Payroll Support Program Agreement

DELIBERATIVE AND PREDECISIONAL WORKING DRAFT

PAYROLL SUPPORT PROGRAM AGREEMENT
Recipient: «Recipient_Name and Address»

Amount of Initial Payroll Support Payment: $[

PSP Participant Number: «Control_Number»
DUNS Number: «DUNS»
Employer Identification Number: «EIN»

]

The Department of the Treasury (Treasury) hereby provides Payroll Support (as defined herein) under
Division A, Title IV, Subtitle B of the Coronavirus Aid, Relief, and Economic Security Act. The Recipient
named above, on behalf of itself and its Affiliates (as defined herein), agrees to comply with this Agreement
and applicable Federal law as a condition of receiving Payroll Support. The Recipient and Recipient’s
undersigned authorized representatives acknowledge that a materially false, fictitious, or fraudulent
statement (or concealment or omission of a material fact) in connection with this Agreement may result in
administrative remedies as well as civil and/or criminal penalties.
The undersigned hereby agree to the attached Payroll Support Program Agreement.

_______________________________________
Department of the Treasury
Name:
Title:
Date:

__________________________________________
[Recipient]
First Authorized Representative:
Title:
Date:

__________________________________________
[Recipient]
Second Authorized Representative:
Title:
Date:

OMB Approved No. 1505-0263
Expiration Date: 09/30/2020

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PAYROLL SUPPORT PROGRAM AGREEMENT
INTRODUCTION
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act or Act) directs the
Department of the Treasury (Treasury) to provide Payroll Support (as defined herein) to
passenger air carriers, cargo air carriers, and certain contractors that must be exclusively used for
the continuation of payment of Employee Salaries, Wages, and Benefits (as defined herein). The
Act permits Treasury to provide Payroll Support in such form, and on such terms and conditions,
as the Secretary of the Treasury determines appropriate, and requires certain assurances from the
Recipient (as defined herein).
This Payroll Support Program Agreement, including the application and all supporting
documents submitted by the Recipient and the Payroll Support Certification attached hereto
(collectively, Agreement), memorializes the binding terms and conditions applicable to the
Recipient.
DEFINITIONS
As used in this Agreement, the following terms shall have the following respective meanings,
unless the context clearly requires otherwise. In addition, this Agreement shall be construed in a
manner consistent with any public guidance Treasury may from time to time issue regarding the
implementation of Division A, Title IV, Subtitle B of the CARES Act.
Act or CARES Act means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No.
116-136).
Additional Payroll Support Payment means any disbursement of Payroll Support occurring after
the first disbursement of Payroll Support under this Agreement.
Affiliate means any Person that directly or indirectly controls, is controlled by, or is under
common control with, the Recipient. For purposes of this definition, “control” of a Person shall
mean having the power, directly or indirectly, to direct or cause the direction of the management
and policies of such Person, whether by ownership of voting equity, by contract, or otherwise.
Benefits means, without duplication of any amounts counted as Salary or Wages, pension
expenses in respect of Employees, all expenses for accident, sickness, hospital, and death
benefits to Employees, and the cost of insurance to provide such benefits; any Severance Pay or
Other Benefits payable to Employees pursuant to a bona fide voluntary early retirement program
or voluntary furlough; and any other similar expenses paid by the Recipient for the benefit of
Employees, including any other fringe benefit expense described in lines 10 and 11 of Financial
Reporting Schedule P-6, Form 41, as published by the Department of Transportation, but
excluding any Federal, state, or local payroll taxes paid by the Recipient.
Corporate Officer means, with respect to the Recipient, its president; any vice president in
charge of a principal business unit, division, or function (such as sales, administration or
finance); any other officer who performs a policy-making function; or any other person who
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performs similar policy making functions for the Recipient. Executive officers of subsidiaries of
the Recipient may be deemed Corporate Officers of the Recipient if they perform such policymaking functions for the Recipient.
Employee means an individual who is employed by the Recipient and whose principal place of
employment is in the United States (including its territories and possessions), including salaried,
hourly, full-time, part-time, temporary, and leased employees, but excluding any individual who
is a Corporate Officer or independent contractor.
Involuntary Termination or Furlough means the Recipient terminating the employment of one or
more Employees or requiring one or more Employees to take a temporary suspension or unpaid
