of this Agreement or the other Transaction Agreements and who agrees to observe the terms of this Section 6.3(b) or is
under a professional or contractual duty of confidentiality to such Backstop Commitment Party (and such Backstop Commitment Party will
remain liable for any breach of such terms by any such Affiliate or Representative)), and (ii) not use such documents or information
for any purpose other than in connection with this Agreement or the other Transaction Agreements or the transactions contemplated hereby
or thereby. Notwithstanding the foregoing, the immediately preceding sentence shall not apply in respect of documents or information
that (A) is now or subsequently becomes generally available to the public through no violation of this Section 6.3(b), (B) becomes
available to a Backstop Commitment Party or its Representatives on a non-confidential basis, (C) becomes available to a Backstop Commitment
Party or its Representatives through document production or discovery in connection with the Chapter 11 Cases or other judicial or administrative
process, but subject to any confidentiality restrictions imposed by the Chapter 11 Cases or other such process, or (D) such Backstop
Commitment Party or any Representative thereof is required to disclose pursuant to judicial or administrative process or pursuant to
applicable Law or applicable securities exchange rules; provided, that, such Backstop Commitment Party or such Representative
shall provide the Company with prompt written notice of such legal compulsion and shall use commercially reasonable efforts to cooperate
with the Company to obtain a protective Order or similar remedy to cause such information or documents not to be disclosed, including
interposing all available objections thereto, at the Company’s sole cost and expense; provided, further, that, in
the event that such protective Order or other similar remedy is not obtained, the disclosing party shall furnish only that portion of
such information or documents that is legally required to be disclosed and shall exercise its commercially reasonable efforts (at the
Company’s sole cost and expense) to obtain assurance that confidential treatment will be accorded such disclosed information or
documents. Notwithstanding the foregoing, any Backstop Commitment Party or its Affiliates or Representatives may disclose such information
or documents without notice of any kind to any regulatory authority (including any self-regulatory authority) in connection with any
routine examination, investigation, regulatory sweep or other regulatory inquiry not specifically targeted to the disclosing party. (c)
Except as required by this Agreement and the other Transaction Agreements, each of the Debtors agrees that it shall only disclose
material non-public information to any Backstop Commitment Party or its Representatives who (i) has confirmed it wishes to receive such
material non-public information and (ii) is party to a non-disclosure agreement containing customary cleansing mechanisms as to which
such information is subject. 65 Section
6.4 Financial
Information. During the Pre-Closing Period, the Debtors shall deliver to the Ad Hoc Group of Senior Secured Noteholders Advisors
and Ad Hoc Group of Convertible Noteholders Advisors and to each Backstop Commitment Party that so requests, all financial statements,
forecasts and reports the Debtors are required to promptly deliver to any lender under the DIP Facility as of the date hereof (the “Financial
Reports”). Section
6.5 Commercially
Reasonable Efforts. (a)
To the extent not obligated under the terms of the Restructuring Support Agreement, and without in any way limiting any other
respective obligation of the Debtors or any Backstop Commitment Party in this Agreement, each Party shall use commercially reasonable
efforts to take or cause to be taken all actions, and do or cause to be done all things, reasonably necessary, proper or advisable in
order to consummate and make effective the transactions contemplated by this Agreement and the Plan, including using commercially reasonable
efforts in: (i)
timely preparing and filing all documentation reasonably necessary to effect all necessary notices, reports and other filings
of such Person and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary
or advisable to be obtained from any third party or Governmental Entity; (ii)
cooperating with the defense of any Legal Proceedings in any way challenging (A) this Agreement, the Plan, the Registration Rights
Agreement or any other Transaction Agreement, (B) the Backstop Order, the Disclosure Statement Order, and the Confirmation Order, or
(C) the consummation of the transactions contemplated hereby and thereby, including seeking to have any stay or temporary restraining
Order entered by any Governmental Entity vacated or reversed; and (iii)
working together in good faith to finalize the Company Organizational Documents, Transaction Agreements, the Registration Rights
Agreement and all other documents relating thereto for timely inclusion in the Plan and filing with the Bankruptcy Court. (b)
Subject to applicable Laws or applicable rules relating to the exchange of information, and in accordance with the Restructuring
Support Agreement, the Backstop Commitment Parties and the Debtors shall have the right to review in advance, and to the extent practicable
each will consult with the other on all of the information relating to Backstop Commitment Parties or the Debtors, as the case may be,
and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or
Governmental Entity in connection with the transactions contemplated by this Agreement or the Plan; provided, however,
that the Backstop Commitment Parties are not required to provide for review in advance declarations or other evidence submitted in connection
with any filing with the Bankruptcy Court. In exercising the foregoing rights, the Parties shall act as reasonably and as promptly as
practicable. 66 (c)
Nothing contained in this Section 6.5 shall limit the ability of any Backstop Commitment Party to consult with the Debtors,
to appear and be heard, or to file objections, concerning any matter arising in the Chapter 11 Cases to the extent not inconsistent
with the Transaction Agreements. Section
6.6 Registration
Rights Agreement; Company Organizational Documents. (a)
The Plan will provide that from and after the Plan Effective Date each Backstop Commitment Party shall be entitled to registration
rights pursuant to a registration rights agreement to be entered into as of the Plan Effective Date, which agreement shall be in form
and substance consistent with the terms set forth in the Restructuring Support Agreement and otherwise in form and substance acceptable
to the Required Backstop Commitment Parties (the “Registration Rights Agreement”). A form of the Registration
Rights Agreement shall be filed with the Bankruptcy Court as part of the Plan Supplement or an amendment thereto. (b)
The Plan will provide that on the Plan Effective Date, the Company Organizational Documents will be duly authorized, approved,
adopted and in full force and effect. Forms of the Company Organizational Documents shall be filed with the Bankruptcy Court as part
of the Plan Supplement or an amendment thereto. Section
6.7 Blue
Sky. The Company shall file a Form D with the SEC with respect to the Direct Allocation Shares, Backstop Shares and Backstop Premium
Shares issued hereunder to the extent required under Regulation D of the Securities Act and shall provide, upon request, a copy thereof
to each Backstop Commitment Party or its Representatives. The Company shall, within the time specified by the applicable law or regulation,
use commercially reasonable efforts to obtain an exemption for, or to qualify the offer, sale and issuance (as applicable) of the Rights
Offering Shares, the Backstop Shares and the Backstop Premium Shares to the Backstop Commitment Parties pursuant to this Agreement under
applicable securities and “Blue Sky” Laws of the states of the United States (or to obtain an exemption from such qualification)
and any applicable foreign jurisdictions, and shall provide evidence of any such action so taken to the Backstop Commitment Parties,
as soon as reasonably practicable thereafter. The Company shall use commercially reasonable efforts to timely make all filings
and reports relating to the offer, sale and issuance (as applicable) of the Direct Allocation Shares, Backstop Shares , Backstop Premium
Shares and Rights Offering Shares issued hereunder required under applicable securities and “Blue Sky” Laws of the states
of the United States. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section
6.7. Section
6.8 Use
of Proceeds. The Company and the Debtors will apply the proceeds from the Direct Allocation, the exercise of the Subscription Rights
and the sale of the Backstop Shares for the purposes identified in the Disclosure Statement and the Plan. Section
6.9 Share
Legend. Each certificate evidencing (i) Direct Allocation Shares, (ii) Backstop Shares, and (iii) Backstop Premium Shares issued
hereunder shall be stamped or otherwise imprinted with a legend (the “Legend”) in substantially the following form: 67 “THE SECURITIES
REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY OTHER APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM REGISTRATION THEREUNDER.” In the event that
any such Direct Allocation Shares, Backstop Shares or Backstop Premium Shares are uncertificated, such Direct Allocation Shares, Backstop
Shares or Backstop Premium Shares shall be subject to a restrictive notation substantially similar to the Legend in the share ledger
or other appropriate records maintained by the Company or agent and the term “Legend” shall include such restrictive notation.
The Issuer shall promptly remove the Legend (or restrictive notation, as applicable) set forth above from the certificates evidencing
any such shares (or the share register or other appropriate Company records, in the case of uncertified shares), upon request, at any
time after the restrictions described in such Legend cease to be applicable, including, as applicable, when such shares may be sold without
volume limitations, manner of sale requirements or current public information requirements under Rule 144 of the Securities Act. The
Company may reasonably request such opinions, certificates or other evidence that such restrictions no longer apply as a condition to
removing the Legend. Section
6.10 Antitrust Approval. (a)
Each Party agrees to use commercially reasonable efforts to (i) if applicable, file, or cause to be filed, the Notification
and Report Form pursuant to the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of
the United States Department of Justice and the United States Federal Trade Commission and any filings (or, if required by any Antitrust
Authority, any drafts thereof) under any other Antitrust Laws that are necessary to consummate and make effective the transactions contemplated
by this Agreement as soon as reasonably practicable and in all cases in compliance with any filing deadlines included in the relevant
Antitrust Laws (and with respect to any filings required pursuant to the HSR Act, no later than 10 (ten) Business Days following the
date hereof) and (ii) promptly furnish any documents or information reasonably requested by any Antitrust Authority. (b)
The Debtors and each Backstop Commitment Party that is subject to an obligation pursuant to the Antitrust Laws to notify or make
any filing with respect to any transaction contemplated by this Agreement, the Plan or the other Transaction Agreements and that has
notified the Debtors in writing of such obligation (each such Backstop Commitment Party, a “Filing Party”)
agree to reasonably cooperate with each other in the preparation of and as to the appropriate time of filing such notification and its
content. The Debtors and each Filing Party shall, to the extent permitted by applicable Law: (i) promptly notify each other of,
and if in writing, furnish each other with copies of (or, in the case of material oral communications, advise each other orally) of any
material communications from or with an Antitrust Authority (except that no Party will be obligated to provide complete copies of its
premerger filing submitted under the HSR Act); (ii) not participate in any meeting with an Antitrust Authority unless it consults
with each 68 other
Filing Party and the Debtors, as applicable, in advance and, to the extent practicable and permitted by the Antitrust Authority and applicable
Law, give each other Filing Party and the Debtors, as applicable, a reasonable opportunity to attend and participate thereat; (iii) furnish
each other Filing Party and the Debtors, as applicable, with copies of all material correspondence and communications between such Filing
Party or the Debtors and any Antitrust Authority; (iv) furnish each other Filing Party with such necessary information and reasonable
assistance as may be reasonably necessary in connection with the preparation of necessary filings or submission of information to any
Antitrust Authority; and (v) not withdraw its filing, if any, or agree to extend any waiting periods under the HSR Act without the
prior written consent of the Required Backstop Commitment Parties and the Debtors. The communications contemplated by this Section
6.10 may be made by the Debtors or a Filing Party on an outside counsel-only basis or subject to other agreed upon confidentiality
safeguards. The obligations in this Section 6.10 shall not apply to filings, correspondence, communications or meetings with Antitrust
Authorities unrelated to the transactions contemplated by this Agreement, the Plan or the other Transaction Agreements. Notwithstanding
the foregoing, nothing in this Agreement shall require any party to provide to the other party any information or materials that (i)
are sensitive personally identifiable information, (ii) are legally privileged, or (iii) are competitively sensitive. (c)
The Debtors and each Filing Party shall use their commercially reasonable efforts to obtain all authorizations, approvals, consents,
or clearances under any applicable Antitrust Laws and to cause the termination or expiration of all applicable waiting periods under
any Antitrust Laws in connection with the transactions contemplated by this Agreement at the earliest possible date after the date of
this Agreement. Notwithstanding the foregoing, nothing in this Section 6.10 shall require any Backstop Commitment Party or any
of their Affiliates to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture
or sale, to accept any operational restriction, or to take any other action that could be expected to limit the rights of the Backstop
Commitment Party or its Affiliates or, from and after the Closing, the Debtors. Section
6.11 Alternative
Restructuring Proposal. Notwithstanding anything to the contrary in this Agreement, and subject to the
Restructuring Support Agreement, each of the Debtors and their respective directors, officers, employees, investment bankers,
attorneys, accountants, consultants, and other advisors or Representatives shall have the rights to take any action with respect to
an Alternative Restructuring Proposal as set forth in Section 6.03 of the Restructuring Support Agreement. Section
6.12 Rule 144A Transferability.
To the extent that the New Common Equity is then not listed on a national securities exchange, the Company shall use commercially reasonable
efforts to ensure as soon as reasonably practicable after the Plan Effective Date that the New Common Equity can be transferred pursuant
to Rule 144A, including compliance with the requirements under Rule 144(A)(d)(4) and any other applicable securities Laws. Section
6.13 Anti-Corruption Laws,
Money Laundering Laws, Ex-Im Laws and Sanctions. 69 (a)
The Debtors and their respective Subsidiaries shall comply in all respects with Anti-Corruption Laws, Money Laundering Laws, Ex-Im
Laws and Sanctions. (b)
The Debtors and their respective Subsidiaries shall maintain in effect policies and procedures designed to ensure compliance by
the Debtors, their respective Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws,
Money Laundering Laws, Ex-Im Laws and Sanctions. The Debtors and their respective Subsidiaries shall cooperate with reasonable requests
from any (i) Senior Secured Backstop Commitment Party or its Related Purchasers (as applicable) or (ii) Convertible Backstop Commitment
Party or its Related Purchasers (as applicable), for any information or documentation relating to compliance with Anti-Corruption Laws,
Anti-Money Laundering Laws, Sanctions and Ex-Im Laws and Debtors and their respective Subsidiaries’ associated policies and procedures. (c)
Debtors will not, and will not permit any of its Subsidiaries to, directly or knowingly indirectly, use the proceeds of the Rights
Offering, or lend, contribute or otherwise make available such proceeds to any other Debtor, its Subsidiaries, joint venture or other
Person, (i) for the purpose of financing activities, investments, activities, or transactions involving any Sanctioned Country or Sanctioned
Person; or (ii) in any manner in violation of Sanctions, Ex-Im Laws, Anti-Corruption Laws or Money Laundering Laws by any Person (including
any agent, Backstop Commitment Parties, arranger, advisor or other individual or entity participating in a transaction). (d)
Each Debtor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, fund all or part of any repayment
of the Rights Offering or other payments under this Agreement in a manner that would cause any Person (including any agent, Backstop
Commitment Parties, arranger, advisor or other individual or entity participating in a transaction) to be in violation of any Anti-Corruption
Laws, Anti-Money Laundering Laws, Ex-Im Laws or Sanctions. Section
6.14 DTC Eligibility.
The Company shall use commercially reasonable efforts to promptly make, when applicable from time to time, all Offering Shares eligible
for deposit, clearance and settlement with DTC in accordance with, and to the extent permitted pursuant to, applicable DTC rules and
procedures. Article
VII
Section
7.1 Conditions
to the Obligations of the Backstop Commitment Parties. The obligations of each Backstop Commitment Party to consummate the transactions
contemplated hereby shall be subject to (unless waived in accordance with Section 7.2) the satisfaction of the following conditions prior
to or at the Closing: (a)
Backstop Order. The Bankruptcy Court shall have entered the Backstop Order, and such Order shall be a Final Order. (b)
Disclosure Statement Order. The Bankruptcy Court shall have entered the Disclosure Statement Order, and such Order shall
be a Final Order. 70 (c)
Confirmation Order. The Bankruptcy Court shall have entered the Confirmation Order, and such Order shall be a Final Order. (d)
Direct Allocation and Rights Offering. The Direct Allocation and the Rights Offering shall have been conducted, in all
material respects, in accordance with the Backstop Order, the Disclosure Statement Order, the Rights Offering Procedures and this Agreement,
as applicable. (e)
Plan Effective Date and Issuances Pursuant to this Agreement. The following shall have occurred, or shall occur concurrently
with the Closing (i) the Plan Effective Date and (ii) the issuance of the Direct Allocation Shares, the Rights Offering Shares, the Backstop
Shares and the Backstop Premium Shares. (f)
Registration Rights Agreement; Company Organizational Documents. (i)
The Registration Rights Agreement shall have been executed and delivered by the Company, shall otherwise have become effective
with respect to the Backstop Commitment Parties and the other parties thereto, and shall be in full force and effect. (ii)
The Company Organizational Documents shall have been duly approved and adopted and shall be in full force and effect. (g)
Expense Reimbursement. The Debtors shall have paid all Expense Reimbursements accrued through the Closing Date pursuant
to Section 3.2; provided, that invoices for such Expense Reimbursement must have been received by the Debtors at least
three (3) Business Days prior to the Closing Date in order to be required to be paid as a condition to Closing. (h)
Antitrust Approvals. All applicable waiting periods (and any extensions thereof) under any Antitrust Laws, or imposed by
any Antitrust Authority, in connection with the transactions contemplated by this Agreement shall have been terminated or expired and
all authorizations, approvals, consents or clearances under the Antitrust Laws or otherwise required by a Governmental Entity in connection
with the transactions contemplated by this Agreement shall have been obtained. (i)
Federal Aviation Administration. All authorizations, approvals, consents or clearances required by the FAA in connection
with the transactions contemplated by this Agreement and the Restructuring Support Agreement shall have been obtained. (j)
[Reserved]. (k)
No Legal Impediment to Issuance. No Law or Order shall have become effective or been enacted, adopted or issued by any
Governmental Entity that prohibits the implementation of the Plan or the transactions contemplated by this Agreement; (l)
Representations and Warranties. 71 (i)
The representations and warranties of the Debtors contained in, Section 4.10 (Absence of Certain Changes) shall be true
and correct in all respects on and as of the Closing Date with the same effect as if made on and as of the Closing Date after giving
effect to the Plan (except for such representations and warranties made as of a specified date, which shall be true and correct only
as of the specified date). (ii)
The representations and warranties of the Debtors contained in Section 4.1 (Organization and Qualification), Section
4.2 (Corporate Power and Authority), Section 4.3 (Execution and Delivery; Enforceability), Section 4.4 (Authorized
and Issued Interests), Section 4.5 (Issuance), Section 4.6 (No Conflict), Section 4.26 (No Broker’s Fees),
Section 4.27 (Investment Company Act) and Section 4.30 (Securities Registration Exemption; No Integration; No General Solicitation)
shall be true and correct in all material respects on and as of the Closing Date after giving effect to the Plan (except for such representations
and warranties made as of a specified date, which shall be true and correct in all material respects only as of the specified date). (iii)
The representations and warranties of the Debtors contained in Section 4.24 (No Unlawful Payments) and Section 4.25
(Compliance with Money Laundering and Sanctions Laws) shall, with respect to the Debtors, taken as a whole, be true and correct in
all material respects on and as of the Closing Date after giving effect to the Plan (except for such representations and warranties made
as of a specified date, which shall be true and correct in all material respects only as of the specified date). (iv)
The representations and warranties of the Debtors contained in this Agreement other than those referred to in clauses (i), (ii)
and (iii) above shall be true and correct (disregarding all materiality or Material Adverse Effect qualifiers) on and as of the Closing
Date after giving effect to the Plan with the same effect as if made on and as of the Closing Date after giving effect to the Plan (except
for such representations and warranties made as of a specified date, which shall be true and correct only as of the specified date),
except where the failure to be so true and correct does not constitute, individually or in the
aggregate, a Material Adverse Effect. (m)
Covenants. The Debtors shall have performed and complied, in all material respects, with all of their respective covenants
and agreements contained in this Agreement and the Restructuring Support Agreement that contemplate, by their terms, performance or compliance
prior to the Closing Date. (n)
Material Adverse Effect. Since the date of this Agreement, there shall not have occurred, and there shall not exist, any
Event that has had or would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. (o)
Officer’s Certificate. The Backstop Commitment Parties shall have received on and as of the Closing Date a certificate
of the chief executive officer or chief financial 72 officer
of the Company confirming that the conditions set forth in Sections 7.1(l) (Representations and Warranties), Section 7.1(m)
(Covenants) and Section 7.1(n) (Material Adverse Effect) have been satisfied. (p)
Funding Notice. Each Backstop Commitment Party shall have received a Funding Notice in accordance with the terms of Section
2.4. (q)
Exit Financing Facility. The Exit Financing Facility shall have become effective, shall be for the amounts set forth in
the Restructuring Support Agreement, if applicable, and shall otherwise be in form and substance substantially in accordance with the
Restructuring Support Agreement or as otherwise set forth in the Plan. (r)
Key Contracts. As of the Plan Effective Date, except as otherwise provided in the Restructuring Support Agreement, or any
applicable provisions of the Plan (which shall govern in the event of any inconsistency), the Debtors shall have assumed all executory
Contracts and unexpired leases other than those identified on a schedule of rejected Contracts included in the Plan Supplement (or pursuant
to a separate motion filed with the Bankruptcy Court), which shall be in form and substance reasonably acceptable to the Company, the
Required Backstop Commitment Parties and otherwise consistent with the Restructuring Support Agreement, and any applicable provisions
of the Plan. (s)
Restructuring Support Agreement. The Restructuring Support Agreement remains in full force and effect in accordance with
its terms and shall not have been terminated in accordance with its terms (except as a result of the occurrence of the Plan Effective
Date). (t)
DIP Documentation. There shall not have occurred an event of default under the DIP Documentation (as defined in the DIP
Orders) that has not been cured or waived in accordance therewith. (u)
Plan Effective Date. All conditions precedent to the Plan Effective Date shall have been satisfied or waived by the Required
Backstop Commitment Parties. (v)
Minimum Liquidity. After giving effect to the Restructuring Transactions and the Closing and, assuming the effectiveness
of the Plan, the sum of unrestricted cash, cash equivalents and short-term investments on the Company’s balance sheet plus availability
under any exit revolving credit facility (the “Exit Revolver”) entered into by the Company that is in effect
immediately following the Closing shall be at least $700,000,000 (the "Minimum Liquidity Threshold"); provided
that, if the Exit Revolver is less than $300,000,000, then the Minimum Liquidity Threshold shall be reduced dollar for dollar by
the amount that Exit Revolver is less than $300,000,000; provided further that, the Minimum Liquidity Threshold shall under no
circumstances be lower than $650,000,000. Section
7.2 Waiver
of Conditions to Obligations of Backstop Commitment Parties. All or any of the conditions set forth in Section 7.1 may only be waived
in whole or in part with respect to all Backstop Commitment Parties by a written instrument executed by the Required Backstop Commitment
Parties in their sole discretion, and if so waived, all Backstop Commitment Parties shall be bound by such waiver, provided, that
any such waiver that would have the effect of amending, restating, 73 modifying,
or changing this Agreement or any of such Backstop Commitment Party’s rights hereunder in a manner that would otherwise require
any Backstop Commitment Party’s consent pursuant to Section 10.8 shall also require the consent of such Backstop Commitment Party. Section
7.3 Conditions
to the Obligations of the Debtors. The obligations of the Debtors to consummate the transactions contemplated hereby with the Backstop
Commitment Parties are subject to (unless waived by the Debtors) the satisfaction of each of the following conditions: (a)
Backstop Order. The Bankruptcy Court shall have entered the Backstop Order, and such Order shall be a Final Order. (b)
Disclosure Statement Order. The Bankruptcy Court shall have entered the Disclosure Statement Order, and such Order shall
be a Final Order. (c)
Confirmation Order. The Bankruptcy Court shall have entered the Confirmation Order, and such Order shall be a Final Order. (d)
Plan Effective Date. The Plan Effective Date shall have occurred, or shall be deemed to have occurred concurrently with
the Closing, as applicable, in accordance with the terms and conditions in the Plan and in the Confirmation Order. (e)
Antitrust Approvals. All applicable waiting periods under any Antitrust Laws, or imposed by any Antitrust Authority in
connection with the transactions contemplated by this Agreement shall have been terminated or expired and all authorizations, approvals,
consents or clearances under the Antitrust Laws or otherwise required by any Governmental Entity in connection with the transactions
contemplated by this Agreement shall have been obtained. (f)
Federal Aviation Administration. All authorizations, approvals, consents or clearances required by the FAA in connection
with the transactions contemplated by this Agreement and the Restructuring Support Agreement shall have been obtained. (g)
[Reserved]. (h)
No Legal Impediment to Issuance. No Law or Order shall have become effective or been enacted, adopted or issued by any
Governmental Entity that prohibits the implementation of the Plan or the transactions contemplated by this Agreement. (i)
Representations and Warranties. The representations and warranties of the Backstop Commitment Parties contained in this
Agreement shall be true and correct in all material respects on and as of the Closing Date with the same effect as if made on and as
of the Closing Date (except for such representations and warranties made as of a specified date, which shall be true and correct in all
material respects only as of the specified date), except where the failure to be so true and correct would not, individually or in the
aggregate, prevent or materially impede the Backstop Commitment Parties from consummating the transactions contemplated by this Agreement. 74 (j)
Covenants. The Backstop Commitment Parties shall have performed and complied, in all material respects, with all of their
covenants and agreements contained in this Agreement and the Restructuring Support Agreement and in any other document delivered pursuant
to this Agreement, except where the failure to perform or comply would not, individually or in the aggregate, prevent or materially impede
the Backstop Commitment Parties from consummating the transactions contemplated by this Agreement. (k)
Exit Financing Facility. The Exit Financing Facility shall have become effective, shall be for the amounts set forth in
the Restructuring Support Agreement, if applicable, and shall otherwise be in form and substance substantially in accordance with the
Restructuring Support Agreement or as otherwise set forth in the Plan. (l)
Restructuring Support Agreement. The Restructuring Support Agreement shall remain in full force and effect in accordance
with its terms and shall not have been terminated in accordance with its terms (except as a result of the occurrence of the Plan Effective
Date). Article
VIII
Section
8.1 Indemnification
Obligations. Following the entry of the Backstop Order, the Company and the other Debtors (the “Indemnifying Parties”
and each, an “Indemnifying Party”) shall, to the maximum extent permitted by law, jointly and severally, indemnify
and hold harmless each Backstop Commitment Party and its Affiliates, Affiliated Funds equity holders, members, partners, general partners,
managers and its and their respective Representatives and controlling persons (each, an “Indemnified Person”) from
and against any and all losses, claims, damages, liabilities and costs and expenses (other than any Taxes) arising out of a claim asserted
by a third-party (collectively, “Losses”) that any such Indemnified Person may incur or to which any such Indemnified
Person may become subject arising out of or in connection with this Agreement, including the Rights Offering Backstop Commitment, the
Direct Allocation Amount, the Rights Offering or the Direct Allocation, the payment of the Backstop Premium or the use of the proceeds
of the Direct Allocation or the Rights Offering, or any claim, challenge, litigation, investigation or proceeding relating to any of
the foregoing, regardless of whether any Indemnified Person is a party thereto, whether or not such proceedings are brought by the Company,
the other Debtors, their respective equity holders, Affiliates, creditors or any other Person, and reimburse each Indemnified Person
upon demand for reasonable documented (with such documentation subject to redaction to preserve attorney client and work product privileges)
legal or other third-party expenses incurred in connection with investigating, preparing to defend or defending, or providing evidence
in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any
of the foregoing (including in connection with the enforcement of the indemnification obligations set forth herein), irrespective of
whether or not the transactions contemplated by this Agreement or the Plan are consummated or whether or not this Agreement is terminated;
provided, that the foregoing indemnity will not, as to any Indemnified Person, apply to Losses (a) as to a Defaulting Commitment
Party, its Related Parties or any Indemnified Person related 75 thereto,
caused by a Commitment Party Default by such Backstop Commitment Party, or (b) to the extent they are found by a final, non-appealable
judgment of a court of competent jurisdiction to arise from the fraud, bad faith or willful misconduct of such Indemnified Person. Section
8.2 Indemnification
Procedure. Promptly after receipt by an Indemnified Person of notice of the commencement of any claim, challenge, litigation, investigation
or proceeding (an “Indemnified Claim”), such Indemnified Person will, if a claim is to be made hereunder against the
Indemnifying Party in respect thereof, notify the Indemnifying Party in writing of the commencement thereof; provided, that (a) the
omission to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have hereunder except
to the extent it has been materially prejudiced by such failure and (b) the omission to so notify the Indemnifying Party will not
relieve the Indemnifying Party from any liability that it may have to such Indemnified Person otherwise than on account of this Article
VIII. In case any such Indemnified Claims are brought against any Indemnified Person and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein, and, at its election by providing written notice to such Indemnified
Person, the Indemnifying Party will be entitled to assume the defense thereof, with counsel reasonably acceptable to such Indemnified
Person; provided, that if the parties (including any impleaded parties) to any such Indemnified Claims include both such Indemnified
Person and the Indemnifying Party and based on advice of such Indemnified Person’s counsel there are legal defenses available to
such Indemnified Person that are different from or additional to those available to the Indemnifying Party, such Indemnified Person shall
have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such Indemnified
Claims. Upon receipt of notice from the Indemnifying Party to such Indemnified Person of its election to so assume the defense of such
Indemnified Claims with counsel reasonably acceptable to the Indemnified Person, the Indemnifying Party shall not be liable to such Indemnified
Person for expenses incurred by such Indemnified Person in connection with the defense thereof or participation therein (other than reasonable
costs of investigation) unless (i) such Indemnified Person shall have employed separate counsel (in addition to any local counsel)
in connection with the assertion of legal defenses in accordance with the proviso to the immediately preceding sentence (it being understood,
however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel representing the Indemnified
Persons who are parties to such Indemnified Claims (in addition to one local counsel in each jurisdiction in which local counsel is required)),
(ii) the Indemnifying Party shall not have employed counsel reasonably acceptable to such Indemnified Person to represent such Indemnified
Person within a reasonable time after the Indemnifying Party has received notice of commencement of the Indemnified Claims from, or delivered
on behalf of, the Indemnified Person, (iii) after the Indemnifying Party assumes the defense of the Indemnified Claims, the Indemnified
Person determines in good faith that the Indemnifying Party has failed or is failing to defend such claim and provides written notice
of such determination and the basis for such determination, and such failure is not reasonably cured within ten (10) Business Days of
receipt of such notice, or (iv) the Indemnifying Party shall have authorized in writing the employment of counsel for such Indemnified
Person. 76 Section
8.3 Settlement
of Indemnified Claims. In connection with any Indemnified Claim for which an Indemnified Person is assuming the defense in accordance
with this Article VIII, the Indemnifying Party shall not be liable for any settlement of any Indemnified Claims effected by such Indemnified
Person without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
If any settlement of any Indemnified Claims is consummated with the written consent of the Indemnifying Party or if there is a final
judgment for the plaintiff in any such Indemnified Claims, the Indemnifying Party agrees to indemnify and hold harmless each Indemnified
Person from and against any and all Losses by reason of such settlement or judgment to the extent such Losses are otherwise subject to
indemnification by the Indemnifying Party hereunder in accordance with, and subject to the limitations of, this Article VIII. The Indemnifying
Party shall not, without the prior written consent of an Indemnified Person (which consent shall be granted or withheld, conditioned
or delayed in the Indemnified Person’s sole discretion), effect any settlement of any pending or threatened Indemnified Claims
in respect of which indemnity or contribution has been sought hereunder by such Indemnified Person unless (a) such settlement includes
an unconditional release of such Indemnified Person in form and substance satisfactory to such Indemnified Person from all liability
on the claims that are the subject matter of such Indemnified Claims and (b) such settlement does not include any statement as to