leave for any reason, including a shut-down or slow-down of business; provided, however, that
an Involuntary Termination or Furlough does not include a Permitted Termination or Furlough.
Maximum Awardable Amount means the amount determined by the Secretary with respect to the
Recipient pursuant to section 4113(a)(1), (2), or (3) (as applicable) of the CARES Act.
Payroll Support means funds disbursed by the Secretary to the Recipient under this Agreement,
including the first disbursement of Payroll Support and any Additional Payroll Support Payment.
Permitted Termination or Furlough means, with respect to an Employee, (1) a voluntary
furlough, voluntary leave of absence, voluntary resignation, or voluntary retirement, (2)
termination of employment resulting from such Employee’s death or disability, or (3) the
Recipient terminating the employment of such Employee for cause or placing such Employee on
a temporary suspension or unpaid leave of absence for disciplinary reasons, in either case, as
reasonably determined by the Recipient acting in good faith.
Person means any natural person, corporation, limited liability company, partnership, joint
venture, trust, business association, governmental entity, or other entity.
Recipient means the passenger air carrier, cargo air carrier, or contractor that has entered into this
Agreement, and its heirs, executors, administrators, successors, and assigns.
Salary means, without duplication of any amounts counted as Benefits, a fixed regular payment,
typically paid on a monthly or biweekly basis but often expressed as an annual sum, as well as
cost-of-living differentials, vacation time, paid time off, sick leave, and overtime pay, paid by the
Recipient to its Employees, but excluding any Federal, state, or local payroll taxes paid by the
Recipient.
Secretary means the Secretary of the Treasury.
Severance Pay or Other Benefits means any severance payment or other similar benefits,
including cash payments, health care benefits, perquisites, the enhancement or acceleration of the
payment or vesting of any payment or benefit or any other in-kind benefit payable (whether in
lump sum or over time, including after March 24, 2022) by the Recipient to a Corporate Officer
or Employee in connection with any termination of such Corporate Officer’s or Employee’s
employment (including, without limitation, resignation, severance, retirement, or constructive
termination), which shall be determined and calculated in respect of any Employee or Corporate
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Officer of the Recipient in the manner prescribed in 17 CFR 229.402(j) (without regard to its
limitation to the five most highly compensated executives and using the actual date of
termination of employment rather than the last business day of the Recipient’s last completed
fiscal year as the trigger event).
Taxpayer Protection Instruments means warrants, options, preferred stock, debt securities, notes,
or other financial instruments issued by the Recipient to Treasury as compensation for the
Payroll Support under this Agreement, if applicable.
Total Compensation means compensation including salary, wages, bonuses, awards of stock, and
any other financial benefits provided by the Recipient or an Affiliate, as applicable, which shall
be determined and calculated for the 2019 calendar year or any applicable 12-month period in
respect of any Employee or Corporate Officer of the Recipient in the manner prescribed under
paragraph e.5 of the award term in 2 CFR part 170, App. A, but excluding any Severance Pay or
Other Benefits in connection with a termination of employment.
Wage means, without duplication of any amounts counted as Benefits, a payment, typically paid
on an hourly, daily, or piecework basis, including cost-of-living differentials, vacation, paid time
off, sick leave, and overtime pay, paid by the Recipient to its Employees, but excluding any
Federal, state, or local payroll taxes paid by the Recipient.
PAYROLL SUPPORT PAYMENTS
1. Upon the execution of this Agreement by Treasury and the Recipient, the Secretary shall
approve the Recipient’s application for Payroll Support.
2. The Recipient may receive Payroll Support in multiple payments up to the Maximum
Awardable Amount, and the amounts (individually and in the aggregate) and timing of such
payments will be determined by the Secretary in his sole discretion. The Secretary may, in
his sole discretion, increase or reduce the Maximum Awardable Amount (a) consistent with
section 4113(a) of the CARES Act and (b) on a pro rata basis in order to address any shortfall
in available funds, pursuant to section 4113(c) of the CARES Act.
3. The Secretary may determine in his sole discretion that any Additional Payroll Support
Payment shall be conditioned on, and subject to, such additional terms and conditions
(including any terms regarding Taxpayer Protection Instruments) to which the parties may
agree in writing.
TERMS AND CONDITIONS
Retaining and Paying Employees 
4. The Recipient shall use the Payroll Support exclusively for the continuation of payment of
Wages, Salaries, and Benefits to the Employees of the Recipient.
a. Furloughs and Layoffs. The Recipient shall not conduct an Involuntary Termination
or Furlough of any Employee between the date of this Agreement and September 30,
2020.
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b. Employee Salary, Wages, and Benefits
i. Salary and Wages. Except in the case of a Permitted Termination or
Furlough, the Recipient shall not, between the date of this Agreement and
September 30, 2020, reduce, without the Employee’s consent, (A) the Salary
of any salaried Employee, or (B) the Wages per hour earned by any hourly
Employee.
ii. Benefits. Except in the case of a Permitted Termination or Furlough, the
Recipient shall not, between the date of this Agreement and September 30,
2020, reduce, without the Employee’s consent, the Benefits of any Employee;
provided, however, that for purposes of this paragraph, personnel expenses
associated with the performance of work duties, including those described in
line 10 of Financial Reporting Schedule P-6, Form 41, as published by the
Department of Transportation, may be reduced to the extent the associated
work duties are not performed.
Dividends and Buybacks
5. Through September 30, 2021, neither the Recipient nor any Affiliate shall, in any transaction,
purchase an equity security of the Recipient or of any direct or indirect parent company of
the Recipient that, in either case, is listed on a national securities exchange.
6. Through September 30, 2021, the Recipient shall not pay dividends, or make any other
capital distributions, with respect to the common stock (or equivalent equity interest) of the
Recipient.
Limitations on Certain Compensation
7. Beginning March 24, 2020, and ending March 24, 2022, the Recipient and its Affiliates shall
not pay any of the Recipient’s Corporate Officers or Employees whose Total Compensation
exceeded $425,000 in calendar year 2019 (other than an Employee whose compensation is
determined through an existing collective bargaining agreement entered into before March
27, 2020):
a. Total Compensation which exceeds, during any 12 consecutive months of such twoyear period, the Total Compensation the Corporate Officer or Employee received in
calendar year 2019; or
b. Severance Pay or Other Benefits in connection with a termination of employment
with the Recipient which exceed twice the maximum Total Compensation received
by such Corporate Officer or Employee in calendar year 2019.
8. Beginning March 24, 2020, and ending March 24, 2022, the Recipient and its Affiliates shall
not pay any of the Recipient’s Corporate Officers or Employees whose Total Compensation
exceeded $3,000,000 in calendar year 2019 Total Compensation in excess of the sum of:
a. $3,000,000; and
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b. 50 percent of the excess over $3,000,000 of the Total Compensation received by such
Corporate Officer or Employee in calendar year 2019.
9. For purposes of determining applicable amounts under paragraphs 7 and 8 with respect to
any Corporate Officer or Employee who was employed by the Recipient for less than all of
calendar year 2019, the amount of Total Compensation in calendar year 2019 shall mean
such Corporate Officer’s or Employee’s Total Compensation on an annualized basis.
Continuation of Service
10. If the recipient is an air carrier, until March 1, 2022, the Recipient shall comply with any
applicable requirement issued by the Secretary of Transportation under section 4114(b) of the
CARES Act to maintain scheduled air transportation service to any point served by the
Recipient before March 1, 2020.
Effective Date
11. This Agreement shall be effective as of the date of its execution by both parties.
Reporting and Auditing
12. In the event the Recipient contemplates any action to commence a bankruptcy or insolvency
proceeding in any jurisdiction, the Recipient shall promptly notify Treasury.
13. Until the calendar quarter following the later of March 24, 2022, and the date on which no
Taxpayer Protection Interest is outstanding, not later than 45 days following the end of each
calendar quarter and 90 days after the end of each year, the Recipient shall certify to
Treasury that it is in compliance with the terms and conditions of this Agreement and provide
a report containing the following:
a. the amount of Payroll Support funds expended during such quarter;
b. the Recipient’s financial statements (audited by an independent certified public
accountant, in the case of annual financial statements); and
c. a copy of the Recipient’s IRS Form 941 filed with respect to such quarter; and
d. a detailed summary describing, with respect to the Recipient, (a) any changes in
Employee headcount during such quarter and the reasons therefor, including any
Involuntary Termination or Furlough, (b) any changes in the amounts spent by the
Recipient on Employee Wages, Salary, and Benefits during such quarter, and (c) any
changes in Total Compensation for, and any Severance Pay or Other Benefits in
connection with the termination of, Corporate Officers and Employees subject to
limitation under this Agreement during such quarter; and the reasons for any such
changes.