or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person. Section
8.4 Contribution.
If for any reason the foregoing indemnification is unavailable to any Indemnified Person or insufficient to hold it harmless from Losses
that are subject to indemnification pursuant to Section 8.1, then the Indemnifying Party shall contribute to the amount paid or payable
by such Indemnified Person as a result of such Loss in such proportion as is appropriate to reflect not only the relative benefits received
by the Indemnifying Party, on the one hand, and such Indemnified Person, on the other hand, but also the relative fault of the Indemnifying
Party, on the one hand, and such Indemnified Person, on the other hand, as well as any relevant equitable considerations. It is hereby
agreed that the relative benefits to the Indemnifying Party, on the one hand, and all Indemnified Persons, on the other hand, shall be
deemed to be in the same proportion as (a) the total value received or proposed to be received by the Company pursuant to the funding
of the Direct Allocation Shares, Rights Offering Shares and Backstop Shares contemplated by the Rights Offering, this Agreement and the
Plan bears to (b) the Backstop Premium paid or proposed to be paid to the Backstop Commitment Parties. The Indemnifying Parties
also agree that no Indemnified Person shall have any liability based on their comparative or contributory negligence or otherwise to
the Indemnifying Parties, any Person asserting claims on behalf of or in right of any of the Indemnifying Parties, or any other Person
in connection with an Indemnified Claim. Section
8.5 Treatment
of Indemnification Payments. All amounts paid by an Indemnifying Party to an Indemnified Person under this Article VIII shall, to
the extent permitted by applicable Law, be treated as adjustments to the Funding Amount for all applicable Tax purposes. The provisions
of this Article VIII are an integral part of the transactions contemplated by this Agreement and without these provisions the Backstop 77 Commitment
Parties would not have entered into this Agreement. The Backstop Order shall provide that the obligations of the Debtors under this Article
VIII shall constitute allowed administrative expenses of the Debtors’ estates under sections 503(b) and 507 of the
Bankruptcy Code and shall not be subject to set-off, recharacterization, avoidance or disallowance and are payable without further Order
of the Bankruptcy Court, and that the Debtors may comply with the requirements of this Article VIII without further Order of the
Bankruptcy Court. Section
8.6 No
Survival. All representations, warranties, covenants and agreements made in this Agreement shall not survive the Closing Date except
for covenants and agreements that by their terms are to be satisfied after the Closing Date, which covenants and agreements shall survive
until satisfied in accordance with their terms. Article
IX Section
9.1 Consensual
Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the
Closing Date by mutual written consent of the Debtors and the Required Backstop Commitment Parties. Section
9.2 Automatic
Termination; Termination by the Backstop Commitment Parties. (a)
Notwithstanding anything to the contrary in this Agreement, this Agreement shall terminate automatically without any further action
or notice by any Party at 5:00 p.m., New York City time, on the same date as the occurrence of any of the following Events; provided,
that, the Required Backstop Commitment Parties may waive such termination or extend any applicable dates in accordance with Section
10.8: (i)
the Closing Date has not occurred by 11:59 p.m., New York City time, on the Outside Date, unless prior thereto the Plan Effective
Date occurs and the Direct Allocation and the Rights Offering have been consummated; and (ii)
the Restructuring Support Agreement is terminated as to all parties thereto in accordance with its terms. (b)
This Agreement may be terminated by the Required Backstop Commitment Parties, upon written notice to the Company upon the occurrence
of any of the following Events: (i)
(A) the Company or any of the other Debtors shall have breached any representation, warranty, covenant or other agreement made
by the Company or any of the other Debtors in this Agreement or any such representation or warranty shall have become inaccurate and
such breach or inaccuracy would, individually or in the aggregate, cause a condition set forth in Section 7.1(l) (Representations
and Warranties), Section 7.1(m) (Covenants) or Section 7.1(n) 78 (Material
Adverse Effect) not to be satisfied, (B) the Backstop Commitment Parties shall have delivered written notice of such breach or inaccuracy
to the Debtors, (C) notwithstanding anything to the contrary in Section 9.2(b), such breach or inaccuracy is not cured by
the Company or the Debtors by the eighth (8th) Business Day after receipt of such notice, and (D) as a result of such
failure to cure, any condition set forth in Section 7.1(l) (Representations and Warranties), Section 7.1(m) (Covenants), or
Section 7.1(n) (Material Adverse Effect) is not capable of being satisfied; provided, that, this Agreement shall not terminate
pursuant to this Section 9.2(b)(i) if (i) the Backstop Commitment Parties constituting the Required Backstop Commitment Parties
are then in willful or intentional breach of this Agreement or (ii) if one or more Backstop Commitment Parties constituting the Required
Backstop Commitment Parties is then in breach of any representation, warranty, covenant or other agreement hereunder that would result
in the failure of any condition set forth in Section 7.3(j) or Section 7.3(k) being satisfied; (ii)
any Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits
the implementation of the Plan or the Rights Offering or the transactions contemplated by this Agreement or the other Transaction Agreements
(and, if applicable, such Law has not been reversed or vacated within eight (8) Business Days), in each case, on substantially the terms
provided for therein, in a way that cannot be remedied in all material respects by the Debtors in a manner satisfactory to the Required
Backstop Commitment Parties (provided, that to the extent inconsistent with the Restructuring Support Agreement or this Agreement,
any economic treatment provided thereunder shall be reasonably acceptable to the Debtors and the Required Backstop Commitment Parties
in their sole discretion); (iii)
the Company or any Debtor (A) amends or modifies, or files a pleading seeking authority to amend or modify, the Definitive
Documents in a manner that is inconsistent with this Agreement; (B) suspends or revokes the Transaction Agreements; or (C) publicly
announces its intention to take any such action listed in sub-clauses (A) or (B) of this subsection; (iv)
any of the Restructuring Support Agreement, the Backstop Order, Disclosure Statement Order or Confirmation Order is terminated,
reversed, stayed, dismissed, vacated, or reconsidered, or any such Order is modified or amended after entry without the prior written
consent of the Required Backstop Commitment Parties as applicable (and such action has not been reversed or vacated within eight (8)
Business Days), in a manner that prevents or prohibits the consummation of the transactions contemplated by this Agreement or the other
Transaction Agreements in each case, on substantially the terms provided for therein, in a way that cannot be remedied in all material
respects by the Debtors in a manner satisfactory to the Required Backstop Commitment Parties as applicable; (v)
any of the Orders approving any Exit Financing Facility, this Agreement, the Rights Offering Procedures, the Plan or the Disclosure
Statement or the Confirmation Order are reversed, stayed, dismissed, vacated or reconsidered 79 or
modified or amended without the acquiescence or written consent of the Required Backstop Commitment Parties, as applicable (and such
action has not been reversed or vacated within thirty (30) calendar days after its issuance) in a manner that prevents or prohibits the
consummation of the Restructuring Transactions contemplated in this Agreement or any of the Definitive Documents in each case, on substantially
the terms provided for therein, in a way that cannot be remedied in all material respects by the Debtors satisfactory to the Required
Backstop Commitment Parties, as applicable; (vi)
the Company or any of the other Debtors files any motion, application or adversary proceeding (or any of the Company or any of
the other Debtors supports any such motion, application, or adversary proceeding filed or commenced by any third party) challenging the
validity or enforceability, or seeking avoidance or subordination, of the Senior Secured Notes Claims, provided, that, in the
event that this Agreement is to be terminated by the Required Backstop Commitment Parties under this subsection upon written notice to
the Debtors in accordance with this Section 9.2(b)(vi), the Company or any of the other Debtors shall have until 5:00 p.m., New
York City time, on the fifth (5th) Business Day following receipt of such notice to withdraw such motion, application or adversary proceeding
or otherwise cure before the Required Backstop Commitment Parties are permitted to terminate pursuant to this Section 9.2(b)(vi); (vii)
(A) the Bankruptcy Court approves or authorizes an Alternative Restructuring Proposal; or (B) any Debtor enters into
any Contract providing for the consummation of any Alternative Restructuring Proposal or files any motion or application seeking authority
to propose, join in or participate in the formation of, any actual or proposed Alternative Restructuring Proposal; (viii)
the acceleration of any obligations or termination of commitments under the DIP Facility or the DIP Financing Documents; or (ix)
the Bankruptcy Court enters an order denying the Senior Secured Backstop Premium or Convertible Backstop Premium. Section
9.3 Termination
by the Debtors. This Agreement may be terminated immediately by the Debtors upon written notice to each Backstop Commitment Party
upon the occurrence of any of the following Events, subject to the rights of the Debtors to fully and conditionally waive, in writing,
on a prospective or retroactive basis the occurrence of such Event: (a)
any Law or final and non-appealable Order shall have been enacted, adopted or issued by any Governmental Entity that prohibits
the implementation of the Plan, the Direct Allocation or the Rights Offering or the transactions contemplated by this Agreement or the
other Transaction Agreements, in each case, on substantially the terms provided for therein, in a way that cannot be remedied in all
material respects by the Debtors in a manner satisfactory to the Required Backstop Commitment Parties; 80 (b)
subject to the right of the Backstop Commitment Parties to arrange a Commitment Party Replacement in accordance with Section
2.5(a) (which will be deemed to cure any breach by the replaced Backstop Commitment Party for purposes of this subsection (b),
(i) any Backstop Commitment Party shall have breached any representation, warranty, covenant or other agreement made by such Backstop
Commitment Party in this Agreement or any such representation or warranty shall have become inaccurate and such breach or inaccuracy
would, individually or in the aggregate, cause a condition set forth in Section 7.3(i) (Representations and Warranties) or Section
7.3(j) (Covenants) not to be satisfied, (ii) the Debtors shall have delivered written notice of such breach or inaccuracy to such
Backstop Commitment Party, (iii) such breach or inaccuracy is not cured by such Backstop Commitment Party by the tenth (10th) Business
Day after receipt of such notice, and (iv) as a result of such failure to cure, any condition set forth in Section 7.3(j) (Representations
and Warranties) or Section 7.3(k) (Covenants) is not capable of being satisfied; provided, that the Debtors shall not have
the right to terminate this Agreement pursuant to this Section 9.3(b) if any Debtor is then in willful or intentional breach of
this Agreement; (c)
the Backstop Order, Disclosure Statement Order or Confirmation Order is terminated, reversed, stayed, dismissed, vacated, or reconsidered,
or any such Order is modified or amended after entry without the prior acquiescence or written consent (not to be unreasonably withheld,
conditioned or delayed) of the Debtors (and such action has not been reversed or vacated within eight (8) Business Days) in a manner
that prevents or prohibits the consummation of the Restructuring Transactions contemplated in this Agreement or any of the Definitive
Documents in a way that cannot be remedied in all material respects by the Backstop Commitment Parties subject to the reasonable satisfaction
of the Debtors; (d)
the Restructuring Support Agreement is terminated as to all parties in accordance with its terms; or (e)
any of the Orders approving any Exit Financing Facility, this Agreement, the Rights Offering Procedures, the Plan or the Disclosure
Statement or the Confirmation Order are reversed, stayed, dismissed, vacated or reconsidered or modified or amended without the acquiescence
or consent (not to be unreasonably withheld, conditioned or delayed) of the Debtors (and such action has not been reversed or vacated
within thirty (30) calendar days after its issuance) in a manner that prevents or prohibits the consummation of the Restructuring Transactions
contemplated in this Agreement or any of the Definitive Documents in a way that cannot be remedied in all material respects by the Backstop
Commitment Parties subject to the reasonable satisfaction of the Debtors. Section
9.4 Effect
of Termination. (a)
Upon termination of this Agreement pursuant to this Article IX, this Agreement shall forthwith become void and there shall
be no further obligations or liabilities on the part of the Parties; provided, that (i) the obligations of the Debtors to
pay the Expense Reimbursement pursuant to Article III and to satisfy their indemnification obligations pursuant to Article
VIII shall survive the termination of this Agreement and shall remain in full force and effect, in each case, until such obligations
have been satisfied, (ii) the provisions set forth in Article VIII, this Section 9.4 and Article X shall survive
the termination of this Agreement in accordance 81 with their terms, (iii) subject
to Section 10.11 (Damages), nothing in this Section 9.4 shall relieve any Party from liability for its fraud, gross negligence
or any willful or intentional breach of this Agreement and (iv) all amounts deposited by the Backstop Commitment Parties in the Escrow
Account shall be returned to the Backstop Commitment Parties in accordance with the terms of the Escrow Agreement. For purposes of this
Agreement, “willful or intentional breach” means a breach of this Agreement that is a consequence of an act
undertaken by the breaching Party with the knowledge that the taking of such act would, or would reasonably be expected to, cause a breach
of this Agreement. (b)
If this Agreement is terminated in connection with a termination of the Restructuring Support Agreement, then the Backstop Cash
Premium (in satisfaction of the Backstop Premium) will become payable by the Debtors on the date of termination in cash to the Backstop
Commitment Parties or their designees based upon their respective Commitment Percentage, and the Debtors will pay the Backstop Cash Premium
by wire transfer of immediately available funds to such accounts as the Backstop Commitment Parties may designate within three (3) Business
Days following such termination. If this Agreement is terminated (1) pursuant to Section 9.3(b) or (2) as a result of a termination of
the Restructuring Support Agreement due to the breach of the Restructuring Support Agreement by any Consenting Stakeholder (any Backstop
Commitment Party or Consenting Stakeholder whose breach resulted in such termination pursuant to clause (1) or (2), a “Breaching
Consenting Stakeholder”), then the Backstop Cash Premium will become payable by the Debtors on the date of termination
in cash to the Backstop Commitment Parties (other than the Breaching Consenting Stakeholder(s)), or their designees, based upon their
respective Commitment Percentage and the Debtors shall pay the Backstop Cash Premium by wire transfer of immediately available funds
to such accounts as the Backstop Commitment Parties (other than the Breaching Consenting Stakeholder(s)) may designate within three (3)
Business Days following such termination. (c)
To the extent that all amounts due in respect of the Backstop Cash Premium pursuant to Section 9.4(b) have actually been
paid by the Debtors to the Backstop Commitment Parties in connection with a termination of this Agreement, then (without limitation of
any rights or remedies under the Restructuring Support Agreement), the Backstop Commitment Parties shall not have any additional recourse,
including with respect to the Backstop Premium against the Debtors for any obligations or liabilities relating to or arising from this
Agreement (other than obligations and liabilities pursuant to Section 8.1, any Expense Reimbursement and any other obligation
or liability that expressly survives the termination of this Agreement) except for liability for intentional fraud, gross negligence
or willful or intentional breach of this Agreement pursuant to Section 9.4(a). The Backstop Cash Premium payable pursuant to this
Section 9.4 shall constitute an allowed administrative expense claim of the Debtors’ estates pursuant to sections 503(b)
and 507 of the Bankruptcy Code and shall not be subject to set-off, recharacterization, avoidance or disallowance. Article
X Section
10.1 Notices. All notices
and other communications in connection with this Agreement shall be in writing and shall be deemed given if delivered 82 personally,
sent via electronic facsimile (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by
an express courier (with confirmation) to the Parties at the following addresses (or at such other address for a Party as may be specified
by like notice): (a)
If to the Company or any of the other Debtors: Spirit Airlines, Inc. 2800 Executive Way Miramar, FL 33025 Attn: Thomas Canfield Email: thomas.canfield@Spirit.com with a copy to: Davis Polk & Wardwell
LLP 450 Lexington Avenue New York, NY 10017 Attn: Marshall Huebner Darren
Klein Christopher
Robertson Email: marshall.huebner@davispolk.com darren.klein@davispolk.com christopher.robertson@davispolk.com If to the Backstop Commitment
Parties: To each
Backstop Commitment Party at the addresses or e-mail addresses set forth below the Backstop Commitment Party’s signature in its
signature page to this Agreement. If
to a Senior Secured Backstop Commitment Party, with a copy to: Akin Gump
Strauss Hauer & Feld LLP One Bryant
Park New York,
NY 10036 Attn:
Michael Stamer Jason
P. Rubin Stephen
B. Kuhn Email:
mstamer@akingump.com jrubin@akingump.com skuhn@akingump.com If to a Convertible Backstop
Commitment Party, with a copy to: Paul
Hastings LLP 71
S. Wacker Drive 83 Chicago,
IL 60606 Attn:
Matthew L. Warren Geoffrey
M. King Email:
mattwarren@paulhastings.com; Paul Hastings LLP Suite 100 Atlanta, GA 30309 Section
10.2 Assignment; Third Party
Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned by any
Party (whether by operation of Law or otherwise) without the prior written consent of the Debtors and the Required Backstop Commitment
Parties, other than an assignment by a Backstop Commitment Party expressly permitted by Section 2.3, and any purported assignment in
violation of this Section 10.2 shall be void ab initio. Except as provided in Article VIII with respect to the Indemnified Persons,
this Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any
Person any rights or remedies under this Agreement other than the Parties. Notwithstanding anything to the contrary herein, each Party
recognizes, acknowledges and agrees that this Agreement binds only the desk or business unit that executes this Agreement and shall not
be binding on any other desk, business unit or Affiliate, unless such desk, business unit or Affiliate separately becomes a Party hereto. Section
10.3 Prior Negotiations;
Entire Agreement. (a)
This Agreement (including the Schedules attached hereto and the documents and instruments referred to in this Agreement) and the
Restructuring Support Agreement constitute the entire agreement of the Parties and supersede all prior agreements, arrangements or understandings,
whether written or oral, among the Parties with respect to the subject matter of this Agreement, except that the Parties hereto acknowledge
that any confidentiality agreements heretofore executed among the Parties will each continue in full force and effect. (b)
Notwithstanding anything to the contrary in the Plan (including any amendments, supplements or modifications thereto) or the Confirmation
Order (and any amendments, supplements or modifications thereto) or an affirmative vote to accept the Plan submitted by any Backstop
Commitment Party, nothing contained in the Plan (including any amendments, supplements or modifications thereto) or Confirmation Order
(including any amendments, supplements or modifications thereto) shall alter, amend or modify the rights of the Backstop Commitment Parties
under this Agreement unless such alteration, amendment or modification has been made in accordance with Section 10.8. 84 Section
10.4 Governing Law; Venue.
THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each Party hereto agrees that
it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, to the extent possible,
in the Bankruptcy Court, and solely in connection with claims arising under this Agreement: (a) irrevocably submits to the exclusive
jurisdiction of the Bankruptcy Court; (b) waives any objection to laying venue in any such action or proceeding in the Bankruptcy
Court; and (c) waives any objection that the Bankruptcy Court is an inconvenient forum or does not have jurisdiction over any Party
hereto. Section
10.5 Binding Agreement.
Each Party agrees that this Agreement is a binding and enforceable agreement with respect to the subject matter contained herein or therein
(including an obligation to negotiate in good faith). With respect to any Debtor that becomes a party to this Agreement after the date
of this Agreement hereof, this Agreement shall become effective as to and fully binding upon such Debtor at the time it executes and
delivers a Company Acknowledgment in accordance with the terms hereof, and such Debtor, as of such time and without further action, shall
be deemed to have made to the other Parties all representations and warranties in Article IV of this Agreement. Prior to the date that
the Debtors set forth on Exhibit D become a party to this Agreement, references to “Debtors” in this Agreement shall be deemed
to be a reference to the Company. Section
10.6 Waiver of Jury Trial.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section
10.7 Counterparts. This
Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery (including by .pdf),
each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same
agreement. Except as expressly provided in this Agreement, each individual executing this Agreement on behalf of a Party has been
duly authorized and empowered to execute and deliver this Agreement on behalf of said Party. Section
10.8 Waivers and Amendments;
Rights Cumulative; Consent. This Agreement may be amended, restated, modified or changed only by a written instrument signed by the
Debtors and the Required Backstop Commitment Parties (other than a Defaulting Commitment Party); provided, that, in addition, each Backstop
Commitment Party’s prior written consent shall be required for any amendment that would have the effect of directly or indirectly:
(a) modifying such Backstop Commitment Party’s Direct Allocation Amount or Commitment Amount, (b) increasing the Funding Amount
to be paid by such Backstop Commitment Party in respect of such Backstop Commitment Party’s Rights Offering Shares, Backstop Shares
and Direct Allocation Shares (c) amending the definition of Outside Date, (d) increasing the Senior Secured 85 Rights
Offering Amount or the Convertible Rights Offering Amount without each Commitment Party having the opportunity (but not the obligation)
to participate pro rata in such increase, (e) amending any of the following: (1) Section 3.2 (Payment of Backstop Premium),
(2) this Section 10.8 (Waivers and Amendments; Rights Cumulative; Consent); (3) Article VIII (Indemnification and Contribution);
or (4) Article IX (Termination); or (f) otherwise having a materially adverse and disproportionate effect on such Backstop Commitment
Party. The terms and conditions of this Agreement may be waived (i) by the Debtors only by a written instrument executed by the Debtors
and (ii) by the Backstop Commitment Parties only by a written instrument executed by the Required Backstop Commitment Parties (provided,
that each Backstop Commitment Party’s prior written consent shall be required for any waiver having the direct or indirect effects
referred to in the proviso to the first sentence of this Section 10.8). No delay on the part of any Party in exercising any right,
power or privilege pursuant to this Agreement will operate as a waiver thereof, nor will any waiver on the part of any Party of any right,
power or privilege pursuant to this Agreement, nor any single or partial exercise of any right, power or privilege pursuant to this Agreement,
preclude any other or further wavier or exercise thereof or the waiver or exercise of any other right, power or privilege pursuant to
this Agreement. Except as otherwise provided in this Agreement, the rights and remedies provided pursuant to this Agreement are cumulative
and are not exclusive of any rights or remedies which any Party otherwise may have at law or in equity. For the avoidance of doubt, nothing
in this Agreement shall affect or otherwise impair the rights, including consent rights, of the Backstop Commitment Parties under the
Restructuring Support Agreement or any other Definitive Document. Where a written consent, acceptance, approval, or waiver is required
pursuant to or contemplated by this Agreement, such written consent, acceptance, approval, or waiver shall be deemed to have occurred
if, by agreement between counsel to the Parties submitting and receiving such consent, acceptance, approval, or waiver, it is conveyed
in writing (including electronic mail) between each such counsel without representations or warranties of any kind on behalf of such
counsel. Section
10.9 Headings. The headings
in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement. Section
10.10 Specific Performance. The Parties agree
that irreparable damage may occur if any provision of this Agreement were not performed in accordance with the terms hereof and that
the Parties shall be entitled to an injunction or injunctions without the necessity of posting a bond to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled,
whether at law, in equity or otherwise. Unless otherwise expressly stated in this Agreement, no right or remedy described or provided
in this Agreement is intended to be exclusive or to preclude a Party from pursuing other rights and remedies to the extent available
under this Agreement, at law, in equity or otherwise. Section
10.11 Damages. Notwithstanding anything to the
contrary in this Agreement, none of the Parties will be liable for, and none of the Parties shall claim or 86 seek
to recover, any punitive, special, indirect or consequential damages or damages for lost profits as a result of any breach of or other
claim or cause of action arising out of or in connection with this Agreement. Section
10.12 No Reliance. No Backstop Commitment Party
or any of its Related Parties shall have any duties or obligations to the other Backstop Commitment Parties in respect of this Agreement,
the Plan or the transactions contemplated hereby or thereby, except those expressly set forth herein. Without limiting the generality
of the foregoing, (a) no Backstop Commitment Party or any of its Related Parties shall be subject to any fiduciary or other implied
duties to the other Backstop Commitment Parties or to the Company or the other Debtors, (b) no Backstop Commitment Party or any
of its Related Parties shall have any duty to take any discretionary action or exercise any discretionary powers on behalf of any other
Backstop Commitment Party, (c) no Backstop Commitment Party or any of its Related Parties shall have any duty to the other Backstop Commitment
Parties to obtain, through the exercise of diligence or otherwise, to investigate, confirm or disclose to the other Backstop Commitment
Parties any information relating to Company or any of its Subsidiaries that may have been communicated to or obtained by such Backstop
Commitment Party or any of its Affiliates in any capacity, (d) no Backstop Commitment Party may rely, and each Backstop Commitment Party
confirms that it has not relied, on any due diligence investigation that any other Backstop Commitment Party or any Person acting on
behalf of such other Backstop Commitment Party may have conducted with respect to the Company or any of its Affiliates or any of their
respective securities, and (e) each Backstop Commitment Party acknowledges that no other Backstop Commitment Party is acting as
a placement agent, initial purchaser, underwriter, broker or finder with respect to its Backstop Shares, Direct Allocation Shares or
Backstop Premium Shares. Section
10.13 Publicity. Except as required by applicable
Laws or by any listing authority or stock exchange or any regulatory or governmental body, at all times prior to the Closing Date or
the earlier termination of this Agreement in accordance with its terms, the Debtors and the Backstop Commitment Parties shall consult
with each other prior to issuing any press releases (and provide each other a reasonable opportunity to review and comment upon such
release) or otherwise making public announcements with respect to the transactions contemplated by this Agreement, it being understood
that nothing in this Section 10.13 shall prohibit any Party from filing any motions or other pleadings or documents with the Bankruptcy
Court in connection with the Chapter 11 Cases. Except as required by applicable Law, by any listing authority or stock exchange or any
regulatory or governmental body, or as ordered by the Bankruptcy Court or other court of competent jurisdiction, no Party or its advisors
shall (a) use the name of any Commitment Party in any public manner (including in any press release) with respect to this Agreement,
the transaction contemplated hereby or the Restructuring Transactions or (b) disclose to any Person (including, for the avoidance of
doubt, any other Party) the Direct Allocation Amount and/or the Commitment Amount of any Backstop Commitment Party as determined pursuant
to this Agreement without such Backstop Commitment Party’s prior written consent, and if the Company determines that it is required
to attach a copy of this Agreement to any Definitive Documents or any other filing or similar document relating to the transactions contemplated
hereby, it will redact any reference to 87 or
concerning a specific Backstop Commitment Party’s name, Direct Allocation Amount, Commitment Amount, and Pro Rata Share of the
Rights Offering Shares, if applicable. Section
10.14 Settlement Discussions. This Agreement
and the transactions contemplated herein are part of a proposed settlement of a dispute between the Parties. Nothing herein shall be
deemed an admission of any kind. Pursuant to Section 408 of the U.S. Federal Rules of Evidence and any applicable state rules of
evidence, this Agreement and all negotiations relating thereto shall not be admissible into evidence in any Legal Proceeding, except
to the extent filed with, or disclosed to, the Bankruptcy Court in connection with the Chapter 11 Cases (other than a Legal Proceeding
to approve or enforce the terms of this Agreement). Section
10.15 No Recourse. Notwithstanding anything
that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Parties may be partnerships or limited
liability companies, each Party covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments
delivered in connection with this Agreement shall be had against any Party’s Affiliates, or any of such Party’s Affiliates’
or respective Related Parties in each case other than the Parties to this Agreement and each of their respective successors and permitted
assignees under this Agreement, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of
any applicable Law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or
otherwise be incurred by any of the Related Parties, as such, for any obligation or liability of any Party under this Agreement or any
documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities
or their creation; provided, however, nothing in this Section 10.15 shall relieve or otherwise limit the liability of any Party hereto,
any Related Purchaser party to this Agreement, or any of their respective successors or permitted assigns for any breach or violation
of its obligations under this Agreement or such other documents or instruments. For the avoidance of doubt, prior to the Plan Effective
Date, none of the Parties will have any recourse, be entitled to commence any proceeding or make any claim under this Agreement or in
connection with the transactions contemplated hereby except against any of the Parties, any Related Purchaser party to this Agreement,
or their respective successors and permitted assigns, as applicable. Section
10.16 Specific Execution. The Parties understand
that the Consenting Stakeholders are engaged in a wide range of financial services and businesses. In furtherance of the foregoing, the
Parties acknowledge and agree that, to the extent a Consenting Stakeholder expressly indicates on its signature page hereto that it is
executing this Agreement on behalf of specific trading desk(s) and/or business group(s) of the Consenting Stakeholder, the obligations
set forth in this Agreement shall only apply to such trading desk(s) and/or business group(s) and shall not apply to any other trading
desk or business group of the Consenting Stakeholder so long as they are not acting at the direction or for the benefit of such Consenting
Stakeholder or such Consenting Stakeholder’s investment in the Company; provided, that the foregoing shall not diminish or otherwise
affect the obligations and liability therefor of any legal entity that (i) executes this Agreement or (ii) on whose behalf this Agreement
is executed by a Consenting 88 Stakeholder.
The Company acknowledges that the Consenting Stakeholder may have engaged an investment manager or advisor which acts as (i) the sole
investment manager or advisor for certain single-manager accounts, and (ii) investment manager or adviser solely to a designated pool
of assets of certain multi-manager accounts. In respect of the multi-manager accounts, to the extent a Consenting Stakeholder expressly
indicates on its signature page hereto that such investment advisor or manager (A) is its discretionary advisor with respect to the accounts
of the Consenting Stakeholder or (B) has executed the Agreement on Consenting Stakeholder’s behalf (“Investment Advisor”),
the Investment Advisor has no visibility, control or oversight in respect of the trading of other investment managers or advisers to
such multi-manager accounts of the Consenting Stakeholder. As such, notwithstanding anything to the contrary herein, all agreements,
covenants, representations or warranties herein that relate to any Consenting Stakeholder shall, with respect to any multi-manager accounts,
solely apply to the portion of the account over which such Investment Advisor has discretion and not the Consenting Stakeholder as a
whole. [Signature Page
Follows] 89 IN
WITNESS WHEREOF, the undersigned Parties have duly executed this Agreement as of the date first above written. [Signature Page to Backstop Commitment Agreement] [Backstop Commitment
Parties’ signature pages on file with the Company] [Signature Page
to Backstop Commitment Agreement] SCHEDULE
1 Senior Secured
Commitment Schedule [Intentionally omitted] SCHEDULE
2 Convertible Commitment
Schedule [Intentionally omitted] EXHIBIT A Form of Joinder
Agreement JOINDER AGREEMENT This
Joinder Agreement (the “Joinder Agreement”) to the Backstop Commitment Agreement dated as of November 18, 2024
(as amended, supplemented or otherwise modified from time to time, the “Backstop Agreement”), among the Company
and the Backstop Commitment Parties is executed and delivered by the undersigned (the “Joining Party”) as of
[●] (the “Joinder Date”). Each capitalized term used herein but not otherwise defined shall have the
meaning set forth in the Backstop Agreement. Agreement to
be Bound. The Joining Party hereby agrees to be bound by all of the terms of the Backstop Agreement, a copy of which is attached
to this Joinder Agreement as Annex 1 (as the same has been or may be hereafter amended, restated or otherwise modified
from time to time in accordance with the provisions hereof). The Joining Party shall hereafter be deemed to be a “Backstop Commitment
Party” and as a “Backstop Commitment Party” for all purposes under the Backstop Agreement. Representations
and Warranties. The Joining Party hereby severally, and not jointly and severally, makes the representations and warranties of the
Backstop Commitment Parties as set forth in Article V of the Backstop Agreement to the Company as of the date hereof. Governing Law.
This Joinder Agreement shall be governed by and construed in accordance with the Laws of the State of New York, but without giving effect
to applicable principals of conflicts of law to the extent that the application of the Law of another jurisdiction would be required
thereby. [Signature pages
to follow] IN
WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above.
EXHIBIT B Form of Commitment
Party Transfer Form Reference
is hereby made to that certain Backstop Commitment Agreement, dated as of November 18, 2024, (the “Backstop Commitment Agreement”),
by and among the Company, the other Debtors, and the Backstop Commitment Parties. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Backstop Commitment Agreement. The
purpose of this notice (“Notice”) is to advise you, pursuant to Section 2.3(a) of the Backstop Commitment
Agreement, of the proposed transfer by [●] (the “Transferor”) to [●] (the “Transferee”)
of [●] amount of the Transferor’s (A) rights and obligations to participate in the Direct Allocation and purchase the Direct
Allocation Shares and (B) rights and obligations to provide the Rights Offering Backstop Commitment and to purchase any Backstop Shares
and receive Backstop Premium Shares. This
Notice shall serve as a Commitment Party Transfer Form in accordance with the terms of the Backstop Commitment Agreement, including Section
2.3(a) thereof. Please acknowledge receipt of this Notice delivered in accordance with Section 2.3(a) by returning a countersigned
copy of this Notice to the Transferor, the Transferee, and the applicable advisors. [Signature
Page Follows] IN
WITNESS WHEREOF, the parties have caused this Notice to be executed and delivered as of the date first written above. EXHIBIT C FORM
OF Company Acknowledgment With
respect to the Backstop Commitment Agreement, dated as of November 18, 2024, as the same has been or may be hereafter amended, restated,
or otherwise modified from time to time in accordance with the provisions thereof (the “Agreement”), the undersigned
(the “Debtor”) hereby acknowledges, agrees and confirms that, by its execution of this Agreement, from and
after the Effective Date (as defined below), the Debtor: The
Company Acknowledgment shall be governed by and construed in accordance with the internal laws of the State of New York, without regard
to any conflicts of law provisions which would require the application of the law of any other jurisdiction. Capitalized
terms used in this Company Acknowledgment but not otherwise defined shall have the respective meanings set forth in the Agreement.