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14. If the Recipient or any Affiliate, or any Corporate Officer of the Recipient or any Affiliate,
becomes aware of facts, events, or circumstances that may materially affect the Recipient’s
compliance with the terms and conditions of this Agreement, the Recipient or Affiliate shall
promptly provide Treasury with a written description of the events or circumstances and any
action taken, or contemplated, to address the issue.
15. The Recipient shall:
a. Promptly provide to Treasury and the Treasury Inspector General a copy of any
Department of Transportation Inspector General report, audit report, or report of any
other oversight body, that is received by the Recipient relating to this Agreement.
b. Immediately notify Treasury and the Treasury Inspector General of any indication of
fraud, waste, abuse, or potentially criminal activity pertaining to the Payroll Support.
c. Promptly provide Treasury with any information Treasury may request relating to
compliance by the Recipient and its Affiliates with this Agreement.
16. The Recipient and Affiliates will provide Treasury, the Treasury Inspector General, and such
other entities as authorized by Treasury timely and unrestricted access to all documents,
papers, or other records, including electronic records, of the Recipient related to the Payroll
Support, to enable Treasury and the Treasury Inspector General to make audits,
examinations, and otherwise evaluate the Recipient’s compliance with the terms of this
Agreement. This right also includes timely and reasonable access to the Recipient’s and its
Affiliates’ personnel for the purpose of interview and discussion related to such documents.
This right of access shall continue as long as records are required to be retained.
Recordkeeping and Internal Controls
17. If Treasury notifies the Recipient that the first disbursement of Payroll Support to the
Recipient under this Agreement is the Maximum Awardable Amount (subject to any pro rata
reductions and as determined by the Secretary as of the date of such disbursement), the
Recipient shall maintain the Payroll Support funds in a separate account over which Treasury
shall have a perfected security interest to continue the payment of Wages, Salary, and
Benefits to the Employees. For the avoidance of doubt, if the Recipient is a debtor as defined
under 11 U.S.C. § 101(13), the Payroll Support funds, any claim or account receivable
arising under this Agreement, and any segregated account holding funds received under this
Agreement shall not constitute or become property of the estate under 11 U.S.C. § 541.
18. The Recipient shall expend and account for Payroll Support funds in a manner sufficient to:
a. Permit the preparation of accurate, current, and complete quarterly reports as required
under this Agreement.
b. Permit the tracing of funds to a level of expenditures adequate to establish that such
funds have been used as required under this Agreement.
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19. The Recipient shall establish and maintain effective internal controls over the Payroll
Support; comply with all requirements related to the Payroll Support established under
applicable Federal statutes and regulations; monitor compliance with Federal statutes,
regulations, and the terms and conditions of this Agreement; and take prompt corrective
actions in accordance with audit recommendations. The Recipient shall promptly remedy
any identified instances of noncompliance with this Agreement.
20. The Recipient and all Affiliates shall retain all records pertinent to the receipt of Payroll
Support and compliance with the terms and conditions of this Agreement (including by
suspending any automatic deletion functions for electronic records, including e-mails) for a
period of three years following the period of performance. Such records shall include all
information necessary to substantiate factual representations made in the Recipient’s
application for Payroll Support, including ledgers and sub-ledgers, and the Recipient’s
compliance with this Agreement. While electronic storage of records (backed up as
appropriate) is preferable, the Recipient and Affiliates may store records in hardcopy (paper)
format. The term “records” includes all relevant financial and accounting records and all
supporting documentation for the information reported on the Recipient’s quarterly reports.
21. If any litigation, claim, investigation, or audit relating to the Payroll Support is started before
the expiration of the three-year period, the Recipient and Affiliates shall retain all records
described in paragraph 20 until all such litigation, claims, investigations, or audit findings
have been completely resolved and final judgment entered or final action taken.
Remedies
22. If Treasury believes that an instance of noncompliance by the Recipient or an Affiliate with
(a) this Agreement, (b) sections 4114 or 4116 of the CARES Act, or (c) the Internal Revenue
Code of 1986 as it applies to the receipt of Payroll Support has occurred, Treasury may
notify the Recipient in writing of its proposed determination of noncompliance, provide an
explanation of the nature of the noncompliance, and specify a proposed remedy. Upon
receipt of such notice, the Recipient shall, within seven days, accept Treasury’s proposed
remedy, propose an alternative remedy, or provide information and documentation contesting
Treasury’s proposed determination. Treasury shall consider any such submission by the
Recipient and make a final written determination, which will state Treasury’s findings
regarding noncompliance and the remedy to be imposed.
23. If Treasury makes a final determination under paragraph 22 that an instance of
noncompliance has occurred, Treasury may, in its sole discretion, withhold any Additional
Payroll Support Payments; require the repayment of the amount of any previously disbursed
Payroll Support, with appropriate interest; require additional reporting or monitoring; initiate
suspension or debarment proceedings as authorized under 2 CFR Part 180; terminate this
Agreement; or take any such other action as Treasury, in its sole discretion, deems
appropriate.
24. Treasury may make a final determination regarding noncompliance without regard to
paragraph 22 if Treasury determines, in its sole discretion, that such determination is
necessary to protect a material interest of the Federal Government. In such event, Treasury
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shall notify the Recipient of the remedy that Treasury, in its sole discretion, shall impose,
after which the Recipient may contest Treasury’s final determination or propose an
alternative remedy in writing to Treasury. Following the receipt of such a submission by the
Recipient, Treasury may, in its sole discretion, maintain or alter its final determination.
25. Any final determination of noncompliance and any final determination to take any remedial
action described herein shall not be subject to further review. To the extent permitted by law,
the Recipient waives any right to judicial review of any such determinations and further
agrees not to assert in any court any claim arising from or relating to any such determination
or remedial action.
26. Instead of, or in addition to, the remedies listed above, Treasury may refer any
noncompliance or any allegations of fraud, waste, or abuse to the Treasury Inspector General.
27. Treasury, in its sole discretion, may grant any request by the Recipient for termination of this
Agreement, which such request shall be in writing and shall include the reasons for such
termination, the proposed effective date of the termination, and the amount of any unused
Payroll Support funds the Recipient requests to return to Treasury. Treasury may, in its sole
discretion, determine the extent to which the requirements under this Agreement may cease
to apply following any such termination.
28. If Treasury determines that any remaining portion of the Payroll Support will not accomplish
the purpose of this Agreement, Treasury may terminate this Agreement in its entirety to the
extent permitted by law.
Debts
29. Any Payroll Support in excess of the amount which Treasury determines, at any time, the
Recipient is authorized to receive or retain under the terms of this Agreement constitutes a
debt to the Federal Government.
30. Any debts determined to be owed by the Recipient to the Federal Government shall be paid
promptly by the Recipient. A debt is delinquent if it has not been paid by the date specified
in Treasury’s initial written demand for payment, unless other satisfactory arrangements have
been made. Interest, penalties, and administrative charges shall be charged on delinquent
debts in accordance with 31 U.S.C. § 3717, 31 CFR 901.9, and paragraphs 31 and 32.
Treasury will refer any debt that is more than 180 days delinquent to Treasury’s Bureau of
the Fiscal Service for debt collection services.
31. Penalties on any debts shall accrue at a rate of not more than 6 percent per year or such other
higher rate as authorized by law.
32. Administrative charges relating to the costs of processing and handling a delinquent debt
shall be determined by Treasury.
33. The Recipient shall not use funds from other federally sponsored programs to pay a debt to
the government arising under this Agreement.
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Protections for Whistleblowers
34. In addition to other applicable whistleblower protections, in accordance with 41 U.S.C.
§ 4712, the Recipient shall not discharge, demote, or otherwise discriminate against an
Employee as a reprisal for disclosing information to a Person listed below that the Employee
reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a
gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a
substantial and specific danger to public health or safety, or a violation of law, rule, or
regulation related to a Federal contract (including the competition for or negotiation of a
contract) or grant:
a. A Member of Congress or a representative of a committee of Congress;
b. An Inspector General;
c. The Government Accountability Office;
d. A Treasury employee responsible for contract or grant oversight or management;
e. An authorized official of the Department of Justice or other law enforcement agency;
f. A court or grand jury; or
g. A management official or other Employee of the Recipient who has the responsibility
to investigate, discover, or address misconduct.
Lobbying
35. The Recipient shall comply with the provisions of 31 U.S.C. § 1352, as amended, and with
the regulations at 31 CFR Part 21.
Non-Discrimination
36. The Recipient shall comply with, and hereby assures that it will comply with, all applicable
Federal statutes and regulations relating to nondiscrimination including:
a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), including
Treasury’s implementing regulations at 31 CFR Part 22;
b. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794);
c. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101–6107),
including Treasury’s implementing regulations at 31 CFR Part 23 and the general
age discrimination regulations at 45 CFR Part 90; and
d. The Air Carrier Access Act of 1986 (49 U.S.C. § 41705).