The Agreement shall control over any provision in this Company Acknowledgment that is inconsistent with the Agreement. [Signature page
to follow] Date Executed:
[ ] (the “Effective
Date”) By: _____________________ Name: Authorized Signatory EXHIBIT D DEBTORS TO
SIGN COMPANY ACKNOWLEDGMENT Spirit Finance Cayman 1 Ltd. Spirit Finance Cayman 2 Ltd. Spirit IP Cayman Ltd. Spirit Loyalty Cayman Ltd. Exhibit 10.3 Senior
Secured Debtor in Possession Facility Set
forth below is a summary of the principal terms and conditions for the DIP Facility (as defined herein). This summary of terms and conditions
(together with all annexes, exhibits, and schedules attached hereto, as may be amended, amended and restated, supplemented or otherwise
modified from time to time, this “DIP Term Sheet”)
shall be a binding agreement with respect to the DIP Facility but does not purport to summarize all of the terms, conditions, representations,
warranties and other provisions with respect to the DIP Facility which would be contained in the DIP Credit and Note Purchase Agreement
(as defined herein) and the other DIP Facility Documents (as defined herein). The obligations of the DIP Creditors (as defined herein)
to provide the DIP Facility are conditioned upon entry of the Orders (as defined herein) and the other terms and conditions set forth
herein. The following financing arrangements are referred
to herein collectively as the “Prepetition Facilities”: Revolving Loans: indebtedness
currently outstanding under that certain Credit and Guaranty Agreement, dated as of March 30, 2020 (as amended, waived, supplemented
or otherwise modified prior to the Petition Date, the (a)
“Revolving Credit Agreement”), by and among the Company, the lenders party thereto from time to time, Wilmington
Trust, National Association, as collateral agent (the “Revolving Collateral Agent”), and Citibank, N.A., as administrative
agent (the “Revolving Administrative Agent” and, together with the Revolving Collateral Agent, the “Revolving
Agents”), in the aggregate principal amount of approximately $300.0 million in respect of the “Revolving Loans”
(as defined in the Revolving Credit Agreement) thereunder (the “Revolving Loans”), plus all accrued and unpaid interest
thereon, fees, letter of credit reimbursement obligations and expenses incurred in connection therewith (collectively, the “Revolving
Facility Obligations”). (b)
Loyalty Notes: indebtedness currently outstanding under that certain Indenture,
dated as of September 17, 2020 (as supplemented by the First Supplemental Indenture, dated as of November 17, 2022 and as further
amended, waived, supplemented or otherwise modified prior to the Petition Date, the “Loyalty
Notes Indenture”), among the Loan Parties and Wilmington Trust, National Association, as trustee and as collateral custodian
(in such capacities, the “Loyalty Notes Trustee”) governing the Loyalty Notes Issuers’ 8.00% Senior Secured Notes
due 2025 in the aggregate principal amount of $1,110.0 million (the “Loyalty Notes”) plus all accrued and unpaid interest
thereon, fees, premiums and other expenses incurred in connection therewith (collectively, the “Loyalty Notes Obligations”).
Each beneficial owner of Loyalty Notes as of the Petition Date is hereinafter referred to as a “Loyalty Notes Holder”.
The term “Required Loyalty Note Holders” means, as of any time of determination, Loyalty Note Holders holding at least
50.01% of the Loyalty Notes outstanding at such time. (c)
Convertible Notes: indebtedness currently outstanding under (x) that certain
First Supplemental Indenture, dated as of May 12, 2020 (as amended, waived, supplemented or otherwise modified prior to the Petition
Date, the “2025 Convertible Notes Indenture”), between the Company and Wilmington Trust, National Association, as
trustee (in such capacity, the “2025 Convertible Notes Trustee”) governing the Company’s 4.75% Convertible Senior
Notes due 2025 in the aggregate principal amount of $25.1 million (the “2025 Convertible Notes”) plus all accrued
and unpaid interest thereon, fees, premiums and other expenses incurred in connection therewith (collectively, the “2025 Convertible
Notes Obligations”) and (y) that certain Second Supplemental Indenture, dated as of April 30, 2021 (as amended, waived, supplemented
or otherwise modified prior to the Petition Date, the “2026 Convertible Notes Indenture” and, together with the 2025
Convertible Notes Indenture, the “Convertible Notes Indentures”), between the Company and Wilmington Trust, National
Association, as trustee (the “2026 Convertible Notes Trustee”) governing the Company’s 1.00% Convertible Senior
Notes due 2026 in the aggregate principal amount of $500.0 million (the “2026 Convertible Notes” and, together with
the 2025 Convertible Notes, the “Convertible Notes”) plus all accrued and unpaid interest thereon, fees, premiums
and other expenses incurred in connection therewith (collectively, the “2026 Convertible Notes Obligations” and, together
with the 2025 Convertible Notes Obligations, the “Convertible -2- The DIP Facility shall be provided by the DIP
Lenders and the DIP Note Purchasers as set forth herein. The term “DIP Lenders” shall
mean, collectively, each Loyalty Notes Holder or Affiliate thereof and each Prepetition Convertible Noteholder or Affiliate thereof, in
each case, with a DIP Commitment listed in Schedule 1 to the Commitment Letter that elects to fund such DIP Commitment through
providing DIP Loans, together with their successors and assigns. The term “DIP Note Purchasers”
shall mean, collectively, each Loyalty Notes Holder or Affiliate thereof and each Prepetition Convertible Noteholder or Affiliate thereof
who, in each case, with a DIP Commitment listed in Schedule 1 to the Commitment Letter that elects to fund such DIP Commitment
through purchasing DIP Notes and is an Eligible Note Purchaser (as defined below), together with their successors and assigns. The term “DIP Creditors” shall
mean, collectively, the DIP Lenders and the DIP Note Purchasers, including the Fronting Lender (as defined below) for so long as the Fronting
Lender constitutes a DIP Lender. The term “Eligible Note Purchaser”
shall mean a person that is either (i) a “qualified institutional buyer,” as such term is defined in Rule 144A under the
Securities Act, (ii) a non-U.S. person as defined under Regulation S under the Securities Act, or (iii) an institutional “accredited
investor” within the meaning of Rule 501(a)(1), (2), (3), (7), (8), (9), (12) or (13) under the Securities Act. A senior secured non-amortizing superpriority
priming debtor in possession facility in an aggregate principal amount of $300.0 million (the “DIP Facility”) comprised
of (i) new money term loans (collectively, the “DIP Loans”) and (ii) new money notes (collectively, the “DIP
Notes”), which DIP Loans shall be made available to the Borrower, and DIP Notes shall be purchased from the Borrower (on a
pro rata basis) in one draw or issuance, as applicable, upon satisfaction of the conditions set forth herein and in the Orders, including
the entry of the DIP Order (the “DIP Draw”); provided, that the DIP Loans will be initially provided and funded
through Barclays Bank PLC, as fronting lender (the “Fronting Lender”), in accordance with the terms of this DIP Term
Sheet, the DIP Facility Documentation and the Fronting Fee Letter (as defined below), and subsequently assigned to the Commitment Parties
that elect to fund their DIP Commitments through DIP Loans and/or Affiliates or Approved Funds thereof. -3- Each Commitment Party shall give written notice
(which may be in the form of an e-mail from Akin Gump Strauss Hauer & Feld LLP) to the Borrower, the DIP Agent and the Fronting Lender
in writing of its election to fund its DIP Commitment in the form of DIP Loans and/or DIP Notes by no later than 5 business days prior
to the Closing Date; provided that, if a Commitment Party fails to provide such written notice, then such Commitment Party shall fund
its DIP Commitment in the form of DIP Loans. All DIP Loans and DIP Notes shall become
due and payable on, and all unfunded DIP Commitments shall be terminated upon, the occurrence of a DIP Termination Event (as defined
herein). Once repaid, DIP Loans shall not be permitted to be reborrowed and DIP Notes shall not be permitted to be reissued. “Adequate Protection Order”
has the meaning assigned to such term in the Restructuring Support Agreement. “DIP Order” has the meaning
assigned to such term in the Restructuring Support Agreement. As used herein, the term “Orders”
means, collectively, the DIP Order and the Adequate Protection Order. The “DIP Termination Event”
with respect to the DIP Facility shall be the earliest to occur of: (a) the date that is twelve (12) months after
the Closing Date (and if such date shall not be a business day, the next succeeding business day); (b) the substantial consummation (as defined
in section 1101 of the Bankruptcy Code and which for purposes hereof shall be no later than the “effective date” thereof)
of a plan of reorganization filed in the Chapter 11 Cases that is confirmed pursuant to an order entered by the Bankruptcy Court; (c) the acceleration of the DIP Facility Obligations
and the termination of the unfunded DIP Commitments (if any) in accordance with the DIP Facility Documents; (d) the consummation of a sale of all or substantially
all of the assets of the Debtors pursuant to section 363 of the Bankruptcy Code; and (e) dismissal of the Chapter 11 Cases or
conversion of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code or appointment of a Chapter 11 trustee or examiner. The proceeds of the DIP Loans and DIP Notes shall
be used, in each case, subject to the Orders: (i)
for the payment of working capital and other general corporate needs of the Debtors in the ordinary course of business; -4- (ii)
for the payment of the fees, costs, and expenses of administering the Chapter 11 Cases; (iii)
to pay obligations arising from or related to the Carve-Out (as defined in the Adequate Protection Order); (iv)
to pay such other prepetition obligations as set forth in the Approved Budget (subject to Permitted Variances) or otherwise as
approved by the Bankruptcy Court; (v)
for the payment of the agency fees and reasonable and documented fees and expenses of the DIP Agent and the DIP Creditors owed
under the DIP Facility Documents; (vi)
to make any adequate protection payments pursuant to the terms of the Orders; and (vii)
for other general corporate purposes. -5- “extraordinary receipts” for purposes
hereof) and, in each case of clauses (A), (B) and (D), resulting in receipt of net cash proceeds by the Loan Parties in excess of $10,000,000.
The DIP Credit and Note Purchase Agreement shall contain customary provisions permitting DIP Creditors to decline to accept mandatory
prepayments. Mandatory prepayments of the DIP Loans and
DIP Notes shall be applied as follows: (a) to the extent such prepayment is funded with the proceeds of the Prepetition RCF Collateral,
such prepayment shall be applied first, to prepay Revolving Loans until all such Revolving Loans are repaid in full (or otherwise
not required to be repaid pursuant to the Revolving Credit Agreement), and second, to prepay DIP Loans and DIP Notes on a pro
rata basis until all such DIP Loans and DIP Notes are repaid in full in cash and (b) to the extent such prepayment is funded with the
proceeds of the DIP Priority Collateral (as defined herein), such prepayment shall be applied to prepay DIP Loans and DIP Notes on a
pro rata basis until all such DIP Loans and DIP Notes are repaid in full in cash. The DIP Facility Obligations shall be, subject
to (i) the Carve-Out, (ii) the prepetition and postpetition liens of the Revolving Agents on the Prepetition RCF Collateral solely with
respect to the Revolving Facility Obligations and (iii) certain liens senior by operation of law, but solely to the extent such permitted
liens were valid, properly perfected and non-avoidable as of the Petition Date, or valid, non-avoidable, senior priority liens in existence
as of the Petition Date that are perfected after the Petition Date as permitted by section 546(b) of the Bankruptcy Code (the “Permitted
Liens”): (a) pursuant to section 364(c)(1) of the Bankruptcy Code, entitled to joint and several superpriority administrative expense claim
status in all of the Chapter 11 Cases (the “DIP Superpriority Claims”); and (b) pursuant to sections 364(c)(2), 364(c)(3) and 364(d)(1) of the Bankruptcy Code, secured by fully perfected senior security interests
and liens on the DIP Collateral (as defined herein) (collectively, the “DIP Liens”), in each case, as described in further detail in
the Orders. The DIP Liens shall be effective and perfected
upon entry of the DIP Order without the necessity of the execution, filing or recordation of mortgages, security agreements, pledge agreements,
financing statements or other agreements. “DIP Collateral” means
(i) the Loan Parties’ interest in all assets and properties, whether tangible, intangible, real, personal or mixed, whether now
owned by or owing to, or hereafter acquired by, or arising in favor of, the Loan Parties (including under any trade names, styles or
derivations thereof), and whether owned or consigned by or to, or leased from or to, the Loan Parties, and regardless of where located,
in each case to the extent such assets and properties constitute Prepetition RCF Collateral and Prepetition Secured Notes Collateral;
and (ii) property of the Loan Parties, whether existing on the Petition Date or thereafter acquired, that, on or as of the Petition Date
is not subject to valid, perfected and non-avoidable liens (or perfected after the Petition Date to the extent permitted by Bankruptcy
Code section 546(b)) (subject only to the Carve-Out), including, without limitation, all -6- unencumbered assets of the Loan Parties, all prepetition
property and postpetition property of the Loan Parties’ estates, and the proceeds, products, rents and profits thereof, whether
arising from Bankruptcy Code section 552(b) or otherwise, including, without limitation, unencumbered cash (and any investment of such
cash) of the Loan Parties (whether maintained with the DIP Agent or otherwise) all equipment, all goods, all accounts, cash, payment intangibles,
bank accounts and other deposit or securities accounts of the Loan Parties (including any accounts opened prior to, on or after the Petition
Date), insurance policies and proceeds thereof, equity interests, instruments, intercompany claims, accounts receivable, other rights
to payment, all general intangibles, all contracts and contract rights, securities, investment property, letters of credit and letter
of credit rights, chattel paper, all interest rate hedging agreements, all owned real estate, real property leaseholds, fixtures, patents,
copyrights, trademarks, trade names, rights under license agreements and other intellectual property, all commercial tort claims, and
all claims and causes of action (including any claim or cause of action arising under Chapter 5 of the Bankruptcy Code or any applicable
state law Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law), and any and all proceeds,
products, rents and profits of the foregoing, excluding the Excluded Assets. Notwithstanding anything to the contrary herein, to the extent
a DIP Lien cannot attach to the DIP Collateral pursuant to applicable law, the DIP Liens granted pursuant to this DIP Order shall attach
to the Loan Parties’ economic rights, including, without limitation, any and all such proceeds of such DIP Collateral and any Excluded
Assets. “DIP Priority Collateral” means
all DIP Collateral other than Prepetition RCF Collateral. “Excluded Assets” means property
that cannot be subject to liens pursuant to applicable law, rule, contract or regulation (including any requirement to obtain the consent
(after the use of commercially reasonable efforts to obtain such consent) of any governmental authority or third party, unless such consent
has been obtained) or restrictions of contract (including, without limitation, federal concessions as well as equipment leases and financing
arrangements) existing on the closing date or the time of entry of such contract (other than to the extent such restriction is ineffective
under the UCC or other applicable law). “Prepetition RCF Collateral”
means “Collateral” as defined in the Revolving Credit Agreement. “Prepetition Secured Notes Collateral”
means “Collateral” as defined in the Loyalty Notes Indenture. Carve-Out and Related Provisions: -7- As set forth in paragraph 12 of the Adequate
Protection Order. Termination of Consent to Use Cash Collateral: The consensual use of cash collateral will
be terminated upon the expiration of the Remedies Notice Period as described below. A.
DIP Agent’s fee letter, in form and substance satisfactory to the DIP Agent in its sole discretion, shall have been executed
and delivered by each party thereto. B.
The Borrower shall have issued a customary promissory note to each DIP Note Purchaser and, if requested, to any DIP Lender that
so requests a promissory note (it being understood that the DIP Credit and Note Purchase Agreement shall contain a tranche of DIP Notes
and a separate tranche of DIP Loans). C.
The DIP Credit and Note Purchase Agreement and all other applicable DIP Facility Documents shall have been executed and delivered
by each party thereto. D.
Each of the Loan Parties shall be a debtor and a debtor in possession. -8- J. There shall exist no known unstayed action, suit, investigation, litigation, or proceeding with respect to the Borrower and its
subsidiaries pending in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases) that would
reasonably be expected to result in a Material Adverse Effect. “Material Adverse Effect”
shall mean any circumstance or condition that would individually or in the aggregate, have a material adverse effect on (i) the business,
assets, operations, properties or financial condition of the Borrower and its subsidiaries, taken as a whole (other than as a result
of events leading up to and customarily resulting from the commencement of the Chapter 11 Cases and the continuation and prosecution
thereof), (ii) the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under the Orders and
the other DIP Facility Documents (other than as a result of events leading up to and resulting from the commencement of the Chapter 11
Cases and the continuation and prosecution thereof) or (iii) the rights and remedies of the DIP Creditors or the DIP Agent under the
Orders and the other DIP Facility Documents. K. Since the Petition Date, there shall not have occurred any circumstance or conditions, which individually or in the aggregate,
constitutes or is reasonably expected to constitute, a Material Adverse Effect. L.
All necessary and material governmental and third-party consents and approvals necessary in connection with the DIP Facility and
the transactions contemplated thereby shall have been obtained on or prior to the Closing Date. -9- O. The Restructuring Support Agreement, dated as of November 18, 2024, among the Company Parties and Consenting Stakeholders (as each
such term is defined therein) (the “Restructuring Support Agreement”), shall be in full force and effect and shall
not have been amended or modified without the consents required therein. P.
All “first day orders” entered at the time of commencement of the Chapter 11 Cases and all “second day orders”
shall be reasonably satisfactory to the Required DIP Creditors. Q.
The Fronting Fee Letter shall have been duly executed and delivered to each of the parties signatory thereto. R.
All premiums, fronting or seasoning fees, and the reasonable and documented fees, costs, and expenses of Dentons US LLP, as legal
counsel for the Fronting Lender, in each case, pursuant to invoices delivered to the Debtors before the Closing Date, and required to
be paid to the Fronting Lender in accordance with the Fronting Fee Letter, shall have been paid (or will be paid with the proceeds of
the DIP Loans), it being understood and agreed that the Fronting Lender shall be entitled to net such fees, costs and expenses from the
proceeds of the funded DIP Loans. S.
No default or Event of Default shall exist or would result from such proposed funding or from the application of the proceeds therefrom. T.
Representations and warranties of the Loan Parties in the DIP Facility Documents shall be true and correct in all material respects
(or in the case of representations and warranties with a “materiality” qualifier, true and correct in all respects (after
giving effect to any qualification therein)) on and as of the date of such funding or issuance, except to the extent such representations
and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier
date. U. The DIP Draw shall not violate any requirement of law, the violation of which constitutes or is reasonably expected to constitute
a Material Adverse Effect, after giving effect to the Orders, and any other order of the Bankruptcy Court, and shall not be enjoined,
temporarily, preliminarily or permanently. V.
The DIP Draw shall not result in the aggregate outstanding amount under the DIP Facility exceeding the amount authorized by the
DIP Order. W.
The DIP Order, which shall be in form and substance reasonably satisfactory to DIP Agent and the Required DIP Creditors, shall
be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect. X.
[Reserved]. -10- Y.
None of the Chapter 11 Cases shall have been dismissed or converted to a chapter 7 case. Z.
No trustee under chapter 7 or chapter 11 of the Bankruptcy Code or examiner with enlarged powers beyond those set forth in section
1106(a)(3) and (4) of the Bankruptcy Code shall have been appointed in any of the Chapter 11 Cases. AA.
The DIP Agent shall have received, a borrowing notice five (5) business days prior to funding in the form set forth in the DIP
Facility Documents. BB.
Satisfaction by the Debtors of all DIP Milestones (as defined herein) that were required under the DIP Facility Documents to have
been satisfied as of the date of each borrowing. CC. All material “first day”
orders shall have been entered on a final basis and shall be reasonably satisfactory to the Required DIP Creditors. The Loan Parties shall comply with the Orders. The DIP Credit and Note Purchase Agreement
will contain the following affirmative covenants, subject to ordinary course exceptions and other baskets, exceptions and thresholds
to be mutually agreed: -11- E. Compliance
with laws (including ERISA and environmental laws), sanctions, anti-bribery, OFAC, PATRIOT Act, money-laundering and other anti-terrorism
laws, etc. F. Conduct
of business. G. Maintenance
of and access to books and records and inspection rights. I. Delivery
of certain reports and information. J. Use
of proceeds. K. DIP
Milestones. L. Certain
customary bankruptcy matters, including provision of material draft motions and pleadings (subject to customary limitations and exceptions)
and Bankruptcy Court orders, motions and other filings being reasonably acceptable to the Required DIP Creditors. M. Limitations
on changes to fiscal year. N. ;Delivery
of notices of defaults under the DIP Facility and certain other events that would reasonably be expected to result in a Material Adverse
Effect. O. Upon
request (but not more than once per week), commercial update calls with the advisors to the DIP Creditors or their representatives at
a reasonable and mutually agreed time. P. Regulatory
cooperation; regulatory matters; citizenship; and utilization. Q. Compliance
with the cash management order reasonably acceptable to the Required DIP Creditors. R. Further
assurances and post-closing covenant (including post-closing obligations to obtain insurance endorsements naming the DIP Agent, on behalf
of the DIP Creditors, as an additional insured and loss payee, as applicable, under all property and casualty insurance policies to be
maintained with respect to the properties of the Loan Parties and their respective subsidiaries forming part of the DIP Collateral within
twenty (20) business days after the Closing Date (or such later time as the Required DIP Creditors may agree)). -12- L. Limitations
on cancellation of debt and prepayments, repayments, redemptions and repurchases of debt (other than any Specified Debt Repayment). M. Limitation
on change in business, structure, accounting, name and jurisdiction of organization or other fundamental changes. N. Limitations
on the formation and maintenance of subsidiaries. O. Limitations
on amendment of constituent documents, and on the termination or modification of, or entry into, material contracts, leases or other arrangements,
in each case, in a manner that is materially adverse to the interests of the DIP Creditors (in their capacity as such). P. Limitation
on incurrence or existence of any claims entitled to a superpriority under section 364(c)(1) of the Bankruptcy Code other than those
arising under -13- the DIP Facility
and the replacement liens and superpriority claims provided as adequate protection as set forth in the Orders, as applicable. Q. Limitation
on contracts and lease rejections or assumptions in each case, in a manner that is materially adverse to the interests of the DIP Creditors
(in their capacities as such), in each case, without prior written consent of the Required DIP Creditors. Variance Covenant. As of the last date
of each Test Period, commencing with the fourth full week after the Petition Date, (1) the unfavorable variance (as compared to the Approved
Budget) of the cumulative operating cash receipts of the Debtors (other than (a) all cash receipts from the proceeds of any Specified
Disposition and (b) all cash receipts from the proceeds of any refinancing of any debt set forth in Annex B hereto (such refinancings,
collectively, the “Specified Refinancings”) shall not exceed 20% and (2) the unfavorable variance (as compared to the
Approved Budget) of the cumulative operating disbursements (other than (i) all professional fees, including professional fees and expenses
incurred by the Debtors, the DIP Agent, the advisors to the Ad Hoc Secured Notes Group, the advisors to the Ad Hoc Convertible Noteholders
Group, the Revolving Agents, the U.S. Trustee and any statutory committee that are owed and payable by the Debtors and (ii) all disbursements
in respect of any Specified Debt Repayment and any Specified Refinancing) shall not exceed 20%, in each case, based on a rolling four-week
period (collectively, the “Permitted Variances”). “Test Period” shall mean (i) initially, the
period ending on the last day of the fourth full calendar week after the Petition Date and (ii) thereafter, each four week period
ending on the last day of each subsequent week thereafter. Minimum Liquidity Covenant. As of
the last day of any week following the Closing Date, minimum free cash on hand (including, for the avoidance of doubt, the proceeds of
the DIP Facility) of the Debtors (“Liquidity”) to be no less than $550.0 million. -14- D. cross
default to other indebtedness in excess of $50.0 million (other than any indebtedness the payment of which is stayed as a result of the
filing of the Chapter 11 Cases); E. failure
to comply with DIP Milestones; -15- K. (i)
the entry of an order dismissing any of the Chapter 11 Cases or converting any of the Chapter 11 Cases to a case under chapter 7 of the
Bankruptcy Code; (ii) the entry of an order appointing
a chapter 11 trustee or a responsible officer having expanded powers, or similar person, in any of the Chapter 11 Cases; (iii) the entry of an order staying,
reversing, vacating or otherwise modifying any of the Orders, in each case, in a manner adverse in any respect to the DIP Agent or any
DIP Creditor; (iv) the entry of an order in any of
the Chapter 11 Cases appointing an examiner having expanded powers (beyond those set forth under sections 1106(a)(3) and (4) of the Bankruptcy
Code); (v) the entry of an order in any of
the Chapter 11 Cases confirming a plan that is inconsistent with the Restructuring Support Agreement; (vi) the entry of an order in any of
the Chapter 11 Cases granting adequate protection to any other person other than as set forth in the Orders; (vii) the entry of an order in any
of the Chapter 11 Cases denying or terminating use of cash collateral by the Loan Parties or imposing any additional conditions thereon; (viii) the entry of a final, non-appealable
order in any of the Chapter 11 Cases charging any of the DIP Collateral under section 506(c) of the Bankruptcy Code against the DIP Agent,
any DIP Creditor or the Loyalty Notes Holders; (ix) other than the Orders, the entry
of an order in any of the Chapter 11 Cases seeking authority to use cash collateral or to obtain financing under section 364 of the Bankruptcy
Code; (x) the entry of a final, non-appealable
order in any of the Chapter 11 Cases granting relief from any stay of proceeding (including, without limitation, the automatic stay) so
as to allow a third party to (i) proceed against any assets of the Loan Parties in excess of $50.0 million in the aggregate or (ii) pursue
other actions that would have a Material Adverse Effect on the Debtors or their estates; (xi) the filing of any pleading by
any Loan Party seeking, or otherwise consenting to, any of the matters set forth in clauses (i) through (x) above; -16- (xii) the Loan Parties or any of their
subsidiaries, or any person claiming by or through the Loan Parties or any of their subsidiaries, shall obtain court authorization to
commence, or shall commence, join in, assist or otherwise participate as an adverse party in any suit or other proceeding against the
DIP Agent, any of the DIP Creditors or any Loyalty Notes Holders and their respective rights, remedies and claims under or related to
the DIP Facility or the Orders in any of the Chapter 11 Cases or inconsistent with the DIP Facility Documents and the Orders, including
with respect to the Debtors’ stipulations, admissions, agreements and releases contained in the applicable Orders; (xiii) filing of a chapter 11 plan
or disclosure statement that is not reasonably acceptable to the Required DIP Creditors in their sole discretion; (xiv) entry of an order or filing of
any document by any of the Debtors in any of the Chapter 11 Cases granting or seeking to grant, other than in respect of the DIP Facility
and the Carve-Out or as otherwise permitted under the applicable DIP Facility Documents or the Orders, any superpriority administrative
expense claim status in the Chapter 11 Cases pursuant to section 364(c)(1) of the Bankruptcy Code pari passu with or senior to
the claims of the DIP Agent and the DIP Creditors under the DIP Facility or secured by liens pari passu with or senior to the liens
securing the Loyalty Notes Obligations or the adequate protection liens granted to the Loyalty Notes Holders; (xv) any of the Loan Parties or any
of their subsidiaries shall seek, support (including by filing a pleading in support thereof) or fail to contest in good faith any of
the matters set forth in clauses (i) through (xiv) above; (xvi) the termination of the Restructuring
Support Agreement; or (xvii) additional customary events
of default relating to the Chapter 11 Cases; -17- O. Without
the consent of the Required DIP Creditors, any Debtor shall file (or fail to oppose) any motion seeking an order authorizing the sale
of all or substantially all of the assets of the Loan Parties; P. [Reserved]; Q. the
Bankruptcy Court shall enter an order denying, terminating or modifying (i) the Debtors’ exclusive plan filing and plan solicitation
periods under section 1121 of the Bankruptcy Code or (ii) the exclusive right of any Debtor to file a chapter 11 plan pursuant to section
1121 of the Bankruptcy Code, unless such order was entered as a result of a request by, or received support from the Required DIP Creditors;
or R. without
the consent of the Required DIP Creditors, the Bankruptcy Court enters an order approving a sale transaction. -18- The Borrower and each Guarantor shall jointly
and severally pay or reimburse the reasonable and documented fees and out-of-pocket costs and expenses incurred by (i) the DIP Agent (including
the fees and out-of-pocket costs and expenses of Schulte Roth & Zabel LLP), (ii) the Fronting Lender (including the fees and out-of-pocket
costs and expenses of Dentons US LLP), (iii) the Ad Hoc Group of Senior Secured Noteholders (including the fees and out-of-pocket costs
and expenses of the Ad Hoc Group of Senior Secured Noteholder Advisors) and (iv) the Ad Hoc Group of Convertible Noteholders (but limited
to the fees and out-of-pocket costs and expenses of the Ad Hoc Group of Convertible Noteholders Advisors incurred through the date of
the termination of the Restructuring Support Agreement as to the Consenting Convertible Noteholders; provided that this parenthetical
will not apply to Consenting Convertible Noteholders in their capacity as DIP Creditors), in each case, in connection with (i) the Chapter
11 Cases generally, (ii) the preparation, negotiation and execution of the DIP Facility Documents, (iii) the funding of the DIP Facility,
(iv) the creation, perfection or protection of the liens under the DIP Facility Documents (including all search, filing and recording
fees) and (v) the on-going administration of the DIP Facility Documents (including the preparation, negotiation and execution of any amendments,
consents, waivers, assignments, restatements or supplements thereto). The Borrower and each Guarantor shall jointly
and severally pay or reimburse the reasonable and documented fees and out-of-pocket costs and expenses incurred by (i) the DIP Agent
(including the fees and out-of-pocket costs and expenses of Schulte Roth & Zabel LLP), (ii) the Ad Hoc Group of Senior Secured Noteholders
(including the fees and out-of-pocket costs and expenses of the Ad Hoc Group of Senior Secured Noteholder Advisors) and (iii) the Ad
Hoc Group of Convertible Noteholders (but limited to the fees and out-of-pocket costs and expenses of the Ad Hoc Group of Convertible
Noteholders Advisors incurred through the date of the termination of the Restructuring Support Agreement as to the Consenting Convertible
Noteholders; provided that this parenthetical will not apply to Consenting Convertible Noteholders in their capacity as DIP Creditors),
in each case, incurred in connection with (i) the enforcement of the DIP Facility Documents, (ii) any refinancing or restructuring
of the DIP Facility in the nature of a “work-out” and/or (iii) any legal proceeding relating to or arising out of the DIP
Facility or the other transactions contemplated by the DIP Facility Documents. -19- The DIP Facility Documents will contain customary
indemnification provisions by the Borrower and each Guarantor (jointly and severally) in favor of (i) the DIP Agent (including the fees
and out-of-pocket costs and expenses of Schulte Roth & Zabel LLP), (ii) the Ad Hoc Group of Senior Secured Noteholders (including
the fees and out-of-pocket costs and expenses of the Ad Hoc Group of Senior Secured Noteholder Advisors) and (iii) the Ad Hoc Group of
Convertible Noteholders (including the fees and out-of-pocket costs and expenses of the Ad Hoc Group of Convertible Noteholders Advisors)
and each of their respective affiliates, successors and assigns and the respective partners, officers, directors, employees, agents, advisors,
controlling persons and members of each of the foregoing and attorneys and representatives of each of the foregoing (each, an “Indemnified
Person”) (but, in the case of an Indemnified Person that is a member of the Ad Hoc Group of Convertible Noteholders and affiliates,
successors and assigns and the respective partners, officers, directors, employees, agents, advisors, controlling persons and members
of each of the foregoing and attorneys and representatives thereof, limited to the fees and out-of-pocket costs and expenses of such Indemnified
Person incurred through the date of the termination of the Restructuring Support Agreement as to the Consenting Convertible Noteholders;
provided that this parenthetical will not apply to Consenting Convertible Noteholders in their capacity as DIP Creditors); provided
that no Indemnified Person will be indemnified for any losses, claims, damages, liabilities, or related expenses to the extent determined
by a final, non-appealable judgment of a court of competent jurisdiction to have been incurred solely by reason of the gross negligence
or willful misconduct of such Indemnified Person. The payment of all professional fees and expenses
shall be made without the necessity of filing fee applications with the Bankruptcy Court or compliance with the U.S. Trustee’s guidelines
and shall not be subject to further application to or approval of the Bankruptcy Court; provided, however, each such professional shall
provide summary copies of its invoices (which may be redacted or modified to the extent necessary to delete any information subject to
the attorney-client privilege, any information constituting attorney work product, or any other confidential information, and the provision
of their invoices shall not constitute any waiver of the attorney-client privilege or of any benefits of the attorney work product doctrine)
to counsel to the Debtors, the U.S. Trustee, and counsel to the Creditors’ Committee (collectively, the “Review Parties”).