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Additional Reporting
37. Within seven days after the date of this Agreement, the Recipient shall register in SAM.gov,
and thereafter maintain the currency of the information in SAM.gov until at least March 24,
2022. The Recipient shall review and update such information at least annually after the
initial registration, and more frequently if required by changes in the Recipient’s information.
The Recipient agrees that this Agreement and information related thereto, including the
Maximum Awardable Amount and any executive Total Compensation reported pursuant to
paragraph 38, may be made available to the public through a U.S. Government website,
including SAM.gov.
38. For purposes of paragraph 37, the Recipient shall report total compensation as defined in
paragraph e.5 of the award term in 2 CFR part 170, App. A for each of the Recipient’s five
most highly compensated executives for the preceding completed fiscal year, if:
a. the total Payroll Support is $25,000 or more;
b. in the preceding fiscal year, the Recipient received:
i. 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance, as defined at 2
CFR 170.320 (and subawards); and
ii. $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance, as defined at 2
CFR 170.320 (and subawards); and
c. the public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal
Revenue Code of 1986. To determine if the public has access to the compensation
information, the Recipient shall refer to U.S. Securities and Exchange Commission
total compensation filings at http://www.sec.gov/answers/execomp.htm.
39. The Recipient shall report executive total compensation described in paragraph 38:
a. as part of its registration profile at https://www.sam.gov; and
b. within five business days after the end of each month following the month in which
this Agreement becomes effective, and annually thereafter.
40. The Recipient agrees that, that from time to time, it will, at its own expense, promptly upon
reasonable request by Treasury, execute and deliver, or cause to be executed and delivered,
or use its commercially reasonable efforts to procure, all instruments, documents and
information, all in form and substance reasonably satisfactory to Treasury, to enable Treasury
to ensure compliance with, or effect the purposes of, this Agreement, which may include,
among other documents or information, (a) certain audited financial statements of the
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Recipient, (b) documentation regarding the Recipient’s revenues derived from its business as
a passenger or cargo air carrier or regarding the passenger air carriers for which the Recipient
provides services as a contractor (as the case may be), and (c) the Recipient’s most recent
quarterly Federal tax returns. The Recipient agrees to provide Treasury with such documents
or information promptly.
41. If the total value of the Recipient’s currently active grants, cooperative agreements, and
procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any
period before termination of this Agreement, then the Recipient shall make such reports as
required by 2 CFR part 200, Appendix XII.
Other
42. The Recipient acknowledges that neither Treasury, nor any other actor, department, or
agency of the Federal Government, shall condition the provision of Payroll Support on the
Recipient’s implementation of measures to enter into negotiations with the certified
bargaining representative of a craft or class of employees of the Recipient under the Railway
Labor Act (45 U.S.C. 151 et seq.) or the National Labor Relations Act (29 U.S.C. 151 et
seq.), regarding pay or other terms and conditions of employment.
43. Notwithstanding any other provision of this Agreement, the Recipient has no right to, and
shall not, transfer, pledge, mortgage, encumber, or otherwise assign any Payroll Support
provided under this Agreement, or any interest therein, or any claim, account receivable, or
funds arising thereunder or accounts holding Payroll Support, to any party, bank, trust
company, or other Person without the express written approval of Treasury.

44. Unless otherwise provided in guidance issued by Treasury or the Internal Revenue Service,
the form of any Taxpayer Protection Instrument held by Treasury and any subsequent holder
will be treated as such form for purposes of the Internal Revenue Code of 1986 (for example,
a Taxpayer Protection Instrument in the form of a note will be treated as indebtedness for
purposes of the Internal Revenue Code of 1986).
45. This Agreement may not be amended or modified except pursuant to an agreement in writing
entered into by the Recipient and Treasury, except that Treasury may unilaterally amend this
Agreement if required in order to comply with applicable Federal law or regulation.
46. Subject to applicable law, Treasury may, in its sole discretion, waive any term or condition
under this Agreement imposing a requirement on the Recipient or any Affiliate.
47. This Agreement shall bind and inure to the benefit of the parties and their respective heirs,
executors, administrators, successors, and assigns.  
48. The Recipient represents and warrants to Treasury that this Agreement, and the issuance and
delivery to Treasury of the Taxpayer Protection Instruments, if applicable, have been duly
authorized by all requisite corporate and, if required, stockholder action, and will not result in
the violation by the Recipient of any provision of law, statute, or regulation, or of the articles
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of incorporation or other constitutive documents or bylaws of the Recipient, or breach or
constitute an event of default under any material contract to which the Recipient is a party.
49. The Recipient represents and warrants to Treasury that this Agreement has been duly
executed and delivered by the Recipient and constitutes a legal, valid, and binding obligation
of the Recipient enforceable against the Recipient in accordance with its terms.
50. This Agreement may be executed in counterparts, each of which shall constitute an original,
but all of which together shall constitute a single contract.
51. The words “execution,” “signed,” “signature,” and words of like import in any assignment
shall be deemed to include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act. Notwithstanding anything herein to the contrary, delivery of an executed
counterpart of a signature page of this Agreement by electronic means, or confirmation of the
execution of this Agreement on behalf of a party by an email from an authorized signatory of
such party, shall be effective as delivery of a manually executed counterpart of this
Agreement.
52. The captions and paragraph headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of this Agreement.
53. This Agreement is governed by and shall be construed in accordance with Federal law.
Insofar as there may be no applicable Federal law, this Agreement shall be construed in
accordance with the laws of the State of New York, without regard to any rule of conflicts of
law (other than section 5-1401 of the New York General Obligations Law) that would result
in the application of the substantive law of any jurisdiction other than the State of New York.
54. Nothing in this Agreement shall require any unlawful action or inaction by either party.
55. The requirement pertaining to trafficking in persons at 2 CFR 175.15(b) is incorporated
herein and made applicable to the Recipient.
56. This Agreement, together with the attachments hereto, including the Payroll Support
Certification and any attached terms regarding Taxpayer Protection Instruments, constitute
the entire agreement of the parties relating to the subject matter hereof and supersede any
previous agreements and understandings, oral or written, relating to the subject matter hereof.
There may exist other agreements between the parties as to other matters, which are not
affected by this Agreement and are not included within this integration clause.
57. No failure by either party to insist upon the strict performance of any provision of this
Agreement or to exercise any right or remedy hereunder, and no acceptance of full or partial
13