Any objections raised by any Review Party with respect to such invoices must be in writing and state with particularity the grounds therefor
and must be submitted to the affected professional within ten (10) calendar days after delivery of such invoices to the Review Parties
(such ten (10) day calendar period, the “Review Period”). If no written objection is received prior to the expiration
of the Review Period from the Review Parties, the Debtors shall promptly pay such invoices following the expiration of the Review Period.
If an objection is received within the Review Period from the Review Parties, the Debtors shall promptly pay the undisputed amount of
the invoice, and the disputed portion of such invoice shall not be paid until such dispute is resolved by agreement between the affected
professional and the objecting party or by order of this Court. The Borrower and each Guarantor agree jointly
and severally to pay or reimburse the Fronting Lender for all reasonable and documented out-of-pocket costs and expenses incurred by the
Fronting Lender (including the fees and out-of-pocket costs and -20- The DIP Lenders and DIP Note Purchasers may assign
all or any part of the DIP Loans and DIP Notes, as applicable, or the DIP Commitments from time to time with the consent of the Borrower,
which consent shall not be unreasonably withheld, conditioned or delayed; provided that no consent of the Borrower shall be required
(i) during the continuance of an Event of Default, (ii) for any assignment to a DIP Lender or DIP Note Purchaser, an Affiliate of a DIP
Lender or DIP Note Purchaser, an Approved Fund or any other person that has become a party to the Restructuring Support Agreement pursuant
to the terms thereof or (iii) for any assignment by the Fronting Lender of DIP Loans to any Commitment Party that elected to fund its
DIP Commitment through providing DIP Loans or any Affiliate or Approved Fund thereof (the “Initial Syndication”).
The parties to each assignment (including any assignment by the Fronting Lender of DIP Loans and/or DIP Notes) shall execute and deliver
to the DIP Agent an assignment agreement in the form attached hereto as Exhibit B (an “Assignment Agreement”).
Any Assignment Agreement by the Fronting Lender of DIP Loans and/or DIP Notes shall be accepted and recorded by the DIP Agent in accordance
with the terms of the DIP Facility Documents. Subject to receipt and recording thereof by the DIP Agent, from and after the date specified
in the applicable Assignment Agreement, the assignee thereunder shall be a party to the DIP Credit and Note Purchase Agreement and, to
the extent of the interest assigned by such Assignment Agreement, have the rights and obligations of a DIP Lender or DIP Note Purchaser,
as appliable, thereunder, and the assigning DIP Lender or DIP Note Purchaser, as applicable, thereunder shall, to the extent of the interest
assigned under such Assignment Agreement, be released from its obligations thereunder. The DIP Agent shall receive a processing and recordation
fee of $3,500 in connection with each assignment (it being understood that such fee shall only be required to be paid once with respect
to a block of trades by any DIP Creditor and/or Affiliate or Approved Fund thereof), except with respect to any assignment to a DIP Lender
or DIP Note Purchaser, an Affiliate of a DIP Lender or DIP Note Purchaser, an Approved Fund or any other person that has become a party
to the Restructuring Support Agreement pursuant to the terms thereof, or in connection with any assignment by the Fronting Lender of DIP
Loans. The minimum assignment amount shall be $250,000 (or if less than $250,000, the total amount held by such assigning DIP Lender or
DIP Note Purchaser), provided that no minimum assignment amount shall be required in respect of any assignment by the Fronting Lender
of DIP Loans or DIP Notes. As used herein, the term “Approved Fund” means, with respect to any DIP Lender or DIP Note
Purchaser, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial
loans or notes and similar extensions of credit in the ordinary course of its activities that is administered, advised or managed by (a)
such DIP Lender or such DIP Note Purchaser, (b) an Affiliate of such DIP Lender or such DIP Note Purchaser or (c) an entity or an Affiliate
of an entity that administers, advises or manages such DIP Lender or such DIP Note Purchaser. No assignment of DIP Loans, DIP Notes or
DIP Commitments shall be permitted unless the applicable assignee executes and agrees to be bound by the Restructuring Support Agreement
and the transactions contemplated therein. For the avoidance of -21- Amendments, consents, waivers, supplements or
other modifications to DIP Facility Documents shall require the prior written consent of DIP Creditors holding greater than 50.01% of
outstanding DIP Loans and DIP Notes and unfunded DIP Commitments in effect at such time (the “Required DIP Creditors”). Notwithstanding the foregoing: (a) any amendment,
consent, waiver, supplement or modification to any DIP Facility Document that (i) increases the DIP Commitments of any DIP Lender or DIP
Note Purchaser, (ii) decreases the amount of or postpones the payment of any scheduled principal, interest or fees payable to any DIP
Creditor, (iii) altering the pro rata nature of disbursements by or payments to DIP Creditors or the application of mandatory prepayments
in this DIP Term Sheet, (iv) amends or modifies the definition of “Required DIP Creditors” or any provision of this section
“Amendments”, (v) releases all or substantially all of the value of the guarantees by the Guarantors, or (vi) releases the
security interest in all or substantially all of the DIP Collateral other than in connection with a disposition approved by an order of
the Bankruptcy Court with the prior written consent of the Required DIP Creditors, in each case, shall require the written consent of
each DIP Creditor directly and adversely affected thereby and (b) no amendment, consent, waiver, supplement or other modification shall
amend, modify or otherwise affect the rights or obligations of, or any provision for the benefit of, or duties of the DIP Agent without
the prior written consent of the DIP Agent. In addition, the (x) subordination of the DIP Liens to liens securing any other debt and/or
(y) subordination of any DIP Facility Obligations in right of payment to the payment of any other debt, in each case, shall require the
consent of each DIP Creditor directly and adversely affected thereby; provided that, notwithstanding the foregoing, the DIP Liens may
be subordinated to liens securing such other debt and/or the DIP Facility Obligations may be subordinated in right of payment to such
other debt, in each case, solely to the extent that such debt is provided by one or more existing DIP Creditors and each other DIP Creditor
is offered a bona fide right to provide its pro rata share of such other debt on not less than five (5) Business Days’ notice. The DIP Facility Documents will include the following (in each case consistent with the Documentation Principles and customary for debtor in possession financings of this type) (i) standard yield protection provisions (including, without limitation, provisions relating to compliance with risk-based capital guidelines, increased costs (including the Dodd-Frank Act and Basel III related gross-ups notwithstanding the date of enactment of the applicable law or regulation thereunder, subject to prompt notice requirements) and payments free and clear of withholding taxes (subject to customary qualifications)), (ii) waivers of consequential damages and jury trial and (iii) customary agency, set-off and sharing language. -22- -23- ANNEX A-1 Senior
Secured Debtor in Possession Facility Interest
Rates and Fees ANNEX A-2 Senior Secured Debtor in Possession Facility Certain Definitions “Alternate Base Rate”
shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the sum of the Federal
Funds Effective Rate in effect on such day plus ½ of 1% and (c) the sum of the Term SOFR for a one-month tenor in effect on such
day plus 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Term SOFR
shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Term
SOFR, respectively. “Business Day”
shall mean any day other than a Saturday, Sunday or other day on which commercial banks in New York City, or Wilmington, Delaware are
required or authorized to remain closed; provided, however, that when used in connection with the borrowing or repayment
of DIP Loans and/or DIP Notes that bear interest at a rate based on Term SOFR, the term “Business Day” shall mean any U.S.
Government Securities Business Day. “Federal Funds Effective
Rate” shall mean, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business
Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the DIP Agent from three Federal funds brokers of recognized standing selected by it; provided that, if the Federal Funds Effective
Rate shall be less than the Floor, such rate shall be deemed to be the Floor. “Floor”
shall mean 0.0% per annum. “Interest Period”
shall mean, as to any borrowing of DIP Loans and/or issuance of DIP Notes that bear interest at a rate based on Term SOFR, the period
commencing on the date of such borrowing or issuance (including as a result of a conversion of DIP Loans and/or DIP Notes that bear interest
at a rate based on the Alternate Base Rate to a rate based on Term SOFR) or on the last day of the preceding Interest Period applicable
to such borrowing or issuance and ending on (but excluding) the numerically corresponding day (or if there is no corresponding day, the
last day) in the calendar month that is one month thereafter; provided that if any Interest Period would end on a day which shall
not be a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day. “Prime Rate”
shall mean the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall
Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by Administrative Agent) or any similar release by the Federal Reserve Board (as
determined by Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly
announced as being effective. “SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator”
means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “Term SOFR” means: (a)
for any calculation with respect to DIP Loans and DIP Notes that bear interest a rate based on Term SOFR, the Term SOFR Reference
Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”)
that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by
the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination
Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement
Date (to be defined in the DIP Credit and Notes Purchase Agreement) with respect to the Term SOFR Reference Rate has not occurred, then
Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S.
Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator
so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business
Days prior to such Periodic Term SOFR Determination Day, and (b)
for any calculation with respect to DIP Loans and DIP Notes that bear interest a rate based on the Alternate Base Rate, the Term
SOFR Reference Rate for a tenor of one month on the day (such day, the “ABR Term SOFR Determination Day”) that is two
(2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided,
however, that if as of 5:00 p.m. (New York City time) on any ABR Term SOFR Determination Day the Term SOFR Reference Rate for the
applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR
Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator
on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by
the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government
Securities Business Days prior to such ABR SOFR Determination Day; provided that if Term SOFR as
so determined shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor. “Term SOFR Administrator”
means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the DIP
Creditors in their reasonable discretion). “Term SOFR Reference
Rate” means the forward-looking term rate based on SOFR. “U.S. Government
Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes
of trading in United States government securities. ANNEX B Senior Secured Debtor in Possession Facility Specified Refinancings The repayment or
other replacement of the Company’s 2015-1 EETC Class B debt and 2017-1 EETC Class B debt and issuance of refinancing or replacement
EETC debt secured by the same underlying aircraft as such 2015-1 EETC Class B debt and 2017-1 EETC Class B debt. ANNEX C Senior Secured Debtor in Possession Facility Specified Dispositions and Specified Debt
Repayments Aircraft Dispositions and Related Estimated
Debt Repayment: Exhibit 10.4 Spirit Airlines, Inc. 2800 Executive Way Miramar, Florida 33025 November [DATE], 2024 [NAME] Re: Retention
Award Agreement Dear [NAME]: This letter agreement
(this “Agreement”) between you and Spirit Airlines, Inc. (together with its subsidiaries, the “Company”)
sets forth the terms of your retention award. As you know, we consider your continued service and dedication to the Company, and your
leadership as the Company’s [TITLE], important to the success of our business and the Company’s long-term future. To incentivize
you to remain employed with the Company, we are pleased to offer you a retention award, as described in this Agreement. 1. Retention
Award. (a) As
soon as practicable following the date hereof, the Company will pay to you a cash retention award in the aggregate amount of $[AMOUNT]
(the “Retention Award”), less applicable taxes and other withholdings. (b) Except
in the case of a Qualifying Termination (as defined in Annex A), if you are not actively employed by the Company in good standing as
of the earlier to occur of (A) the one year anniversary of the date of this Agreement and (B) the date that is 60 days following the
date of a Change in Control (as defined in Annex A) (the date on which the earlier of clause (A) or (B) occurs, the “Retention
Date”), then you agree to promptly repay to the Company upon your termination of employment (and in no event later than ten
(10) days following such termination) the full amount of the Retention Award set forth in Section 1(a) (on a pre-tax basis). You will
not have an obligation to repay the Retention Award if a termination of your employment occurs for any reason following the Retention
Date. 2. 2024
STI Plan Bonus. (a) As
soon as practicable following the date hereof, the Company will pay to you [(i) your cash bonus earned under the individual component
of the Company’s STI Plan for the first measurement period of 2024 in the aggregate amount of $[AMOUNT] (the “2024 H1
STIP Bonus”) and (ii)] your cash bonus earned under the Company’s STI Plan for the second measurement period of 2024
in the aggregate amount of $[AMOUNT] (the “2024 H2 STIP Bonus”), in each case less applicable taxes and other withholdings. (b) Except
in the case of a Qualifying Termination, if you are not actively employed by the Company in good standing
as of the earlier to occur of (i) March 15, 2025 and (ii) the date that is 60 days following the date of a Change in Control, then you agree to promptly repay to
the Company upon your termination of employment (and in no event later than ten (10)
days following such termination) the full amount of [the 2024 H1 STIP Bonus and] the 2024
H2 STIP Bonus as set forth in Section 2(a) (on a pre-tax basis). You will not have an obligation to repay [the 2024 H1 STIP Bonus and]
the 2024 H2 STIP Bonus if a termination of your employment occurs for any reason following the earlier of the dates set forth in clauses
(i) and (ii) above. (c) For
the avoidance of doubt, except for [the 2024 H1 STIP Bonus and] the 2024 H2 STIP Bonus as set forth above, you shall not be entitled
to any further payment under the Company’s STI Plan for 2024. 3. Forfeiture
of Certain Incentive Awards; Acknowledgement. You hereby agree and acknowledge that (i) any unpaid portion of any time-based or performance-based
long-term cash incentive awards granted to you and (ii) any unpaid payment under the Company’s short-term incentive plan for 2024
(except as described in Section 2 above) are forfeited and cancelled in their entirety, and you have no rights or entitlements to any
such amounts. You acknowledge and agree that, as of the date hereof, there are no amounts due but unpaid to you under any of the Company’s
short-term or long-term incentive plans or programs. 4. Miscellaneous.
(a) The
Retention Award is separate from and in addition to, and will not be reduced by, any other amounts due to you from the Company. (b) The
Retention Award[, the 2024 H1 STIP Bonus] and the 2024 H2 STIP Bonus set forth in this Agreement are not intended to be subject to the
Employee Retirement Income Security Act of 1974, as amended. The Retention Award[, the 2024 H1 STIP Bonus] and the 2024 H2 STIP Bonus
will be paid from the general assets of the Company. The Company shall have the right to deduct from all amounts payable to you (whether
under this Agreement or otherwise) any amount of taxes required by law to be withheld in respect of compensation payable under this Agreement
as may be necessary in the opinion of the Company to satisfy tax withholding required under the laws of any country, state, province,
city or other jurisdiction, including, but not limited to, income taxes, capital gains taxes, transfer taxes and social security contributions
that are required by law to be withheld. (c) The
Board of Directors of the Company (the “Board”) (or its designee) will have the sole and absolute responsibility and
discretionary authority to construe, interpret, and determine eligibility under this Agreement, and to otherwise interpret and administer
this Agreement. Any determination made by the Board (or its designee) will be final, conclusive, and binding on all persons, and will
be given the maximum deference permitted by law. 2 (d) You
agree, to the maximum extent permitted by applicable law, to keep the terms of this Agreement in the strictest of confidence at all times,
both during and after your employment with the Company, and not to disclose such terms to any other person or entity, except as may be
required by law or as disclosure may be necessary in the course of a complaint, appeal, or proceeding seeking enforcement of this Agreement.
Notwithstanding the immediately preceding sentence, you may disclose the terms and conditions of this Agreement to your immediate family
and your legal, financial, and tax advisors after securing their similar commitment of strict confidentiality. To the extent that this
Section 4(d) is determined by the Committee to have been breached, the Company shall have the right to seek all remedies, including,
without limitation, the clawback of the Retention Award[, the 2024 H1 STIP Bonus] and the 2024 H2 STIP Bonus. (e)
The Retention Award[, the 2024 H1 STIP Bonus] and the 2024 H2 STIP Bonus set forth in this Agreement are intended to be exempt from Section
409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”), and the Retention
Award[, the 2024 H1 STIP Bonus] and the 2024 H2 STIP Bonus shall be construed and administered in accordance with such intention. To
the extent any payments under this Agreement are subject to Section 409A, the Agreement shall be interpreted and administered to the
maximum extent possible to comply with Section 409A. Notwithstanding the foregoing, the Company makes no representation to you that the
payments set forth in this Agreement will be exempt from or comply with Section 409A and shall have no liability or obligation to you
for any failure of the Agreement or any payments hereunder to comply with Section 409A. (f) In
the event that any payment to you, including any payment made in respect of the Retention Award[, the 2024 H1 STIP Bonus] and the 2024
H2 STIP Bonus, (i) constitutes a “parachute payment” within the meaning of Section 280G of the Code (“Section 280G”),
and (ii) but for this Section 4(f), would be subject to the excise tax imposed by Section 4999 of the Code (“Section 4999”),
then your benefits under this Agreement or otherwise payable to you will be either: (x) delivered in full, or (y) delivered as to such
lesser extent which would result in no portion of such benefits being subject to excise tax under Section 4999, whichever of the foregoing
amounts, taking into account the applicable federal, state and local income and employment taxes and the excise tax imposed by Section
4999, results in the receipt by you on an after-tax basis, of the greatest amount of benefits, notwithstanding that all or some portion
of such benefits may be taxable under Section 4999. If a reduction in
benefits constituting “parachute payments” is necessary so that benefits are delivered to a lesser extent, reduction will
occur in the following order: (i) reduction of cash payments; (ii) cancellation of awards granted “contingent on a change in ownership
or control” (within the meaning of Section 280G) and (iii) reduction of employee benefits. You acknowledge and agree that, in the
event the cutback described in clause (y) above applies to you, any payment that has been made to you in respect of the Retention Award[,
the 2024 H1 STIP Bonus] or the 2024 H2 STIP Bonus hereunder may also be subject to repayment by you to the Company to the extent it is
determined by the Firm that such payment should not have been delivered to you as result of the 3 application
of such clause (y). Any determination required under this Section 4(f) will be made in writing by the Company’s independent public
accountants immediately prior to the consummation of a change in ownership or control or such other person or entity to which the parties
mutually agree (the “Firm”). For purposes of making the calculations required by this Section 4(f), the Firm may make
reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning
the application of Sections 280G and 4999. You and the Company will furnish to the Firm such information and documents as the Firm may
reasonably request in order to make a determination under this Section 4(f). The Company will bear all costs the Firm may incur in connection
with any calculations contemplated by this Section 4(f). (g) This
Agreement contains the entire agreement between the Company and you with respect to the Retention Award[, the 2024 H1 STIP Bonus] and
the 2024 H2 STIP Bonus and supersedes any and all prior agreements and understandings, oral or written, between the Company and you with
respect to the subject matter hereof. This Agreement may be amended only by an agreement in writing signed by you and an authorized representative
of the Company. (h) Nothing
in this Agreement shall be construed as conferring upon you a right to continued employment with the Company or shall restrict the Company’s
right to terminate your employment, which is and shall at all times remain “at will.” This Agreement shall neither entitle
you to additional awards or bonus amounts nor prohibit you from eligibility for any additional awards or bonus amounts under any other
program implemented by the Company. (i) This
Agreement will be construed in accordance with the laws of the State of Florida, without regard to the conflict of law provisions of
any jurisdiction. (j) In
the event that any of the provisions of this Agreement, or the application of any such provisions to you or the Company with respect
to obligations under this Agreement, is held to be unlawful or unenforceable by any court, then the remaining portions of this Agreement
will remain in full force and effect and will not be invalidated or impaired in any manner. (k) Due
to the personal nature of the services contemplated under this Agreement, this Agreement, and your rights and obligations under this
Agreement, may not be assigned by you. This Agreement is also binding upon your successors, heirs, executors, administrators, and other
legal representatives, and will inure to the benefit of the Company and its successors and assigns. The Company may assign its rights,
together with its obligations under this Agreement, in connection with any sale, transfer, or other disposition of all or substantially
all of its business and/or assets; provided that any such assignee of the Company agrees to be bound by the provisions of this
Agreement. (l) This
Agreement may be executed in any number of counterparts, each of which so executed will be deemed to be an original, and such counterparts
will together constitute but one agreement. Each party hereto may execute this Agreement in Adobe 4 Portable
Document Format (or similar format) (“PDF”) sent by electronic mail or via DocuSign. In addition, PDF signatures of
authorized signatories of any party hereto will be deemed to be original signatures and will be valid and binding, and delivery of a
PDF signature by any party will constitute due execution and delivery of this Agreement. If this Agreement,
including the Annex, accurately sets forth the terms and conditions of our agreement regarding your Retention Award[, the 2024 H1 STIP
Bonus] and the 2024 H2 STIP Bonus, please counter-sign this Agreement below where indicated and return it by November [DATE], 2024. We look forward
to your continued employment with the Company. Yours truly, SPIRIT AIRLINES, INC. 5 ANNEX A “Cause”
has the meaning set forth in the Spirit Airlines, Inc. 2017 Executive Severance Plan. “Change
in Control” has the meaning set forth in the Spirit Airlines, Inc. 2024 Incentive Award Plan; provided that any transaction
(or series of related transactions) that results in (i) the acquisition of any equity securities of the Company or any assets of the
Company (whether by acquisition, merger, consolidation, restructuring, reorganization or otherwise) by (x) the Company’s creditors
or holders of debt of the Company or (y) any of the Company’s Subsidiaries or (ii) any change in the composition of the Board,
in each case in connection with the first restructuring of the Company pursuant to Chapter 11 of the U.S. Bankruptcy Code (a “Chapter
11 Transaction”) following the date hereof, will not individually or in the aggregate be deemed to result in a Change in Control
for purposes of this Agreement; provided that any subsequent Chapter 11 Transaction involving the Company may constitute a Change
in Control for purposes of this Agreement. “Disability”
has the meaning set forth in the Spirit Airlines, Inc. 2017 Executive Severance Plan. “Good Reason”
means (a) the assignment to you of any duties which constitute, in any material respect, an adverse change in your position(s), duties
or responsibilities with the Company immediately prior to such change; provided, however, that neither (x) the fact that
your duties following a Change in Control are owed to a successor or an affiliate of a successor nor (y) the consummation of a Chapter
11 Transaction, in either case, shall, by itself, constitute a change in your position(s), duties or responsibilities in any material
respect giving rise to Good Reason hereunder; (b) a reduction in your base salary as in effect as of the date hereof or as may be increased
hereafter; (c) any requirement that you be based more than fifty (50) miles from your principal place of employment immediately prior
to the date hereof; (d) the failure of any successor to the Company to provide you with paid vacation in accordance with the plans, practices,
programs and policies of the Company in effect for you immediately prior to the date hereof; (e) the failure of any successor to the
Company to continue in effect any employee benefit plan or compensation plan in which you and your eligible dependents are participating
immediately prior to the date hereof, unless you are permitted to participate in other plans providing you with substantially equivalent
benefits in the aggregate; or (f) a reduction in your target bonus opportunity as in effect immediately prior to the date hereof or as
the same may be increased from time to time thereafter. Notwithstanding
the foregoing, you will not have “Good Reason” unless (i) you notify the Company in writing of your intent to resign within
ninety (90) days after the initial occurrence of the event giving rise to a claim for Good Reason, (ii) the Company fails to cure the
Good Reason provided by you in such notice within thirty (30) days after the Company’s receipt of the notice, and (iii) your resignation
is effective within ninety (90) days of the Company’s failure to cure. “Qualifying
Termination” means (i) a termination of your employment by the Company without Cause, (ii) your resignation for Good Reason,
or (iii) a termination of your employment due to your death or Disability. 2 Exhibit 99.1 Spirit Airlines Announces Comprehensive Agreement
to Deleverage Balance Sheet and Position the Company for Long-Term Success as a Leading Low-Fare Carrier Flights, Ticket Sales, Reservations and All Other
Operations Continue as Normal Restructuring Support Agreement Already Signed
by a Supermajority of Spirit’s Bondholders Voluntary Prearranged Chapter 11 Proceedings
Commenced to Implement the Agreed Deleveraging and Recapitalization Transactions Receives Backstopped Commitments for $350 Million
Equity Investment and $300 Million in Debtor-in-Possession Financing from Existing Bondholders; Vendors, Aircraft Lessors and Holders
of Secured Aircraft Indebtedness to Be Paid in the Ordinary Course and Will Not be Impaired DANIA BEACH, Fla., Nov. 18, 2024 – Spirit Airlines, Inc.
("Spirit" or the "Company") (NYSE: SAVE) today announced that it has entered into a restructuring support agreement
(the “RSA”) supported by a supermajority of Spirit’s loyalty and convertible bondholders on the terms of a comprehensive
balance sheet restructuring. The restructuring is expected to reduce Spirit’s debt, provide increased financial flexibility, position
Spirit for long-term success and accelerate investments providing Guests with enhanced travel experiences and greater value. In connection with the RSA, Spirit has received backstopped commitments
for a $350 million equity investment from existing bondholders and will complete a deleveraging transaction to equitize $795 million of
funded debt. To implement the RSA, the Company has commenced a prearranged chapter 11 process in the United States Bankruptcy Court for
the Southern District of New York (the “Court”). Existing bondholders are also providing $300 million in debtor-in-possession
(“DIP”) financing, which, together with Spirit's available cash reserves and cash provided by operations, is expected to further
support the Company through the chapter 11 process. Spirit expects to continue operating its business in the normal course
throughout this prearranged, streamlined chapter 11 process. Guests can continue to book and fly without interruption and can use all
tickets, credits and loyalty points as normal. The chapter 11 process itself will not impact Team Member wages or benefits, which are
continuing to be paid and honored for those employed by Spirit. Vendors, aircraft lessors and holders of secured aircraft indebtedness
will continue to be paid in the ordinary course and will not be impaired. “I am pleased we have reached an agreement with a supermajority
of both our loyalty and convertible bondholders on a comprehensive recapitalization of the Company, which is a strong vote of confidence
in Spirit and our long-term plan,” said Ted Christie, Spirit's President and Chief Executive Officer. “This set of transactions
will materially strengthen our balance sheet and position Spirit for the future while we continue executing on our strategic initiatives
to transform our Guest experience, providing new enhanced travel options, greater value and increased flexibility. I’m extremely
proud of the Spirit team’s hard work and dedication, which is key to our sustained progress in advancing our business and delivering
for our Guests.” As part of the chapter 11 process, Spirit is filing a proposed Plan
of Reorganization (the “Plan”) that incorporates the agreed terms of the RSA and is subject to confirmation by the Court.
The Company has received support from a supermajority of its loyalty and convertible bondholders and expects to emerge from a streamlined
chapter 11 process in the first quarter of 2025. In conjunction with the petition, Spirit has filed a series of first-day
motions, which, once approved by the Court, will further facilitate the Company operating its business in the ordinary course during the
streamlined chapter 11 process. As a result of the chapter 11 filing, Spirit expects to be delisted
from the New York Stock Exchange in the near term. The Company expects that its common stock will continue to trade in the over-the-counter
marketplace through the chapter 11 process. The shares are expected to be cancelled and have no value as part of Spirit's restructuring. Additional Information Additional information about the Company’s chapter 11 case, including
access to Court filings and other documents related to the restructuring process, is available at https://dm.epiq11.com/SpiritGoForward
or by calling Spirit’s restructuring information line at (888) 863-4889 (U.S. toll free) or +1 (971) 447-0326 (international). Additional
information is also available at www.SpiritGoForward.com. Advisors Davis Polk & Wardwell LLP is serving as the Company’s restructuring
counsel, Alvarez & Marsal is serving as restructuring advisor, and Perella Weinberg Partners LP is acting as investment banker. Akin Gump Strauss Hauer & Feld LLP is acting as legal counsel and
Evercore is acting as financial advisor to the ad hoc group of loyalty noteholders. Paul Hastings LLP is acting as legal counsel and
Ducera Partners LLC is acting as financial advisor to the convertible bondholders. About Spirit Airlines Spirit Airlines (NYSE: SAVE) is a leading low-fare carrier committed
to delivering the best value in the sky by offering an enhanced travel experience with flexible, affordable options. Spirit serves destinations
throughout the United States, Latin America and the Caribbean with its Fit Fleet®, one of the youngest and most fuel-efficient fleets
in the U.S. Spirit is committed to inspiring positive change in the communities it serves through the Spirit Charitable Foundation. Discover
elevated travel options with exceptional value at spirit.com. Investor Inquiries: Spirit Investor Relations investorrelations@spirit.com Media Inquiries: Spirit Media Relations Media_Relations@spirit.com FGS Global Spirit@fgsglobal.com Cautionary Statement Regarding Forward Looking Statements This press release contains various forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") which are subject to the "safe harbor" created by those sections.
Forward-looking statements are based on our management's beliefs and assumptions and on information currently available to our management.
All statements other than statements of historical facts are "forward-looking statements" for purposes of these provisions.
In some cases, you can identify forward-looking statements by terms such as "may," "will," "should," "could,"
"would," "expect," "plan," "anticipate," "believe," "estimate," "project,"
"predict," "potential," and similar expressions intended to identify forward-looking statements. Forward-looking statements
include, but are not limited to, statements regarding Spirit’s expectations with respect to operating in the normal course, the
Chapter 11 process, the DIP and potential delisting of Spirit’s common stock by the New York Stock Exchange. Forward-looking statements
are subject to risks, uncertainties and other important factors that could cause actual results and the timing of certain events to differ
materially from future results expressed or implied by such forward-looking statements. Factors include, among others, risks attendant
to the bankruptcy process, including the Company's ability to obtain court approval from the Court with respect to motions or other requests
made to the Court throughout the course of Chapter 11, including with respect the DIP; the effects of Chapter 11, including increased
legal and other professional costs necessary to execute the Company's restructuring process, on the Company's liquidity (including the
availability of operating capital during the pendency of Chapter 11); the effects of Chapter 11 on the interests of various constituents
and financial stakeholders; the length of time that the Company will operate under Chapter 11 protection and the continued availability
of operating capital during the pendency of Chapter 11; objections to the Company's restructuring process, the DIP, or other pleadings
filed that could protract Chapter 11; risks associated with third-party motions in Chapter 11; Court rulings in the Chapter 11 and the
outcome of Chapter 11 in general; the Company's ability to comply with the restrictions imposed by the terms and conditions of the DIP
and other financing arrangements; employee attrition and the Company's ability to retain senior management and other key personnel due
to the distractions and uncertainties; risks associated with the potential delisting or the suspension of trading in its common stock
by the New York Stock Exchange, the impact of litigation and regulatory proceedings; and other factors discussed in the Company's Annual
Report on Form 10-K and subsequent quarterly reports on Form 10-Q filed with the SEC and other factors, as described in the Company's
filings with the Securities and Exchange Commission, including the detailed factors discussed under the heading "Risk Factors"
in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2023, as supplemented in the Company's Quarterly Report
on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024. Furthermore, such forward-looking statements speak only as
of the date of this release. Except as required by law, we undertake no obligation to update any forward-looking statements to reflect
events or circumstances after the date of such statements. Risks or uncertainties (i) that are not currently known to us, (ii) that we
currently deem to be immaterial, or (iii) that could apply to any company, could also materially adversely affect our business, financial
condition, or future results. Additional information concerning certain factors is contained in the Company's Securities and Exchange
Commission filings, including but not limited to the Company's Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current
Reports on Form 8-K. Exhibit 99.2 1 Cleansing Materials November 18, 2024 2 Disc l aimer By attending this presentation or otherwise viewing this presentation, or by reading the presentation slides or by accepting delivery of this document, you agree to be bound by the following limitations. This document andthe information contained herein (the “Material”) are being made available on a strictly confidentialbasis in accordance with the terms of the confidentiality agreement dated August 7, 2024 (the “Confidentiality Agreement”) between Spi rit Airlines, Inc. (the “Company”) andcertain members of the Ad Hoc Group of holders of Loyalty Notes issued by the Company. Certain portions of the Ma terial constitute “Confidential Information” pursuant to the Confidentiality Agreement and may not be reproduced or redistrib uted, in whole or in part, to any other person, including, without limitation, by email or any other means of electronic communication, to the extent set forth in the Confidentiality Agreement. The Material includes certain information regarding the Company andits affiliates that has not been publicly disclosed. You are reminded of your obligations under the Confidentiality Agreement (i) not to disclose such information (or the fact of this presentation and the related discussions) to any person outside your organization or to others within your organization to the extent required by the Confidentiality Agreement and except as permitted by the Confidentiality Agreement. No representation or warranty, express or implied, is made as to the accuracy or completeness of such informationand nothing contained herein is, or shall be relied upon as, a representation, whether as to the past, the present or the future. These materials were designed for use by specific persons familiar with the business and affairs of the Company. These materials are not intended to provide the sole basis for evaluating, andshould not be considered a recommendation with respect to, any transaction or other matter. All information included in these materials is subject to material change in all respects. This presentation does not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification of such securities under the securities law of any such jurisdiction. Securities may not be offered or sold in the United States absent registration with the Securities and Exchange Commission (the “SEC'') or an exemption from such registration. Under no circumstances is this presentation or the information contained herein to be construed as a prospectus, offering memorandum, advertisement or commitment to arrange any financing for any transaction, and neither any part of this written or oral presentation nor any information or statement contained herein or therein shall form the basis of or be relied upon in connection with any contract or commitment whatsoever. No legally binding obligations will be created, implied, or inferred until definitive agreements with respect to the potential transaction, if any, are executed and delivered by all parties thereto. Without limiting the foregoing, until that event, no agr eement shall exist and there shall be no obligations whatsoever based on such things as extended negotiations, “handshakes,” oral understandings, or courses of conduct (including reliance and changes of position). In making any future investment decision, you must rely on your own examination of the Company, including the merits and risks involved. This presentation should not be construed as financial, legal, tax, accounting, investment or other advice or a recommendation with respect to any potential investment. You should consult your own advisors as needed to make any potential investment decision and determine whether it is legally permitted to make such an investment under applicable legal investment, securities or similar laws or regulations. Forward - Looking Statements in this presentation and certain oral statements made from time to time by representatives of the Company contain various forward - looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act) which are subject to the “safe harbor” crea ted by those sections. Forward - looking statements are based on our management’s beliefs and assumptions and on information currentl y available to our management. All statements other than statements of historical facts are “forward - looking statements” for purposes of these prov isions. In some cases, you can identify forward - looking statements by terms such as “may,” “will,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “project,” “predict,” “potential,” and similar expressions intended to identify forward - looking statements. Forward - looking statements include statements regarding the Company’s intentions and expectations regarding revenues, cash le vels, capacity and passenger demand, additional financing, capital spending, operating costs and expenses, pre - tax income, pre - tax margin, taxes, hiring and furloughs, aircraft deliveries, stakeholders, negotiations and settlement with Pratt & Whitney regarding neo engine availability issues, resolving outstanding indebtedness, vendors and government support. Such forward - looking statements are subject to risks, uncertainties and other important factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward - looking statements. Factors include, among others, results of operations andfinancial condition, the competitive environment in our industry, our ability to keep costs low and the impact of worldwide economic conditions, including the impact of economic cycles or downturns on customer travel behavior and other factors, as described in the Company’s filings with the Securities and Exchan ge Commission, including the detailed factors discussed under the heading “Risk Factors” in the Company’s Annual Report on Form 10 - K for the fiscal year ended December 31, 2023, as supplemented in the Company's Quarterly Report on Form 10 - Q for the fiscal quarters ended March 31, 2024 and June 30, 2024. Furthermore, such forward - looking statements speak only as of the date of this presentation. Except as required by law, we undertake no obligation to update any forward - looking statements to reflect events or circumstances after the date of such statements. Risks or uncertainties (i) that are not currently known to us, (ii) that we currently deem to be immaterial, or (iii) that could apply to any company, could also materially adversely affect our business, financial condition, or future results. Additional information concerning certain factors is contained in the Company's Securities and Exchange Commissionfilings, including but not limited to the Company's Annual Report on Form 10 - K, Quarterly Reports on Form 10 - Q, and Current Reports on Form 8 - K. We have presented certain financial and other informationas of or for the year ended December 31, 2019 given the extraordinary impact of the COVID - 19 pandemic on our business in fiscal 2020. We believe that this information provides investors with better information regarding our business performance under normal operating and market conditions. All forward - looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements set forth or referred to above. Forward - looking statements speak only as of the date of this presentation. You should not put undue reliance on any forward - looking statements. Non - GAAP Financial Information: The Company has used non - GAAP financial measures in this presentation, including Adjusted EBITDAR, Adjusted EBITDAR Margin, Adjusted CASM and CASM ex Fuel. Adjusted financial measures refer to financial information adjusted to exclude from financial measures prepared in accordance with accounting principles generally accepted in the United States ("GAAP") items identified in this presentation. The Company believes that the presentation of adjusted financial results provides additional informationon comparisons between periods including underlying trends of its business by excluding certain items that affect overall comparability. The non - GAAP financial measures contained herein have limitations as analytical tools and should not be considered in isolation or in lieu of an analysis of our results as reported under U.S. GAAP. These non - GAAP measures should be evaluated only on a supplementary basis in connection with our U.S. GAAP results, including those reported in our consolidated financial statements and related notes thereto contained in our Annual Report on Form 10 - K for the years ended December 31, 2023, December 31, 2022 and December 31, 2021. 3 Spirit Overview Industry Overview Project Bravo Appendi x 1 Executive Summary 2 3 4 Table of Contents 4 Executive Leadership Team EXPERIENCED MANAGEMENT TEAM WITH DEEP AIRLINE INDUSTRY EXPERTISE Rana Ghosh Senior VP & CTO Rocky Wiggins Senior VP & CIO Matthew Klein Executive VP & CCO John Bendoraitis Executive VP & COO Fred Cromer Executive VP & CFO Thomas Canfield Senior VP & GC Ted Christie President & CEO • Spirit’s Senior VP, GC and Secretary since October 2007 • Prior to Spirit, worked as general counsel or board member at telecom, defense and space companies • 16+ years of industry experience • Spirit’s Senior VP and Chief Transformation Officer • Prior to this position, since 2015, served as VP of Omnichannel, Ancillary Revenue and Guest Care and as Head of e - Commerce • 8+ years of industry experience • Spirit’s Senior VP & Chief Information Officer since September 2016 • Prior experience at WestJet, Sun Country, AirTran and US Airways • 44+ years of travel industry experience • Spirit’s Executive VP & Chief Commercial Officer since December 2019 • Prior to this position, since 2016, served as Spirit’s Senior VP & Chief Commercial Officer • Previously held roles at several other airlines, including AirTran and US Airways • 29+ years of industry experience • Spirit’s Executive VP & Chief Operating Officer since December 2017 • Prior to this position, since 2013 , served as Spirit’s Senior VP and Chief Operating Officer • Prior experience at Frontier Airlines, Comair and Compass Airlines • 18+ years of industry experience • Spirit’s Executive VP & CFO since July 2024 • Prior to Spirit, worked as CEO and CFO of Xwing • Prior experience at Bombardier, International Lease Finance Corporation and ExpressJet Airlines • 31+ years of industry experience • Spirit’s CEO since January 2019 • Prior to this position, Ted served as Spirit’s President and, since 2012, as CFO • Prior experience at Pinnacle Airlines and Frontier Airlines • 21+ years of industry experience Supported by a highly experienced operational team 5 Situation Overview • Spirit Airlines, Inc. (“Spirit” or the “Company”) is the seventh largest carrier in the United States with a core customer base of domestic leisure and VFR (1) travelers and operations in the largest U.S. metro markets and several large U.S. and LATAM leisure markets • In 2023, Spirit generated $5.4 billion in Net Revenue and $316 million in Adj. EBITDAR (2) , with approximately 300,000 departures • In March 2023, the Department of Justice sued to block the Company’s proposed merger with JetBlue citing the potentially anticompetitive nature of the transaction. In January 2024, a federal court permanently enjoined the proposed merger. Spirit and JetBlue mutually agreed to terminate their merger agreement in March 2024. • Since mid - 2023, Spirit has spent significant time preparing its plan for a standalone business in the absence of a merger • In the post - pandemic period, and since the initial agreement of the JetBlue merger in July 2022, the U.S. airline industry has seen material change as a result of shifting customer demand and operating headwinds – The supply of low - fare offerings from non - ULCC carriers has materially increased alongside a shift in demand for more ‘premium leisure’ offerings – Business travel through 2023 had not fully returned to pre - COVID volumes increasing capacity for leisure travel – Inflationary headwinds have driven increases in unit costs for all airlines, disproportionately affecting margins for low - fare carriers – OEM production issues and equipment recalls (e.g., ongoing 737 MAX revisions and delivery deferrals, Pratt & Whitney powder metal defects, etc.) have introduced significant capacity constraints and downtime for U.S. carriers • In light of these market dynamics, Spirit has embarked upon a comprehensive strategic transformation to improve the Company’s financial profile and re - align its business model to adapt to the revised customer and competitive landscape, referred to herein as “ Project Bravo ” • Several key steps have already been taken or are being evaluated to bolster the Company’s liquidity as part of Project Bravo, with an estimated 2024 benefit of greater than $1 billion; key actions include: (i) January sale - leasebacks, (ii) JetBlue termination fee, (iii) reduced PDP commitments, (iv) agreement with Pratt & Whitney for GTF issues (v) direct lease and PDP transactions and (vi) continued evaluation of normal course asset financing Source: Company filings Notes: (1) Visiting friends and relatives; (2) Adj. EBITDAR is a non - GAAP measure 6 Introducing Project Bravo Spirit has embarked on a comprehensive turnaround initiative, which has the goal of re - aligning Spirit’s business model to evolved customer needs, while maintaining Spirit’s significant unit cost advantage Ensure sufficient capital is available to invest in Project Bravo Reallocation of working capital from growth to product/brand enhancements Liquidity Enhancements Maintain Industry Cost Advantage Realign labor force and infrastructure to match current level of capacity production Minimal impact to industry leading unit cost structure Gue st Experience Pivot network to support improved operational reliability and supply / demand balance in new “Focus” markets N e t w o r k Enhancements Evolve the legacy ULCC product to compete more broadly with OAs, enhancing each guest touchpoint to address changing consumer preferences Comm u n i c a t i o n Pl a n Revamp marketing efforts in light of transformation; improve public brand image to match operational reality and value proposition 7 • As of 6/30/2024, Spirit had ~$1.1 billion of liquidity, including cash and cash equivalents, short - term investments and availability under the Company’s $300 million revolving credit facility, and expects to end 2024 with ~$840 million liquidity (1) – In addition to the actions below, the Company generated $320 million of net liquidity in Q4’23 via sale - leaseback of 20 aircraft • 2024 liquidity initiatives achieved to date include: Sale - leaseback of 5 owned aircraft in January 2024, with net cash proceeds of $99 million Receipt of $69 million from the termination of the Merger Agreement with JetBlue 1 – 2 – N o te: (1) Pro forma for incremental financings expected before year - end 2024; (2) In addition, in 2025, the Company expects to receive ~$45M of from additional aircraft sales; (3) The Company’s forecast illustratively assumes that the revolver draw will be repaid in 2027; (4) Guidance as of November 14, 2024 3 – Reduced PDP commitments to Airbus enhancing 2024 liquidity by approximately $ 231 million through deferral of ‘25 - ‘26 deliveries, allowing for a reset of the fleet strategy in accordance with Project Bravo 4 – Finalized P&W agreement in March 2024 for GTF issues, with negotiated credits expected to range from $150 to $200 million in ’24 5 – Raised ~$192 million through direct lease and PDP transactions (2) • Other 2024 liquidity initiatives being evaluated include incremental proceeds estimated in excess of ~$250 million from asset financings in the normal course, including potential EETC refinancings and aircraft sales. (2) Additionally, the Company fully drew its revolver in Q4’24, resulting in a ~$300 million increase in cash (3) • Preliminary Q4 - 2024 Guidance (4) : – Company estimates Q4 - 24 capacity will decline ~20% year - over - year, mostly driven by network optimization initiatives, AOGs and fleet management initiatives – Q4 - 24 TRASM expected to increase ~12% year - over - year largely driven by above - noted capacity reduction and uplift from Bravo – Current Q4 - 24 operating revenue and adj. EBITDAR estimates of ~$1.2 billion and ~$60 million, respectively Enhanced Liquidity Position 8 Spirit Overview Industry Overview Project Bravo Appendi x 1 Executive Summary 2 3 4 Table of Contents 9 All Airbus Fleet (Among Youngest in Industry) Strong Operational Reliability Nationwide Network with Valuable Real Estate in High Volume Airports Flexibility to Mitigate Impacts of Industry Headwinds Among the Lowest Unit Costs in Industry Enhanced Liquidity Provides Buffer While Executing on Road to Profitability 1 2 Compelling Value Proposition for VFR and Leisure Customers 3 4 5 7 6 Key Credit Strengths 10 56.1B Available Seat Miles 7.8% Growth (YoY) • Seventh largest carrier in the United States, offering low fares to value - conscious customers • Broad, largely domestic network focused on point - to - point flying for cost efficiency and operational flexibility • Large domestic network; service to 24 of the top 25 U.S. metros and many large U.S. leisure markets • Leisure / VFR customer base All - Airbus Fleet is One of Youngest in Industry Company Overview 313 Markets Served by 83 Airports Across the U . S . , the Caribbean and Latin America ( 2 ) Nearly 800 Daily Flights (2) 201 A320 Family Aircraft (1) Spirit is a Leading, Low - Cost U.S. Airline $5.1B Revenue 7.1% Decrease YoY 7.23¢ Adj. CASMx Among Industry Leaders Key Strategic Priorities Pivot network to improve operational reliability and supply / demand balance Enhance guest touchpoints to address changing consumer preferences, negative image Repair balance sheet and find solution for near - dated maturities Revamp marketing efforts and value proposition in light of business transformation 5.6 Years Average Fleet Age (2) KEY LTM Q2 - 24 FINANCIAL STATS Operational Highlights N o te: (1) As of 6/30/2024; excludes A319ceo aircraft that will exit fleet by Spring 2025 (2) As of 3/31/2024; fleet age excludes A319ceos set to exit fleet 11 Everyday Low Fares Flights To and From Top Destinations and Major Airports Young Fleet with Stylish Interiors Excellent and Reliable Service Spirit’s Core Value Proposition: Spirit offers a compelling value proposition, combining strong reliability metrics with low fares and differentiated service levels across all markets served Focus on the VFR & Leisure Customer 12 Seat density Point - to - Point itineraries Very low overhead costs Operate uniform A320 family fleet Fly young, fuel efficient aircraft How Spirit Keeps Costs Down Aircraft utilization 13 Among the Lowest Costs in the Industry… • Although our unit costs have increased since 2019, we have maintained a relative advantage vs. competitors • Due to NEO engine availability issues, Spirit expects to have an average of about 23 NEO aircraft parked during 2024, resulting in significantly lower capacity, pressuring unit costs • Full year 2024 CASM ex - fuel is estimated to be up low - double digits (%) y/y on Bravo related initiatives; however, due to anticipated fuel efficiency gains, full year 2024 all - in CASM is expected to be up low single digits y/y 2023 SLA CASM Ex - Fuel Cents Higher than Spirit (1) Spirit expects fleet - related benefits and cost saving initiatives in 2024 will help mitigate cost pressures from lower - than - expected growth and inflationary pressures 6 . 9 7 . 1 7 . 7 9 . 6 11 .3 11 . 4 13 . 7 14 . 9 15 . 0 % of Employees with Amendable Labor Contracts in 2024 33% 80% N o t e: ( 1 ) Derived from company consolidated reports ; for all carriers excludes special items, third - party business expense if disclosed, and gains/losses on sale of aircraft . Seat weighted stage length calculated as ASMs / seats . S - L Adj . CASM ex - fuel formula = CASM ex - fuel multiplied by (airline seat weighted stage length/ 1000 )^ 0 . 5 . Seat weighted stage length is actual for Spirit and for all other carriers based on schedule data for the twelve months ending 12 / 31 / 23 . The Company believes this adjustment is helpful to investors as it normalizes for the different gauge of aircraft flown by each carrier and allows for enhanced comparability to other airlines . 14 Absolute Cost Advantage 7 . 7 0 Unit Cost Advantage (differential) vs. Legacy Average (2) Total Adj. CASM, (¢) Stage Length adjusted to 1,000 miles 8.81 6 . 7 3 Unit Cost Advantage (differential) vs. Industry Average (1) Total Adj. CASM, (¢) Stage Length adjusted to 1,000 miles 7.21 2019 2023 2019 2023 Spirit’s absolute unit cost advantage has proven resilient both pre - COVID and today N o te s : (1) Weighted Industry Average that includes AAL, ALGT, ALK, DAL, HA, JBLU, LUV, ULCC and HA; (2) Weighted Legacy Average that includes AAL, DAL and UAL 15 5 . 6 4.0 11 . 0 12 . 3 12 . 8 12 . 9 14 . 8 15 . 0 15 . 5 16 . 0 Current Fleet Summary – 201 Total Aircraft (1) Premier single - aisle jetliner with short - to - medium - haul capabilities Seating capacity: 182 Seating configuration: 176 Y / 8 BFS Average age: 9.5 years (2) Airbus A320ceo (64) Core aircraft in Spirit’s fleet with industry - leading fuel efficiency Seating capacity: 182 Seating configuration: 176 Y / 8 BFS Average age: 2.8 years (2) Airbus A320neo (91) Largest aircraft for high density routes Seating capacity: 228 Seating configuration: 220 Y / 8 BFS Average age: 7.2 years (2) Airbus A321ceo (30) Largest aircraft for high density routes Seating capacity: 235 Seating configuration: 227 Y / 8 BFS Average age: 0.5 years (2) Airbus A321neo (16) Among the Youngest Fleets in the U.S. (3) Young Uniform Fleet Drives Low Costs • Uniformity allows Spirit to interchange aircraft and flight crews based on route demand and capacity without incurring significant additional costs • Young uniform fleet of A320 family aircraft maximizes cost effective use of facilities while reducing maintenance costs • Higher fuel efficiency for young aircraft lowers operating costs, further enhanced by new A321neo aircraft deliveries in 2024 • Retiring remaining 9 A319 aircraft out of the fleet by 2025 (Average Fleet Age) Young Uniform Airbus Fleet N o te s : (1) As of 6/30/2024; Y = Standard seat; BFS = Big Front Seat; fleet summary excludes A319ceo aircraft that will exit fleet by Spring 2025; (2) Age as of 3/31/2024; (3) All carriers except Spirit based on public filings as of 12/31/2023; Spirit age shown as of 3/31/2024 excluding A319s set to exit the fleet (4) Forecast aircraft at end of period of 202 in 2024, 196 in 2025, 196 in 2026, 209 in 2027 and 208 in 2028; forecasted average AOGs of 20 in 2024, 41 in 2025, 43 in 2026, 32 in 2027 and 22 in 2028 16 87% Domestic Flights (1) (100% in the Americas) Network Built for VFR & Leisure • Focus on leisure / VFR demographic: – Leisure traffic to Florida and the Caribbean – VFR traffic from Florida to Latin America destinations – Significant growth in large leisure markets such as Las Vegas and Orlando • Serves 24 of the Top 25 U . S . metros, including all large U . S . leisure markets and 27 destinations in Latin America and the Caribbean • Ability to focus assets on profitable routes Network Overview Top 20 U.S. Departures Network Highlights 10 - 20 20 - 30 30 - 40 > 70 D e p a r t ures Per Day Las Vegas Los Angeles D a ll a s H o ust on Atlanta N ash vi ll e C h i c a g o C h a r l otte De t r o it O r l a n d o Ft. Lauderdale Miami New Orleans Tampa Ft. Myers B oston Ne wa r k LaGuardia Philadelphia B a l t i m o r e Note: (1) As of 3/31/2024 17 Spirit Overview Industry Overview Project Bravo Appendi x 1 Executive Summary 2 3 4 Table of Contents 18 A S Ms : $58 . 0 $53 . 7 $52 . 8 U.S. Airline Industry Overview Fiscal - Year 2023 Total Revenue | $ in Billions Today, the U.S. airline industry is comprised of nine providers segmented into three distinct operator categories based on fleet size, domestic and international coverage and pricing dynamics $26 . 1 $10 . 4 $9 . 6 $5 . 4 $3 . 6 $2 . 5 277.7B 291.3B 272.0B 68.5B 68.5B 170.3B Legacy Carriers Value Carriers Ultra Low - Cost Carriers 55 . 7 B 37 . 8 B 18 . 8 B Source: Company filings 19 Legacy Carrier Fare Offerings Historically, and prior to ULCC market entry, Legacy carriers offered passengers with two fare class options Economy and First Class / Business at a single price point 20 Bundle Offering 2 Bags 3 Seats 4 Flight Availability 1 Spirit’s Unbundled Economy Product • In 2007, Spirit was the first carrier to unbundle the economy product creating a new low base fare offering for price conscious customers with the optionality to purchase ancillary features (e.g., seat selection, on - board amenities, luggage, etc.) for an added fee • In response to market success of ultra low - cost carriers, the ULCC category continued to expand and take market share from Legacy and Value carriers 21 ULCC Product Drives Outsized Margins Adj. EBITDAR Margin 2012 – 2016 | Weighted Average Led by Spirit, the new ULCC offering proved highly successful , generating industry - leading margins with significant market share expansion through the mid - 2010s Ultra Low - Cost Carriers Value Carriers Legacy Carriers 32.4% 32.3% 34.2% 30.2% 22.2% 21.4% 19.5% 16.6% 17.4% (1) Source: Company filings Note: (1) Frontier Airlines transitioned to a ULCC carrier model in 2015 22 Market Response to ULCC Market Entry • In 2017, in response to financial pressure from ULCC’s, Legacy carriers revised their business model to bifurcate passenger o fferings into a wider range of fare classes, including an unbundled basic economy offering to match ULCCs • “Value” carriers began to offer a similar suite of unbundled fare classes to mirror larger carrier product offerings Legacy Carriers Value Carriers 23 Adj. EBITDAR Margin 2017 – 2019 | Weighted Average Non - ULCC’s disaggregation of product and class offering to competing directly with ULCCs on base fare began to erode Spirit’s comparative margin advantage Ultra Low - Cost Carriers Margin Advantage Shifts Legacy Carriers Value Carriers The introduction of ‘basic’ and ‘premium’ economy allowed OAs to regain market share from ULCCs with opportunity for up - sell not available under the ULCC model 2.2% 19.6 % (0.3)% 16.4% (2.9)% 16.5% (0.4)% 20.9% ( 12 . 5 ) % 21.7% (3.2)% 18.9% (6.9)% 25 . 4 % (2.3)% 30.2% ( 4 . 4 ) % 25.8% M a rg in increa se since 2012 - 2016 Margin decrease since 2012 - 2016 Source: Company filings 24 COVID Generates Lasting Customer Preference for Premium Leisure Products The COVID pandemic resulted in significant losses across the industry, which is still largely recovering today. Premium leisure demand soared which, in combination with unbundled fare competition, allowed Legacy and Value carriers to compete for an even greater portion of basic economy share “ …what we’ve seen, is the people who got used to it for purpose of travel and now leisure which has been the accelerating part coming out of COVID, they’re buying the premium products.” - Glen Hauenstein, Delta Airlines Dec. 23 “… and that is one of the reasons for the great execution in the quarter, is that we see corporate rebounds in, but we see the desire for premium products by leisure customers continue to be strong.” – Andrew Nocella, United Airlines 1Q24 “ …but we’ve continued to see strength in premium cabin style fares. Our total premium seats across the system are up about 5% year - over - year. Our total premium revenues were up about 15% year - over - year.” – Vasu Raja, American Airlines 2Q23 “ The pandemic clearly created a boom in premium leisure demand that we see today, and these passengers often purchase an upgraded experience. – Andrew Nocella, United Airlines 2Q23 25 Post - COVID Results Favor Legacy Carriers Adj. EBITDAR Margin 2022 – 2023 | Weighted Average Legacy Carriers Value Carriers Ultra Low - Cost Carriers 14 . 6 % 17 . 9 % Margin advantage has re - shifted to favor Legacy and Value carriers that enjoy optionality to attract price - conscious customers while responding to premium leisure demand From 2019 to 2023 a major shift in the domestic market occurred, with ULCC margin profile further contracting (3.0)% 14.4% (6.4)% 13.1% (3.0)% 13.6% ( 10 . 7 ) % 10.6% ( 24 . 5 ) % 7.8% ( 19 . 6 ) % ( 15 . 5 ) % 6.7% ( 18 . 8 ) % 13.6% ( 12 . 3 ) % Margin decrease since 2012 - 2016 Source: Company filings 26 Evolving Competitive Dynamic Post - COVID Competition Cost Demand • More low - fare inventory than ever, thanks to more deployment of Basic Economy product • Legacy carriers aspire to control the full strata of product and market segmentation – More basic economy inventory in the market and more effective merchandising and buy - up – More product options and stratified cabins to incentivize up - sell – Low barrier to entry on premium products and lower prices due to still - suppressed corporate demand – More accessible frequent flyer points / miles, and more points / miles being sold through banks / cobrand • Cost pressures impacting all airlines driven by inflationary backdrop – Crew and other wages – Fuel – Airport and third - party costs – Other manufacturing costs / delays (e.g., P&W and MAX) • Continued desire for premium leisure – Middle and upper - income leisure flyers are buying up – Helps legacy airlines backfill for business demand • Inflation negatively impacting the needs - based travel market – Discretionary spend being affected in lower - income segments 27 Spirit Overview Industry Overview Project Bravo Appendi x 1 Executive Summary 2 3 4 Table of Contents Project Bravo: Comprehensive Transformation Plan Business Transformation Pressures on the ULCC Model Spirit currently offers the equivalent to a Basic Economy ticket and competes primarily on price Lack of an offering to product - compete across a broader customer set (no real product enticement) Product Brand, product offerings, policies and purchasing process viewed negatively except for those who do not buy ancillaries and/or value the Big Front Seat Opportunity to improve brand / reputation insofar as perception is superior among Spirit fliers vs. non fliers Reputation damaged by past operational issues and high - friction business model Negative Se n t i ment Revenue optimization is elusive given inability to control mix of ancillary vs. fare paid by the passenger Challenge attracting new customers in mature markets ; value proposition in new markets is hampered by touchpoint friction Comm e r c i a l Model Price competition introduced by OAs with higher overall margins means that competitors can more easily enter our market and compete, with Premium Economy subsidizing low Basic Economy fares offered below variable cost This has undermined the ULCC model; few levers are left to reduce cost Cost The Project Bravo Plan x Network pivots to improve operational reliability and supply / demand balance in “Focus” markets x Introduction of premium leisure product x Significant product enhancements to build customer loyalty (e.g., potential Wi - Fi or F&B offering) x Improving Guest Experience to drive greater value and brand perception while maintaining low costs x Reimagined Spirit brand with sufficient marketing to drive Guest engagement x Maintain cost advantage Become the #1 Value Airline in America 29 30 Project Bravo Execution Enhance each guest touchpoint to address changing consumer preferences and brand image Revamp value proposition in light of business transformation Guest Experien ce Comm u n ica t ion Plan Maintain Industry Cost Advantage Realign labor force and infrastructure to match current level of capacity production Minimal impact to industry leading unit cost structure Pivot network to improve operational reliability and supply / demand balance in “Focus” markets Network E n han cements 31 Enhancing the Guest Experience The Target Guest Experience will be Elevated for All , and There Will be a Differentiated Premium Experience to Address Market Need Differentiate Premium & Elite Elevate the Experience • Four fare products (Basic, Standard, Premium Economy, BFS) • Co - brand access for upgrades • Free changes across fares (fare difference), voucher credit • Reduce / eliminate friction - generating fees Buying E x per i ence • Premium check - in: Business cabin and FS Gold members have dedicated lines in key airports • Priority boarding: Business and FS Gold first; Premium Economy / Silver / Co - brand board ahead of Standard • New boarding zones simplify process and reduce congestion • Improve digital check in process Airport Experience • New Premium Economy cabin (blocked middle seat) • Premium F&B: Alcoholic drink and unlimited snacks (BFS); non - alcoholic drink and a snack (Premium Economy) • Premium cabins include free streaming Wi - Fi ; Standard Economy gets browsing • Free Wi - fi access for loyalty sign up • All passengers will be served water and a small snack; other products for sale Flying E x per i ence • Improved Premium proposition (higher accruals; improved benefits) • Redeem points for ancillaries (increased flexibility and value, allowing “micro” redemptions) Loyalty P r ogr a m • Concierge contact channels for Elite and Co - Brand • Improved contact center service ; reduced wait times • Customer - friendly IROP handling: Improved re - accommodation, vouchers and refund policies and practices Guest Care Brand Re - position to value Network Adjust to serve core customers Team Members / Culture Match service standards and brand Ops / Reliability Match target customers’ expectation 32 Basic Standard Premium Big Front Seat For purchase Standard selection Stretch seating BFS selection Seat Regular Regular Regular Priority Check - In Final Standard 2 nd Priority 1 st Priority Boarding Not allowed Included Included Included Carry - On For purchase For purchase Included Included Checked Bag Water & small snack Water & small snack Non - alc. drink, sm. snack service Included (any bev / snack) F&B For purchase or loyalty sign up Included (Brow s i ng) Included (S t ream i ng) Included (S t ream i ng) Wi - Fi Available Seat Power Fare difference only Change Refund to 12 - month credit shell Refundability Basic earning & SQPs Standard earning & SQPs Better earning & SQPs Highest earning & SQPs Loyalty Target Expanded Guest Experience 33 9 . 6 ¢ 10 . 9 ¢ (2.8¢ ) 3.0¢ 0.3¢ 0.6¢ 0.1¢ 2023 TRASM Ancillaries Value Carrier / Fare Uplift Network & Pricing C o - B r a n d & Loyalty Other (e.g., P a r t n e r s h i p s ) Pro Forma Run - Rate TRASM The Journey to Becoming the #1 Value Carrier Requires Execution across Pricing, Network, and Marketing Initiatives 1 2 3 4 5 Includes base fare increase and bundling (legacy ancillary) of new product classes Shift away from ancillary fees to fare Bravo Adjusted 2023 TRASM (1) N o te: (1) Assumes full run - rate Bravo revenue impact on 2023 TRASM 34 Summary of TRASM Assumptions TRASM Assumptions Commercial Levers (2.8¢) • Bravo achieves a fare premium of 55% as markets are moderately receptive to the new product (willing to pay more than today, but less than full fare shift potential) • Spirit aligns with the benchmark for value carrier ancillaries (~10% of pax revenues) • PUFs continue to be charged as part of base fare 1 Ancillaries 3.0¢ 2 Fare Uplift 0.3¢ • Spirit redeploys ~25 aircraft to value seeker markets, achieving relevance and pricing premium • Estimated based on increasing share by ~12.5pp in value seeker markets 3 Network & Pricing 0.6¢ • Spirit more - than - doubles its co - brand and loyalty revenues compared to today but remains below value carrier benchmarks (~6% vs. ~2% today. vs. 9%+ for value carrier of similar scale) 4 Co - Brand & Loyalty 0.1¢ • Initiates codeshare agreement with moderately strong partner , resulting in 0.9% of revenue uplift (aligned with median benchmarks) 5 Other (e.g., Partnerships) +1.3¢ Total Unit Revenue Uplift (1) ~$700M Implied Revenue Impact Based on 2023 ASMs N o te: (1) Additive to FY23 fare revenues only (ancillary uplift is not additive to FY23 ancillaries) Commentary • Transforming guest experience may result in a ~3.8% increase in CASMx – Key incremental expenses to include marketing campaign, Wi - Fi, catering, ground handling, and other product enhancement related charges • Irrespective of Bravo, unit costs expected to increase due to heightened labor expense, among other factors • Pro forma for Bravo, CASM and CASMx to still reside well - below Legacy carriers and LCCs, maintaining Spirit’s cost advantaged status 35 2023 Actual vs. 2025 Target ( Excl. Bravo ) vs. 2025 Target ( Incl. Bravo ) Adj. CASM ex - fuel, (¢); Stage Length adjusted to 1,000 miles 15.0¢ 14.9¢ 13.7¢ 11.4¢ 11.3¢ 9.6¢ ( 1 ) 8.3¢ 8.5¢ Bravo (2025 Target) 7.7¢ 7.1¢ (2023A) 6.9¢ Bravo Modestly Increases CASMx but Maintains Company Advantage N o te: (1) 2025 Target (Excl. Bravo) and 2025 Target (Incl. Bravo) illustratively shown based on same ASMs) 36 Implementation Timeline • Waived change and cancel fees • Standard checked bag weight increase to 50 lbs. • Credit shell extension to 12 mo. • Voucher extension to 12mo., applied to full fare • Reduced / simplified fees • New fare family offering and supporting changes: – Premium "blocked middle seat" – Premium check - in lane (5 stations) – New F&B offerings – Wi - Fi, bags including with some fares – Revised boarding process to recognize premium / loyalty – Loyalty program changes • Launch Bravo brand with campaign • Improved Guest Care support • Revised digital flow across booking / Guest experience • Loyalty / co - brand program updates • Expanded premium check - in experience (top 20 + stations) • Upgraded kiosk / bag drop functionality • Future Saver $ Club strategy • Revised Premium Y cabin (pitch vs . blocked middle) based on cost / demand • In - seat power • Interior changes (bins, lighting) • Network / partner code - share changes 2025 Onward Phase 3 & Beyond Rest of 2024 Phase 2 August 2024 Phase 1 June 2024 Phase 0: Accelerated Launch Marketing Blitz Ongoing efforts to improve operations reliability metrics, the overall guest experience, and value in the loyalty program 37 The New Spirit Model Market Share Our Revised Offering will Move from Price - Conscious Guests to Upmarket Segments with Higher Engagement & Willingness to Pay Value Seekers Market Size Spirit Target Market Share Spirit Current Market Share Spirit Average QSI 14 . 0 % 0.57 0.45 0.35 550 600 650 $ in billions, network - wide as of 4Q 2022 – 3Q 2023 Strategic shift away from low - Enhanced offering targets meaningful expansion into margin fare groups 4.94 higher - dollar fare groups (less than $200) 4.67 3.65 3.82 2.63 2.02 1.99 0.48 50 100 150 200 250 300 350 400 Fare Group ($) 60 . 0% 5 0 . 0% 4 0 . 0% 30 . 0% 20 . 0% 1.21 0 . 84 10 . 0% - % 500 450 38 The New Spirit Model (Cont’d) Spirit estimates it could earn ~13% more revenue per passenger if it is able to successfully rebrand as a higher value carrier in its current markets Revenue per Passenger | 2023 USD, Domestic Segments, Length - of - Haul Neutral $219 $221 $200 $186 $171 $162 $145 $138 $121 $122 Bravo 9.5¢ 9.6¢ 10.9¢ 13.8¢ 15.3¢ 14.0¢ 15.2¢ 18.4¢ 19.0¢ 21.3¢ T R AS M Source: PlaneStats/Form 41, distance - adjusted to 1,000 miles; includes ‘excess bag’, ‘res cxl fees’, and ‘misc rev’ categories 39 Eliminate Unproductive Markets 1 – Nine cities exited or suspended since September 2023 – Carry out strategic retreat from network cities where capacity has outpaced demand Increased “Less than Daily” Flying 3 – Number of “less than daily” routes has increased nearly 70% since April 2023; allows for route expansion at a lower - risk Maximize “Out and Back” Flying 4 – Maintained 70%+ out and back since implementation in April 2022 – Allows for enhanced recovery opportunities with neither aircraft nor crew being “trapped” out of position following disruption Network Enhancements Seasonalized Day / Week Flying 5 – Operate routes during peak seasons when profitability is substantial while limiting or fully removing capacity in off - peak / shoulder periods Drive Higher TRASM through Partnerships 6 – Code - Sharing: sell unique O&Ds using Spirit code but operated by both Spirit and partner airlines – Explore joint ventures and alliances Shift Capacity to Align w/ Current Market Dynamics 2 – Capacity shifted towards more attractive demand / pricing cities – 60+ new routes added while 40 routes exited vs April 2023 Aligning the network to better match the changed market dynamics presents opportunity for significant expansion in Spirit’s existing Loyalty offering to a new customer base Comprehensive Network Realignment Overview • Redeploy 20 - 30 aircraft (~ 10 - 15 % of fleet) from cities with lowest revenue performance • Relocate aircraft to top value seeker cities in different regions to gain relevance (targeting 50% seat share) – Start with FLL given consistent, high demand during the winter season (i.e., ~4 months from day 1) and highest existing relevance level – Further deployment to additional focus cities in different regions once fleet capacity rebounds (post Q1 ’26) • Achieve stronger pricing power (generally 5 - 10%) in these new cities with market relevance Spirit’s top 5 cities by seats flown in ’23 6 0 % 4 0 % 2 0 % 0% F LL MCO D F W LAS LAX Illustrative revenue run rate timeline % of revenue potential achieved from routes 100% 80% Assume new FLL routes start 4 - 6 months post announcement 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Months from “Day 1” 40 F LL Add’l waves of redeployment will be paced by fleet growth post Q1‘26 Current Network Network Realignment Maximize value and minimize risk by realigning the fleet for growth in new focus cities • Redeployment of aircraft, with focus on mid - size value - seeking cities • Identification of target markets is in process • Launch in new markets will be phased in and re - evaluated throughout lifecycle to adjust strategies 41 Loyalty Could Drive ~4 - 9% Revenue Uplift (1) • Loyalty programs contribute 10% to 23% of revenue for other airlines • JetBlue earned 8.6% in total revenues from its Co - Brand and Loyalty programs in 2012, when it was a similar size to Spirit today • Today, Loyalty contributes significantly less to Spirit’s top line (~2%) , though potential exists to achieve up to 9% uplift with a targeted redesign • Free Spirit has features that are competitive with other programs in some aspects , but has been disadvantaged both by Spirit’s product, network, limited partnerships (air and non - air) and co - brand offering Commentary Recognized Loyalty Revenue as a % of Revenue % of Reported Total Revenues excl. C argo, all FY’23 except J etBlue “2012” Loyalty passenger revenue Other loyalty revenue (2) 8.6% 2.0% (2012) 22 . 1 % 16 . 5 % 8 . 1% 10.7% 12.2% 12.6% 6 . 4% 4.4% 5.7% 5.6% 14 . 0% 10 . 2% 6.3% 6.5% 6.9% Source: Company press releases, SEC fillings, Oliver Wyman analysis Notes: (1) Assumes other Bravo infrastructure (e.g., network, guest experience) in - place; (2) Other loyalty revenue includes credit card renumeration, marketing, advertising, and co - brand 42 Redesign of Spirit's Loyalty Program (1) Loyalty integrated in Spirit’s strategy Strong loyalty proposition Winning co - brand strategy Expanded & strengthened Free Spirit ecosystem Drive acquisition and spend to accelerate program billings – Product offering and benefits designed to enhance the value proposition of co - brand partnerships – Enhanced co - brand proposition resulting from successful negotiation with BofA and MC Enable Loyalty value creation by serving potential members – Product decisions that reinforce the value of Loyalty and of co - brand partnerships – Network that serves potential high - value guests and cardholders Incentivize sign - ups and engagement with Free Spirit – Accrual value and multipliers – Redemption value proposition and mechanisms – Benefits and status qualification – Other rewards and features (e.g., milestones) – UX (e.g., personalize, gamify) – Identity, brand, alignment, etc. Normalize engagement and create stickiness – Partnerships with airlines and other partners – Potential to franchise Free Spirit currency – Spirit’s Saver$ club integrated with Loyalty N o te: (1) In April 2024, a third - party appraisal estimated the combined value of the core assets of the Company’s Free Spirit loyalty program and its Spirit Saver$ club to be approximately $2.8B and the value of the Company’s brand intellectual property to be approximately ~$1.6B 43 Benefits of Partnership …leading to a potential uplift of ~$120M Estimated revenue uplift for codeshare, Bn USD …while codeshares are 80% as effective… Efficiency level of airline partnership models Alliances generate revenue uplift of ~1 - 3% Percent of total revenue from global alliances Potential codeshare with the right air partner could result in up to a 2.4% uplift in revenue 2 . 5 % 1 . 7 % 1 . 6 % 1 . 1 % 0 . 9 % 0 . 8 % 0 . 7 % Effectiveness (indexed to online) P art n ership Model 100% Online 55 - 65% Joint Venture ~35% Global Alliance ~28% Basic Codeshare 5 - 10% Interline 0% Spirit Target No Cooperation Source: Company press releases, SEC fillings, Oliver Wyman NetPlan network forecast model, Oliver Wyman analysis 44 Business Outlook Preliminary Financial Overview Liquidity Operations Highlights • As a result of Bravo and expected changes to the underlying base rate, we expect that TRASM will: – Decrease ~(0.35) - (0.31)¢ in 2024 – Increase ~1.41 - 1.45¢ in 2025, ~0.53 - 0.57¢ in 2026, ~0.20 - 0.24¢ in 2027 and ~0.17 - 0.21¢ in 2028 • Additionally, CASMx is expected to: – Increase ~1.14 - 1.10¢ in 2024 and ~0.46 - 0.42¢ in 2025 – Decrease ~(0.08) - (0.12)¢ in 2026, ~(0.10) - (0.14)¢ in 2027 and ~(0.11) - (0.15)¢ in 2028 • Project Bravo Capex impact of: – $12.0M - $8.0M in 2025, $13.5M - $9.5M in 2026, $37.0M - $33.0M in 2027 and none in 2028 (1) Cost Savings • 2024 year - end liquidity pro forma for currently contemplated aircraft related asset financings is targeted to be roughly ~$840 million (2) • Liquidity Covenants – Spirit is party to various agreements requiring it to maintain an agreed upon level of unrestricted cash or available liquidity – Based on these requirements, the Company is seeking at least an incremental $300M investment to maintain adequate cushion above these levels through the forecast period (3) • Total annualized cost savings of greater than ~$100M realized in 2024 - 2025, including: – Cost avoidance related to recruiting and training of crew in 2024 reflecting reduced fleet availability – Plan to furlough ~ 240 first officers and downgrading ~ 100 captains, effective September 2024 – 1 - to - 12 - month unpaid voluntary lines offered to flight attendants – Elimination of up to ~130 G&A positions, inclusive of fringe benefits – Reduction in discretionary capital spend as part of the 2024 Budget N o te s : (1) Project Bravo Capex expected to be ~32.0% - 36.0% of total capex in 2025, ~11.0% - 15.0% of total capex in 2026, ~10.0% - 14.0% of total capex in 2027 and 0% of capex in 2028 (approx. $384M of non - bravo capex in 2028) including PDPs; (2) pro forma for incremental financings expected before year - end 2024; (3) The Company is targeting maintaining a liquidity level above $700M - $900M through the forecast period Appendix: Other Company Information 46 11 . 1 11 . 5 11 . 3 10 . 8 10 . 0 10 . 0 9 . 9 Utilization and Seat Density Benchmarking 3 .3 2 .5 FY2023 Aircraft Block Hours Per Day (1) Avg. Rev. Departures / Day 4.1 3.3 4.1 3.4 5.0 3.4 2.7 A319 A320 A321/neo 0 NA NA 30 30 30 30 28 30 31 30 32 28 30 28 NA 31 31 30 32 28 28 Leading Asset Utilization Among U.S. Airline Peers… …With High Seat Density Supported by Single Economy Class Number of Seats by Aircraft Type 132 128 186 162 157 200 200 194 Economy Pitch Number of Seats 156 145 150 150 186 182 190 240 235 NA Source: Publicly available information, U.S. DoT Form 41 data Note: (1) Reflects ramp - to - ramp aircraft block hours for all system flying; Excludes regional carrier flying for Delta, American, United and Alaska 47 Historical P&L | 2019 - 2023 N o t e s : (1) Fuel cost per ASM is estimated to be 2.79¢ in 2024, 2.47¢ in 2025, 2.44¢ in 2026, 2.36¢ in 2027 and 2.30¢ in 2028. Such estimates are based on current expected fuel costs, which may fluctuate or be materially different over time; (2) Based on current fleet composition and order book as of Q2 2024, annual P&L aircraft rent (incl. supplemental rent) is estimated to grow 41.2% in 2024, 11.3% in 2025, 3.9% in 2026, 9.7% in 2027, 4.2% in 2028; (3) Due to impact of AOGs from P&W settlement and increased ground time to account for higher check bag volumes, ASMs are estimated to: decrease 5.7% to 3.7% in 2024 and 14.4% to 12.4% in 2025 before increasing 3.5% to 5.5% in 2026, 9.4% to 11.4% in 2027 and 9.1% to 11.1% in 2028 201 9 202 0 202 1 202 2 202 3 Summary of Historical Financial Performance 2023 2022 2021 2020 2019 $5 , 36 3 $5 , 06 8 $3 , 23 1 $1 , 81 0 $3 , 83 1 Operating Revenue ( 1,821) ( 1,930) ( 914) ( 431) ( 993) ( - ) Aircraft Fuel (1) ( 1,617) ( 1,251) ( 1,065) ( 910) ( 865) ( - ) Salaries, Wages & Benefits ( 381) ( 282) ( 247) ( 196) ( 183) ( - ) Aircraft Rent (2) ( 2,039) ( 2,204) ( 1,062) ( 781) ( 1,288) ( - ) Other Operating Expenses ( $496 ) ( $599 ) ( $57 ) ( $508 ) $501 EBIT 430 780 ( 79) ( 25) 243 (+) D&A & Other Adjustments ( $65 ) $181 ( $136 ) ( $533 ) $744 Adj. EBITDA 381 282 247 196 183 (+) Rent Expense $316 $463 $110 ( $336 ) $927 Adj. EBITDAR 5 . 9 % 9 . 1 % 3 . 4 % ( 18 . 6 %) 24 . 2 % % Margin 55 , 665 , 56 1 48 , 567 , 97 8 40 , 749 , 33 4 27 , 718 , 38 7 41 , 783 , 00 1 ASMs (000s) (3) 81 . 3 % 81 . 9 % 78 . 8 % 69 . 7 % 84 . 4 % Load Factor 9 . 6 ¢ 10 . 4 ¢ 7 . 9 ¢ 6 . 5 ¢ 9 . 2 ¢ TRASM (cents) 10 . 3 ¢ 10 . 7 ¢ 9 . 0 ¢ 9 . 5 ¢ 7 . 9 ¢ Adj. CASM 7 . 1 ¢ 6 . 7 ¢ 6 . 7 ¢ 7 . 9 ¢ 5 . 6 ¢ Adj. CASM (ex. Fuel) 48 2023 - 2023 - 2023 - 2023 - CAPITAL STRUCTURE (as of Q2 2024) (1) Maturity Rate Amount Tranche Se p - 26 S + 2.000% $ - RCF (Capacity: $300M) Se p - 25 8.000% 1,110 8.000% Senior Secured Notes due 2025 NA NA 1,034 Fixed - Rate Term Loans due through 2039 2026 3.800% 46 2017 - 1 EETC Class B 2028 4.100% 246 2015 - 1 EETC Class A 2030 3.650% 55 2017 - 1 EETC Class A 2030 3.375% 166 2017 - 1 EETC Class AA $2 , 65 8 Total Secured Debt M ay - 25 4.750% 25 4.750% Convertible Notes due 2025 M ay - 26 1.000% 500 1.000% Convertible Notes due 2026 2031 NA 136 Unsecured Term Loans due 2031 $3 , 31 9 Total Debt NA NA 4,139 (+) Operating Leases (2) $7 , 45 8 Total Debt & Operating Leases ( 840) ( - ) Cash & Equivalents (3,4) $6 , 61 8 Adj. Net Debt Capital Structure Overview N o t e: (1) Based on estimated liabilities as of Q2 2024, expected total debt service (including the impact of recent liquidity initiatives and PDPs) is expected to be $241M in 2025, $212M in 2026, $198M in 2027 and $341M in 2028; (2) Cash aircraft rent is expected to be $581M in 2025, $580M in 2026, $620M in 2027 and $659M in 2028; (3) Impact of working capital is expected to result in cash outflows of ~$251M in 2025, ~$262M in 2026, ~$263M in 2027 and ~$312M in 2028; other timing / operating items are expected to result in a cash inflows of ~$188M in 2025, ~$224M in 2026, ~$129M in 2027 and ~$78M in 2028; (4) Restricted cash is expected to approximate $209M at year end 2024, $242M in 2025, and $248M thereafter 49 Unencumbered Assets (1) ($ in millions) As of 7/30/2024 Appraised Value Asset $288 Dania Pointe HQ (2) 123 (+) Spare Engines (not in RCF) (3) 27 (+) Hangar (3) 26 (+) Simulators (3) 12 (+) Ground Service Equipment (3) $476 Total (4,5) Dania Pointe HQ (2) Spare Engines N o te s : (1) Subject to change based on RCF collateral requirements; (2) Book value as of July 2024; includes Land value and ~$12.5M of capitalized interest (non - cash); (3) Based on latest appraised values as of 7/31/2024; (4) Total D&A as a % of Operating Revenue is expected to be 7.7% - 5.7% in 2024, 6.9% - 4.9% in 2025, 5.9% - 3.9% in 2026, 5.5% - 3.5% in 2027 and 5.2% - 3.2% in 2028; loss / gain on disposal of assets and special charges of ~$85M and ~($14M) expected in 2024 and 2025, respectively; (5) Management forecast assumes PDP financings in 2027 and 2028 with proceeds of ~$138M and ~$241M, respectively 50 Organizational Structure Spirit Airlines, Inc. Spirit IP Cayman Ltd. Spirit Loyalty Cayman Ltd. Brand IP Assets C o l le c t i on Account R e ser ve Account Loyalty IP Assets C o l le c t i on Account Senior Secured Notes Security Interest C o - Is suers G u ar an t or Spirit Finance Cayman 1 Ltd. Spirit Finance Cayman 2 Ltd. Transfer of certain of Spirit's Brand Intellectual Property via Contribution Agreements N o n - L o yal t y N o n - L o yal t y IP License IP Royalties Co - Branded Credit Card Agreement Spirit Saver$ Club Agreements Co - Brand Credit Card Revenues Loyalty IP License Transfer of Loyalty IP via C o n t r i but i on Agreements Saver$ Fare Club Revenues (Deposited by Spirit) 100% 100% 100% Interest and Principal Interest and Principal 100% Co - Branded Credit Card Contract Spirt Saver$ Club Membership Convertible Notes Appendix: DS Projections 52 Income Statement DRAFT - SUBJECT TO REVISION Income Statement ($ in Millions) $6 , 81 8 $6 , 09 0 $5,411 $4 , 89 1 $4 , 91 3 Total Revenue $1 , 34 3 $1 , 24 9 $1,169 $1 , 13 7 $1 , 49 2 Operating Expenses Aircraft Fuel 1 , 80 0 1 , 64 1 1,519 1 , 50 2 1 , 68 6 Salaries, Wages & Benefits 712 683 623 599 538 Aircraft Rent 511 471 435 420 457 Landing Fees and Other Rents 260 234 210 195 204 Distribution 246 223 201 192 223 Maintenance, Materials & Repairs 286 274 265 289 330 Depreciation & Amortization 1 , 00 7 922 835 779 816 Other Operating Expenses $6 , 16 6 $5 , 69 7 $5,257 $5 , 11 3 $5 , 74 6 Total Operating Expenses $651 $393 $154 ( $222 ) ( $833 ) Consolidated Operating Income / (Loss) ( $55 ) ( $50 ) ( $47 ) ( $44 ) ( $47 ) Non - Operating (Income) / Expense Interest Income 221 218 215 205 213 Interest Expense 2 1 1 ( 780 ) 136 Other (1) $168 $170 $169 ( $620 ) $302 Total Non - Operating (Income) / Expense $484 $223 ( $15 ) $397 ( $1 , 136 ) Consolidated Pre - Tax Income / (Loss) 116 56 ( 5 ) 81 ( 220 ) Consolidated Income Tax Expense / (Benefit) $367 $167 ( $10 ) $316 ( $915 ) Consolidated Net Income / (Loss) Memo Fiscal Year Ending December 31 2024F 2025F 2026F 2027F 2028F EBITDAR ( 2) $35 $666 $1 , 04 1 $1 , 35 0 $1 , 65 0 Footnotes: ( 1) Includes (i) (gain) / loss from asset sales and cancellation of indebtedness; and (ii) special charges ( 2) Operating Income / (Loss) plus aircraft rent and depreciation & amortization. Forecast incorporates TRASM and fuel cost sensitivity through the pendency of the chapter 11 case. 2028F 2027F 2026F 2025F 2024F Balance Sheet ($ in Millions) $1 , 32 5 $1,040 $777 $640 $935 Current Assets Cash & Short - Term Investments 248 248 248 222 197 Restricted Cash 232 226 213 205 200 Accounts Receivable 406 376 335 311 319 Other Current Assets $2 , 21 2 $1,890 $1 , 57 3 $1,379 $1 , 65 1 Total Current Assets $2 , 58 1 $2,611 $2 , 64 6 $2,735 $2 , 99 1 Non - Current Assets Property, Plant & Equipment, net 6 , 35 2 5,401 4 , 60 9 4,859 5 , 00 7 Other Assets $11 , 14 6 $9,901 $8 , 82 8 $8,973 $9 , 64 8 Total Assets $52 $48 $38 $36 $37 Current Liabilities Accounts Payable 578 550 533 509 494 Air Traffic Liability 593 589 496 469 494 Other Current Liabilities $1 , 22 3 $1,187 $1 , 06 6 $1,014 $1 , 02 5 Total Current Liabilities $982 $944 $907 $871 -- Non - Current Liabilities Exit Financing 1 , 45 9 1,401 1 , 30 9 1,348 3 , 62 1 Funded Debt and Finance Leases 6 , 09 2 5,358 4 , 71 1 4,905 4 , 84 2 Other Liabilities $9 , 75 7 $8,890 $7 , 99 4 $8,138 $9 , 48 8 Total Liabilities ( $92 ) ( $459 ) ( $626 ) ( $616 ) ( $932 ) Stockholders' Equity Accumulated Earnings / (Deficit) 1 , 56 2 1,552 1 , 54 2 1,533 1 , 17 4 APIC / New Equity ( 81 ) ( 81 ) ( 81 ) ( 81 ) ( 81 ) Other $1 , 38 9 $1,011 $834 $835 $161 Total Stockholders' Equity $11 , 14 6 $9,901 $8 , 82 8 $8,973 $9 , 64 8 Total Liabilities & Stockholders' Equity 53 Balance Sheet DRAFT - SUBJECT TO REVISION Fiscal Year Ending December 31 54 Cash Flow Statement DRAFT - SUBJECT TO REVISION Fiscal Year Ending December 31 2028F 2027F 2026F 2025F 2024F Cash Flow Statement ($ in Millions) $367 $167 ( $10 ) $316 ($915) Net Income 286 274 265 289 330 Depreciation & Amortization ( 219 ) ( 126 ) ( 45 ) ( 69 ) 204 Changes in Other Working Capital -- -- -- ( 14 ) 50 Gain / (Loss) on Disposal of Assets 179 147 84 ( 654 ) ( 157 ) Other $613 $462 $293 ( $132 ) ($489) Operating Cash Flows ( $146 ) ( $139 ) ( $84 ) ( $69 ) ($167) Capital Expenditures ( 237 ) ( 149 ) ( 4 ) 40 12 PDP (Payments) / Refunds, Net -- -- -- 183 327 Proceeds from Sale of Assets -- -- -- -- -- Other ($384) ( $288 ) ( $88 ) $153 $172 Investing Cash Flows $241 $138 -- $1 , 03 3 $600 Debt Issuance ( 185 ) ( 49 ) ( 42 ) ( 1 , 673 ) ( 253 ) Debt (Payment) -- -- -- 350 -- Proceeds from Equity Raise ( 1 ) ( 1 ) ( 1 ) ( 0 ) ( 0 ) Other $56 $89 ( $42 ) ( $291 ) $346 Financing Cash Flow $285 $263 $163 ( $270 ) $30 Increase / (Decrease) in Cash $1,171 $908 $745 $1 , 01 4 $985 Beginning Cash (Restricted and Unrestricted) 1,456 1 , 17 1 908 745 1,014 Ending Cash (Restricted and Unrestricted) ( 248 ) ( 248 ) ( 248 ) ( 222 ) ( 197 ) Less: Restricted Cash 117 117 117 117 117 Plus: Short - Term Investments $1,325 $1,040 $777 $640 $935 Ending Cash (Unrestricted Cash and ST Investments) 55 Emergence Balance Sheet DRAFT - SUBJECT TO REVISION Pro Forma Balance Sheet ($ in Millions) Pro Forma Balance Sheet at Emergence January 2025 Estimated Adjustments Pro Forma Current Assets $596 ( $280 ) $876 Cash & Short - Term Investments (1) 191 -- 191 Restricted Cash 185 -- 185 Accounts Receivable 286 -- 286 Other Current Assets $1 , 25 8 ( $280 ) $1 , 53 8 Total Current Assets $2 , 83 6 -- $2 , 83 6 Non - Current Assets Property, Plant & Equipment, net 4 , 98 1 -- 4 , 98 1 Other Assets $9 , 07 5 ( $280 ) $9 , 35 5 Total Assets $37 -- $37 Current Liabilities Accounts Payable 476 -- 476 Air Traffic Liability 489 -- 489 Other Current Liabilities $1 , 00 2 -- $1 , 00 2 Total Current Liabilities $840 $840 -- Non - Current Liabilities Exit Financing $1 , 24 4 ( $2 , 244 ) $3 , 48 8 Funded Debt and Finance Leases (2) 4 , 98 6 -- 4 , 98 6 Other Liabilities $8 , 07 3 ( $1 , 404 ) $9 , 47 7 Total Liabilities Stockholders' Equity ( $442 ) $774 ( $1 , 215 ) Accumulated Earnings / (Deficit) (3) 1 , 52 5 350 1 , 17 5 APIC / New Equity (4) ( 81 ) -- ( 81 ) Other $1 , 00 2 $1 , 12 4 Total Stockholders' Equity ($121) $9 , 07 5 ( $280 ) Total Liabilities & Stockholders' Equity $9,355 Footnotes: ( 1) Proceeds from the equity rights offering, repayment of DIP financing and RCF, and transaction fees ( 2) Repayment of the Loyalty Notes, Convertible Bonds, RCF, and DIP financing ( 3) Gain resulting from the cancellation of indebtedness (Loyalty Notes and Convertible Bonds) and loss from transaction fees ( 4) Equity rights offering sp ir i t ®
Section 5.
Commitments of the Consenting Stakeholders.
Spirit Airlines, Inc.
2800 Executive Way
Miramar, FL 33025
Attn:
Thomas Canfield
Email:
thomas.canfield@Spirit.com
with a copy to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attn:
Marshall Huebner
Darren Klein
Christopher Robertson
Email:
marshall.huebner@davispolk.com
darren.klein@davispolk.com
christopher.robertson@davispolk.com
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
Attn:
Michael Stamer
Jason P. Rubin
Stephen B. Kuhn
Email:
mstamer@akingump.com
jrubin@akingump.com
skuhn@akingump.com
Paul Hastings LLP
71 S. Wacker Drive
Chicago, IL 60606
Attn:
Matthew L. Warren
Geoffrey M. King
Email:
mattwarren@paulhastings.com
geoffking@paulhastings.com
and
Paul Hastings LLP
1170 Peachtree Street N.E.
Suite 100
Atlanta, GA 30309
Attn:
Zach Cochran
Email:
zachcochran@paulhastings.com
Plan
UNITED
STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
SPIRIT AIRLINES, INC. AND ITS DEBTOR AFFILIATES
Proposed
Counsel to the Debtors and Debtors in Possession
THIS CHAPTER
11 PLAN IS BEING SOLICITED FOR VOTES OF ACCEPTANCE OR REJECTION IN ACCORDANCE WITH SECTION 1125 OF THE BANKRUPTCY CODE AND WITHIN
THE MEANING OF SECTION 1126 OF THE BANKRUPTCY CODE. THIS CHAPTER 11 PLAN WILL BE SUBMITTED TO THE BANKRUPTCY COURT FOR
APPROVAL FOLLOWING SOLICITATION IN THE CHAPTER 11 CASES.
ARTICLE
I. DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, GOVERNING LAW, AND OTHER REFERENCES
1
A. Defined
Terms
1
B. Rules
of Interpretation
22
C. Computation
of Time
23
D. Governing
Law
23
E. Reference
to Monetary Figures
23
F. Nonconsolidated
Plan
23
G. Consent
Rights
24
ARTICLE
II. DIP SUPERPRIORITY CLAIMS; ADMINISTRATIVE CLAIMS; PRIORITY CLAIMS; AND U.S. Trustee FEES
24
A. DIP
Superpriority Claims
24
B. Administrative
Claims
24
1. General
Administrative Claims
24
2. Professional
Fee Claims
25
3. Treatment
of Priority Tax Claims
27
C. U.S.
Trustee Fees
27
ARTICLE
III. CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS
27
A. Classification
and Treatment of Claims and Interests
28
1. Class
1 — Other Secured Claims
29
2. Class
2 — Other Priority Claims
29
3. Class
3 — Prepetition RCF Claims
30
4. Class
4 — Senior Secured Notes Claims
30
5. Class
5 — Convertible Notes Claims
31
6. Class
6 — General Unsecured Claims
31
7. Class
7 — Section 510(b) Claims
31
8. Class
8 — Intercompany Claims
32
9. Class
9 — Intercompany Interests
32
10. Class
10 — Existing Interests
33
B. Special
Provision Governing Unimpaired Claims
33
C. Voting
Classes; Presumed Acceptance or Rejection by Nonvoting Classes
33
1. Voting
Classes Under the Plan
33
2. Acceptance
of the Plan by Impaired Classes of Claims
33
3. Presumed
Acceptance of the Plan
33
4. Presumed
Rejection of the Plan
33
5. Presumed
Acceptance or Rejection of the Plan
34
6. Presumed
Acceptance by Voting Classes with No Votes
34
D. Elimination
of Vacant Classes
34
E. Controversy
Concerning Impairment
34
ARTICLE
IV. IMPLEMENTATION OF THE PLAN
34
A. Continued
Existence and Vesting of Assets
34
1. Reorganized
Debtors
34
2. Transfer
of Books and Records; Privilege
35
B. Transactions
Related to the Plan
35
C. New
Equity Interests
36
1. Issuance
of New Equity Interests
36
2. Exchange
Act Registration and Listing
36
3. Exemption
from Registration
36
D. Equity
Rights Offering
39
E. Exit
Financing
40
1. Entry
into Exit Financing Documents
40
2. Exemption
from Registration
41
F. Boards
of Directors/Managers
43
G. New
Organizational Documents; No Further Action
43
H. Cancellation
of Instruments, Certificates, and Other Documents
44
I. Subordination
45
J. Structural
Simplification
45
K. Management
Incentive Plan
45
L. DTC
Eligibility
46
ARTICLE
V. PROVISIONS GOVERNING DISTRIBUTIONS
46
A. Timing
and Calculation of Amounts to Be Distributed
46
B. Sources
for Plan Distributions and Transfers of Funds Among Debtors
47
C. Distribution
Agent
47
D. De
Minimis Distributions
47
E. Delivery
of Plan Distributions—Allowed Claims
47
F. Fractional
New Equity Interests
48
G. Manner
of Payment Under the Plan
49
H. Allocation
of Plan Distributions Between Principal and Interest
49
I. Compliance
Matters
49
J. Foreign
Currency Exchange Rate
50
K. Fractional
Dollars
50
L. Undeliverable,
Unclaimed, or Non-Negotiated Plan Distributions
50
M. Claims
Paid by Third Parties
51
N. Claims
Payable by Third Parties
51
ARTICLE
VI. PROCEDURES FOR RESOLVING CLAIMS
51
A. Objections
to Claims
52
B. Resolution
of Disputed Claims
52
C. Estimation
of Claims and Interests
53
D. No
Distributions Pending Allowance or Settlement of Causes of Action
53
E. No
Amendments to Claims
54
F. No
Late-Filed Claims
54
G. No
Interest
54
H. Adjustment
to Claims Without Objection
55
I. Reservation
of Rights to Object to Claims
55
J. Disallowance
of Claims
55
K. Reimbursement
or Contribution
55
ARTICLE
VII. TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
56
A. Assumption
and Rejection of Executory Contracts and Unexpired Leases
56
B. Cure
of Defaults for Assumed Executory Contracts and Unexpired Leases
57
C. Employment-Related
Provisions
58
1. Employment
Agreement and Benefit Programs
58
2. Collective
Bargaining Agreements
59
D. Rejection
Claims
59
E. Reservation
of Rights
59
F. Transferred
Cure Costs
59
G. Indemnification
60
1. Debtor
Indemnification Obligations
60
2. Third-Party
Indemnities
60
H. Insurance-Related
Provisions
60
ARTICLE
VIII. EFFECT OF CONFIRMATION OF THE PLAN
61
A. Release
of Liens
61
B. Releases;
Discharges
62
C. Term
of Injunctions or Stays
63
D. Exculpation
63
E. Releases
by the Debtors
64
F. Voluntary
Releases by the Releasing Parties
66
G. Injunction
68
H. Setoff
and Recoupment
69
I. Preservation
of Causes of Action
70
J. Compromise
and Settlement of Claims and Controversies
70
K. Protection
Against Discriminatory Treatment
71
ARTICLE
IX. CONDITIONS TO EFFECTIVE DATE
71
A. Conditions
Precedent to the Effective Date
71
B. Waiver
of Conditions to Effectiveness
73
C. Effect
of Non-Occurrence of Conditions to the Effective Date
73
ARTICLE
X. MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
73
A. Plan
Modifications
73
B. Revocation
or Withdrawal of Plan and Effects of Nonoccurrence of Confirmation or Effective Date
74
ARTICLE
XI. RETENTION OF JURISDICTION
75
ARTICLE
XII. MISCELLANEOUS PROVISIONS
77
A. Exemption
from Transfer Taxes and Recording Fees
77
B. Request
for Expedited Determination of Taxes
78
C. Dissolution
of Any Committee
78
D. Plan
Supplement and Other Plan Documents
78
E. No
Admission
79
F. Substantial
Consummation
79
G. Section
1125 of the Bankruptcy Code
79
H. Non-Severability
80
I. Binding
Effect
80
J. Service
of Documents
80
K. Waiver
or Estoppel
81
L. Conflicts
82
M. Entire
Agreement
82
DEFINED TERMS, RULES OF INTERPRETATION, COMPUTATION OF TIME, GOVERNING LAW, AND OTHER REFERENCES
Exhibit H to the Restructuring Support Agreement.
DIP SUPERPRIORITY CLAIMS; ADMINISTRATIVE CLAIMS;
PRIORITY CLAIMS; AND U.S. Trustee FEES
a. Final Fee Applications
b. Post-Confirmation
Date Fees and Expenses
c. Professional
Fee Reserve Amount
CLASSIFICATION, TREATMENT, AND VOTING OF CLAIMS AND INTERESTS
Class
Claims
or Interests
Status
Voting
Rights
1
Other
Secured Claims
Unimpaired
Deemed
to accept
2
Other
Priority Claims
Unimpaired
Deemed
to accept
3
Prepetition
RCF Claims
Unimpaired
Deemed
to accept
4
Senior
Secured Notes Claims
Impaired
Entitled
to vote
5
Convertible
Notes Claims
Impaired
Entitled
to vote
6
General
Unsecured Claims
Unimpaired
Deemed
to Accept
7
Section
510(b) Claims
Impaired
Presumed
to Reject
8
Intercompany
Claims
Unimpaired
or Impaired
Deemed
to accept or presumed to reject
9
Intercompany
Interests
Unimpaired
or Impaired
Deemed
to accept or presumed to reject
10
Existing
Interests
Impaired
Presumed
to reject
a. Classification:
Class 1 consists of all Other Secured Claims.
b. Treatment:
Each Holder of an Allowed Other Secured Claim shall receive, at the option of the (Reorganized)
Debtor(s) (with the consent of the Required Consenting Stakeholders), either of the following:
i. payment in
full in Cash, payable on the later of (A) the Effective Date and (B) the date that
is 30 Business Days after the date on which such Other Secured Claim becomes an Allowed Other
Secured Claim, in each case, or as soon as reasonably practicable thereafter; or
ii. Reinstatement
or such other treatment rendering its Allowed Other Secured Claim Unimpaired in accordance
with section 1124 of the Bankruptcy Code.
c. Voting:
Class 1 is Unimpaired by the Plan. Each Holder of an Allowed Other Secured Claim in Class
1 is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code and, therefore, is not entitled to vote to accept or reject the Plan.
a. Classification:
Class 2 consists of all Other Priority Claims.
b. Treatment:
Each Holder of an Allowed Other Priority Claim shall receive, at the option of the (Reorganized)
Debtor(s) (with the consent of the Required Consenting Stakeholders), any of the following:
i. payment in
full in Cash;
ii. Reinstatement
or such other treatment rendering its Allowed Other Priority Claim Unimpaired in accordance
with section 1124 of the Bankruptcy Code; or
iii. other treatment
in a manner consistent with section 1129(a)(9) of the Bankruptcy Code.
c. Voting:
Class 2 is Unimpaired by the Plan. Each Holder of an Allowed Other Priority Claim in Class
2 is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code and, therefore, is not entitled to vote to accept or reject the Plan.
a. Classification:
Class 3 consists of all Prepetition RCF Claims.
b. Treatment:
Each Holder of an Allowed Prepetition RCF Claim shall receive, at the option of the (Reorganized)
Debtor(s) (with the consent of the Required Consenting Stakeholders), any of the following:
i. payment in
full in Cash upon the effectiveness of the Exit Revolving Credit Facility; or
ii. Reinstatement
or such other treatment rendering its Allowed Prepetition RCF Claim Unimpaired in accordance
with section 1124 of the Bankruptcy Code.
c. Voting:
Class 3 is Unimpaired by the Plan. Each Holder of an Allowed Prepetition RCF Claim in Class
3 is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code and, therefore, is not entitled to vote to accept or reject the Plan.
a. Classification:
Class 4 consists of all Senior Secured Notes Claims.
b. Allowance:
The Senior Secured Notes Claims shall be deemed Allowed against all of the Debtors in the
aggregate principal amount outstanding under the Senior Secured Notes Indenture of $1.11
billion plus any and all other obligations related thereto or arising therefrom, including
accrued and unpaid interest, costs, fees, expenses, and indemnities as of the Petition Date.
c. Treatment:
Each Holder of a Senior Secured Notes Claim shall receive (x) its Pro Rata share of: (i)
76.0% of the New Equity Interests, subject to dilution by the Equity Rights Offering (including
the Equity Rights Offering Shares, the Equity Rights Offering Holdback Shares, and the Backstop
Shares), the Backstop Premium Shares, and the MIP Interests; (ii) the Senior Secured Notes
Subscription Rights (after accounting for the Equity Rights Offering Holdback); (iii) $700
million of the Exit Secured Notes; and (iv) to the extent not paid as adequate protection,
cash in an amount equal to all accrued and unpaid interest (at the non-default rate) under
the Senior Secured Notes Indenture through the Effective Date.
d. Voting:
Class 4 is Impaired by the Plan. Each Holder of a Senior Secured Notes Claim in Class 3 is
entitled to vote to accept or reject the Plan.
a. Classification:
Class 5 consists of all Convertible Notes Claims.
b. Allowance:
The Convertible Notes Claims shall be deemed Allowed against Debtor Spirit Airlines, Inc.
in the aggregate principal amount outstanding under the Convertible Notes Indentures of $525.1
million plus any and all other obligations related thereto or arising therefrom, including
accrued and unpaid interest, costs, fees, expenses, and indemnities as of the Petition Date.
c. Treatment:
Each Holder of a Convertible Notes Claim shall receive (a) its Convertible Notes Equity Distribution;
(b) its Pro Rata share of the Convertible Notes Subscription Rights (after accounting for
the Equity Rights Offering Holdback); (c) its Pro Rata share of the Total Convertible Notes
Exit Secured Notes Entitlement, subject to adjustment for any Ineligible Convertible Noteholder
Adjustment; and (d) cash in an amount equal to all accrued and unpaid interest (at the non-default
rate) under the Convertible Notes Indenture through the Effective Date.
d. Voting:
Class 5 is Impaired by the Plan. Each Holder of a Convertible Notes Claim in Class 5 is entitled
to vote to accept or reject the Plan.
a. Classification:
Class 6 consists of all General Unsecured Claims.
b. Treatment:
Each Holder of an Allowed General Unsecured Claim shall receive Reinstatement or such other
treatment rendering its Allowed General Unsecured Claim Unimpaired in accordance with section
1124 of the Bankruptcy Code. On and after the Effective Date, the Reorganized Debtors shall
continue to pay each Holder of an Allowed General Unsecured Claim in the ordinary course
of business.
c. Voting:
Class 6 is Unimpaired by the Plan. Each Holder of an Allowed General Unsecured Claim in Class
6 is conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy
Code and, therefore, is not entitled to vote to accept or reject the Plan.
a. Classification:
Class 6 consists of all Section 510(b) Claims.
b. Treatment:
All Section 510(b) Claims shall be cancelled, released, extinguished, and otherwise eliminated,
and Holders of Section 510(b) Claims shall not receive any Plan Distributions or retain any
interest in property on account of such Section 510(b) Claims.
c. Voting:
Class 7 is Impaired by the Plan. Each Holder of a Section 510(b) Claim is deemed to have
rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, is not
entitled to vote to accept or reject the Plan.
a. Classification:
Class 8 consists of all Intercompany Claims.
b. Treatment:
All Allowed Intercompany Claims shall either be, in the discretion of the (Reorganized) Debtors
(with the consent of the Required Consenting Stakeholders), (i) cancelled, released,
extinguished, and otherwise eliminated and Holders of such Intercompany Claims shall not
receive any Plan Distributions or retain any interest in property on account of such Intercompany
Claims or (ii) Reinstated.
c. Voting:
Class 8 is either (i) Unimpaired, in which case the Holders of Allowed Intercompany
Claims are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of the
Bankruptcy Code, or (ii) Impaired and receiving no Plan Distributions (and retaining
no interest in property), in which case the Holders of such Intercompany Claims are presumed
to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore,
no Holder of an Intercompany Claim is entitled to vote to accept or reject the Plan.
a. Classification:
Class 9 consists of all Intercompany Interests.
b. Treatment:
All Allowed Intercompany Interests shall either be, in the discretion of the (Reorganized)
Debtors, (i) cancelled, released, extinguished, and otherwise eliminated and Holders
of such Intercompany Interests shall not receive any Plan Distributions or retain any interest
in property on account of such Intercompany Interests or (ii) Reinstated.
c. Voting:
Class 9 is either (i) Unimpaired, in which case the Holders of Allowed Intercompany
Interests are conclusively deemed to have accepted the Plan pursuant to section 1126(f) of
the Bankruptcy Code, or (ii) Impaired and receiving no Plan Distributions (and retaining
no interest in property), in which case the Holders of such Intercompany Interests are presumed
to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore,
no Holder of an Intercompany Interest is entitled to vote to accept or reject the Plan.
a. Classification:
Class 10 consists of all Existing Interests.
b. Treatment:
All Existing Interests shall be cancelled, released, extinguished, or otherwise eliminated
and Holders of such Existing Interests shall not receive any Plan Distributions or retain
any interest in property on account of such Existing Interests.
c. Voting:
Class 10 is Impaired by the Plan. Each Holder of an Existing Interest is conclusively presumed
to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code. Therefore,
no Holder of Existing Interests is entitled to vote to accept or reject the Plan.
IMPLEMENTATION OF THE PLAN
(A) purchases
a claim against, interest in, or claim for an administrative expense in the case concerning,
the debtor, if such purchase is with a view to distribution of any security received or to
be received in exchange for such a claim or interest;
(B) offers to
sell securities offered or sold under the plan for the holders of such securities;
(C) offers to
buy securities offered or sold under the plan from the holders of such securities, if such
offer to buy is—
(i) with a view
to distribution of such securities; and
(ii) under an
agreement made in connection with the plan, with the consummation of the plan, or with the
offer or sale of securities under the plan; or
(D) is an issuer,
as defined in section 2(a)(11) of the Securities Act, with respect to such securities.
PROVISIONS GOVERNING DISTRIBUTIONS
PROCEDURES FOR RESOLVING CLAIMS
TREATMENT OF EXECUTORY CONTRACTS AND UNEXPIRED LEASES
1. nothing,
including the vesting of the Insurance Contracts with the Reorganized Debtors or any relief
permitting any Entity to pursue proceeds available under any Insurance Contracts granted
pursuant to this Plan, the Plan Documents, the Confirmation Order, or any other Final Order
of the Bankruptcy Court, shall impair, expand, or modify (a) the rights and obligations
of the (Reorganized) Debtors (and their Estates), named insureds, any insured or beneficiary,
or any of the Insurers under any of the Insurance Contracts, (b) the coverage and benefits
provided under the Insurance Contracts, (c) the obligations, terms, and conditions of
the Insurance Contracts, or (d) the enforceability of the Insurance Contracts; and
2. on and after
the Effective Date (a) all Insurance Contracts which identify any of the Debtors as
first named insureds or as a counterparty thereto shall vest unaltered in their entireties
with the Reorganized Debtors, (b) any nonmonetary obligations, together with direct
or derivative rights, interests, claims, entitlements, or Causes of Action, of any Debtor
under any of the Insurance Contracts, including the rights of any Debtor to proceeds, indemnification,
reimbursement, contribution, benefits,
EFFECT OF CONFIRMATION OF THE PLAN
1. the
Debtors or their non-Debtor Affiliates (including the management, ownership, or operation
thereof or the issuance of Securities thereby), the Reorganized Debtors, the Chapter 11 Cases,
the Debtors’ in- or out-of-court restructuring efforts, intercompany transactions,
or the formulation, preparation, marketing, dissemination, negotiation, or Filing of the
DIP Facility, the DIP Documents, Restructuring Support Agreement, the Senior Secured Notes
Documents, the Convertible Notes Documents, the Prepetition Revolving Credit Facility, the
Plan (including the Plan Supplement and other Plan Documents), the Disclosure Statement,
the Exit Financing Facilities, the Exit Financing Documents, the Equity Rights Offering,
the Equity Rights Offering Documents, any settlement, contract, instrument, release, or other
agreement or document created or entered into in connection therewith, any prepetition transactions,
or in the Chapter 11 Cases, and any other prepetition or post-petition act taken or omitted
to be taken in connection with or in contemplation of the Chapter 11 Cases, the reorganization
of the Debtors, or the administration of, or property to be distributed under, the Plan (including
the issuance and distribution of any Securities (including the New Equity Interests) issued
or to be issued under or in connection with the Plan);
2. any
Plan Document, contract, instrument, release, or other agreement or document (including providing
any legal opinion requested by any Entity regarding any transaction, contract, instrument,
document, or other agreement contemplated by, or in furtherance of, the Plan or the reliance
by any Released Party on the Plan, or the Confirmation Order in lieu of such legal opinion)
created or entered into in connection with the Plan or the Disclosure Statement;
3. the
purchase, sale, or rescission of the purchase or sale of any Security of the Debtors, the
subject matter of, or the transactions or events giving rise to, any Claim or Interest that
is treated in the Plan, the business or contractual arrangements between the Debtors and
any Released Party (excluding any assumed Executory Contract or Unexpired Lease), or the
restructuring of Claims or Interests prior to or in the Chapter 11 Cases; and
4. the
negotiation, formulation, marketing, preparation, or performance of or under the Plan and
Disclosure Statement (including the Plan Supplement and other Plan Documents), the DIP Facility,
the DIP Documents, the Restructuring Support Agreement, the Senior Secured Notes Documents,
the Convertible Notes Documents, the Prepetition Revolving Credit Facility, the Exit Financing
Facilities, the Exit Financing Documents, the Equity Rights Offering, the Equity Rights Offering
Documents, or, in each case, related agreements, instruments, or other documents, or any
other act, omission, transaction, agreement, event, or other occurrence taking place on or
before the Effective Date, provided, that if any Released Party directly or indirectly
brings or asserts any Claim or Cause of Action that has been released or is contemplated
to be released pursuant to the Plan in any way arising out of or related to any document
or transaction that was in existence prior to the Effective Date against any other Released
Party, and such Released Party does not abandon such Claim or Cause of Action upon request,
then the release set forth in the Plan shall automatically and retroactively be null and
void ab initio with respect to the Released Party bringing or asserting such Claim
or Cause of Action; provided, further, that the immediately preceding proviso shall
not apply to (a) any action by a Released Party in the Bankruptcy Court (or any other
court determined to have competent jurisdiction), including any appeal therefrom, to prosecute
the amount, priority, or secured status of any prepetition or ordinary course Administrative
Claim against the Debtors or (b) any release or indemnification provided for in any
settlement or granted under any other Final Order (provided, that, in the case of
the preceding proviso, the Debtors shall retain all defenses related to any such action).
1. the
Debtors or their non-Debtor Affiliates (including the management, ownership, or operation
thereof or the issuance of Securities thereby), the Reorganized Debtors, the Chapter 11 Cases,
the Debtors’ in- or out-of-court restructuring efforts, intercompany transactions,
or the formulation, preparation, marketing, dissemination, negotiation, or Filing of the
DIP Facility, the DIP Documents, Restructuring Support Agreement, the Senior Secured Notes
Documents, the Convertible Notes Documents, the Prepetition Revolving Credit Facility, the
Plan (including the Plan Supplement and other Plan Documents), the Disclosure Statement,
the Exit Financing Facilities, the Exit Financing Documents, the Equity Rights Offering,
the Equity Rights Offering Documents, any settlement, contract, instrument, release, or other
agreement or document created or entered into in connection therewith, any prepetition transactions,
or in the Chapter 11 Cases, and any other prepetition or post-petition act taken or omitted
to be taken in connection with or in contemplation of the Chapter 11 Cases, the reorganization
of the Debtors, or the administration of, or property to be distributed under, the Plan (including
the issuance and distribution of any Securities (including the New Equity Interests) issued
or to be issued under or in connection with the Plan);
2. any
Plan Document, contract, instrument, release, or other agreement or document (including providing
any legal opinion requested by any Entity regarding any transaction, contract, instrument,
document, or other agreement contemplated by, or in furtherance of, the Plan or the reliance
by any Released Party on the Plan or the Confirmation Order in lieu of such legal opinion)
created or entered into in connection with the Plan or the Disclosure Statement;
3. the
purchase, sale, or rescission of the purchase or sale of any Security of the Debtors, the
subject matter of, or the transactions or events giving rise to, any Claim or Interest that
is treated in the Plan, the business or contractual arrangements between the Debtors and
any Released Party (excluding any assumed Executory Contract or Unexpired Lease), or the
restructuring of Claims or Interests prior to or in the Chapter 11 Cases; and
4. the
negotiation, formulation, marketing, preparation, or performance of or under the Plan and
Disclosure Statement (including the Plan Supplement and other Plan Documents), the DIP Facility,
the DIP Documents, Restructuring Support Agreement, the Senior Secured Notes Documents, the
Convertible Notes Documents, the Prepetition Revolving Credit Facility, the Exit Financing
Facilities, the Exit Financing Documents, the Equity Rights Offering, the Equity Rights Offering
Documents, or, in each case, related agreements, instruments, or other documents, or any
other act, omission, transaction, agreement, event, or other occurrence taking place on or
before the Effective Date; provided, that if any Released Party directly or indirectly
brings or asserts any claim or Cause of Action that has been released or is contemplated
to be released pursuant to the Plan in any way arising out of or related to any document
or transaction that was in existence prior to the Effective Date against any other Released
Party, and such Released Party does not abandon such claim or Cause of Action upon request,
then the release set forth in the Plan shall automatically and retroactively be null and
void ab initio with respect to the Released Party bringing or asserting such claim
or Cause of Action; provided, further, that the immediately preceding proviso shall
not apply to (a) any action by a Released Party in the Bankruptcy Court (or any other
court determined to have competent jurisdiction), including any appeal therefrom, to prosecute
the amount, priority, or secured status of any prepetition or ordinary course Administrative
Claim against the Debtors or (b) any release or indemnification provided for in any
settlement or granted under any other Final Order (provided, that, in the case of
the preceding proviso, the Debtors shall retain all defenses related to any such action).
CONDITIONS TO EFFECTIVE DATE
1. The Restructuring
Support Agreement shall not have been terminated and shall remain in full force and effect.
2. The Backstop
Commitment Agreement shall not have been terminated and shall remain in full force and effect.
3. The Bankruptcy
Court shall have approved the Disclosure Statement on a final basis.
4. The Bankruptcy
Court shall have entered the Confirmation Order, which shall have become a Final Order, and
the Plan shall not have been amended, altered, or modified from the Plan as confirmed by
the Confirmation Order in any material respect, unless such material amendment, alteration,
or modification has been made in accordance with the Plan.
5. All applicable
authorizations, consents, regulatory approvals, rulings, or documents that are necessary
to implement and effectuate the Plan shall have been obtained (and all applicable waiting
periods shall have expired).
6. Any and all
professional fees and expenses of Professionals already approved by the Bankruptcy Court
shall have been paid in full.
7. The Professional
Fee Reserve Amount shall have been funded into the Professional Fee Escrow Account.
8. The unpaid,
reasonable, and documented fees and expenses of the Consenting Senior Secured Noteholder
Advisors, the Consenting Convertible Noteholder Advisors, and the Prepetition Agents/Trustees
(in each case inclusive of any estimates through the Effective Date) shall have been paid
in full in Cash; provided, that payment of any such amounts incurred by such professionals
as of the Effective Date but not invoiced to the Debtors at least two Business Days prior
to the Effective Date shall not be a condition precedent to the effectiveness of the Plan
and shall be payable by the Reorganized Debtors within five Business Days after the receipt
of summary invoices therefor (in all cases without any requirement (y) to provide itemized
time detail or (z) for the Bankruptcy Court review or approval (including to File a fee application
with the Bankruptcy Court)).
9. No governmental
entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated,
enforced, or entered any law or order (whether temporary, preliminary, or permanent) in any
case that is in effect and that prevents or prohibits consummation of the Plan, and no Governmental
Unit shall have instituted any action or proceeding (that remains pending on what could otherwise
be the Effective Date) seeking to stay, enjoin, restrain, or otherwise prohibit Plan Consummation.
10. The PSP
Loan Lender has agreed to modify the interest rate of the PSP Loans on terms agreeable to
the Debtors, in consultation with the Required Consenting Stakeholders.
11. All documents
and agreements necessary to implement the Plan, including the New Organizational Documents,
the Exit Financing Documents, the Equity Rights Offering Documents, and all other items contained
in the Plan Supplement, shall be in form and substance acceptable to the Debtors and the
Required Consenting Stakeholders and shall have been effected or executed and remain in full
force and effect.
12. All conditions
precedent to the consummation of the Exit Financing Facilities, Equity Rights Offering, and
Backstop Commitment shall have been satisfied or waived in accordance with the terms of the
Exit Financing Documents, Equity Rights Offering Documents, and Backstop Commitment Agreement,
as applicable.
13. All conditions
precedent to the issuance of the New Equity Interests, other than any conditions related
to the occurrence of the Effective Date, shall have occurred.
MODIFICATION, REVOCATION, OR WITHDRAWAL OF THE PLAN
RETENTION OF JURISDICTION
1. hear, adjudicate,
decide, determine, or resolve all matters relating to the assumption or rejection of Executory
Contracts or Unexpired Leases, including any Assumption Disputes and whether a contract or
lease is or was executory or expired, and the allowance of Claims resulting therefrom;
2. hear, adjudicate,
decide, determine, or resolve any motion, adversary proceeding, application, contested matter,
or other matter pending on the Effective Date;
3. hear, adjudicate,
decide, determine, or resolve all matters relating to the allowance, disallowance, liquidation,
classification, priority, amount, validity, or estimation of any Claim;
4. ensure that
Plan Distributions to Holders of Allowed Claims are accomplished as provided herein;
5. hear, adjudicate,
decide, determine, or resolve all applications for compensation and reimbursement of Professional
Fee Claims;
6. hear, adjudicate,
decide, determine, or resolve any application to modify the Plan in accordance with section
1127 of the Bankruptcy Code, to remedy any defect or omission or reconcile any inconsistency
in the Plan, the Disclosure Statement, or any order of the Bankruptcy Court, including the
Confirmation Order, in such a manner as may be necessary to carry out the purposes and effects
thereof;
7. hear, adjudicate,
decide, determine, or resolve disputes arising in connection with the interpretation, implementation,
or enforcement of the Plan, the Confirmation Order, any Plan Document, any settlements, transactions,
or payments contemplated hereby or in furtherance hereof, or any agreement, instrument, or
other document governing or relating to any of the foregoing;
8. take any
action, issue injunctions, enter and implement other orders, and take such other actions
as may be necessary or appropriate to restrain interference by any Entity with the consummation,
implementation, or enforcement of the Plan, the Confirmation Order, any Plan Document, or
any other order of the Bankruptcy Court;
9. take any
action or issue such orders as may be necessary or appropriate to construe, enforce, execute,
implement, and consummate, or to maintain the integrity of, the provisions of (a) contracts,
instruments, releases, indentures, and other agreements or documents approved by Final Order
in the Chapter 11 Cases and (b) the Plan,
10. enter, implement,
or enforce such orders as may be appropriate in the event the Confirmation Order is for any
reason stayed, reversed, revoked, modified, or vacated;
11. hear, adjudicate,
decide, determine, or resolve matters concerning state, local, and federal taxes in accordance
with sections 346, 505, and 1146 of the Bankruptcy Code (including the expedited determination
of tax under section 505(b) of the Bankruptcy Code);
12. hear, adjudicate,
decide, determine, or resolve any other matter not inconsistent with the Bankruptcy Code
or title 28 of the United States Code;
13. hear, adjudicate,
decide, determine, or resolve any other matters that may arise in connection with or are
related to the Plan, the Disclosure Statement, the Confirmation Order, any of the Plan Documents,
or any other contract, instrument, release, or other agreement or document related to the
Plan, the Disclosure Statement, or the Plan Supplement; provided, that the Bankruptcy
Court shall not retain jurisdiction over disputes concerning documents contained in a Plan
Document that have a jurisdictional, forum selection, or dispute resolution clause that refers
disputes to a different court and any disputes concerning such Plan Documents shall be governed
in accordance with the provisions thereof;
14. recover
all assets of the Debtors and property of the Debtors’ Estates for the benefit of the
Reorganized Debtors, wherever located;
15. hear, adjudicate,
decide, determine, or resolve any rights, claims, or Causes of Action held by or accruing
to the (Reorganized) Debtors pursuant to the Bankruptcy Code or pursuant to any federal or
state statute or legal theory;
16. enforce
and interpret all orders, judgments, injunctions, releases, discharges, exculpations, indemnifications,
and rulings entered in connection with the Chapter 11 Cases with respect to any Entity;
17. hear, adjudicate,
decide, determine, or resolve matters concerning state, local, and federal taxes in accordance
with sections 346, 505, and 1146 of the Bankruptcy Code;
18. enter final
decrees in each of the Chapter 11 Cases;
19. enforce
any order for the sale of property pursuant to section 363, 1123, or 1146(a) of the Bankruptcy
Code, including the Sale Order;
20. grant any
consensual request to extend the deadline for assuming or rejecting Unexpired Leases pursuant
to section 365(d)(4) of the Bankruptcy Code;
21. grant any
consensual request to extend the deadline for the lessors, conditional vendors, or Holders
of Secured Interests in equipment, to take possession of such equipment pursuant to section
1110(b) of the Bankruptcy Code;
22. hear, adjudicate,
decide, determine, or resolve any cases, matters, controversies, suits, disputes, or Causes
of Action in connection with or in any way related to the Chapter 11 Cases, including (a) with
respect to the repayment or return of Plan Distributions and the recovery of additional amounts
owed by the Holder of a Claim for amounts not timely repaid pursuant to Article V,
(b) with respect to the releases, injunctions, discharges, and other provisions contained
in Article VIII, including entry of such orders as may be necessary or appropriate
to implement such provisions, (c) those that may arise in connection with the Consummation,
interpretation, implementation, or enforcement of the Plan, the Confirmation Order, and contracts,
instruments, releases, and other agreements or documents created in connection with the Plan,
or (d) related to section 1141 of the Bankruptcy Code;
23. hear, adjudicate,
decide, determine, or resolve whether a party’s potential claim or Cause of Action
represents a colorable claim against a Debtor or any other Released Party or Exculpated Party,
as applicable, and is not a claim that was released or exculpated hereunder;
24. hear, adjudicate,
decide, determine, or resolve any and all disputes concerning whether an Entity had sufficient
notice of the Chapter 11 Cases, the Confirmation Hearing, the Rejection Damages Bar Date,
or the deadline for responding or objecting to a Cure Cost;
25. hear, adjudicate,
decide, determine, or resolve such other matters, and for such other purposes as may be provided
in the Confirmation Order; and
26. hear, adjudicate,
decide, determine, or resolve any and all disputes arising from or relating to the Chapter
11 Cases, any orders entered therein (including the interpretation thereof), and any of the
foregoing.
MISCELLANEOUS PROVISIONS
The (Reorganized) Debtors
The Consenting Senior Secured Noteholders
One Bryant Park
Attention: Michael Stamer, Jason P. Rubin
Email: mstamer@akingump.com, jrubin@akingump.com
The Consenting Convertible Noteholders
71 S. Wacker Drive
Attention: Matthew L. Warren, Geoffrey King
Email: mattwarren@paulhastings.com, geoffking@paulhastings.com
Spirit Airlines, Inc., on behalf of itself and each of its
Debtor affiliates
/s/ Fred Cromer
Fred Cromer
Chief Financial Officer
(1) becomes and shall be treated for all purposes under the Agreement as a Company Party;
(2) agrees to be subject to and bound by all of the terms of the Agreement; and
(3) is deemed, without further action, to make to the other Parties as of the Effective Date the representations
and warranties that the Parties make in Section 9 of the Agreement.
Date Executed: [
] (the “Effective Date”)
By:
Summary of Terms and Conditions
Issuer:
Guarantors:
Initial Noteholders:
Issue Date:
Interest:
Default Interest:
Maturity:
Purpose:
Documentation Principles:
defined in the Adequate Protection Order), the Prepetition RCF Collateral (as defined in the Adequate Protection Order) (but solely to the extent permitted by the terms of the Exit RCF Documents) and all rights, title and interests of the unencumbered assets and property of the Obligors (after giving effect to the repayment of the DIP Facility), whether real or personal, tangible or intangible, now existing or hereafter acquired, including all unencumbered aircraft, inventory, equipment, fixtures, leasehold interests, commercial tort claims, accounts receivable, investment property, documents, chattel paper (whether electronic or tangible), intercompany loans, general intangibles (including patents, trademarks and other intellectual property), instruments, business interruption insurance, supporting obligations and proceeds of all of the foregoing (collectively, the “Exit Secured Notes Collateral”); provided that the Exit Secured Notes Collateral shall not include (collectively, the “Excluded Assets”) (x) property that cannot be subject to liens pursuant to applicable law, rule, contract or regulation (including any requirement to obtain the consent (after the use of commercially reasonable efforts to obtain such consent) of any governmental authority or third party, unless such consent has been obtained) or restrictions of contract (including federal concessions as well as equipment leases and financing arrangements) existing on the Issue Date or the time of entry of such contract (other than to the extent such restriction is ineffective under the UCC or other applicable law) and/or (y) any property subject to a purchase money security interest, capital lease or similar financing arrangement. Notwithstanding the foregoing, the Issuer and the Required Noteholders shall cooperate in good faith to mutually determine whether the Issuer’s cash, cash equivalents and deposit accounts shall be included in the Exit Secured Notes Collateral, Excluded Assets or treated in another manner.
Lien Priority:
The Exit Secured Notes Obligations shall be secured by (x) to the extent permitted by the terms of the Exit RCF Documents, second-priority liens on the Prepetition RCF Collateral, junior to only the liens thereon securing the Exit Revolving Credit Facility and (y) a first-priority lien on all other Exit Secured Notes Collateral, in each case, pursuant to the terms of an intercreditor agreement that shall be in form and substance reasonably satisfactory to the Required Noteholders and the Issuer.
Optional Redemption:
Mandatory Offer to Purchase upon a Change of Control:
Mandatory Offer to Purchase upon an Asset Sale and/or with Excess Cash Flow:
Affirmative Covenants, Negative Covenants, Financial Covenants and Events of Default:
Financial and Other Reporting Requirements:
Required Noteholders:
Amendments:
The Exit Secured Notes Definitive Documentation shall not be amended, waived or otherwise modified without the prior written consent of the Required Noteholders; provided that, in addition to the
Secured Noteholder without the prior consent of each Noteholder so affected; provided that no transaction set forth in clause (iii) above shall constitute a disproportionate adverse change.
No Registration Rights:
Transfer Restrictions:
Trust Indenture Act:
Ratings:
Governing Law:
Counsel to Noteholders:
Akin Gump Strauss Hauer & Feld LLP and Paul Hastings LLP.
Reorganized Company
Capital Stock
One class of voting common stock (the “New Common Stock”) and authorized but unissued “blank check” preferred stock, having such designations, preferences, limitations and relative rights, including preferences over the New Common Stock with respect to dividends and distributions, as the New Board may determine.
Board of Directors
Stockholder Approvals
In addition to any approvals required under applicable law and regulation, without the approval of the holders of a majority of the outstanding New
Transfer Restrictions
Registration Rights
DTC
The New Common Stock is to be DTC-eligible and issued through DTC, other than any shares of New Common Stock required to bear a “restricted” legend under applicable securities laws (which shall be in DTC under a restricted CUSIP if feasible and permitted by DTC, otherwise in book entry form). The Company shall use commercially reasonable efforts to remove any such restricted legends when permitted under applicable securities laws, including obtaining any necessary legal opinions.
State Law Business Combination Provision
The Certificate of Incorporation shall contain a provision in which the Company elects not to be subject to the restrictions on transactions with interested stockholders set forth in Section 203 of the Delaware General Corporation Law.
Other Terms
The New Organizational Documents shall also provide for the indemnification and exculpation of directors, officers and appropriate persons to the fullest extent permitted by applicable law.
Date Executed: [
] (the “Effective Date”)
Aggregate Principal Amounts Beneficially Owned or Managed on Account of:
Senior Secured Notes Claims
2025 Convertible Notes Claims
2026 Convertible Notes Claims
Article
I DEFINITIONS
2
Section
1.1 Definitions
2
Section
1.2 Construction
22
Section
1.3 Consent Rights under the Restructuring Support Agreement.
23
Article
II RIGHTS OFFERING BACKSTOP COMMITMENT
23
Section
2.1 The Direct Allocation; The Rights Offering; Rights Offering Shares.
23
Section
2.2 The Rights Offering Backstop Commitment.
24
Section
2.3 Assignment & Designation of Commitment Rights
25
Section
2.4 Escrow Account Funding
27
Section
2.5 Senior Secured Commitment Party Default; Replacement of Defaulting Senior Secured Backstop Commitment Parties
29
Section
2.6 Convertible Commitment Party Default; Replacement of Defaulting Convertible Backstop Commitment Parties
30
Section
2.7 Closing
32
Section
2.8 Withholding
33
Article
III BACKSTOP COMMITMENT CONSIDERATION AND EXPENSE REIMBURSEMENT
34
Section
3.1 Backstop Premium Payable by the Debtors
34
Section
3.2 Expense Reimbursement
36
Section
3.3 Tax Treatment of Backstop Premium
36
Article
IV REPRESENTATIONS AND WARRANTIES OF THE DEBTORS
37
Section
4.1 Organization and Qualification
37
Section
4.2 Corporate Power and Authority
37
Section
4.3 Execution and Delivery; Enforceability
38
Section
4.4 Authorized and Issued Interests
38
Section
4.5 Issuance
39
Section
4.6 No Conflict
39
Section
4.7 Consents and Approvals
40
Section
4.8 Arm’s-Length
40
Section
4.9 Financial Statements
40
Section
4.10 Absence of Certain Changes
41
Section
4.11 No Violation; Compliance with Laws
41
Section
4.12 Legal Proceedings
41
Section
4.13 Labor Relations
41
Section
4.14 Intellectual Property
42
Section
4.15 Privacy and Data Protection
44
Section
4.16 Certain Aircraft Matters
44
Section
4.17 Real and Personal Property
45
Section
4.18 Licenses and Permits
46
Section
4.19 Environmental
46
Section
4.20 Taxes
47
Section
4.21 Employee Benefit Plans
48
Section
4.22 Internal Control Over Financial Reporting
49
Section
4.23 Material Contracts
50
Section
4.24 No Unlawful Payments
50
Section
4.25 Compliance with Money Laundering, Ex-Im Laws and Sanctions Laws
50
Section
4.26 No Broker’s Fees
51
Section
4.27 Investment Company Act
52
Section
4.28 Insurance
52
Section
4.29 Disclosure, Company SEC Documents and Disclosure Statement
52
Section
4.30 Securities Registration Exemption; No Integration; No General Solicitation
52
Section
4.31 Aircraft
53
Section
4.32 Company Slots and Operating Authorizations
54
Section
4.33 Company Airports
55
Section
4.34 U.S. Citizen; Air Carrier
55
Section
4.35 No Other Representations or Warranties..
55
Article
V REPRESENTATIONS AND WARRANTIES OF THE BACKSTOP COMMITMENT PARTIES
56
Section
5.1 Organization
56
Section
5.2 Organizational Power and Authority
56
Section
5.3 Execution and Delivery; Enforceability
56
Section
5.4 No Conflict
56
Section
5.5 Consents and Approvals
57
Section
5.6 No Registration
57
Section
5.7 Purchasing Intent
57
Section
5.8 Sophistication; Investigation
58
Section
5.9 No Broker’s Fees
58
Section
5.10 Sufficient Funds
59
Section
5.11 Additional Securities Law Matters
59
Section
5.12 Legal Proceedings
61
Section
5.13 Arm’s Length
61
Section
5.14 No Other Representations or Warranties
61
Article
VI ADDITIONAL COVENANTS
61
Section
6.1 Orders Generally
61
Section
6.2 Conduct of Business
61
Section
6.3 Access to Information; Confidentiality
64
Section
6.4 Financial Information
66
Section
6.5 Commercially Reasonable Efforts
66
Section
6.6 Registration Rights Agreement; Company Organizational Documents
67
Section
6.7 Blue Sky
67
Section
6.8 Use of Proceeds
67
Section
6.9 Share Legend
67
Section
6.10 Antitrust Approval
68
Section
6.11 Alternative Restructuring Proposal
69
Section
6.12 Rule 144A Transferability
69
Section
6.13 Anti-Corruption Laws, Money Laundering Laws, Ex-Im Laws and Sanctions.
69
Section
6.14 DTC Eligibility
70
Article
VII CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
70
Section
7.1 Conditions to the Obligations of the Backstop Commitment Parties
70
Section
7.2 Waiver of Conditions to Obligations of Backstop Commitment Parties
73
Section
7.3 Conditions to the Obligations of the Debtors
74
Article
VIII INDEMNIFICATION AND CONTRIBUTION
75
Section
8.1 Indemnification Obligations
75
Section
8.2 Indemnification Procedure
76
Section
8.3 Settlement of Indemnified Claims
77
Section
8.4 Contribution
77
Section
8.5 Treatment of Indemnification Payments
77
Section
8.6 No Survival
78
Article
IX TERMINATION
78
Section
9.1 Consensual Termination
78
Section
9.2 Automatic Termination; Termination by the Backstop Commitment Parties
78
Section
9.3 Termination by the Debtors
80
Section
9.4 Effect of Termination
81
Article
X GENERAL PROVISIONS
82
Section
10.1 Notices
82
Section
10.2 Assignment; Third Party Beneficiaries
84
Section
10.3 Prior Negotiations; Entire Agreement
84
Section
10.4 Governing Law; Venue
85
Section
10.5 Binding Agreement
85
Section
10.6 Waiver of Jury Trial
85
Section
10.7 Counterparts
85
Section
10.8 Waivers and Amendments; Rights Cumulative; Consent
85
Section
10.9 Headings
86
Section
10.10 Specific Performance
86
Section
10.11 Damages
86
Section
10.12 No Reliance
87
Section
10.13 Publicity
87
Section
10.14 Settlement Discussions
88
Section
10.15 No Recourse
88
Section
10.16 Specific Execution
88
Schedule 1
Senior Secured Commitment Schedule
Schedule 2
Convertible Commitment Schedule
Exhibit A
Form of BCA Joinder
Exhibit B
Form of Commitment Party Transfer Form
Exhibit C
Form of Company Acknowledgement
Exhibit D
Debtors to Sign Company Acknowledgement
DEFINITIONS
RIGHTS OFFERING BACKSTOP COMMITMENT
BACKSTOP COMMITMENT CONSIDERATION AND EXPENSE REIMBURSEMENT
REPRESENTATIONS AND WARRANTIES OF THE DEBTORS
REPRESENTATIONS AND WARRANTIES OF THE BACKSTOP COMMITMENT PARTIES
ADDITIONAL COVENANTS
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
INDEMNIFICATION AND CONTRIBUTION
TERMINATION
GENERAL PROVISIONS
geoffking@paulhastings.com
1170 Peachtree Street N.E.
Attn: Zach Cochran
Email: zachcochran@paulhastings.com
SPIRIT AIRLINES INC.
By:
/s/ Fred Cromer
Name: Fred Cromer
Title: Chief Financial Officer
[JOINING PARTY]
By:
Name:
Title:
[TRANSFEROR]
By:
Name:
Title:
[TRANSFEREE]
By:
Name:
Title:
Acknowledged and accepted by
SPIRIT AIRLINES, INC.
By:
Name:
Title:
(1) becomes
and shall be treated for all purposes under the Agreement as a Debtor;
(2) agrees
to be subject to and bound by all of the terms of the Agreement; and
(3) is deemed,
without further action, to make to the other Parties as of the Effective Date the representations
and warranties that the Parties make in Article IV of the Agreement.
Summary of Terms and Conditions1
Borrower:
Spirit Airlines, Inc., a Delaware corporation (“Company” or “Borrower”), in its capacity as a debtor and debtor in possession in a case (the “Borrower’s Chapter 11 Case”) under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) to be filed in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) (the date of such filing, the “Borrower Petition Date”).
Guarantors:
The obligations of the Borrower under the DIP Facility (the “Borrower Obligations”) will be guaranteed by Spirit IP Cayman Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Brand Issuer”), Spirit Loyalty Cayman Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Loyalty Issuer” and, together with Brand Issuer, the “Loyalty Notes Issuers”), Spirit Finance Cayman 1 Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (“SPV HoldCo 1”), and Spirit Finance Cayman 2 Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (“SPV HoldCo 2”) (collectively, the “Guarantors” and, together with Borrower, the “Debtors” or the “Loan Parties”; the obligations of the Loan Parties under the DIP Facility that are payable as set forth herein, collectively, the “DIP Facility Obligations”), each of which will be a debtor and a debtor in possession in cases commenced under chapter 11 of the Bankruptcy Code in the Bankruptcy Court (collectively, the “Guarantors’ Chapter 11 Cases” and, together with the Borrower’s Chapter 11 Case, collectively, the “Chapter 11 Cases”), filed subsequent to, but jointly administered with, the Borrower’s Chapter 11 Case (the date of such filing, the “Guarantor Petition Date”; “Petition Date” shall mean the Borrower Petition Date or the Guarantor Petition Date, as the context requires).
Certain Prepetition Debt Facilities and Instruments:
1 Capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Restructuring Support Agreement (as defined herein) or the commitment letter to which this DIP Term Sheet
is attached (the “DIP Commitment Letter”), as the context requires.
Notes Obligations”). Each beneficial owner of Convertible Notes as of the Petition Date is hereinafter referred to as a “Prepetition Convertible Noteholder”. The term “Required Convertible Noteholders” means, as of any time of determination, Prepetition Convertible Noteholders holding at least 50.01% of the Convertible Notes outstanding at such time.
DIP Creditors:
DIP Agent:
Wilmington Savings Fund Society, FSB (“WSFS”) shall act as administrative agent and collateral agent with respect to the DIP Facility (in such capacity, the “DIP Agent”).
DIP Facility:
Orders:
DIP Termination Event:
Amortization:
None.
Purpose:
DIP Facility Documents:
“Documentation Principles” means that the DIP Facility will be documented (i) in a credit and note purchase agreement (the “DIP Credit and Note Purchase Agreement”) and other customary guarantee, security and other relevant documentation reasonably requested by the Required Loyalty Note Holders or Required Convertible Noteholders and (ii) through the terms of the Orders (collectively, the “DIP Facility Documents”), in each case, reflecting the terms and provisions set forth in this DIP Term Sheet.
Interest Rates and Fees:
As set forth on Annex A-1 attached hereto and in any applicable fee letters.
Optional Prepayments:
None.
Mandatory Prepayments:
Mandatory prepayments of the DIP Loans and DIP Notes shall be required (on a pro rata basis) with 100% of the net cash proceeds from (A) the sale or other disposition of DIP Collateral outside the ordinary course of business, excluding any sale or disposition set forth on Annex C hereto (such excluded sales and dispositions, collectively, the “Specified Dispositions”); and the repayment of any outstanding indebtedness secured by the property or assets that are subject to such Specified Disposition are referred to herein as the “Specified Debt Repayments”); provided that, for the avoidance of doubt, net cash proceeds from the disposition of Prepetition RCF Collateral (as defined herein) shall not be required to be used to prepay DIP Loans and/or DIP Notes to the extent (i) Revolving Loans under the Revolving Credit Agreement are outstanding and (ii) such net cash proceeds are required to prepay Revolving Loans under the Revolving Credit Agreement, (B) any casualty events, insurance and condemnation proceeds in respect of any DIP Priority Collateral and (C) any sale or issuance of debt for borrowed money, evidenced by bonds, notes, debentures or capitalized lease obligations (other than Specified Refinancings (as defined herein)) and (D) any extraordinary receipts (it being understood and agreed that any receipts contemplated by the Approved Budget shall not constitute
Security and Priority:
Intercreditor Arrangements:
To be reasonably satisfactory to the Required DIP Creditors.
As set forth in the Adequate Protection Order.
Limitation on Use of Proceeds of DIP Facility:
Adequate Protection & Other Protections:
As set forth in the Adequate Protection Order.
Conditions Precedent to the Extension of Credit:
The extension of credit (the “Closing”; the date on which the Closing occurs, the “Closing Date”) under the DIP Facility shall be subject to the following conditions, unless waived by the Required DIP Creditors:
E. The Adequate Protection Order, which shall be in form and substance reasonably satisfactory to DIP Agent and the Required DIP Creditors, shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed in any respect.
F. [Reserved].
G. All fees and invoiced costs and expenses (including, without limitation, reasonable, documented and invoiced legal fees and expenses) required to be paid to the Ad Hoc Group of Senior Secured Noteholders Advisors, the Ad Hoc Group of Convertible Noteholders Advisors, the DIP Agent and the DIP Creditors on or before the Closing Date shall have been paid, it being understood and agreed that the DIP Agent shall be entitled to net such fees, costs and expenses and any administrative and/or agency fees from the proceeds of the funded DIP Loans and DIP Notes.
H. The DIP Agent and the DIP Creditors shall have received, prior to the Closing Date, in a form and substance reasonably satisfactory to the Required DIP Creditors, a thirteen (13)-week rolling cash flow budget for the period from the Closing Date through the end of such thirteen (13)-week period (such initial
approved budget and subsequent budgets approved by the Required DIP Creditors as described below, the “Approved Budget”).
I. The DIP Agent and the DIP Creditors shall have received, on or prior to the Closing Date, customary closing deliverables with respect to each Debtor addressing such customary matters as the DIP Creditors shall reasonably request, including good standing certificates, secretary’s certificates with organizational documents, resolutions and incumbency certificates attached and officer’s closing certificate, in each case, in form and substance reasonably satisfactory to the Required DIP Creditors.
M. The DIP Agent and each DIP Creditor who has requested the same at least seven (7) business days before the Closing Date shall have received, no later than three (3) business days before the Closing Date, all documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act.
N. Granting to the DIP Agent, for the benefit of the DIP Agent and the DIP Creditors, valid and perfected liens, satisfactory to the Required DIP Creditors, via entry of the DIP Order, on the security interests in the DIP Collateral of the Loan Parties set forth in the “Security and Priority” section above; the Borrower shall have delivered Uniform Commercial Code financing statements with respect to the
Borrower and the other Loan Parties, in suitable form for filing satisfactory to the Required DIP Creditors.
Representations and Warranties:
The DIP Facility Documents shall contain the following representations and warranties covering valid existence, compliance with law (including Official of Foreign Asset Control (“OFAC”), Foreign Corrupt Practices Act, etc.), requisite power, due authorization, approvals, no conflict with organizational documents, material agreements (to the extent enforceable postpetition) or applicable law, enforceability of the DIP Facility Documents, no default or an event of default under DIP Facility Documents after taking into account the funding under the DIP Facility, ownership of subsidiaries and property, material accuracy of financial statements and all other information and disclosure provided, absence of material adverse change, absence of material litigation, taxes, margin regulations, no burdensome restrictions, inapplicability of Investment Company Act, employee benefit plans and the Employee Retirement Income Security Act (“ERISA”), use of proceeds, insurance, labor matters, environmental matters, sanctioned persons, anti-corruption laws, Patriot Act, perfection and security interests, intellectual property and licenses, air carrier status, FAA slot utilization, deposit accounts, ownership of properties and liens, the Orders, the DIP liens, anti-financial crimes and the superpriority administrative expense claims.
Affirmative Covenants:
A. Payment of taxes (other than taxes that are excused or stayed by an order of the Bankruptcy Court or as a result of the filing of the Chapter 11 Cases).
B. Preservation of existence.
C. Maintenance of properties.
D. Maintenance of insurance (including flood insurance solely to the extent that any real property secures the DIP Facility).
H. Provision of additional collateral, guarantees and mortgages.
DIP Milestones:
The Debtors shall comply with all milestones set forth in the Restructuring Support Agreement, as extended pursuant to the terms thereof (the “DIP Milestones”), unless waived by the Required DIP Creditors, it being understood and agree that such DIP Milestones shall be included in the DIP Credit and Note Purchase Agreement.
Negative Covenants:
The DIP Credit and Note Purchase Agreement will contain the following negative covenants, subject to ordinary course exceptions and other baskets, exceptions and thresholds to be mutually agreed:
A. Limitations on liens (which shall include, for the avoidance of doubt, an exception permitting the liens securing any Specified Refinancing).
B. Limitations on loans and investments.
C. Limitations on debt and guarantees (which shall include, for the avoidance of doubt, an exception permitting any Specified Refinancing).
D. Limitations on fundamental changes.
E. Limitations on asset sales and dispositions (including sale-leasebacks and disposition of equity), other than any Specified Disposition; provided that any asset sale or disposition of DIP Collateral (other than any Specified Disposition) not in the ordinary course of business shall require the consent of the Required DIP Creditors.
F. Limitations on restricted payments, including dividends, redemptions and repurchases with respect to capital stock.
G. Limitations on material changes in business.
H. Limitations on transactions with affiliates.
I. Limitations on restrictions on distributions from subsidiaries, intercompany loans (and repayments), asset transfers or investments and granting of negative pledges.
J. Limitations on use of proceeds.
K. Limitations on accounting changes.
For the avoidance of doubt and notwithstanding anything to the contrary herein, the negative covenants applicable to the DIP Facility shall not contain exceptions based on an “available amount” or like concept or “unrestricted subsidiary” or like concept.
Financial Covenants:
The DIP Facility will contain the following financial covenants:
Budget and Reporting Requirements:
The Company shall provide: (i) on or prior to the Thursday of each week, Approved Budget variance reports on a line-item basis and Liquidity reports, in each case, for the preceding rolling four calendar weeks (provided that, (x) the first such variance report shall only include a comparison for the preceding calendar week, (y) the second such variance report shall only include a comparison for the preceding two calendar weeks and (z) the third such variance report shall only include a comparison for the preceding three calendar weeks) and a computation of Liquidity as of the preceding calendar week-end; (ii) on or prior to Thursday of every fourth week, an updated forecast on a rolling 13-week basis, in form and substance reasonably satisfactory to the Required DIP Creditors in their sole discretion, which shall become the then Approved Budget upon approval by Required DIP Creditors in their sole discretion
(and to the extent any updated budget is not approved by the Required DIP Creditors, the Approved Budget that is then in effect shall continue to constitute the Approved Budget for purposes of the DIP Facility); and (iii) on or prior to Thursday of the first full week of each month, monthly flash P&L for the most recently completed available month with commentary on variance to Project Bravo business plan, key updates on routes added or subtracted and key performance indicators, including ASMs, RPMs, load factor, TRASM/CASM/CASM Ex-Fuel, block hours, average daily utilization/block hours, average cost per fuel gallon, average aircraft (total), average aircraft (ATS), average AOGs, flight hours, departures, passenger flight segments, fare revenue per passenger flight segment, non-ticket revenue per passenger flight segment, average stage length, fuel gallons consumed, and commentary on trends and key drivers in respect of fare and non-fare metrics and opex break-outs, the first delivery of which shall be required on the first such Thursday after the Closing Date.
Events of Default:
The DIP Facility Documents will contain the following events of default (each, an “Event of Default”):
A. failure to pay principal, interest or any other amount when due, subject in the case of payment of interest or any other amount (but not principal), to a three (3) business day grace period;
B. representations and warranties incorrect in any material respect when made or deemed made;
C. failure to comply with affirmative covenants (subject to a ten (10) business day grace period for failure to comply with affirmative covenants (other than the affirmative covenants listed in clauses (B), (J), (K), (N) (solely to the extent a responsible officer of the Borrower had actual knowledge of the applicable default or other event and its obligation to deliver such notice pursuant to such clause (N)) and (Q) above)), negative covenants and/or financial covenants (subject to a two (2) business day grace period with respect to any failure to deliver any variance report as and when required);
F. unstayed judgments or postpetition judgments arising from postpetition obligations in excess of $50.0 million after applying proceeds from any applicable insurance policies;
G. commencement of ancillary insolvency proceedings in applicable foreign jurisdictions with respect to any Debtor and the entry of applicable recognition, administrative and substantive orders by the applicable court, in each case without prior consent of the Required DIP Creditors;
H. the occurrence of ERISA events (or foreign equivalent), environmental event or other similar reportable events that are not stayed and that result in a claim in excess of $50.0 million;
I. actual or asserted (by any Loan Party or any affiliate thereof) invalidity or impairment of any material DIP Facility Document (including the failure of any lien to remain perfected liens pursuant to the DIP Order);
J. change of control;
L. The making of any payments in respect of prepetition obligations other than (i) as permitted by the Orders, (ii) as permitted by any “first day” orders reasonably satisfactory to the Required DIP Creditors, (iii) as set forth under the Approved Budget (subject to Permitted Variances) or (iv) approved by the Required DIP Creditors in their sole discretion;
M. The Loan Parties or any of their subsidiaries shall fail to comply with the terms of any of the Orders;
N. The Loan Parties or any of their subsidiaries, or any person claiming by or through the Loan Parties or any of their subsidiaries shall obtain court authorization to commence, or shall commence, join in, assist or otherwise participate as an adverse party in any suit or other proceeding against the agents under the Prepetition Facilities or any of the lenders or creditors under the Prepetition Facilities relating to the Prepetition Facilities, in their capacities as such;
Upon the occurrence and during the continuation of a DIP Termination Event, without further application, notice, hearing or order of the Bankruptcy Court, the automatic stay under section 362 of the Bankruptcy Code shall automatically be deemed vacated and modified to the extent necessary to permit the DIP Agent (acting at the direction of the Required DIP Creditors under the DIP Facility Documents) to deliver a written notice (which may be via electronic mail) to counsel for the Debtors, the U.S. Trustee and counsel for the Creditors’ Committee to declare the occurrence of a DIP Termination Event (such date, the “DIP Termination Declaration Date”) and (i) terminate, reduce or restrict the DIP Commitments (to the extent any such commitment remains), (ii) accelerate and declare all DIP Facility Obligations to be immediately due and payable, (iii) terminate the DIP Facility and the DIP Facility Documents as to any further liability or obligation thereunder, but without affecting the DIP Liens, the DIP superpriority claims or the DIP Facility Obligations, (iv) terminate, restrict or revoke the ability of the Debtors to use Cash Collateral, (v) charge interest at the default rate set forth in the DIP Facility Documents, and/or (vi) upon at least 5 business days’ notice from and after the DIP Termination Declaration Date (the “Remedies Notice Period”), exercise or enforce any rights and remedies against the DIP Collateral as set forth in the DIP Facility Documents or under applicable law (subject to any applicable intercreditor provisions set forth in the DIP Order and the relative rights and priorities set forth in the DIP Order); provided, however, that the Debtors and the Creditor’s Committee (if appointed) may, during such period, be entitled to seek emergency relief before the Bankruptcy Court, subject to the Bankruptcy Court’s availability (“Emergency Motion”) (in which case, the Remedies Notice Period shall automatically extend until the Bankruptcy Court’s adjudication of such Emergency Motion). Unless the Bankruptcy Court orders otherwise, upon the expiration of the Remedies Notice Period the automatic stay shall automatically be deemed terminated, without further notice, hearing or order of the Bankruptcy Court, and the DIP Agent (acting at the instruction of the Required DIP Creditors under the DIP Facility Documents) shall be permitted to exercise all remedies set forth in the DIP Order and in the DIP Facility Documents or applicable law, and the Debtors’ right to use any Cash Collateral that constitutes Pre-Petition Secured Notes Collateral shall immediately cease.
Right to Credit Bid:
Subject to the terms of the DIP Order, to the extent provided in section 363(k) of the Bankruptcy Code and applicable law, the DIP Agent, or any assignee or designee of the DIP Agent, acting at the direction of the Required DIP Creditors and on behalf of the DIP Creditors, shall have the right to credit bid up to the full amount of the DIP Facility Obligations in the sale of any of the Debtors’ assets, including pursuant to (i) Bankruptcy Code section 363, (ii) a plan of reorganization or a plan of liquidation under Bankruptcy Code section 1129 or (iii) a sale or disposition by a chapter 7 trustee for any Debtor under Bankruptcy Code section 725. The DIP Agent and the DIP Creditors shall have the absolute right to assign, sell or otherwise dispose of their respective rights to credit bid in connection with any credit bid by or on behalf of the DIP Agent and/or the DIP Creditors to any acquisition entity or joint venture formed in connection with such bid.
Expenses and Indemnification:
expenses of Dentons US LLP) as set forth in a letter agreement between the Borrower and the Fronting Lender (the “Fronting Fee Letter”).
Assignments and Participations:
doubt, the Fronting Lender shall not be required to execute or agree to be bound by the Restructuring Support Agreement and the transactions contemplated therein.
Amendments:
Miscellaneous:
Governing Law and Submission to Exclusive Jurisdiction:
State of New York (and, to the extent applicable, the Bankruptcy Code and Bankruptcy Court), without giving effect to any conflicts of laws provision that would dictate the application of another jurisdiction’s laws. The Debtors submit to the exclusive jurisdiction of the Bankruptcy Court and waive any right to trial by jury.
DIP Order Governs:
Notwithstanding anything to the contrary in any DIP Facility Documents, the provisions of the DIP Facility Documents shall be subject to the terms of the DIP Order. In the event of a conflict between the terms of the DIP Order and the DIP Facility Documents, the terms of the DIP Order shall govern and control.
Interest Rates:
At the option of the Borrower, DIP Loans and DIP Notes will bear interest at a rate per annum equal to (a) Term SOFR plus 7.00% per annum or (b) Alternate Base Rate plus 6.00% per annum. Interest shall be payable in cash.
Interest shall be calculated on the basis of the actual number of days elapsed in a 360-day year. Interest shall be payable in arrears on the last Business Day of each month, regardless of whether interest accrues based on Term SOFR or the Alternate Base Rate.
Put Option Premium:
3.00% of the DIP Commitments, payable in-kind on the Closing Date (the “Put Option Premium”).
Default Rate:
2.00% per annum at all times automatically following the occurrence and during the continuation of a payment Event of Default under the DIP Facility.
Definitions:
Each capitalized term used in this Annex A-1 that is not defined in this Annex A-1 has the meaning assigned to such term in Annex A-2, unless such term is otherwise defined in this DIP Term Sheet.
TYPE
BUILD YEAR
TAIL
ESTIMATED DEBT
AT SALE DATE
1
A320
2014
632
$ 7.6
2
A320
2018
694
$ 19.3
3
A320
2015
638
$ 8.3
4
A321
2015
657
$ 10.3
5
A321
2015
658
$ 10.3
6
A320
2017
650
$ 15.5
7
A320
2019
696
$ 20.0
8
A320
2017
647
$ 17.6
9
A321
2017
681
$ 22.3
10
A320
2019
695
$ 19.3
11
A321
2017
674
$ 19.6
12
A320
2015
639
$ 10.6
13
A321
2017
675
$ 17.4
14
A320
2017
649
$ 14.8
15
A320
2015
640
$ 10.6
16
A321
2017
678
$ 17.5
17
A320
2018
693
$ 18.6
18
A320
2018
692
$ 20.3
19
A321
2017
682
$ 22.3
20
A320
2018
691
$ 21.6
21
A321
2017
673
$ 17.1
22
A320
2015
642
$ 10.5
23
A320
2015
641
$ 9.8
Via E-mail
By:
Name:
Title:
Accepted and Agreed to by:
Dated:
CoverNov. 12, 2024
Cover [Abstract]
Document Type
8-K
Amendment Flag
false
Document Period End Date
Nov. 12, 2024
Entity File Number
001-35186
Entity Registrant Name
Spirit Airlines,
Inc.
Entity Central Index Key
0001498710
Entity Tax Identification Number
38-1747023
Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
1731 Radiant Drive
Entity Address, City or Town
Dania Beach
Entity Address, State or Province
FL
Entity Address, Postal Zip Code
33004
City Area Code
954
Local Phone Number
447-7920
Written Communications
false
Soliciting Material
false
Pre-commencement Tender Offer
false
Pre-commencement Issuer Tender Offer
false
Title of 12(b) Security
Common Stock, $0.0001 par value
Trading Symbol
SAVE
Security Exchange Name
NYSE
Entity Emerging Growth Company
false
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