DELIBERATIVE AND PREDECISIONAL WORKING DRAFT

Payroll Support (if applicable) or other performance by either party during the continuance of
any such breach, shall constitute a waiver of any such breach of such provision.

ATTACHMENTS
a. Payroll Support Program Certification

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DELIBERATIVE AND PREDECISIONAL WORKING DRAFT

PAYROLL SUPPORT PROGRAM
CERTIFICATION OF CORPORATE OFFICER OF RECIPIENT
In connection with the Payroll Support Program Agreement (Agreement), dated as of
_________, 2020, between [Recipient Name] (Recipient) and the U.S. Department of the
Treasury (Treasury) relating to Payroll Support being provided by Treasury to the Recipient
under Division A, Title IV, Subtitle B of the Coronavirus Aid, Relief and Economic Security
Act, I hereby certify under penalty of perjury to the Treasury that all of the following are true
and correct. Capitalized terms used but not defined herein have the meanings set forth in the
Agreement.
(1) I have the authority to make the following representations on behalf of myself and the
Recipient. I understand that these representations will be relied upon as material in the
decision by Treasury to provide Payroll Support to the Recipient.
(2) The information and certifications provided by the Recipient in its Payroll Support
Application Form for Air Carriers and Contractors, and in any attachments or other
information provided by the Recipient to Treasury related to its application, are true and
correct and do not contain any materially false, fictitious, or fraudulent statement, nor any
concealment or omission of any material fact.
(3) The Recipient has the legal authority to apply for the Payroll Support, and it has the
institutional, managerial, and financial capability to comply with all obligations, terms, and
conditions set forth in the Agreement and any attachment thereto.
(4) The Recipient and any Affiliate will give Treasury, Treasury’s designee or the
Treasury Office of Inspector General (as applicable) access to, and opportunity to examine,
all documents, papers, or other records of the Recipient or Affiliate pertinent to the provision
of Payroll Support made by Treasury based on the application, in order to make audits,
examinations, excerpts, and transcripts.
(5) No Federal appropriated funds, including Payroll Support, have been paid or will be
paid, by or on behalf of the Recipient, to any person for influencing or attempting to
influence an officer or employee of an agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative
agreement.
(6) If the Payroll Support exceeds $100,000, the Recipient shall comply with the
disclosure requirements in 31 CFR Part 21 regarding any amounts paid for influencing or
attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection
with the Payroll Support.

DELIBERATIVE AND PREDECISIONAL WORKING DRAFT

I acknowledge that a materially false, fictitious, or fraudulent statement (or concealment or
omission of a material fact) in this certification, or in the application that it supports, may
be the subject of criminal prosecution and also may subject me and the Recipient to civil
penalties and/or administrative remedies for false claims or otherwise.

_____________________________________

_____________________________________

Corporate Officer of Recipient

Second Authorized Representative

Name:

Name:

Title:

Title:

Date:

Date: