UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-3
_______________________
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
_______________________
GOL Finance
GOL Equity Finance
(Co-Issuers)
GOL Linhas Aéreas Inteligentes S.A.
GOL Linhas Aéreas S.A.
Smiles Fidelidade S.A.
(Guarantors)
(Name of Applicants)
_______________________
c/o GOL Linhas Aéreas Inteligentes S.A.
Praça Comandante Linneu Gomes, Portaria 3, Prédio 24
Jd. Aeroporto
04630-000 São Paulo, São Paulo
Federative Republic of Brazil
(Address of principal executive offices)
Securities to be Issued under the Indenture to be Qualified
Title of Class |
Amount |
9.500% Senior Notes due 2031 | Up to $600,000,000 aggregate principal amount |
The Applicants hereby amend this Application for Qualification (the “Application”) on such date or dates as may be necessary to delay its effectiveness until (i) the 20th day after the filing of an amendment which specifically states that it shall supersede this Application, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), may determine upon the written request of the Applicants.
GENERAL
1. General Information.
GOL Finance and GOL Equity Finance (collectively, the “Issuers”) are each a public limited liability company (société anonyme) existing under the laws of the Grand Duchy of Luxembourg.
The guarantors identified below (the “Guarantors” and, together with the Issuers, the “Applicants”) have the following forms of organization or incorporation and jurisdictions of formation.
Guarantor | Form | Jurisdiction |
GOL Linhas Aéreas Inteligentes S.A. | Corporation (sociedade anônima) | Brazil |
GOL Linhas Aéreas S.A. | Corporation (sociedade anônima) | Brazil |
Smiles Fidelidade S.A. | Corporation (sociedade anônima) | Brazil |
The Second Modified Third Amended Joint Chapter 11 Plan of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors, dated as of March 20, 2025 (the “Plan”) contemplates, among other things, (i) a plan of reorganization of GOL Linhas Aéreas Inteligentes S.A. and certain of its affiliates (the “Reorganization”) and (ii) the issuance by the Issuers of their 9.500% Senior Notes due 2031 (the “Notes”).
As more fully described in the Plan, two additional entities that have yet to be formed will also be guarantors of the Notes. This Application will be amended prior to its effectiveness to include such entities.
2. Securities Act Exemption Applicable.
Pursuant to the terms of the Plan, under chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”), the Issuers will issue under the indenture to be qualified hereby (the “Indenture”) the Notes to (i) Abra Group Limited or any of its subsidiaries (the “Lead Purchaser”) and (ii) if Class 4 (as defined in the Plan) votes to accept the Plan, holders of Allowed 2026 Senior Secures Notes Claims (as defined in the Plan) (collectively, the “Purchasers”).
The Plan will become effective on the date on which all conditions to the effectiveness of the Plan have been satisfied or waived (the “Effective Date”).
The issuance of the Notes is exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the exemption provided by Section 1145(a)(1) of the Bankruptcy Code. Section 1145(a)(1) of the Bankruptcy Code exempts an offer and sale of securities under a plan of reorganization from registration under the Securities Act and state securities laws if three principal requirements are satisfied: (i) the securities must be offered and sold under a plan of reorganization and must be securities of the debtor, an affiliate participating in a joint plan with the debtor or a successor to the debtor under the plan of reorganization; (ii) the recipients of the securities must hold a prepetition or administrative expense claim against the debtor or an interest in the debtor; and (iii) the securities must be issued entirely in exchange for the recipient’s claim against or interest in the debtor, or principally in such exchange and partly for cash or property. The Applicants believe that the issuance of the Notes and the guarantees thereof to the Purchasers will satisfy the aforementioned requirements. See “Article VIII Provisions Governing Distributions – E. Exemption from Securities Laws” of the Plan.
AFFILIATIONS
3. Affiliates.
A diagram containing all the affiliates of the Applicants, and indicating their respective percentages of voting securities or other bases of control, is exhibited hereto as Exhibit T3G.1 and incorporated by reference herein.
If the Reorganization were to occur pursuant to the Plan, the organizational chart is not expected to change following the consummation of the Reorganization; however, the resulting organizational structure of the GOL Linhas Aéreas Inteligentes S.A. (the “Company”) is uncertain at this point in time.
1 |
MANAGEMENT AND CONTROL
4. Directors and Executive Officers.
GOL Finance
The names of the directors of GOL Finance, as of the date hereof, are set forth below. GOL Finance does not have any executive officers. The mailing address for each director is: c/o Rua Verbo Divino, 1661, 11th floor, Chácara Santo Antônio, City of São Paulo, State of São Paulo, 04719-002, Brazil.
Name | Office |
Carla Patricia Cabral da Fonseca | Director |
Celso Guimarães Ferrer Junior | Director |
Renata Domingues da Fonseca Guinesi | Director |
Eduardo Guardiano Leme Gotilla | Director |
GOL Equity Finance
The names of the directors of GOL Equity Finance, as of the date hereof, are set forth below. GOL Equity Finance does not have any executive officers. The mailing address for each director is: c/o Rua Verbo Divino, 1661, 11th floor, Chácara Santo Antônio, City of São Paulo, State of São Paulo, 04719-002, Brazil.
Name | Office |
Celso Guimarães Ferrer Junior | Director |
Carla Patricia Cabral da Fonseca | Director |
Renata Domingues da Fonseca Guinesi | Director |
Eduardo Guardiano Leme Gotilla | Director |
GOL Linhas Aéreas Inteligentes S.A
The names of the directors and executive officers of GOL Linhas Aéreas Inteligentes S.A., as of the date hereof, are set forth below. The mailing address for each director and executive officer is: c/o Rua Verbo Divino, 1661, 11th floor, Chácara Santo Antônio, City of São Paulo, State of São Paulo, 04719-002, Brazil.
GOL Linhas Aéreas S.A.
The names of the directors and executive officers of GOL Linhas Aéreas S.A., as of the date hereof, are set forth below. The mailing address for each director and executive officer is: c/o Rua Verbo Divino, 1661, 11th floor, Chácara Santo Antônio, City of São Paulo, State of São Paulo, 04719-002, Brazil.
2 |
Smiles Fidelidade S.A.
The names of the executive officers of Smiles Fidelidade S.A., as of the date hereof, are set forth below. Smiles Fidelidade S.A. does not have any directors. The mailing address for each executive officer is: c/o Rua Verbo Divino, 1661, 11th floor, Chácara Santo Antônio, City of São Paulo, State of São Paulo, 04719-002, Brazil.
Name | Office | |
Celso Guimarães Ferrer Junior | President | |
Carla Patricia Cabral da Fonseca | Officer | |
Eduardo Guardiano Leme Gotilla | Officer |
5. Principal Owners of Voting Securities.
The following table sets forth certain information regarding each person known to each Applicant to own 10 percent or more of the voting securities of such Applicant as of the date of this Application.
Applicant | Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned |
GOL Finance |
GOL Linhas Aéreas Inteligentes S.A. Praça Comandante Linneu Gomes, Portaria 3, Prédio 24, Jd. Aeroporto 04630-000 São Paulo, São Paulo Federative Republic of Brazil
|
Common Shares | 1,188,060,000 | 100% |
GOL Equity Finance |
Stichting Holding GOL Equity Finance Locatellikade 1, 1076AZ Amsterdam
|
Common Shares | 37,227 | 100% |
GOL Linhas Aéreas Inteligentes S.A. |
Abra MOBI LLP 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT |
Common Shares Preferred Shares |
1,431,840,865 65,569,880 |
50.0% 19.365% |
Abra Kingsland LLP 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT |
Common Shares Preferred Shares |
1,431,841,250 65,569,881 |
50.0% 19.365% | |
Abra Group Limited 3rd Floor 1 Ashley Road, Altrincham, Cheshire, United Kingdom, WA14 2DT |
Preferred Shares |
12,747,695 |
3.765% |
3 |
If the Reorganization were to occur pursuant to the Plan, the ownership of the voting securities of each of the Applicants (other than the Company) is not expected to change following the consummation of the Reorganization; however, the resulting principal ownership of voting securities of the Company is uncertain at this point in time.
UNDERWRITERS
6. Underwriters.
(a) Within three years prior to the date of the filing of this Application, no person acted as an underwriter of any securities of the Applicants that are currently outstanding on the date of this Application.
(b) There is no proposed principal underwriter for the Notes that are to be issued in connection with the Indenture that is to be qualified under this Application.
CAPITAL SECURITIES
7. Capitalization.
(a) The following tables set forth certain information with respect to each authorized class of securities of the Applicants as of the date of this Application.
GOL Finance
Title of Class | Amount Authorized | Amount Outstanding |
Common Shares | 1,500,060,000 | 1,188,060,000 |
Senior Secured Notes Due 2028 | $1,430,925,000 | $290,481,249.87 |
7.00% Senior Notes Due 2025 | $650,000,000 | $342,430,000 |
8.00% Senior Secured Notes Due 2026 | $650,000,000 | $251,117,000 |
5.00% Senior Secured Amortizing Notes Due 2026 | $152,668,580.98 | $141,662,259.15 |
3.00% Subordinated Secured Amortizing Notes Due 2025 | $88,047,640.43 | $66,035,973.51 |
Floating Rate Superpriority Senior Secured Notes Due 2025 | $1,602,394,878 | $1,247,094,433 |
GOL Equity Finance
Title of Class | Amount Authorized | Amount Outstanding |
Common Shares | 37,227 | 37,227 |
Exchangeable Senior Secured Notes Due 2028 | $1,430,925,000 | $1,375,951,496.82 |
3.75% Exchangeable Senior Notes Due 2024 | $425,000,000 | $42,137,000 |
4 |
GOL Linhas Aéreas Inteligentes S.A.
Title of Class | Amount Authorized | Amount Outstanding |
Common Shares | 2,863,682,500* | 2,863,682,500 |
Preferred Shares | 338,594,335* | 338,594,335** |
Seventh Issuance of Senior Secured Debentures | BRL563,333,210 | BRL387,144,615.72 |
Eight Issuance of Senior Secured Debentures | BRL610,217,000 | BRL419,363,781.85 |
*The Company is able to authorize the increase of its corporate capital, in the form of common shares or preferred shares, by up to BRL17,000,000,000.
**Includes 2,109 Preferred Shares are held in treasury.
GOL Linhas Aéreas S.A.
Title of Class | Amount Authorized* |
Amount Outstanding |
Common Shares | 3,480,216,892 | 3,480,216,892 |
Preferred Shares | 718,266,722 | 718,266,722 |
*GOL Linhas Aéreas S.A. is able to authorize the increase of its corporate capital, in the form of common shares or preferred shares, by up to 10%.
Smiles Fidelidade S.A.
Title of Class | Amount Authorized | Amount Outstanding |
Common Shares | 1,000 | 1,000 |
(b) Each share of each of the Applicant’s common shares is entitled to one vote for each such share held on all matters submitted to a vote of security holders.
Each of the Preferred Shares of the Company have no voting rights, except that each Preferred Share entitles its holder to one vote at the Company’s shareholders’ meeting to decide on certain specific matters, such as: any transformation of the Company into another corporate type; any merger, consolidation or spin-off of the Company; approval of any transactions between the Company and its controlling shareholder or parties related to the controlling shareholder; approval of any valuation of assets to be delivered to the Company in payment for shares issued in a capital increase; appointment of an expert to ascertain the fair value of the Company in connection with any deregistration and delisting tender offer; changes to the rights attributable to Preferred Shares approved by shareholders on March 23, 2015; any changes to these voting rights; and approval of a change of the Company’s corporate purpose.
Each of the Preferred Shares of GOL Linhas Aéreas S.A. have no voting rights.
The debt securities described above do not entitle the holders thereof to voting rights.
INDENTURE SECURITIES
8. Analysis of Indenture Provisions.
The analysis of provisions of the new Indenture will be provided in an amendment to this Form T-3.
9. Other Obligors.
Other than the Applicants, no other person is an obligor with respect to the Notes, except that, as more fully described in the Plan, two additional entities that have yet to be formed will also be guarantors of the Notes. This Application will be amended prior to its effectiveness to include such entities.
5 |
CONTENTS OF APPLICATION FOR QUALIFICATION
This Application for Qualification comprises:
(a) Pages numbered 1 to 6, consecutively.
(b) The Statement of Eligibility and Qualification on Form T-1 of Wilmington Savings Fund Society, FSB, as trustee under the Indenture.
(c) The following exhibits in addition to those filed as part of the Statement of Eligibility and Qualification of the trustee:
* To be filed by amendment.
6 |
SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939, GOL Finance, a public limited liability company (société anonyme) existing under the laws of the Grand Duchy of Luxembourg, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of São Paulo, State of São Paulo, Brazil, on March 24, 2025.
GOL Finance | GOL Finance |
By: /s/ Carla Patricia Cabral da Fonseca Name: Carla Patricia Cabral da Fonseca Title: Director |
By: /s/ Celso Guimarães Ferrer Junior Name: Celso Guimarães Ferrer Junior Title: Director |
Pursuant to the requirements of the Trust Indenture Act of 1939, GOL Equity Finance, a public limited liability company (société anonyme) existing under the laws of the Grand Duchy of Luxembourg, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of São Paulo, State of São Paulo, Brazil, on March 24, 2025.
GOL Equity Finance | GOL Equity Finance |
By: /s/ Carla Patricia Cabral da Fonseca Name: Carla Patricia Cabral da Fonseca Title: Director |
By: /s/ Celso Guimarães Ferrer Junior Name: Celso Guimarães Ferrer Junior Title: Director |
Pursuant to the requirements of the Trust Indenture Act of 1939, GOL Linhas Aéreas Inteligentes S.A., a corporation (sociedade anônima) organized under the laws of Brazil, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of São Paulo, State of São Paulo, Brazil, on March 24, 2025.
GOL Linhas Aéreas Inteligentes S.A. | GOL Linhas Aéreas Inteligentes S.A. |
By: /s/ Carla Patricia Cabral da Fonseca Name: Carla Patricia Cabral da Fonseca Title: Executive Officer |
By: /s/ Celso Guimarães Ferrer Junior Name: Celso Guimarães Ferrer Junior Title: Chief Executive Officer |
Pursuant to the requirements of the Trust Indenture Act of 1939, GOL Linhas Aéreas S.A., a corporation (sociedade anônima) organized under the laws of Brazil, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of São Paulo, State of São Paulo, Brazil, on March 24, 2025.
GOL Linhas Aéreas S.A. | GOL Linhas Aéreas S.A. |
By: /s/ Carla Patricia Cabral da Fonseca Name: Carla Patricia Cabral da Fonseca Title: Executive Officer |
By: /s/ Celso Guimarães Ferrer Junior Name: Celso Guimarães Ferrer Junior Title: President |
Pursuant to the requirements of the Trust Indenture Act of 1939, Smiles Fidelidade S.A., a corporation (sociedade anônima) organized under the laws of Brazil, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of São Paulo, State of São Paulo, Brazil, on March 24, 2025.
Smiles Fidelidade S.A. | Smiles Fidelidade S.A. |
By: /s/ Carla Patricia Cabral da Fonseca Name: Carla Patricia Cabral da Fonseca Title: Officer |
By: /s/ Celso Guimarães Ferrer Junior Name: Celso Guimarães Ferrer Junior Title: President |
Exhibit 25.1 - Statement of eligibility and qualification of the trustee on Form T-1
United States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) [x]
WILMINGTON SAVINGS FUND SOCIETY, FSB
(Exact name of Trustee as specified in its charter)
N/A | 51-0054940 |
(Jurisdiction of incorporation of organization if not a U.S. national bank) | (I.R.S. Employer Identification No.) |
500 Delaware Avenue, 11th Floor
Wilmington, DE 19801
(302) 792-6000
(Address of principal executive offices, including zip code)
WILMINGTON SAVINGS FUND SOCIETY, FSB
CONTROLLER’S OFFICE
500 Delaware Avenue
Wilmington, DE 19801
(302) 792-6000
(Name, address, including zip code, and telephone number, including area code, of agent of service)
GOL FINANCE AND GOL EQUITY FINANCE | |
(Exact name of obligor as specified in its charter)
| |
Grand Duchy of Luxembourg | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
17 Rue Boulevard Raiffeisen, Luxembourg, 2411
(Address of principal executive offices, including zip code)
9.500% Senior Notes Due 2031
(Title of the indenture securities)
ITEM 1. | GENERAL INFORMATION. |
Furnish the following information as to the trustee: |
(a) | Name and address of each examining or supervising authority to which it is subject. |
United States Securities and Exchange Commission |
Washington, DC 20549 |
Federal Reserve |
District 3 |
Philadelphia, PA |
FDIC |
Washington, DC 20549 |
Office of the Comptroller of the Currency |
New York, NY 10173 |
(b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate trust powers. | |
ITEM 2. | AFFILIATIONS WITH THE OBLIGORS. |
If the obligor is an affiliate of the trustee, describe each affiliation: | |
Based upon an examination of the books and records of the trustee and information available to the trustee, the obligor is not an affiliate of the trustee. | |
ITEM 16. |
LIST OF EXHIBITS.
|
Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification. | |
Exhibit 1. | A copy of the articles of association of the trustee as now in effect. |
Exhibit 2. | Not applicable. |
Exhibit 3. | Not applicable. |
Exhibit 4. | A copy of the existing bylaws of the trustee, or instruments corresponding thereto. |
Exhibit 5. | Not applicable. |
Exhibit 6. | The consents of United States institutional trustees required by Section 321(b) of the Act. |
Exhibit 7. | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
Exhibit 8. | Not applicable. |
Exhibit 9. | Not applicable. |
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Savings Fund Society, FSB, a federal savings bank organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 24th day of March, 2025.
WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
By: | /s/ Patrick J. Healy | |
Name: Patrick J. Healy | ||
Title: Senior Vice President | ||
Exhibit 1
Charter of Wilmington Savings Fund Society, FSB
(see attached)
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
by Exhibit 4
Bylaws of Wilmington Savings Fund Society, FSB
(see attached)
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
t31e25-1
Exhibit 6
Consent of Wilmington Savings Fund Society, FSB
(see attached)
March 24, 2025
United States Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the United States Securities and Exchange Commission upon its request thereof.
Very truly yours,
WILMINGTON SAVINGS FUND SOCIETY, FSB
/s/ Patrick J. Healy
Patrick J. Healy
Senior Vice President
Exhibit 7
Current Report of Wilmington Savings Fund Society, FSB
(see attached)
Board of Governors of the Federal Reserve System Federal Deposit Insurance Corporation Office of the Comptroller of the Currency Federal Financial Institutions Examination Council Consolidated Reports of Condition and Income for A Bank With Domestic Offices Only - FFIEC 041 Institution Name WILMINGTON SAVINGS FUND SOCIETY, FSB City WILMINGTON State DE Zip Code 19801 Call Report Report Date 12/31/2024 Report Type 041 RSSD-ID 437914 FDIC Certificate Number 17838 OCC Charter Number 707938 ABA Routing Number 31100102 Last updated on 1/30/2025
Federal Financial Institutions Examination Council Signature Page Consolidated Reports of Condition and Income for A Bank With Domestic Offices Only - FFIEC 041 Report at the close of business December 31, 2024 This report is required by law: 12 U.S.C. §324 (State member banks); 12 U.S.C. §1817 (State non member banks); 12 U.S.C. §161 (National banks); and 12 U.S.C. §1464 (Savings associations). (20241231) (RCON 9999) Unless the context indicates otherwise, the term “bank” in this report form refers to both banks and savings associations. NOTE: Each bank’s board of directors and senior management are responsible for establishing and maintaining an effective system of internal control, including controls over the Reports of Condition and Income. The Reports of Condition and Income are to be prepared in accordance with federal regulatory authority instructions.The Reports of Condition and Income must be signed by the Chief Financial Officer (CFO) of the reporting bank (or by the individual performing an equivalent function) and attested to by not less than two directors (trustees) for state non member banks and three directors for state member banks, national banks, and savings associations. I, the undersigned CFO (or equivalent) of the named bank, attest that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct to the best of my knowledge and belief. We, the undersigned directors (trustees), attest to the correctness of the Reports of Condition and Income (including the supporting schedules) for this report date and declare that the Reports of Condition and Income have been examined by us and to the best of our knowledge and belief have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true and correct. Signature of Chief Financial Officer (or Equivalent) Date of Signature Director (Trustee) Director (Trustee) Director (Trustee) Submission of Reports Each bank must file its Reports of Condition and Income (Call Report) data by either: (a) Using computer software to prepare its Call Report and then submitting the report data directly to the FFIEC’s Central Data Repository (CDR), an Internet-based system for datacollection (https://cdr.ffiec.gov/cdr/), or (b) Completing its Call Report in paper form and arranging with a software vendor or another party to convert the data in to the electronic format that can be processed by the CDR. The software vendor or other party then must electronically submit the bank’s data file to the CDR. For technical assistance with submissions to the CDR, please contact the CDR Help Desk by telephone at (888) CDR-3111, by fax at (703) 774-3946, or by e-mail at CDR.Help@cdr.ffiec.gov. FDIC Certificate Number 17838 (RSSD 9050) To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach your bank’s completed signature page (or a photocopy or a computer generated version of this page) to the hard-copy record of the data file submitted to the CDR that your bank must place in its files. The appearance of your bank’s hard-copy record of the submitted data file need not match exactly the appearance of the FFIEC’s sample report forms, but should show at least the caption of each Call Report item and the reported amount. WILMINGTON SAVINGS FUND SOCIETY, FSB Legal Title of Bank (RSSD 9017) WILMINGTON City (RSSD 9130) DE 19801 State Abbreviation (RSSD 9200) Zip Code (RSSD 9220) The estimated average burden associated with this information collection is 50.4 hours per respondent and is estimated to vary from 20 to 775 hours per response, depending on individual circumstances. Burden estimates include the time for reviewing instructions, gathering and maintaining data in the required form, and completing the information collection, but exclude the time for compiling and maintaining business records in the normal course of a respondent’s activities. A Federal agency may not conduct or sponsor, and an organization (or a person) is not required to respond to a collection of information, unless it displays a currently valid OMB control number. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503, and to one of the following: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, NW, Washington, DC 20551; Legislative and Regulatory Analysis Division, Office of the Comptroller of the Currency, Washington, DC 20219; Assistant Executive Secretary, Federal Deposit Insurance Corporation, Washington, DC 20429.
Consolidated Reports of Condition and Income for A Bank With Domestic Offices Only -
FFIEC 041
Table of Contents
Signature Page............................................................1
Table of Contents.........................................................2
Contact Information for the Reports of Condition and
Income...................................................................3
USA PATRIOT Act Section 314(a) Anti-Money
Laundering Contact Information............................4
Contact Information(Form Type - 041).........................5
Schedule RI - Income Statement(Form Type -
041).......................................................................7
Schedule RI-A - Changes in Bank Equity
Capital(Form Type - 041).......................................9
Schedule RI-B Part I - Charge-offs and Recoveries
on Loans and Leases(Form Type - 041)..............10
Schedule RI-B Part II - Changes in Allowances for
Credit Losses(Form Type - 041)..........................11
Schedule RI-C - Disaggregated Data on the
Allowances for Credit Losses(Form Type -
041).....................................................................12
Schedule RI-E - Explanations (Form Type -
041).....................................................................13
Schedule RC - Balance Sheet(Form Type -
041).....................................................................15
Schedule RC-A - Cash and Balances Due From
Depository Institutions(Form Type - 041).............16
Schedule RC-B - Securities(Form Type - 041)...........17
Schedule RC-C Part I - Loans and Leases(Form
Type - 041)..........................................................20
Schedule RC-C Part II - Loans to Small Businesses
and Small Farms(Form Type - 041).....................24
Schedule RC-D - Trading Assets and Liabilities(Form
Type - 041)..........................................................25
Contact Information for the Reports of Condition and Income To facilitate communication between the Agencies and the bank concerning the Reports of Condition and Income, please provide contact information for (1) the Chief Financial Officer (or equivalent) of the bank signing the reports for this quarter, and (2) the person at the bank—other than the Chief Financial Officer (or equivalent)—to whom questions about the reports should be directed. If the Chief Financial Officer (or equivalent) is the primary contact for questions about the reports, please provide contact information for another person at the bank who will serve as a secondary contact for communications between the Agencies and the bank concerning the Reports of Condition and Income. Enter “none” for the contact’s e-mail address or fax number if not available. Contact information for the Reports of Condition and Income is for the confidential use of the Agencies and will not be released to the public. Chief Financial Officer (or Equivalent) Signing the Reports CONF Name (TEXT C490) CONF Title (TEXT C491) CONF E-mail Address (TEXT C492) CONF Area Code / Phone Number / Extension (TEXT C493) CONF Area Code / FAX Number (TEXT C494) Other Person to Whom Questions about the Reports Should be Directed CONF Name (TEXT C495) CONF Title (TEXT C496) CONF E-mail Address (TEXT 4086) CONF Area Code / Phone Number / Extension (TEXT 8902) CONF Area Code / FAX Number (TEXT 9116) Primary Contact CONF Name (TEXT C366) CONF Title (TEXT C367) CONF E-mail Address (TEXT C368) CONF Area Code / Phone Number / Extension (TEXT C369) CONF Area Code / FAX Number (TEXT C370) Secondary Contact CONF Name (TEXT C371) CONF Title (TEXT C372) CONF E-mail Address (TEXT C373) CONF Area Code / Phone Number / Extension (TEXT C374) CONF Area Code / FAX Number (TEXT C375)
USA PATRIOT Act Section 314(a) Anti-Money Laundering Contact Information This information is being requested to identify points-of-contact who are in charge of your bank’s USA PATRIOT Act Section 314(a) information requests. Bank personnel listed could be contacted by law enforcement officers or the Financial Crimes Enforcement Network (FinCEN) for additional information related to specific Section 314(a) search requests or other anti-terrorist financing and anti- money laundering matters. Communications sent by FinCEN to the bank for purposes other than Section 314(a) notifications will state the intended purpose and should be directed to the appropriate bank personnel for review. Any disclosure of customer records to law enforcement officers or FinCEN must be done in compliance with applicable law, including the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.). Please provide information for a primary and secondary contact. Information for a third and fourth contact may be provided at the bank’s option. Enter “none” for the contact’s e-mail address if not available. This contact information is for the confidential use of the Agencies, FinCEN, and law enforcement officers and will not be released to the public. Primary Contact CONF Name (TEXT C437) CONF Title (TEXT C438) CONF E-mail Address (TEXT C439) CONF Area Code / Phone Number / Extension (TEXT C440) Secondary Contact CONF Name (TEXT C442) CONF Title (TEXT C443) CONF E-mail Address (TEXT C444) CONF Area Code / Phone Number / Extension (TEXT 8902) Third Contact CONF Name (TEXT C870) CONF Title (TEXT C871) CONF E-mail Address (TEXT C368) CONF Area Code / Phone Number / Extension (TEXT C873) Fourth Contact CONF Name (TEXT C875) CONF Title (TEXT C876) CONF E-mail Address (TEXT C877) CONF Area Code / Phone Number / Extension (TEXT C878)
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 5 Contact Information(Form Type - 041) Dollar amounts in thousands 1. Contact Information for the Reports of Condition and Income 1. a. Chief Financial Officer (or Equivalent) Signing the Reports 1.a. 1. Name........................................................................................................................................................... TEXTC490 CONF 1.a.1. 2. Title.............................................................................................................................................................. TEXTC491 CONF 1.a.2. 3. E-mail Address............................................................................................................................................. TEXTC492 CONF 1.a.3. 4. Telephone..................................................................................................................................................... TEXTC493 CONF 1.a.4. 5. FAX.............................................................................................................................................................. TEXTC494 CONF 1.a.5. b. Other Person to Whom Questions about the Reports Should be Directed 1.b. 1. Name........................................................................................................................................................... TEXTC495 CONF 1.b.1. 2. Title.............................................................................................................................................................. TEXTC496 CONF 1.b.2. 3. E-mail Address............................................................................................................................................. TEXT4086 CONF 1.b.3. 4. Telephone..................................................................................................................................................... TEXT8902 CONF 1.b.4. 5. FAX.............................................................................................................................................................. TEXT9116 CONF 1.b.5. 2. Person to whom questions about Schedule RC-T - Fiduciary and Related Services should be directed 2. a. Name and Title.................................................................................................................................................... TEXTB962 CONF 2.a. b. E-mail Address.................................................................................................................................................... TEXTB926 CONF 2.b. c. Telephone............................................................................................................................................................ TEXTB963 CONF 2.c. d. FAX...................................................................................................................................................................... TEXTB964 CONF 2.d. 3. Emergency Contact Information 3. a. Primary Contact 3.a. 1. Name........................................................................................................................................................... TEXTC366 CONF 3.a.1. 2. Title.............................................................................................................................................................. TEXTC367 CONF 3.a.2. 3. E-mail Address............................................................................................................................................. TEXTC368 CONF 3.a.3. 4. Telephone..................................................................................................................................................... TEXTC369 CONF 3.a.4. 5. FAX.............................................................................................................................................................. TEXTC370 CONF 3.a.5. b. Secondary Contact 3.b. 1. Name........................................................................................................................................................... TEXTC371 CONF 3.b.1. 2. Title.............................................................................................................................................................. TEXTC372 CONF 3.b.2. 3. E-mail Address............................................................................................................................................. TEXTC373 CONF 3.b.3. 4. Telephone..................................................................................................................................................... TEXTC374 CONF 3.b.4. 5. FAX.............................................................................................................................................................. TEXTC375 CONF 3.b.5. 4. USA PATRIOT Act Section 314(a) Anti-Money Laundering Contact Information 4. a. Primary Contact 4.a. 1. Name........................................................................................................................................................... TEXTC437 CONF 4.a.1. 2. Title.............................................................................................................................................................. TEXTC438 CONF 4.a.2. 3. E-mail Address............................................................................................................................................. TEXTC439 CONF 4.a.3. 4. Telephone..................................................................................................................................................... TEXTC440 CONF 4.a.4. b. Secondary Contact 4.b. 1. Name........................................................................................................................................................... TEXTC442 CONF 4.b.1. 2. Title.............................................................................................................................................................. TEXTC443 CONF 4.b.2. 3. E-mail Address............................................................................................................................................. TEXTC444 CONF 4.b.3. 4. Telephone..................................................................................................................................................... TEXTC445 CONF 4.b.4. c. Third Contact 4.c. 1. Name........................................................................................................................................................... TEXTC870 CONF 4.c.1. 2. Title.............................................................................................................................................................. TEXTC871 CONF 4.c.2. 3. E-mail Address............................................................................................................................................. TEXTC872 CONF 4.c.3. 4. Telephone..................................................................................................................................................... TEXTC873 CONF 4.c.4. d. Fourth Contact 4.d. 1. Name........................................................................................................................................................... TEXTC875 CONF 4.d.1.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 6 Dollar amounts in thousands 2. Title.............................................................................................................................................................. TEXTC876 CONF 4.d.2. 3. E-mail Address............................................................................................................................................. TEXTC877 CONF 4.d.3. 4. Telephone..................................................................................................................................................... TEXTC878 CONF 4.d.4. 5. Chief Executive Officer Contact Information 5. a. Chief Executive Officer 5.a. 1. Name........................................................................................................................................................... TEXTFT42 CONF 5.a.1. 2. E-mail Address............................................................................................................................................. TEXTFT44 CONF 5.a.2. 3. Telephone..................................................................................................................................................... TEXTFT43 CONF 5.a.3. 4. FAX.............................................................................................................................................................. TEXTFT45 CONF 5.a.4.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 7 Schedule RI - Income Statement(Form Type - 041) Dollar amounts in thousands 1. Interest income: 1. a. Interest and fee income on loans: 1.a. 1. Loans secured by real estate: 1.a.1. a. Loans secured by 1-4 family residential properties............................................................................... RIAD4435 198,152 1.a.1.a. b. All other loans secured by real estate.................................................................................................... RIAD4436 501,244 1.a.1.b. 2. Commercial and industrial loans................................................................................................................... RIAD4012 117,978 1.a.2. 3. Loans to individuals for household, family, and other personal expenditures: 1.a.3. a. Credit cards.......................................................................................................................................... RIADB485 2,514 1.a.3.a. RIADB486 28,411 1.a.3.b. b. Other (includes revolving credit plans other than credit cards, automobile loans, and other consumer loans)........................................................................................................................................................ 4. Not applicable 1.a.4. 5. All other loans1............................................................................................................................................. RIAD4058 15,178 1.a.5. 6. Total interest and fee income on loans (sum of items 1.a.(1)(a) through 1.a.(5)).......................................... RIAD4010 863,477 1.a.6. b. Income from lease financing receivables............................................................................................................. RIAD4065 54,904 1.b. c. Interest income on balances due from depository institutions2............................................................................ RIAD4115 32,801 1.c. d. Interest and dividend income on securities: 1.d. 1. U.S.Treasury securities and U.S. Government agency obligations (excluding mortgage-backed securities). RIADB488 2,798 1.d.1. 2. Mortgage-backed securities......................................................................................................................... RIADB489 102,024 1.d.2. 3. All other securities (includes securities issued by states and political subdivisions in the U.S.)................... RIAD4060 5,941 1.d.3. e. Not applicable 1.e. f. Interest income on federal funds sold and securities purchased under agreements to resell............................... RIAD4020 0 1.f. g. Other interest income.......................................................................................................................................... RIAD4518 1,532 1.g. h. Total interest income (sum of items 1.a.(6) through 1.g)...................................................................................... RIAD4107 1,063,477 1.h. 2. Interest expense: 2. a. Interest on deposits: 2.a. RIAD4508 33,007 2.a.1. 1. Transaction accounts (interest-bearing demand deposits, NOW accounts, ATS accounts, and telephone and preauthorized transfer accounts)............................................................................................................... 2. Nontransaction accounts: 2.a.2. a. Savings deposits (includes MMDAs)..................................................................................................... RIAD0093 192,007 2.a.2.a. b. Time deposits of $250,000 or less......................................................................................................... RIADHK03 67,330 2.a.2.b. c. Time deposits of more than $250,000.................................................................................................... RIADHK04 17,588 2.a.2.c. b. Expense of federal funds purchased and securities sold under agreements to repurchase................................ RIAD4180 343 2.b. c. Interest on trading liabilities and other borrowed money...................................................................................... RIAD4185 32,525 2.c. d. Interest on subordinated notes and debentures................................................................................................... RIAD4200 0 2.d. e. Total interest expense (sum of items 2.a through 2.d).......................................................................................... RIAD4073 342,800 2.e. 3. Net interest income (item 1.h minus 2.e)..................................................................................................................... RIAD4074 720,677 3. 4. Provisions for credit losses3....................................................................................................................................... RIADJJ33 61,826 4. 5. Noninterest income: 5. a. Income from fiduciary activities 2......................................................................................................................... RIAD4070 96,069 5.a. b. Service charges on deposit accounts................................................................................................................... RIAD4080 27,617 5.b. c. Trading revenue................................................................................................................................................... RIADA220 0 5.c. d. Income from securities-related and insurance activities 5.d. 1. Fees and commissions from securities brokerage........................................................................................ RIADC886 4,911 5.d.1. 2. Investment banking, advisory, and underwriting fees and commissions....................................................... RIADC888 0 5.d.2. 3. Fees and commissions from annuity sales................................................................................................... RIADC887 1,493 5.d.3. 1. Includes interest and fee income on "Loans to depository institutions and acceptances of other banks," "Loans to fi nance agricultural production and other loans to farmers," "Obligations (other than securities and leases) of states and political subdivisions in the U.S.," and "Other loans." 2. Includes interest income on time certificates of deposit not held for trading. 3. Institutions should report in item 4 the provisions for credit losses for all financial assets and off-balance-sheet credit exposures 2. For banks required to complete Schedule RC-T, items 14 through 22, income from fiduciary activities reported in Schedule RI, item 5.a, must equal the amount reported in Schedule RC-T, item 22.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 8 Dollar amounts in thousands 4. Underwriting income from insurance and reinsurance activities................................................................... RIADC386 0 5.d.4. 5. Income from other insurance activities......................................................................................................... RIADC387 688 5.d.5. e. Venture capital revenue....................................................................................................................................... RIADB491 0 5.e. f. Net servicing fees................................................................................................................................................. RIADB492 1,156 5.f. g. Net securitization income.................................................................................................................................... RIADB493 0 5.g. h. Not applicable 5.h. i. Net gains (losses) on sales of loans and leases................................................................................................... RIAD5416 10,872 5.i. j. Net gains (losses) on sales of other real estate owned......................................................................................... RIAD5415 66 5.j. k. Net gains (losses) on sales of other assets3........................................................................................................ RIADB496 7,559 5.k. l. Other noninterest income*.................................................................................................................................... RIADB497 157,704 5.l. m. Total noninterest income (sum of items 5.a through 5.l)...................................................................................... RIAD4079 308,135 5.m. 6. Not available 6. a. Realized gains (losses) on held-to-maturity securities......................................................................................... RIAD3521 0 6.a. b. Realized gains (losses) on available-for-sale debt securities............................................................................... RIAD3196 0 6.b. 7. Noninterest expense: 7. a. Salaries and employee benefits.......................................................................................................................... RIAD4135 311,622 7.a. RIAD4217 59,322 7.b. b. Expenses of premises and fixed assets (net of rental income) (excluding salaries and employee benefits and mortgage interest)................................................................................................................................................... c. Not available 7.c. 1. Goodwill impairment losses......................................................................................................................... RIADC216 0 7.c.1. 2. Amortization expense and impairment losses for other intangible assets.................................................... RIADC232 13,371 7.c.2. d. Other noninterest expense*................................................................................................................................. RIAD4092 226,404 7.d. e. Total noninterest expense (sum of items 7.a through 7.d).................................................................................... RIAD4093 610,719 7.e. 8. Not available 8. RIADHT69 356,267 8.a. a. Income (loss) before change in net unrealized holding gains (losses) on equity securities not held for trading, applicable income taxes, and discontinued operations (item 3 plus or minus items 4, 5.m, 6.a, 6.b, and 7.e)........ b. Change in net unrealized holding gains (losses) on equity securities not held for trading4................................. RIADHT70 109 8.b. c. Income (loss) before applicable income taxes and discontinued operations (sum of items 8.a and 8.b)............. RIAD4301 356,376 8.c. 9. Applicable income taxes (on item 8.c)......................................................................................................................... RIAD4302 81,024 9. 10. Income (loss) before discontinued operations (item 8.c minus item 9)...................................................................... RIAD4300 275,352 10. 11. Discontinued operations, net of applicable income taxes (Describe on Schedule RI-E - Explanations)*.................. RIADFT28 0 11. 12. Net income (loss) attributable to bank and noncontrolling (minority) interests (sum of items 10 and 11)................. RIADG104 275,352 12. RIADG103 -176 13. 13. LESS: Net income (loss) attributable to noncontrolling (minority) interests (if net income, report as a positive value; if net loss, report as a negative value)............................................................................................................................ 14. Net income (loss) attributable to bank (item 12 minus item 13)................................................................................. RIAD4340 275,528 14. RIAD4513 0 M.1. 1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after August 7, 1986, that is not deductible for federal income tax purposes............................................................................................................... RIAD8431 5,288 M.2. Memorandum item 2 is to be completed by banks with $1 billion or more in total assets 2. Income from the sale and servicing of mutual funds and annuities (included in Schedule RI, item 8)1...................... RIAD4313 1,805 M.3. 3. Income on tax-exempt loans and leases to states and political subdivisions in the U.S. (included in Schedule RI, items 1.a and 1.b)........................................................................................................................................................... RIAD4507 5,941 M.4. 4. Income on tax-exempt securities issued by states and political subdivisions in the U.S. (included in Schedule RI, item 1.d.(3)).................................................................................................................................................................... 5. Number of full-time equivalent employees at end of current period (round to nearest whole number)....................... RIAD4150 2283 M.5. RIAD4024 317 M.6. Memorandum item 6 is to be completed by: * banks with $300 million or more in total assets, and * banks with less than $300 million in total assets that have loans to finance agricultural product and other loans to farmers (Schedule RC-C, Part I, item 3) exceeding 5 percent of total loans 6. Interest and fee income on loans to finance agricultural production and other loans to farmers (included in Schedule RI, item 1.a.(5))1............................................................................................................................................................. 3. Exclude net gains (losses) on sales of trading assets and held-to-maturity and available-for-sale debt securities. *. Describe on Schedule RI-E-Explanations *. Describe on Schedule RI-E - Explanations. 4. Item 8.b is to be completed by all institutions. See the instructions for this item and the Glossary entry for "Securities Activities" for further detail on accounting for investments in equity securities. 1. The asset size tests and the 5 percent of total loans test are based on the total assets and total loans reported in the June 30, 2023, Report of Condition. 1. The asset size tests and the 5 percent of total loans test are based on the total assets and total loans reported in the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 9 Dollar amounts in thousands RIAD9106 00000000 M.7. 7. If the reporting institution has applied pushdown accounting this calendar year, report the date of the institution's acquisition (see instructions)2........................................................................................................................................ 8. Not applicable M.8. M.9. Memorandum items 9.a and 9.b are to be completed by banks with $10 billion or more in total assets. 9. Net gains (losses) recognized in earnings on credit derivatives that economically hedge credit exposures held outside the trading account:1 a. Net gains (losses) on credit derivatives held for trading....................................................................................... RIADC889 0 M.9.a. b. Net gains (losses) on credit derivatives held for purposes other than trading...................................................... RIADC890 0 M.9.b. RIADA251 0 M.10. Memorandum item 10 is to be completed by banks with $300 million or more in total assets. 10. Credit losses on derivatives (see instructions)1......................................................................................................... RIADA530 No M.11. 11. Does the reporting bank have a Subchapter S election in effect for federal income tax purposes for the current tax year?.............................................................................................................................................................................. 12. Not applicable M.12. M.13. Memorandum item 13 is to be completed by banks that have elected to account for assets and liabilities under a fair value option. 13. Net gains (losses) recognized in earnings on assets and liabilities that are reported at fair value under a fair value option: a. Net gains (losses) on assets............................................................................................................................... RIADF551 NR M.13.a. 1. Estimated net gains (losses) on loans attributable to changes in instrument-specific credit risk.................. RIADF552 NR M.13.a.1. b. Net gains (losses) on liabilities............................................................................................................................ RIADF553 NR M.13.b. 1. Estimated net gains (losses) on liabilities attributable to changes in instrument-specific credit risk............. RIADF554 NR M.13.b.1. 14. Not applicable M.14. M.15. Memorandum item 15 is to be completed by institutions with $1 billion or more in total assets that answered "Yes" to Schedule RC-E, Memorandum item 5. 15. Components of service charges on deposit accounts in domestic offices (sum of Memorandum items 15.a through 15.d must equal Schedule RI, item 5.b):1 RIADH032 7,256 M.15.a. a. Consumer overdraft-related service charges levied on those transaction account and nontransaction savings account deposit products intended primarily for individuals for personal, household, or family use........................ RIADH033 18,166 M.15.b. b. Consumer account periodic maintenance charges levied on those transaction account and nontransaction savings account deposit products intended primarily for individuals for personal, household, or family use........... RIADH034 793 M.15.c. c. Consumer customer automated teller machine (ATM) fees levied on those transaction account and nontransaction savings account deposit products intended primarily for individuals for personal, household, or family use........... d. All other service charges on deposit accounts..................................................................................................... RIADH035 1,402 M.15.d. Schedule RI-A - Changes in Bank Equity Capital(Form Type - 041) Dollar amounts in thousands RIAD3217 2,477,097 1. 1. Total bank equity capital most recently reported for the December 31, 2023, Reports of Condition and Income (i.e., after adjustments from amended Reports of Income)..................................................................................................... 2. Cumulative effect of changes in accounting principles and corrections of material accounting errors*....................... RIADB507 0 2. 3. Balance end of previous calendar year as restated (sum of items 1 and 2)................................................................ RIADB508 2,477,097 3. 4. Net income (loss) attributable to bank (must equal Schedule RI, item 14).................................................................. RIAD4340 275,528 4. 5. Sale, conversion, acquisition, or retirement of capital stock, net (excluding treasury stock transactions)................... RIADB509 0 5. 6. Treasury stock transactions, net................................................................................................................................. RIADB510 0 6. 7. Changes incident to business combinations, net......................................................................................................... RIAD4356 0 7. 8. LESS: Cash dividends declared on preferred stock.................................................................................................... RIAD4470 0 8. 9. LESS: Cash dividends declared on common stock..................................................................................................... RIAD4460 204,000 9. 10. Other comprehensive income1................................................................................................................................. RIADB511 -30,886 10. RIAD4415 -920 11. 11. Other transactions with stockholders (including a parent holding company) (not included in items 5, 6, 8, or 9 above)*........................................................................................................................................................................... 12. Total bank equity capital end of current period (sum of items 3 through 11) (must equal Schedule RC, item 27.a).. RIAD3210 2,516,819 12. 2. Report the date in YYYYMMDD format. For example, a bank acquired on March 1, 2024, would report 20240301. 1. The asset size tests and the 5 percent of total loans test are based on the total assets and total loans reported in the June 30, 2023, Report of Condition. 1. The asset size tests and the 5 percent of total loans test are based on the total assets and total loans reported in the June 30, 2023, Report of Condition. 1. The $1 billion asset-size test is based on the total assets reported on the June 30, 2023, Report of Condition. *. Describe on Schedule RI-E -- Explanations. 1. Includes, but is not limited to, changes in net unrealized holding gains (losses) on available-for-sale debt securities, changes in accumulated net gains (losses) on cash flow hedges, and pension and other postretirement plan-related changes other than net periodic benefit cost.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 10 Schedule RI-B Part I - Charge-offs and Recoveries on Loans and Leases(Form Type - 041) Part I includes charge-offs and recoveries through the allocated transfer risk reserve. (Column B) Recoveries Calendar year-to-date (Column A) Charge-offs Dollar amounts in thousands Calendar year-to-date 1. Loans secured by real estate: 1. a. Construction, land development, and other land loans: 1.a. 1. 1-4 family residential construction loans................................................................. RIADC891 0 RIADC892 0 1.a.1. 2. Other construction loans and all land development and other land loans............... RIADC893 0 RIADC894 0 1.a.2. b. Secured by farmland....................................................................................................... RIAD3584 0 RIAD3585 0 1.b. c. Secured by 1-4 family residential properties: 1.c. RIAD5411 207 RIAD5412 161 1.c.1. 1. Revolving, open-end loans secured by 1-4 family residential properties and extended under lines of credit..................................................................................................... 2. Closed-end loans secured by 1-4 family residential properties: 1.c.2. a. Secured by first liens........................................................................................ RIADC234 290 RIADC217 690 1.c.2.a. b. Secured by junior liens..................................................................................... RIADC235 1,030 RIADC218 235 1.c.2.b. d. Secured by multifamily (5 or more) residential properties.............................................. RIAD3588 0 RIAD3589 0 1.d. e. Secured by nonfarm nonresidential properties: 1.e. 1. Loans secured by owner-occupied nonfarm nonresidential properties................... RIADC895 251 RIADC896 218 1.e.1. 2. Loans secured by other nonfarm nonresidential properties.................................... RIADC897 14,445 RIADC898 103 1.e.2. 2. Not applicable 2. 3. Not applicable 3. 4. Commercial and industrial loans............................................................................................ RIAD4638 6,324 RIAD4608 6,458 4. 5. Loans to individuals for household, family, and other personal expenditures: 5. a. Credit cards.................................................................................................................... RIADB514 1,044 RIADB515 76 5.a. b. Automobile loans............................................................................................................ RIADK129 2 RIADK133 34 5.b. RIADK205 21,497 RIADK206 2,154 5.c. c. Other (includes revolving credit plans other than credit cards and other consumer loans)................................................................................................................................ 6. Not applicable 6. 7. All other loans2...................................................................................................................... RIAD4644 0 RIAD4628 33 7. 8. Lease financing receivables................................................................................................... RIAD4266 20,033 RIAD4267 2,705 8. 9. Total (sum of items 1 through 8)............................................................................................ RIAD4635 65,123 RIAD4605 12,867 9. RIAD5409 0 RIAD5410 0 M.1. 1. Loans to finance commercial real estate, construction, and land development activities (not secured by real estate) included in Schedule RI-B, part I, items 4 and 7, above...................... 2. Not available M.2. RIAD4652 0 RIAD4662 0 M.2.a. Memorandum items 2.a. through 2.d. are to be completed by banks with $300 million or more in total assets: a. Loans secured by real estate to non-U.S. addressees (domicile) (included in Schedule RI-B, part I, item 1, above)2................................................................................................ b. Not applicable M.2.b. RIAD4646 0 RIAD4618 0 M.2.c. c. Commercial and industrial loans to non-U.S. addressees (domicile) (included in Schedule RI-B, part I, item 4, above)................................................................................................. RIADF185 0 RIADF187 0 M.2.d. d. Leases to individuals for household, family, and other personal expenditures (included in Schedule RI-B, part I, item 8, above)............................................................................. RIAD4655 0 RIAD4665 0 M.3. Memorandum item 3 are to be completed by: * banks with $300 million or more in total assets, and * banks with less than $300 million in total assets that have loans to finance agricultural production and other loans to farmers (Schedule RC-C, Part I, item 3) exceeding 5 percent of total loans: 3. Loans to finance agricultural production and other loans to farmers (included in Schedule RI-B, part I, item 7, above)2....................................................................................................... Dollar amounts in thousands RIADC388 NR M.4. Memorandum item 4 is to be completed by banks that (1) together with affiliated institutions, have outstanding credit card receivables (as defined in the instructions) that exceed $500 million as of the report date, or (2) are credit card specialty banks as defined for Uniform Bank Performance Report purposes. 4. Uncollectible retail credit card fees and finance charges reversed against income (i.e., not included in charge-offs against the allowance for credit losses on loans and leases)..........................................................................................
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 11 Schedule RI-B Part II - Changes in Allowances for Credit Losses(Form Type - 041) (Column C) Available-for-sale Debt Securities (Column B) Held-to-maturity Debt Securities (Column A) Loans and Leases Held for Dollar amounts in thousands Investment RIADB522 186,126 RIADJH88 8 RIADJH94 0 1. 1. Balance most recently reported for the December 31, 2023, Reports of Condition and Income (i.e., after adjustments from amended Reports of Income)............................................................................................................. 2. Recoveries (column A must equal Part I, item 9, column B, above)............. RIAD4605 12,867 RIADJH89 0 RIADJH95 0 2. RIADC079 65,123 RIADJH92 0 RIADJH98 0 3. 3. LESS: Charge-offs (column A must equal Part I, item 9, column A, above less Schedule RI-B, Part II, item 4, column A)................................................. 4. LESS: Write-downs arising from transfers of financial assets....................... RIAD5523 0 RIADJJ00 0 RIADJJ01 0 4. 5. Provisions for credit losses1......................................................................... RIAD4230 61,411 RIADJH90 -1 RIADJH96 0 5. 6. Adjustments (see instructions for this schedule)*......................................... RIADC233 0 RIADJH91 0 RIADJH97 0 6. RIAD3123 195,281 RIADJH93 7 RIADJH99 0 7. 7. Balance end of current period (sum of items 1, 2, 5, and 6, less items 3 and 4) (column A must equal Schedule RC, item 4.c)............................................. Dollar amounts in thousands 1. Allocated transfer risk reserve included in Schedule RI-8, Part II, item 7, column A, above....................................... RIADC435 NR M.1. RIADC389 NR M.2. Memorandum items 2 and 3 are to be completed by banks that (1) together with affiliated institutions, have outstanding credit card receivables (as defined in the instructions) that exceed $500 million as of the report date, or (2) are credit card specialty banks as defined for Uniform Bank Performance Report purposes. 2. Separate valuation allowance for uncollectible retail credit card fees and finance charges........................................ 3. Amount of allowance for credit losses on loans and leases attributable to retail credit card fees and finance charges. RIADC390 NR M.3. 4. Not applicable M.4. 5. Provisions for credit losses on other financial assets measured at amortized cost (not included in item 5, above)..... RIADJJ02 0 M.5. 6. Allowance for credit losses on other financial assets measured at amortized cost (not included in item 7, above)..... RCONJJ03 0 M.6. 7. Provisions for credit losses on off-balance-sheet credit exposures............................................................................. RIADMG93 416 M.7. RIADMG94 45,679 M.8. 8. Estimated amount of expected recoveries of amounts previously written off included within the allowance for credit losses on loans and leases held for investment (included in item 7, column A, "Balance end of current period," above). 2.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 12 Schedule RI-C - Disaggregated Data on the Allowances for Credit Losses(Form Type - 041) Dollar amounts in thousands (Column A) Amortized Cost (Column B) Allowance Balance 1. Real estate loans: 1. a. Construction loans.......................................................................................................... RCONJJ04 851,684 RCONJJ12 9,087 1.a. b. Commercial real estate loans......................................................................................... RCONJJ05 5,253,552 RCONJJ13 55,677 1.b. c. Residential real estate loans........................................................................................... RCONJJ06 4,265,626 RCONJJ14 54,615 1.c. 2. Commercial loans2................................................................................................................ RCONJJ07 2,472,001 RCONJJ15 57,501 2. 3. Credit cards.......................................................................................................................... RCONJJ08 22,924 RCONJJ16 966 3. 4. Other consumer loans........................................................................................................... RCONJJ09 325,712 RCONJJ17 17,435 4. 5. Unallocated, if any................................................................................................................. RCONJJ18 0 5. 6. Total (sum of items 1.a. through 5)3....................................................................................... RCONJJ11 13,191,499 RCONJJ19 195,281 6. Dollar amounts in thousands 7. Securities issued by states and political subdivisions in the U.S................................................................................. RCONJJ20 7 7. 8. Mortgage-backed securities (MBS) (including CMOs, REMICs, and stripped MBS).................................................. RCONJJ21 0 8. 9. Asset-backed securities and structured financial products.......................................................................................... RCONJJ23 0 9. 10. Other debt securities................................................................................................................................................ RCONJJ24 0 10. 11. Total (sum of items 7 through 10)4............................................................................................................................. RCONJJ25 7 11. 2. Include all loans and leases not reported as real estate loans, credit cards, or other consumer loans in items 1, 3, or 4 of Schedule RI-C,Part II. 3. Item 6, column B, must equal Schedule RC, item 4.c. 4. Item 11 must equal Schedule RI-B, Part II, item 7, column B.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 13 Schedule RI-E - Explanations (Form Type - 041) Schedule RI-E is to be completed each quarter on a calendar year-to-date basis. Detail all adjustments in Schedule RI-A and RI-B, all extraordinary items and other adjustments in Schedule RI, and all significant items of other noninterest income and other noninterest expense in Schedule RI. (See instructions for details.) Dollar amounts in thousands 1. 1. Other noninterest income (from Schedule RI, item 5.l) Itemize and describe amounts greater than $100,000 that exceed 7 percent of Schedule RI, item 5.l: a. Income and fees from the printing and sale of checks......................................................................................... RIADC013 NR 1.a. b. Earnings on/increase in value of cash surrender value of life insurance.............................................................. RIADC014 NR 1.b. c. Income and fees from automated teller machines (ATMs)................................................................................... RIADC016 NR 1.c. d. Rent and other income from other real estate owned.......................................................................................... RIAD4042 NR 1.d. e. Safe deposit box rent........................................................................................................................................... RIADC015 NR 1.e. f. Bank card and credit card interchange fees.......................................................................................................... RIADF555 17,524 1.f. g. Income and fees from wire transfers.................................................................................................................... RIADT047 NR 1.g. h. Disclose component and the dollar amount of that component: 1.h. (TEXT4461) TCM Courier Fee Income RIAD4461 21,012 1.h.1. i. Disclose component and the dollar amount of that component: 1.i. (TEXT4462) Bailment Fees RIAD4462 68,988 1.i.1. j. Disclose component and the dollar amount of that component: 1.j. (TEXT4463) Capital Markets Revenue RIAD4463 11,864 1.j.1. 2. 2. Other noninterest expense (from Schedule RI, item 7.d) Itemize and describe amounts greater than $100,000 that exceed 7 percent of Schedule RI, item 7.d: a. Data processing expenses.................................................................................................................................. RIADC017 17,962 2.a. b. Advertising and marketing expenses.................................................................................................................... RIAD0497 NR 2.b. c. Directors' fees...................................................................................................................................................... RIAD4136 NR 2.c. d. Printing, stationery, and supplies......................................................................................................................... RIADC018 NR 2.d. e. Postage............................................................................................................................................................... RIAD8403 NR 2.e. f. Legal fees and expenses...................................................................................................................................... RIAD4141 NR 2.f. g. FDIC deposit insurance assessments.................................................................................................................. RIAD4146 CONF 2.g. h. Accounting and auditing expenses....................................................................................................................... RIADF556 NR 2.h. i. Consulting and advisory expenses....................................................................................................................... RIADF557 NR 2.i. j. Automated teller machine (ATM) and interchange expenses................................................................................ RIADF558 NR 2.j. k. Telecommunications expenses............................................................................................................................ RIADF559 NR 2.k. l. Other real estate owned expenses....................................................................................................................... RIADY923 NR 2.l. RIADY924 NR 2.m. m. Insurance expenses (not included in employee expenses, premises and fixed asset expenses, and other real estate owned expenses)......................................................................................................................................... n. Disclose component and the dollar amount of that component: 2.n. (TEXT4464) Courier Expense RIAD4464 18,550 2.n.1. o. Disclose component and the dollar amount of that component: 2.o. (TEXT4467) Software Amortization RIAD4467 27,154 2.o.1. p. Disclose component and the dollar amount of that component: 2.p. (TEXT4468) Other Service Bureau Fees RIAD4468 62,644 2.p.1. 3. 3. Discontinued operations and applicable income tax effect (from Schedule RI, item 11) (itemize and describe each discontinued operation): a. Disclose component, the gross dollar amount of that component, and its related income tax: 3.a. (TEXTFT29) NR RIADFT29 0 3.a.1. 3. Applicable income tax effect......................................................................................................................... RIADFT30 0 3.a.3. b. Disclose component, the gross dollar amount of that component, and its related income tax: 3.b. (TEXTFT31) NR RIADFT31 0 3.b.1. 3. Applicable income tax effect......................................................................................................................... RIADFT32 0 3.b.3. 4. 4. Cumulative effect of changes in accounting principles and corrections of material accounting errors (from Schedule RI-A, item 2) (itemize and describe all such effects): a. Disclose component and the dollar amount of that component: 4.a. (TEXTB526) NR RIADB526 0 4.a.1.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 14 Dollar amounts in thousands b. Disclose component and the dollar amount of that component: 4.b. (TEXTB527) NR RIADB527 0 4.b.1. 5. 5. Other transactions with stockholders (including a parent holding company) (from Schedule RI-A, item 11) (itemize and describe all such transactions): a. Disclose component and the dollar amount of that component: 5.a. (TEXT4498) Distributions to noncontrolling shareholders RIAD4498 -920 5.a.1. b. Disclose component and the dollar amount of that component: 5.b. (TEXT4499) NR RIAD4499 0 5.b.1. 6. 6. Adjustments to allowance for loan and lease losses (from Schedule RI-B, part II, item 6) (itemize and describe all adjustments): a. Initial allowances for credit losses recognized upon the acquisition of purchased credit-deteriorated assets1..... RIADJJ27 0 6.a. b. Disclose component and the dollar amount of that component: 6.b. (TEXT4521) NR RIAD4521 0 6.b.1. c. Disclose component and the dollar amount of that component: 6.c. (TEXT4522) NR RIAD4522 0 6.c.1. 7. 7. Other explanations (the space below is provided for the bank to briefly describe, at its option, any other significant items affecting the Report of Income): a. Comments?......................................................................................................................................................... RIAD4769 No 7.a. b. Other explanations.............................................................................................................................................. TEXT4769 NR 7.b. 1. Institutions should report initial allowances for credit losses recognized upon the acquisition of purchased credit-deteriorated assets after the adoption of FASB ASC Topic 326.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 15 Schedule RC - Balance Sheet(Form Type - 041) All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Dollar amounts in thousands 1. Cash and balances due from depository institutions (from Schedule RC-A): 1. a. Noninterest-bearing balances and currency and coin1........................................................................................ RCON0081 573,548 1.a. b. Interest-bearing balances2.................................................................................................................................. RCON0071 577,568 1.b. 2. Securities: 2. a. Held-to-maturity securities (from Schedule RC-B, column A)3............................................................................ RCONJJ34 1,015,161 2.a. b. Available-for-sale debt securities (from Schedule RC-B, column D).................................................................... RCON1773 3,510,648 2.b. c. Equity securities with readily determinable fair values not held for trading4......................................................... RCONJA22 0 2.c. 3. Federal funds sold and securities purchased under agreements to resell: 3. a. Federal funds sold............................................................................................................................................... RCONB987 0 3.a. b. Securities purchased under agreements to resell5.............................................................................................. RCONB989 0 3.b. 4. Loans and lease financing receivables (from Schedule RC-C): 4. a. Loans and leases held for sale............................................................................................................................ RCON5369 49,699 4.a. b. Loans and leases held for investment.................................................................................................................. RCONB528 13,191,499 4.b. c. LESS: Allowance for credit losses on loans and leases....................................................................................... RCON3123 195,281 4.c. d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c)...................................................... RCONB529 12,996,218 4.d. 5. Trading assets (from Schedule RC-D)......................................................................................................................... RCON3545 0 5. 6. Premises and fixed assets (including right-of-use assets).......................................................................................... RCON2145 235,018 6. 7. Other real estate owned (from Schedule RC-M)......................................................................................................... RCON2150 5,204 7. 8. Investments in unconsolidated subsidiaries and associated companies..................................................................... RCON2130 17,563 8. 9. Direct and indirect investments in real estate ventures............................................................................................... RCON3656 0 9. 10. Intangible assets (from Schedule RC-M)................................................................................................................... RCON2143 904,141 10. 11. Other assets (from Schedule RC-F)6........................................................................................................................ RCON2160 836,905 11. 12. Total assets (sum of items 1 through 11)................................................................................................................... RCON2170 20,721,673 12. 13. Deposits: 13. a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)..................................................... RCON2200 17,340,079 13.a. 1. Noninterest-bearing7.................................................................................................................................... RCON6631 5,026,585 13.a.1. 2. Interest-bearing............................................................................................................................................ RCON6636 12,313,494 13.a.2. b. Not applicable 13.b. 14. Federal funds purchased and securities sold under agreements to repurchase: 14. a. Federal funds purchased8................................................................................................................................... RCONB993 0 14.a. b. Securities sold under agreements to repurchase9............................................................................................... RCONB995 0 14.b. 15. Trading liabilities (from Schedule RC-D).................................................................................................................... RCON3548 0 15. 16. Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M).................................................. RCON3190 74,142 16. 17. Not applicable 17. 18. Not applicable 18. 19. Subordinated notes and debentures10..................................................................................................................... RCON3200 0 19. 20. Other liabilities (from Schedule RC-G)...................................................................................................................... RCON2930 801,009 20. 21. Total liabilities (sum of items 13 through 20).............................................................................................................. RCON2948 18,215,230 21. 22. Not applicable 22. 1. Includes cash items in process of collection and unposted debits. 2. Includes time certificates of deposit not held for trading. 3. Institutions should report in item 2.a, amounts net of any applicable allowance for credit losses, and should equal to Schedule RC-B, item 8, column A less Schedule RI-B, Part II, item 7, column B. 4. Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for "Securities Activities" for further detail on accounting for investments in equity securities. 5. Includes all securities resale agreements, regardless of maturity. 6. Institutions should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. 7. Includes noninterest-bearing demand, time, and savings deposits. 8. Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, "Other borrowed money." 9. Includes all securities repurchase agreements, regardless of maturity. 10. Includes limited-life preferred stock and related surplus.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 16 Dollar amounts in thousands 23. Perpetual preferred stock and related surplus........................................................................................................... RCON3838 0 23. 24. Common stock.......................................................................................................................................................... RCON3230 0 24. 25. Surplus (exclude all surplus related to preferred stock)............................................................................................. RCON3839 2,402,427 25. 26. Not available 26. a. Retained earnings............................................................................................................................................... RCON3632 739,269 26.a. b. Accumulated other comprehensive income1........................................................................................................ RCONB530 -624,877 26.b. c. Other equity capital components2....................................................................................................................... RCONA130 0 26.c. 27. Not available 27. a. Total bank equity capital (sum of items 23 through 26.c)..................................................................................... RCON3210 2,516,819 27.a. b. Noncontrolling (minority) interests in consolidated subsidiaries........................................................................... RCON3000 -10,376 27.b. 28. Total equity capital (sum of items 27.a and 27.b)...................................................................................................... RCONG105 2,506,443 28. 29. Total liabilities and equity capital (sum of items 21 and 28)....................................................................................... RCON3300 20,721,673 29. RCON6724 NR M.1. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2023......................... 2. Bank's fiscal year-end date (report the date in MMDD format)................................................................................... RCON8678 NR M.2. Schedule RC-A - Cash and Balances Due From Depository Institutions(Form Type - 041) Schedule RC-A is to be completed only by banks with $300 million or more in total assets. Exclude assets held for trading. Dollar amounts in thousands 1. Cash items in process of collection, unposted debits, and currency and coin: 1. a. Cash items in process of collection and unposted debits..................................................................................... RCON0020 93,599 1.a. b. Currency and coin............................................................................................................................................... RCON0080 463,140 1.b. 2. Balances due from depository institutions in the U.S.................................................................................................. RCON0082 9,610 2. 3. Balances due from banks in foreign countries and foreign central banks................................................................... RCON0070 7,555 3. 4. Balances due from Federal Reserve Banks................................................................................................................ RCON0090 577,212 4. 5. Total............................................................................................................................................................................ RCON0010 1,151,116 5. 1. Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other postretirement plan adjustments. 2. Includes treasury stock and unearned Employee Stock Ownership Plan shares.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 17 Schedule RC-B - Securities(Form Type - 041) Exclude assets held for trading. (Column D) Available-for-sale Fair Value (Column C) Available-for-sale Amortized Cost (Column B) Held-to-maturity Fair Value (Column A) Held-to-maturity Dollar amounts in thousands Amortized Cost 1. U.S. Treasury securities.............................................................. RCON0211 0 RCON0213 0 RCON1286 0 RCON1287 0 1. RCONHT50 0 RCONHT51 0 RCONHT52 222,869 RCONHT53 177,937 2. 2. U.S. Government agency and sponsored agency obligations (exclude mortgage-backed securities)1.......................................... RCON8496 183,843 RCON8497 180,793 RCON8498 0 RCON8499 0 3. 3. Securities issued by states and political subdivisions in the U.S.................................................................................................. 4. Mortgage-backed securities (MBS): 4. a. Residential mortgage pass-through securities: 4.a. 1. Guaranteed by GNMA.................................................. RCONG300 0 RCONG301 0 RCONG302 42,241 RCONG303 38,829 4.a.1. 2. Issued by FNMA and FHLMC...................................... RCONG304 831,325 RCONG305 714,725 RCONG306 3,193,253 RCONG307 2,657,544 4.a.2. 3. Other pass-through securities...................................... RCONG308 0 RCONG309 0 RCONG310 0 RCONG311 0 4.a.3. 4.b. b. Other residential mortgage-backed securities (include CMOs, REMICs, and stripped MBS): RCONG312 0 RCONG313 0 RCONG314 428,913 RCONG315 342,154 4.b.1. 1. Issued or guaranteed by U.S. Government agencies or sponsored agencies1....................................................... RCONG316 0 RCONG317 0 RCONG318 0 RCONG319 0 4.b.2. 2. Collateralized by MBS issued or guaranteed by U.S. Government agencies or sponsored agencies1............... 3. All other residential MBS.............................................. RCONG320 0 RCONG321 0 RCONG322 0 RCONG323 0 4.b.3. c. Commercial MBS: 4.c. 1. Commercial mortgage pass-through securities: 4.c.1. RCONK142 0 RCONK143 0 RCONK144 233,107 RCONK145 205,396 4.c.1.a. a. Issued or guaranteed by FNMA, FHLMC, or GNMA....................................................................... b. Other pass-through securities............................... RCONK146 0 RCONK147 0 RCONK148 0 RCONK149 0 4.c.1.b. 2. Other commercial MBS: 4.c.2. RCONK150 0 RCONK151 0 RCONK152 97,884 RCONK153 88,788 4.c.2.a. a. Issued or guaranteed by U.S. Government agencies or sponsored agencies1............................ b. All other commercial MBS..................................... RCONK154 0 RCONK155 0 RCONK156 0 RCONK157 0 4.c.2.b. 5. Asset-backed securities and structured financial products: 5. a. Asset-backed securities (ABS)............................................ RCONC026 0 RCONC988 0 RCONC989 0 RCONC027 0 5.a. b. Structured financial products............................................... RCONHT58 0 RCONHT59 0 RCONHT60 0 RCONHT61 0 5.b. 6. Other debt securities: 6. a. Other domestic debt securities............................................ RCON1737 0 RCON1738 0 RCON1739 0 RCON1741 0 6.a. b. Other foreign debt securities................................................ RCON1742 0 RCON1743 0 RCON1744 0 RCON1746 0 6.b. RCONMG95 0 7. 7. Unallocated portfolio layer fair value hedge basis adjustments2................................................................................... 8. Total (sum of items 1 through 7)3................................................ RCON1754 1,015,168 RCON1771 895,518 RCON1772 4,218,267 RCON1773 3,510,648 8.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 18 Dollar amounts in thousands 1. Pledged securities1.................................................................................................................................................... RCON0416 3,432,384 M.1. 2. Maturity and repricing data for debt securities (excluding those in nonaccrual status):1 M.2. M.2.a. a. Securities issued by the U.S. Treasury, U.S. Government agencies, and states and political subdivisions in the U.S.; other non-mortgage debt securities; and mortgage pass-through securities other than those backed by closed-end first lien 1-4 family residential mortgages with a remaining maturity or next repricing date of:2 1. Three months or less................................................................................................................................... RCONA549 2,405 M.2.a.1. 2. Over three months through 12 months......................................................................................................... RCONA550 14,293 M.2.a.2. 3. Over one year through three years............................................................................................................... RCONA551 43,016 M.2.a.3. 4. Over three years through five years.............................................................................................................. RCONA552 62,434 M.2.a.4. 5. Over five years through 15 years.................................................................................................................. RCONA553 423,722 M.2.a.5. 6. Over 15 years............................................................................................................................................... RCONA554 21,306 M.2.a.6. M.2.b. b. Mortgage pass-through securities backed by closed-end first lien 1-4 family residential mortgages with a remaining maturity or next repricing date of:2 1. Three months or less................................................................................................................................... RCONA555 0 M.2.b.1. 2. Over three months through 12 months......................................................................................................... RCONA556 0 M.2.b.2. 3. Over one year through three years............................................................................................................... RCONA557 1,106 M.2.b.3. 4. Over three years through five years.............................................................................................................. RCONA558 929 M.2.b.4. 5. Over five years through 15 years.................................................................................................................. RCONA559 710,042 M.2.b.5. 6. Over 15 years............................................................................................................................................... RCONA560 2,815,622 M.2.b.6. M.2.c. c. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS; exclude mortgage pass-through securities) with an expected average life of:5 1. Three years or less...................................................................................................................................... RCONA561 59,060 M.2.c.1. 2. Over three years.......................................................................................................................................... RCONA562 371,882 M.2.c.2. RCONA248 16,698 M.2.d. d. Debt securities with a REMAINING MATURITY of one year or less (included in Memorandum items 2.a through 2.c above)............................................................................................................................................................... RCON1778 0 M.3. Memorandum item 3 is to be completed semiannually in the June and December reports only. 3. Amortized cost of held-to-maturity securities sold or transferred to available-for-sale or trading securities during the calendar year-to-date (report the amortized cost at date of sale or transfer).................................................................. M.4. 4. Structured notes (included in the held-to-maturity and available-for-sale accounts in Schedule RC-B, items 2, 3, 5, and 6): a. Amortized cost.................................................................................................................................................... RCON8782 0 M.4.a. b. Fair value............................................................................................................................................................. RCON8783 0 M.4.b. 1. Includes Small Business Administration "Guaranteed Loan Pool Certificates"; U.S. Maritime Administration obligations; Export-Import Bank participation certificates; and obligations (other than mortgage-backed securities) issued by the Farm Credit System, the Federal Home Loan Bank System, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the Financing Corporation, Resolution Funding Corporation, the Student Loan Marketing Association, and the Tennessee Valley Authority. 1. U.S. Government agencies include, but are not limited to, such agencies as the Government National Mortgage Association (GNMA), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA). U.S. Government-sponsored agencies include, but are not limited to, such agencies as the Federal Home Loan Mortgage Corporation (FHLMC) and the Federal National Mortgage Association (FNMA). 1. U.S. Government agencies include, but are not limited to, such agencies as the Government National Mortgage Association (GNMA), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA). U.S. Government-sponsored agencies include, but are not limited to, such agencies as the Federal Home Loan Mortgage Corporation (FHLMC) and the Federal National Mortgage Association (FNMA). 2. This item is to be completed by institutions that have adopted ASU 2022-01, as applicable. 3. The total reported in column A must equal Schedule RC, item 2.a, plus Schedule RI-B, Part II, item 7, column B. The total reported in column D must equal Schedule RC, item 2.b.
(Column D)
Available-for-sale Fair
Value
(Column C)
Available-for-sale
Amortized Cost
(Column B)
Held-to-maturity Fair
Value
(Column A)
Held-to-maturity
Dollar amounts in thousands Amortized Cost
M.5.
Memorandum items 5.a through 5.f are to be completed by banks with $10
billion or more in total assets.
5. Asset-backed securities (ABS) (for each column, sum of
Memorandum items 5.a through 5.f must equal Schedule RC-B,
item 5.a):1
a. Credit card receivables........................................................ RCONB838 0 RCONB839 0 RCONB840 0 RCONB841 0 M.5.a.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041
RSSD-ID 437914 Report Date 12/31/2024
Last Updated on 1/30/2025 20
Schedule RC-C Part I - Loans and Leases(Form Type - 041)
Do not deduct the allowance for credit losses on loans and leases or the allocated transfer risk reserve from amounts reported in this schedule. Report (1) loans and leases
held for sale at the lower of cost or fair value, (2) loans and leases held for investment, net of unearned income, and (3) loans and leases accounted for at fair value under
a fair value option. Exclude assets held for trading and commercial paper.
(Column B) To Be Completed by
All Banks
(Column A) To Be Completed by
Banks with $300 Million or More
Dollar amounts in thousands in Total Assets
1. Loans secured by real estate: 1.
a. Construction, land development, and other land loans: 1.a.
1. 1-4 family residential construction loans................................................................. RCONF158 140,426 1.a.1.
2. Other construction loans and all land development and other land loans............... RCONF159 716,422 1.a.2.
b. Secured by farmland (including farm residential and other improvements).................... RCON1420 25,673 1.b.
c. Secured by 1-4 family residential properties: 1.c.
RCON1797 647,241 1.c.1.
1. Revolving, open-end loans secured by 1-4 family residential properties and extended
under lines of credit.....................................................................................................
2. Closed-end loans secured by 1-4 family residential properties: 1.c.2.
a. Secured by first liens........................................................................................ RCON5367 1,434,967 1.c.2.a.
b. Secured by junior liens..................................................................................... RCON5368 1,071,451 1.c.2.b.
d. Secured by multifamily (5 or more) residential properties.............................................. RCON1460 1,132,501 1.d.
e. Secured by nonfarm nonresidential properties: 1.e.
1. Loans secured by owner-occupied nonfarm nonresidential properties................... RCONF160 1,839,080 1.e.1.
2. Loans secured by other nonfarm nonresidential properties.................................... RCONF161 3,408,201 1.e.2.
2. Loans to depository institutions and acceptances of other banks......................................... RCON1288 0 2.
a. To commercial banks in the U.S..................................................................................... RCONB531 0 2.a.
b. To other depository institutions in the U.S....................................................................... RCONB534 0 2.b.
c. To banks in foreign countries.......................................................................................... RCONB535 0 2.c.
3. Loans to finance agricultural production and other loans to farmers..................................... RCON1590 5,029 3.
4. Commercial and industrial loans............................................................................................ RCON1766 1,253,794 4.
a. To U.S. addressees (domicile)........................................................................................ RCON1763 1,253,794 4.a.
b. To non-U.S. addressees (domicile)................................................................................. RCON1764 0 4.b.
5. Not applicable 5.
6.
6. Loans to individuals for household, family, and other personal expenditures (i.e., consumer
loans) (includes purchased paper):
a. Credit cards.................................................................................................................... RCONB538 22,924 6.a.
b. Other revolving credit plans............................................................................................ RCONB539 20,728 6.b.
c. Automobile loans............................................................................................................ RCONK137 7,260 6.c.
RCONK207 297,724 6.d.
d. Other consumer loans (includes single payment and installment loans other than
automobile loans and all student loans).............................................................................
7. Not applicable 7.
RCON2107 148,234 8.
8. Obligations (other than securities and leases) of states and political subdivisions in the
U.S............................................................................................................................................
9. Loans to nondepository financial institutions and other loans: 9.
a. Loans to nondepository financial institutions.................................................................. RCONJ454 424,100 9.a.
b. Other loans..................................................................................................................... RCONJ464 14,990 9.b.
1. Loans for purchasing or carrying securities, including margin loans....................... RCON1545 0 9.b.1.
2. All other loans (exclude consumer loans)............................................................... RCONJ451 14,990 9.b.2.
10. Lease financing receivables (net of unearned income)....................................................... RCON2165 645,113 10.
RCONF162 0 10.a.
a. Leases to individuals for household, family, and other personal expenditures (i.e.,
consumer leases)...............................................................................................................
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 21 Dollar amounts in thousands M.1. 1. Loan modifications to borrowers experiencing financial difficulty* that are in compliance with their modified terms (included in Schedule RC-C, Part 1, and not reported as past due or nonaccrual in Schedule RC-N, Memorandum item 1):* a. Construction, land development, and other land loans: M.1.a. 1. 1-4 family residential construction loans....................................................................................................... RCONK158 1,188 M.1.a.1. 2. Other construction loans and all land development and other land loans..................................................... RCONK159 19,403 M.1.a.2. b. Loans secured by 1-4 family residential properties.............................................................................................. RCONF576 0 M.1.b. c. Secured by multifamily (5 or more) residential properties.................................................................................... RCONK160 6,570 M.1.c. d. Secured by nonfarm nonresidential properties: M.1.d. 1. Loans secured by owner-occupied nonfarm nonresidential properties......................................................... RCONK161 3,614 M.1.d.1. 2. Loans secured by other nonfarm nonresidential properties.......................................................................... RCONK162 29,753 M.1.d.2. e. Commercial and industrial loans.......................................................................................................................... RCONK256 28,069 M.1.e. RCONK163 28,069 M.1.e.1. Memorandum items 1.e.(1) and (2) are to be completed by banks with $300 million or more in total assets (sum of Memorandum items 1.e(1) and (2) must equal Memorandum item 1.e): 1. To U.S. addressees (domicile)...................................................................................................................... 2. To non-U.S. addressees (domicile)............................................................................................................... RCONK164 0 M.1.e.2. f. All other loans (include loans to individuals for household, family, and other personal expenditures).................. RCONK165 6,315 M.1.f. 1. Loans secured by farmland*......................................................................................................................... RCONK166 0 M.1.f.1. 2. Not applicable M.1.f.2. 3. Not applicable M.1.f.3. 4. Loans to individuals for household, family, and other personal expenditures: M.1.f.4. a. Credit cards.......................................................................................................................................... RCONK098 0 M.1.f.4.a. b. Automobile loans.................................................................................................................................. RCONK203 0 M.1.f.4.b. c. Other (includes revolving credit plans other than credit cards and other consumer loans)................... RCONK204 0 M.1.f.4.c. RCONK168 0 M.1.f.5. Memorandum item 1.f.(5) is to be completed by: * Banks with $300 million or more in total assets * Banks with less than $300 million in total assets that have loans to finance agricultural production and other loans to farmers (Schedule RC-C, Part I, item 3) exceeding 5 percent of total loans 5. Loans to finance agricultural production and other loans to farmers included in Schedule RC-C, part I, Memorandum item 1.f, above1......................................................................................................................... RCONHK25 94,912 M.1.g. g. Total loan modifications to borrowers experiencing financial difficulty that are in compliance with their modified terms (sum of Memorandum items 1.a.(1) through 1.f)........................................................................................... 2. Maturity and repricing data for loans and leases (excluding those in nonaccrual status): M.2. M.2.a. a. Closed-end loans secured by first liens on 1-4 family residential properties (reported in Schedule RC-C, part I, item 1.c.(2)(a), column B, above) with a remaining maturity or next repricing date of: 1. Three months or less................................................................................................................................... RCONA564 127,865 M.2.a.1. 2. Over three months through 12 months......................................................................................................... RCONA565 47,872 M.2.a.2. 3. Over one year through three years............................................................................................................... RCONA566 105,996 M.2.a.3. 4. Over three years through five years.............................................................................................................. RCONA567 121,214 M.2.a.4. 5. Over five years through 15 years.................................................................................................................. RCONA568 482,745 M.2.a.5. 6. Over 15 years............................................................................................................................................... RCONA569 543,746 M.2.a.6. M.2.b. b. All loans and leases (reported in Schedule RC-C, part I, items 1 through 10, column B, above) EXCLUDING closed-end loans secured by first liens on 1-4 family residential properties (reported in Schedule RC-C, part I, item 1.c.(2)(a), column B, above) with a remaining maturity or next repricing date of: 1. Three months or less................................................................................................................................... RCONA570 6,217,145 M.2.b.1. 2. Over three months through 12 months......................................................................................................... RCONA571 274,331 M.2.b.2. 3. Over one year through three years............................................................................................................... RCONA572 1,148,927 M.2.b.3. 4. Over three years through five years.............................................................................................................. RCONA573 1,262,843 M.2.b.4. 5. Over five years through 15 years.................................................................................................................. RCONA574 1,565,508 M.2.b.5. 6. Over 15 years............................................................................................................................................... RCONA575 1,235,484 M.2.b.6. RCONA247 1,783,879 M.2.c. c. Loans and leases (reported in Schedule RC-C, part I, items 1 through 10, column B, above) with a REMAINING MATURITY of one year or less (excluding those in nonaccrual status)................................................................... *. * The loan modification to borrowers experiencing financial difficulty revisions are effective as of the June 30, 2024, report date. *. *The loan modification to borrowers experiencing financial difficulty revisions are effective as of the June 30, 2024, report date. 1. The $300 million asset size test and the 5 percent of total loans test are based on the total assets and total loans reported on the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 22 Dollar amounts in thousands RCON2746 20,550 M.3. 3. Loans to finance commercial real estate, construction, and land development activities (not secured by real estate) included in Schedule RC-C, part I, items 4 and 9, column B6......................................................................................... RCON5370 490,701 M.4. 4. Adjustable rate closed-end loans secured by first liens on 1-4 family residential properties (included in Schedule RC-C, part I, item 1.c.(2)(a), column B)........................................................................................................................... RCONB837 0 M.5. To be completed by banks with $300 million or more in total assets: 5. Loans secured by real estate to non-U.S. addressees (domicile) (included in Schedule RC-C, Part I, items 1.a through 1.e, column B)2................................................................................................................................................. RCONC391 NR M.6. Memorandum item 6 is to be completed by banks that (1) together with affiliated institutions, have outstanding credit card receivables (as defined in the instructions) that exceed $500 million as of the report date or (2) are credit card specialty banks as defined for Uniform Bank Performance Report purposes. 6. Outstanding credit card fees and finance charges included in Schedule RC-C, part I, item 6.a................................. 7. Not applicable M.7. M.8. Memorandum item 8.a is to be completed by all banks semiannually in the June and December reports only. 8. Closed-end loans with negative amortization features secured by 1-4 family residential properties: RCONF230 0 M.8.a. a.Total amount of closed-end loans with negative amortization features secured by 1-4 family residential properties (included in Schedule RC-C, part I, items 1.c.(2)(a) and 1.c.(2)(b))......................................................................... RCONF231 NR M.8.b. Memorandum items 8.b and 8.c are to be completed semiannually in the June and December reports only by banks that had closed-end loans with negative amortization features secured by 1-4 family residential properties (as reported in Schedule RC-C, Part I, Memorandum item 8.a) as of December 31, 2021, that exceeded the lesser of $100 million or 5 percent of total loans and leases held for investment and held for sale (as reported in Schedule RC-C, Part I, item 12, column B). b.Total maximum remaining amount of negative amortization contractually permitted on closed-end loans secured by 1-4 family residential properties......................................................................................................................... RCONF232 NR M.8.c. c.Total amount of negative amortization on closed-end loans secured by 1-4 family residential properties included in the amount reported in Memorandum item 8.a above......................................................................................... RCONF577 5,859 M.9. 9. Loans secured by 1-4 family residential properties in process of foreclosure (included in Schedule RC-C, part I, items 1.c.(1), 1.c.(2)(a), and 1.c.(2)(b))........................................................................................................................... 10. Loans to nondepository financial institutions:2 M.10. a. Loans to mortgage credit intermediaries.............................................................................................................. RCONPV05 89,967 M.10.a. b. Loans to business credit intermediaries............................................................................................................... RCONPV06 116,536 M.10.b. c. Loans to private equity funds............................................................................................................................... RCONPV07 93,876 M.10.c. d. Loans to consumer credit intermediaries............................................................................................................. RCONPV08 123,721 M.10.d. e. Other loans to nondepository financial institutions............................................................................................... RCONPV09 0 M.10.e. 6. Exclude loans secured by real estate that are included in Schedule RC-C, Part I, items 1.a through 1.e, column B. 2. The asset size tests are based on the total assets reported on the June 30, 2023, Report of Condition. 2. The asset-size tests are based on the total assets reported on the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 23 Dollar amounts in thousands 11. Not applicable M.11. (Column C) Best estimate at acquisition date of contractual cash flows not expected to be collected (Column B) Gross contractual amounts receivable at acquisition date (Column A) Fair value of acquired loans and leases at acquisition date Dollar amounts in thousands M.12. Memorandum items 12.a, 12.b, 12.c, and 12.d are to be completed semiannually in the June and December reports only. 12. Loans (not considered purchased credit deteriorated) and leases held for investment that were acquired in business combinations with acquisition dates in the current calendar year: a. Loans secured by real estate................................................................ RCONG091 0 RCONG092 0 RCONG093 0 M.12.a. b. Commercial and industrial loans........................................................... RCONG094 0 RCONG095 0 RCONG096 0 M.12.b. RCONG097 0 RCONG098 0 RCONG099 0 M.12.c. c. Loans to individuals for household, family, and other personal expenditures.............................................................................................. d. All other loans and all leases................................................................. RCONG100 0 RCONG101 0 RCONG102 0 M.12.d. Dollar amounts in thousands M.13. Memoranda item 13 is to be completed by banks that had construction, land development, and other land loans (as reported in Schedule RC-C, Part I, item 1.a, column B) that exceeded the sum of tier 1 capital (as reported in Schedule RC-R, Part I, item 26) plus the allowance for credit losses on loans and leases (as reported in Schedule RC, item 4.c) as of December 31. 13. Construction, land development, and other land loans in domestic offices with interest reserves: RCONG376 NR M.13.a. a. Amount of loans that provide for the use of interest reserves (included in Schedule RC-C, part I, item 1.a, column B)............................................................................................................................................................................ RIADG377 NR M.13.b. b. Amount of interest capitalized from interest reserves on construction, land development, and other land loans that is included in interest and fee income on loans during the quarter (included in Schedule RI, item 1.a.(1)(a)(2)). RCONG378 9,096,731 M.14. Memorandum item 14 is to be completed by all banks. 14. Pledged loans and leases........................................................................................................................................ M.15. Memorandum item 15 is to be completed for the December report only. 15. Reverse mortgages: RCONPR04 3,625 M.15.a. Memorandum item 15 is to be completed for the December report only. a. Reverse mortgages outstanding that are held for investment (included in Schedule RC-C, item 1.c, above)...... RCONPR05 55 M.15.b. b. Estimated number of reverse mortgage loan referrals to other lenders during the year from whom compensation has been received for services performed in connection with the origination of the reverse mortgages................. c. Principal amount of reverse mortgage originations that have been sold during the year..................................... RCONPR06 0 M.15.c. RCONLE75 7,751 M.16. Memorandum item 16 is to be completed by all banks. 16. Revolving, open-end loans secured by 1-4 family residential properties and extended under lines of credit that have converted to non-revolving closed-end status (included in item 1.c.(1) above)...................................................... M.17. Amounts reported in Memorandum items 17.a and 17.b will not be made available to the public on an individual institution basis. 17. Eligible loan modifications under Section 4013, Temporary Relief from Troubled Debt Restructurings, of the 2020 Coronavirus Aid, Relief, and Economic Security Act: a. Number of Section 4013 loans outstanding......................................................................................................... RCONLG24 CONF M.17.a. b. Outstanding balance of Section 4013 loans......................................................................................................... RCONLG25 CONF M.17.b.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 24 Schedule RC-C Part II - Loans to Small Businesses and Small Farms(Form Type - 041) Report the number and amount currently outstanding as of the report date of business loans with "original amounts" of $1,000,000 or less and farm loans with "original amounts" of $500,000 or less. The following guidelines should be used to determine the "original amount" of a loan: (1) For loans drawn down under lines of credit or loan commitments, the "original amount" of the loan is the size of the line of credit or loan commitment when the line of credit or loan commitment was most recently approved, extended, or renewed prior to the report date. However, if the amount currentlyoutstanding as of the report date exceeds this size, the "original amount" is the amount currently outstanding on the report date. (2) For loan participations and syndications, the "original amount" of the loan participation or syndication is the entire amount of the credit originated by the lead lender. (3) For all other loans, the "original amount" is the total amount of the loan at origination or the amount currently outstanding as of the report date, whichever is larger. Dollar amounts in thousands RCON6999 No 1. 1. Indicate in the appropriate box at the right whether all or substantially all of the dollar volume of your bank's "Loans secured by nonfarm nonresidential properties" reported in Schedule RC-C, part I, items 1.e.(1) and 1.e.(2), and all or substantially all of the dollar volume of your bank's "Commercial and industrial loans" reported in Schedule RC-C, part I, item 4, have original amounts of $100,000 or less....................................................................................................... 2. If YES, complete items 2.a and 2.b below, skip items 3 and 4, and go to item 5. If NO and your bank has loans outstanding in either loan category, skip items 2.a and 2.b, complete items 3 and 4 below, and go to item 5. If NO and your bank has no loans outstanding in both loan categories, skip items 2 through 4, and go to item 5 2. Report the total number of loans currently outstanding for each of the following Schedule RC-C, part I, loan categories: RCON5562 NR 2.a. a. "Loans secured by nonfarm nonresidential properties" reported in Schedule RC-C, part I, items 1.e.(1) and 1.e.(2)...................................................................................................................................................................... b. "Commercial and industrial loans" reported in Schedule RC-C, part I, item 41.................................................... RCON5563 NR 2.b. (Column B) Amount Currently Outstanding (Column A) Number of Loans Dollar amounts in thousands 3. 3. Number and amount currently outstanding of "Loans secured by nonfarm nonresidential properties" reported in Schedule RC-C, part I, items 1.e.(1) and 1.e.(2): a. With original amounts of $100,000 or less..................................................................... RCON5564 111 RCON5565 5,422 3.a. b. With original amounts of more than $100,000 through $250,000................................... RCON5566 559 RCON5567 74,734 3.b. c. With original amounts of more than $250,000 through $1,000,000................................ RCON5568 1600 RCON5569 642,679 3.c. 4. 4. Number and amount currently outstanding of "Commercial and industrial loans" reported in Schedule RC-C, part I, item 4: a. With original amounts of $100,000 or less..................................................................... RCON5570 3274 RCON5571 51,361 4.a. b. With original amounts of more than $100,000 through $250,000................................... RCON5572 502 RCON5573 56,864 4.b. c. With original amounts of more than $250,000 through $1,000,000................................ RCON5574 557 RCON5575 189,249 4.c. Dollar amounts in thousands RCON6860 No 5. 5. Indicate in the appropriate box at the right whether all or substantially all of the dollar volume of your bank's "Loans secured by farmland (including farm residential and other improvements)" reported in Schedule RC-C, part I, item 1.b, and all or substantially all of the dollar volume of your bank's "Loans to finance agricultural production and other loans to farmers" reported in Schedule RC-C, part I, item 3, have original amounts of $100,000 or less................................ 6. If YES, complete items 6.a and 6.b below, and do not complete items 7 and 8. If NO and your bank has loans outstanding in either loan category, skip items 6.a and 6.b and complete items 7 and 8 below. If NO and your bank has no loans outstanding in both loan categories, do not complete items 6 through 8. 6. Report the total number of loans currently outstanding for each of the following Schedule RC-C, part I, loan categories: RCON5576 NR 6.a. a. "Loans secured by farmland (including farm residential and other improvements)" reported in Schedule RC-C, part I, item 1.b......................................................................................................................................................... RCON5577 NR 6.b. b. "Loans to finance agricultural production and other loans to farmers" reported in Schedule RC-C, part I, item 3.............................................................................................................................................................................. (Column B) Amount Currently Outstanding (Column A) Number of Loans Dollar amounts in thousands 7. 7. Number and amount currently outstanding of "Loans secured by farmland (including farm residential and other improvements)" reported in Schedule RC-C, part I, item 1.b: a. With original amounts of $100,000 or less..................................................................... RCON5578 4 RCON5579 181 7.a. b. With original amounts of more than $100,000 through $250,000................................... RCON5580 11 RCON5581 1,470 7.b. c. With original amounts of more than $250,000 through $500,000................................... RCON5582 17 RCON5583 5,168 7.c. 8. 8. Number and amount currently outstanding of "Loans to finance agricultural production and other loans to farmers" reported in Schedule RC-C, part I, item 3: a. With original amounts of $100,000 or less..................................................................... RCON5584 14 RCON5585 332 8.a. b. With original amounts of more than $100,000 through $250,000................................... RCON5586 1 RCON5587 200 8.b. c. With original amounts of more than $250,000 through $500,000................................... RCON5588 0 RCON5589 0 8.c.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 25 Schedule RC-D - Trading Assets and Liabilities(Form Type - 041) RC-D is to be completed by banks that reported total trading assets of $10 million or more in any of the four preceding calendar quarters and all banks meeting the FDIC's definition of a large or highly complex institution for deposit insurance assessment purposes. Dollar amounts in thousands 1. U.S. Treasury securities.............................................................................................................................................. RCON3531 0 1. 2. U.S. Government agency obligations (exclude mortgage-backed securities).............................................................. RCON3532 0 2. 3. Securities issued by states and political subdivisions in the U.S................................................................................. RCON3533 0 3. 4. Mortgage-backed securities (MBS): 4. a. Residential mortgage pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA................... RCONG379 0 4.a. RCONG380 0 4.b. b. Other residential MBS issued or guaranteed by U.S. Government agencies or sponsored agencies (include CMOs, REMICs, and stripped MBS)........................................................................................................................ c. All other residential MBS..................................................................................................................................... RCONG381 0 4.c. d. Commercial MBS issued or guaranteed by U.S. Government agencies or sponsored agencies1....................... RCONK197 0 4.d. e. All other commercial MBS................................................................................................................................... RCONK198 0 4.e. 5. Other debt securities: 5. a. Structured financial products............................................................................................................................... RCONHT62 0 5.a. b. All other debt securities....................................................................................................................................... RCONG386 0 5.b. 6. Loans: 6. a. Loans secured by real estate: 6.a. 1. Loans secured by 1-4 family residential properties....................................................................................... RCONHT63 0 6.a.1. 2. All other loans secured by real estate........................................................................................................... RCONHT64 0 6.a.2. b. Commercial and industrial loans.......................................................................................................................... RCONF614 0 6.b. RCONHT65 0 6.c. c. Loans to individuals for household, family, and other personal expenditures (i.e., consumer loans) (includes purchased paper).................................................................................................................................................... d. Other loans.......................................................................................................................................................... RCONF618 0 6.d. 7. Not applicable 7. 8. Not applicable 8. 9. Other trading assets................................................................................................................................................... RCON3541 0 9. 10. Not applicable 10. 11. Derivatives with a positive fair value.......................................................................................................................... RCON3543 0 11. 12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC, item 5)................................................ RCON3545 0 12. 13. Not available 13. a. Liability for short positions .................................................................................................................................. RCON3546 0 13.a. b. Other trading liabilities......................................................................................................................................... RCONF624 0 13.b. 14. Derivatives with a negative fair value......................................................................................................................... RCON3547 0 14. 15. Total trading liabilities (sum of items 13.a through 14) (must equal Schedule RC, item 15)...................................... RCON3548 0 15. 1. Unpaid principal balance of loans measured at fair value (reported in Schedule RC-D, items 6.a.(1) through 6.d): M.1. a. Loans secured by real estate: M.1.a. 1. Loans secured by 1-4 family residential properties....................................................................................... RCONHT66 0 M.1.a.1. 2. All other loans secured by real estate........................................................................................................... RCONHT67 0 M.1.a.2. b. Commercial and industrial loans.......................................................................................................................... RCONF632 0 M.1.b. RCONHT68 0 M.1.c. c. Loans to individuals for household, family, and other personal expenditures (i.e., consumer loans) (includes purchased paper).................................................................................................................................................... d. Other loans.......................................................................................................................................................... RCONF636 0 M.1.d. 1. Banks with $300 million or more in total assets should provide the requested information for "Commercial and industrial loans" based on the loans reported in Schedule RC-C, Part I, item 4.a, column A, "Commercial and industrial loans to U.S. addressees." 1. U.S. Government agencies include, but are not limited to, such agencies as the Government National Mortgage Association (GNMA), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA). U.S. Government-sponsored agencies include, but are not limited to, such agencies as the Federal Home Loan Mortgage Corporation (FHLMC) and the Federal National Mortgage Association (FNMA).
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 26 Schedule RC-E - Deposit Liabilities(Form Type - 041) (Column C) Nontransaction Accounts Total nontransaction accounts (including MMDAs) (Column B) Transaction Accounts Memo:Total demand deposits (included in column A) (Column A) Transaction Accounts Total transaction accounts (including total demand deposits) Dollar amounts in thousands Deposits of: RCONB549 8,090,246 RCONB550 8,351,875 1. 1. Individuals, partnerships, and corporations (include all certified and official checks)............................................................................................................. 2. U.S. Government.......................................................................................... RCON2202 9 RCON2520 0 2. 3. States and political subdivisions in the U.S.................................................. RCON2203 802,494 RCON2530 91,499 3. 4. Commercial banks and other depository institutions in the U.S................... RCONB551 2,724 RCONB552 1,232 4. 5. Banks in foreign countries............................................................................ RCON2213 0 RCON2236 0 5. RCON2216 0 RCON2377 0 6. 6. Foreign governments and official institutions (including foreign central banks)............................................................................................................... RCON2215 8,895,473 RCON2210 6,527,518 RCON2385 8,444,606 7. 7. Total (sum of items 1 through 6) (sum of columns A and C must equal Schedule RC, item 13.a)............................................................................
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 27 Dollar amounts in thousands 1. Selected components of total deposits (i.e., sum of item 7, columns A and C): M.1. a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts.............................................................. RCON6835 234,677 M.1.a. b. Total brokered deposits........................................................................................................................................ RCON2365 0 M.1.b. c. Brokered deposits of $250,000 or less (fully insured brokered deposits)2........................................................... RCONHK05 0 M.1.c. d. Maturity data for brokered deposits: M.1.d. RCONHK06 0 M.1.d.1. 1. Brokered deposits of $250,000 or less with a remaining maturity of one year or less (included in Memorandum item 1.c above)................................................................................................................................................ 2. Not applicable M.1.d.2. RCONK220 0 M.1.d.3. 3. Brokered deposits of more than $250,000 with a remaining maturity of one year or less (included in Memorandum item 1.b above)......................................................................................................................... RCON5590 776,004 M.1.e. e. Preferred deposits (uninsured deposits of states and political subdivisions in the U.S. reported in item 3 above which are secured or collateralized as required under state law) (to be completed for the December report only). RCONK223 0 M.1.f. f. Estimated amount of deposits obtained through the use of deposit listing services that are not brokered deposits................................................................................................................................................................... g. Total reciprocal deposits (as of the report date)................................................................................................... RCONJH83 429,257 M.1.g. h. Sweep deposits: M.1.h. 1. Fully insured, affiliate sweep deposits........................................................................................................... RCONMT87 223,153 M.1.h.1. 2. Not fully insured, affiliate sweep deposits..................................................................................................... RCONMT89 1,180,031 M.1.h.2. 3. Fully insured, non-affiliate sweep deposits................................................................................................... RCONMT91 294,429 M.1.h.3. 4. Not fully insured, non-affiliate sweep deposits.............................................................................................. RCONMT93 0 M.1.h.4. i. Total sweep deposits that are not brokered deposits............................................................................................. RCONMT95 1,697,613 M.1.i. M.2. 2. Components of total nontransaction accounts (sum of Memorandum items 2.a through 2.d must equal item 7, column C above): a. Savings deposits: M.2.a. 1. Money market deposit accounts (MMDAs)................................................................................................... RCON6810 4,866,036 M.2.a.1. 2. Other savings deposits (excludes MMDAs).................................................................................................. RCON0352 1,489,996 M.2.a.2. b. Total time deposits of less than $100,000............................................................................................................ RCON6648 876,531 M.2.b. c. Total time deposits of $100,000 through $250,000............................................................................................... RCONJ473 771,997 M.2.c. d. Total time deposits of more than $250,000........................................................................................................... RCONJ474 440,046 M.2.d. RCONF233 65,631 M.2.e. e. Individual Retirement Accounts (IRAs) and Keogh Plan accounts of $100,000 or more included in Memorandum items 2.c and 2.d above.......................................................................................................................................... 3. Maturity and repricing data for time deposits of $250,000 or less: M.3. a. Time deposits of $250,000 or less with a remaining maturity or next repricing date of:1, 2 M.3.a. 1. Three months or less................................................................................................................................... RCONHK07 494,742 M.3.a.1. 2. Over three months through 12 months......................................................................................................... RCONHK08 1,038,069 M.3.a.2. 3. Over one year through three years............................................................................................................... RCONHK09 99,413 M.3.a.3. 4. Over three years.......................................................................................................................................... RCONHK10 16,304 M.3.a.4. RCONHK11 1,532,811 M.3.b. b.Time deposits of $250,000 or less with a REMAINING MATURITY of one year or less (included in Memorandum items 3.a.(1) and 3.a.(2) above)3............................................................................................................................. 4. Maturity and repricing data for time deposits of more than $250,000: M.4. a. Time deposits of more than $250,000 with a remaining maturity or next repricing date of:1, 4 M.4.a. 1. Three months or less................................................................................................................................... RCONHK12 136,596 M.4.a.1. 2. Over three months through 12 months......................................................................................................... RCONHK13 284,851 M.4.a.2. 3. Over one year through three years............................................................................................................... RCONHK14 18,057 M.4.a.3. 4. Over three years.......................................................................................................................................... RCONHK15 542 M.4.a.4. RCONK222 421,447 M.4.b. b. Time deposits of more than $250,000 with a REMAINING MATURITY of one year or less (included in Memorandum items 4.a.(1) and 4.a.(2) above)3...................................................................................................... RCONP752 Yes M.5. 5. Does your institution offer one or more consumer deposit account products, i.e., transaction account or nontransaction savings account deposit products intended primarily for individuals for personal, household, or family use?................ 2. The dollar amount used as the basis for reporting in Memorandum item 1.c reflects the deposit insurance limit in effect on the report date. 1, 2. Report fixed-rate time deposits by remaining maturity and floating rate time deposits by next repricing date. 3. Report both fixed-and floating-rate time deposits by remaining maturity. Exclude floating-rate time deposits with a next repricing date of one year or less that have a remaining maturity of over one year. 1, 4. Report fixed-rate time deposits by remaining maturity and floating rate time deposits by next repricing date. 3. Report both fixed-and floating-rate time deposits by remaining maturity. Exclude floating-rate time deposits with a next repricing date of one year or less that have a remaining maturity of over one year.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 28 Dollar amounts in thousands M.6. Memorandum items 6 and 7 are to be completed by institutions with $1 billion or more in total assets that answered "Yes" to Memorandum item 5 above. 6. Components of total transaction account deposits of individuals, partnerships, and corporations (sum of Memorandum items 6.a and 6.b must be less than or equal to item 1, column A, above):5 RCONP753 1,048,740 M.6.a. a.Total deposits in those noninterest-bearing transaction account deposit products intended primarily for individuals for personal, household, or family use..................................................................................................................... RCONP754 1,703,698 M.6.b. b. Total deposits in those interest-bearing transaction account deposit products intended primarily for individuals for personal, household, or family use..................................................................................................................... M.7. 7. Components of total nontransaction account deposits of individuals, partnerships, and corporations (sum of Memorandum items 7.a.(1), 7.a.(2), 7.b.(1), and 7.b.(2) plus all time deposits of individuals, partnerships, and corporations must equal item 1, column C, above): M.7.a. a. Money market deposit accounts (MMDAs) of individuals, partnerships, and corporations (sum of Memorandum items 7.a.(1) and 7.a.(2) must be less than or equal to Memorandum item 2.a.(1) above): RCONP756 3,212,548 M.7.a.1. 1. Total deposits in those MMDA deposit products intended primarily for individuals for personal, household, or family use..................................................................................................................................................... 2. Deposits in all other MMDAs of individuals, partnerships, and corporations................................................ RCONP757 1,597,333 M.7.a.2. M.7.b. b. Other savings deposit accounts of individuals, partnerships, and corporations (sum of Memorandum items 7.b.(1) and 7.b.(2) must be less than or equal to Memorandum item 2.a.(2) above): RCONP758 1,034,917 M.7.b.1. 1. Total deposits in those other savings deposit account deposit products intended primarily for individuals for personal, household, or family use.............................................................................................................. 2. Deposits in all other savings deposit accounts of individuals, partnerships, and corporations..................... RCONP759 443,806 M.7.b.2. 5. The $1 billion asset size test is based on the total assets reported on the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 29 Schedule RC-F - Other Assets(Form Type - 041) Dollar amounts in thousands 1. Accrued interest receivable2....................................................................................................................................... RCONB556 84,671 1. 2. Net deferred tax assets3............................................................................................................................................. RCON2148 252,923 2. 3. Interest-only strips receivable (not in the form of a security)4..................................................................................... RCONHT80 0 3. 4. Equity investments without readily determinable fair values5...................................................................................... RCON1752 12,426 4. 5. Life insurance assets: 5. a. General account life insurance assets.................................................................................................................. RCONK201 26,538 5.a. b. Separate account life insurance assets................................................................................................................ RCONK202 9,642 5.b. c. Hybrid account life insurance assets.................................................................................................................... RCONK270 385 5.c. 6. All other assets (itemize and describe amounts greater than $100,000 that exceed 25% of this item)...................... RCON2168 450,320 6. a. Prepaid expenses................................................................................................................................................ RCON2166 NR 6.a. b. Repossessed personal property (including vehicles)........................................................................................... RCON1578 NR 6.b. c. Derivatives with a positive fair value held for purposes other than trading........................................................... RCONC010 170,488 6.c. d. Not applicable 6.d. e. Computer software.............................................................................................................................................. RCONFT33 NR 6.e. f. Accounts receivable............................................................................................................................................. RCONFT34 NR 6.f. g. Receivables from foreclosed government-guaranteed mortgage loans............................................................... RCONFT35 NR 6.g. h. Disclose component and the dollar amount of that component: 6.h. 1. Describe component.................................................................................................................................... TEXT3549 NR 6.h.1. 2. Amount of component.................................................................................................................................. RCON3549 NR 6.h.2. i. Disclose component and the dollar amount of that component: 6.i. 1. Describe component.................................................................................................................................... TEXT3550 NR 6.i.1. 2. Amount of component.................................................................................................................................. RCON3550 NR 6.i.2. j. Disclose component and the dollar amount of that component: 6.j. 1. Describe component.................................................................................................................................... TEXT3551 NR 6.j.1. 2. Amount of component.................................................................................................................................. RCON3551 NR 6.j.2. 7. Total (sum of items 1 through 6) (must equal Schedule RC, item 11)......................................................................... RCON2160 836,905 7. 2. Include accrued interest receivable on loans, leases, debt securities, and other interest-bearing assets. Exclude accrued interest receivables on financial assets that are reported elsewhere on the balance sheet. 3. See discussion of deferred income taxes in Glossary entry on "income taxes." 4. Report interest-only strips receivable in the form of a security as available-for-sale securities in Schedule RC, item 2.b, or as trading assets in Schedule RC, item 5, as appropriate. 5. Include Federal Reserve stock, Federal Home Loan Bank stock, and bankers' bank stock.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 30 Schedule RC-G - Other Liabilities(Form Type - 041) Dollar amounts in thousands 1. Not available 1. a. Interest accrued and unpaid on deposits1............................................................................................................ RCON3645 34,588 1.a. b. Other expenses accrued and unpaid (includes accrued income taxes payable).................................................. RCON3646 90,094 1.b. 2. Net deferred tax liabilities2.......................................................................................................................................... RCON3049 0 2. 3. Allowance for credit losses on off-balance sheet credit exposures............................................................................. RCONB557 12,601 3. 4. All other liabilities (itemize and describe amounts greater than $100,000 that exceed 25 percent of this item)......... RCON2938 663,726 4. a. Accounts payable................................................................................................................................................ RCON3066 NR 4.a. b. Deferred compensation liabilities......................................................................................................................... RCONC011 NR 4.b. c. Dividends declared but not yet payable................................................................................................................ RCON2932 NR 4.c. d. Derivatives with a negative fair value held for purposes other than trading......................................................... RCONC012 NR 4.d. e. Operating lease liabilities.................................................................................................................................... RCONLB56 NR 4.e. f. Disclose component and the dollar amount of that component: 4.f. 1. Describe component.................................................................................................................................... TEXT3552 Click here for value 4.f.1. 2. Amount of component.................................................................................................................................. RCON3552 207,700 4.f.2. g. Disclose component and the dollar amount of that component: 4.g. 1. Describe component.................................................................................................................................... TEXT3553 NR 4.g.1. 2. Amount of component.................................................................................................................................. RCON3553 NR 4.g.2. h. Disclose component and the dollar amount of that component: 4.h. 1. Describe component.................................................................................................................................... TEXT3554 NR 4.h.1. 2. Amount of component.................................................................................................................................. RCON3554 NR 4.h.2. 5. Total............................................................................................................................................................................ RCON2930 801,009 5. (TEXT3552) Derivative Collateral Held 1. For savings banks, include "dividends" accrued and unpaid on deposits. 2. See discussion of deferred income taxes in Glossary entry on "income taxes."
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 31 Schedule RC-K - Quarterly Averages(Form Type - 041) Dollar amounts in thousands 1. Interest-bearing balances due from depository institutions......................................................................................... RCON3381 745,582 1. 2. U.S. Treasury securities and U.S. Government agency obligations (excluding mortgage-backed securities)2............ RCONB558 182,650 2. 3. Mortgage-backed securities2...................................................................................................................................... RCONB559 4,295,179 3. 4. All other debt securities and equity securities with readily determinable fair values not held for trading2................... RCONB560 184,331 4. 5. Federal funds sold and securities purchased under agreements to resell.................................................................. RCON3365 0 5. 6. Loans: 6. a. Total loans........................................................................................................................................................... RCON3360 12,648,959 6.a. b. Loans secured by real estate: 6.b. 1. Loans secured by 1-4 family residential properties....................................................................................... RCON3465 3,156,463 6.b.1. 2. All other loans secured by real estate........................................................................................................... RCON3466 7,308,828 6.b.2. c. Commercial and industrial loans.......................................................................................................................... RCON3387 1,226,929 6.c. d. Loans to individuals for household, family, and other personal expenditures: 6.d. 1. Credit cards.................................................................................................................................................. RCONB561 23,646 6.d.1. RCONB562 343,287 6.d.2. 2. Other (includes revolving credit plans other than credit cards, automobile loans, and other consumer loans)............................................................................................................................................................... RCON3401 0 7. Item 7 is to be completed by banks with total trading assets of $10 million or more in any of the four preceding calendar quarters and all banks meeting the FDIC's definition of a large or highly complex institution for deposit insurance assessment purposes. 7. Trading assets............................................................................................................................................................. 8. Lease financing receivables (net of unearned income)............................................................................................... RCON3484 639,795 8. 9. Total assets4............................................................................................................................................................... RCON3368 21,423,003 9. RCON3485 3,995,201 10. 10. Interest-bearing transaction accounts (interest-bearing demand deposits, NOW accounts, ATS accounts, and telephone and preauthorized transfer accounts)............................................................................................................. 11. Nontransaction accounts: 11. a. Savings deposits (includes MMDAs).................................................................................................................... RCONB563 6,245,651 11.a. b. Time deposits of $250,000 or less........................................................................................................................ RCONHK16 1,690,844 11.b. c. Time deposits of more than $250,000.................................................................................................................. RCONHK17 422,612 11.c. 12. Federal funds purchased and securities sold under agreements to repurchase....................................................... RCON3353 22,056 12. RCON3355 221,622 13. To be completed by banks with $100 million or more in total assets: 13. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases)5.................... RCON3386 5,050 M.1. Memorandum item 1 is to be completed by: banks with $300 million or more in total assets, and banks with less than $300 million in total assets that have loans to finance agricultural production and other loans to farmers (Schedule RC-C, Part 1, item 3) exceeding 5 percent of total loans. 1. Loans to finance agricultural production and other loans to farmers 2........................................................................ 2. Quarterly averages for all debt securities should be based on amortized cost. 2. Quarterly averages for all debt securities should be based on amortized cost. 4. The quarterly average for total assets should reflect securities not held for trading as follows: a) Debt securities at amortized cost, b) Equity securities with readily determinable fair values at fair value, and c) Equity investments without readily determinable fair values, their balance sheet carrying values (i.e., fair value or, if elected, cost minus impairment, if any, plus or minus changes resulting from observable price changes). 5. The $100 million asset-size test is based on the total assets reported on the June 30, 2023, Report of Condition. 2. The $300 million asset-size test and the 5 percent of total loans test are based on the total assets and total loans reported on the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 32 Schedule RC-L - Derivatives and Off-Balance Sheet Items(Form Type - 041) Please read carefully the instructions for the preparation of Schedule RC-L. Some of the amounts reported in Schedule RC-L are regarded as volume indicators and not necessarily as measures of risk. Dollar amounts in thousands 1. Unused commitments: 1. a. Revolving, open-end lines secured by 1-4 family residential properties, i.e., home equity lines.......................... RCON3814 1,154,537 1.a. RCONHT72 8 1.a.1. Item 1.a.(1) is to be completed for the December report only. 1. Unused commitments for reverse mortgages outstanding that are held for investment in domestic offices (included in item 1.a. above)............................................................................................................................ b. Credit card lines (Sum of items 1.b.(1) and 1.b.(2) must equal item 1.b)............................................................. RCON3815 147,088 1.b. RCONJ455 110,013 1.b.1. Items 1.b.(1) and 1.b.(2) are to be completed semiannually in the June and December reports only by banks with either $300 million or more in total assets or $300 million or more in credit card lines (sum of items 1.b.(1) and 1.b.(2) must equal item 1.b). 1. Unused consumer credit card lines1............................................................................................................. 2. Other unused credit card lines...................................................................................................................... RCONJ456 37,075 1.b.2. c. Commitments to fund commercial real estate, construction, and land development loans: 1.c. 1. Secured by real estate: 1.c.1. a. 1-4 family residential construction loan commitments........................................................................... RCONF164 130,062 1.c.1.a. b. Commercial real estate, other construction loan, and land development loan commitments................ RCONF165 468,510 1.c.1.b. 2. Not secured by real estate........................................................................................................................... RCON6550 25,195 1.c.2. d. Securities underwriting........................................................................................................................................ RCON3817 0 1.d. e. Other unused commitments: 1.e. 1. Commercial and industrial loans................................................................................................................... RCONJ457 1,306,062 1.e.1. 2. Loans to depository financial institutions...................................................................................................... RCONPV10 0 1.e.2. 3. Loans to nondepository financial institutions................................................................................................ RCONPV11 218,106 1.e.3. a. Loans to mortgage credit intermediaries1............................................................................................. RCONPV12 49,053 1.e.3.a. b. Loans to business credit intermediaries................................................................................................ RCONPV13 38,233 1.e.3.b. c. Loans to private equity funds................................................................................................................. RCONPV14 81,050 1.e.3.c. d. Loans to consumer credit intermediaries............................................................................................... RCONPV15 0 1.e.3.d. e. Other loans to nondepository financial institutions................................................................................ RCONPV16 49,770 1.e.3.e. 4. All other unused commitments..................................................................................................................... RCONJ459 343,598 1.e.4. 2. Financial standby letters of credit............................................................................................................................... RCON3819 44,373 2. RCON3820 0 2.a. Item 2.a is to be completed by banks with $1 billion or more in total assets. a. Amount of financial standby letters of credit conveyed to others1........................................................................ 3. Performance standby letters of credit......................................................................................................................... RCON3821 56,675 3. RCON3822 0 3.a. Item 3.a is to be completed by banks with $1 billion or more in total assets a. Amount of performance standby letters of credit conveyed to others1................................................................. 4. Commercial and similar letters of credit...................................................................................................................... RCON3411 399 4. 5. Not applicable 5. 6. Securities lent and borrowed: 6. RCON3433 0 6.a. a. Securities lent (including customers' securities lent where the customer is indemnified against loss by the reporting bank)........................................................................................................................................................ b. Securities borrowed............................................................................................................................................. RCON3432 0 6.b.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 33 (Column B) Purchased Protection (Column A) Sold Protection Dollar amounts in thousands 7. Credit derivatives: 7. a. Notional amounts: 7.a. 1. Credit default swaps................................................................................................ RCONC968 0 RCONC969 0 7.a.1. 2. Total return swaps................................................................................................... RCONC970 0 RCONC971 0 7.a.2. 3. Credit options.......................................................................................................... RCONC972 0 RCONC973 0 7.a.3. 4. Other credit derivatives........................................................................................... RCONC974 110,948 RCONC975 97,201 7.a.4. b. Gross fair values: 7.b. 1. Gross positive fair value.......................................................................................... RCONC219 0 RCONC221 25 7.b.1. 2. Gross negative fair value......................................................................................... RCONC220 90 RCONC222 0 7.b.2. Dollar amounts in thousands c. Notional amounts by regulatory capital treatment:1 7.c. 1. Positions covered under the Market Risk Rule: 7.c.1. a. Sold protection............................................................................................................................................. RCONG401 0 7.c.1.a. b. Purchased protection................................................................................................................................... RCONG402 0 7.c.1.b. 2. All other positions: 7.c.2. a. Sold protection............................................................................................................................................. RCONG403 110,948 7.c.2.a. b. Purchased protection that is recognized as a guarantee for regulatory capital purposes............................. RCONG404 0 7.c.2.b. c. Purchased protection that is not recognized as a guarantee for regulatory capital purposes....................... RCONG405 97,201 7.c.2.c. (Column C) Remaining Maturity of Over Five Years (Column B) Remaining Maturity of Over One Year Through Five Years (Column A) Remaining Maturity of One Year or Dollar amounts in thousands Less d. Notional amounts by remaining maturity: 7.d. 1. Sold credit protection:2 7.d.1. a. Investment grade............................................................................ RCONG406 0 RCONG407 0 RCONG408 0 7.d.1.a. b. Subinvestment grade...................................................................... RCONG409 12,208 RCONG410 19,210 RCONG411 79,530 7.d.1.b. 2. Purchased credit protection:3 7.d.2. a. Investment grade............................................................................ RCONG412 0 RCONG413 0 RCONG414 0 7.d.2.a. b. Subinvestment grade...................................................................... RCONG415 0 RCONG416 34,478 RCONG417 62,723 7.d.2.b. 1. The asset-size tests and the $300 million credit card lines test are based on the total assets and credit card lines reported in the June 30, 2023, Report of Condition. 1. The asset-size tests and the $300 million credit card lines test are based on the total assets and credit card lines reported on the June 30, 2023, Report of Condition. 1. The asset-size tests and the $300 million credit card lines test are based on the total assets and credit card lines reported in the June 30, 2023, Report of Condition. 1. The asset-size tests and the $300 million credit card lines test are based on the total assets and credit card lines reported in the June 30, 2023, Report of Condition.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 34 Dollar amounts in thousands 8. Not applicable 8. RCON3430 0 9. 9. All other off-balance sheet liabilities (exclude derivatives) (itemize and describe each component of this item over 25% of Schedule RC, item 27.a, "Total bank equity capital").......................................................................................... a. Not applicable 9.a. b. Commitments to purchase when-issued securities.............................................................................................. RCON3434 0 9.b. c. Standby letters of credit issued by another party (e.g., a Federal Home Loan Bank) on the bank's behalf......... RCONC978 0 9.c. d. Disclose component and the dollar amount of that component: 9.d. 1. Describe component.................................................................................................................................... TEXT3555 NR 9.d.1. 2. Amount of component.................................................................................................................................. RCON3555 0 9.d.2. e. Disclose component and the dollar amount of that component: 9.e. 1. Describe component.................................................................................................................................... TEXT3556 NR 9.e.1. 2. Amount of component.................................................................................................................................. RCON3556 0 9.e.2. f. Disclose component and the dollar amount of that component: 9.f. (TEXT3557) NR RCON3557 0 9.f.1. RCON5591 0 10. 10. All other off-balance sheet assets (exclude derivatives) (itemize and describe each component of this item over 25% of Schedule RC, item 27.a, "Total bank equity capital").......................................................................................... a. Commitments to sell when-issued securities....................................................................................................... RCON3435 0 10.a. b. Disclose component and the dollar amount of that component: 10.b. 1. Describe component.................................................................................................................................... TEXT5592 NR 10.b.1. 2. Amount of component.................................................................................................................................. RCON5592 0 10.b.2. c. Disclose component and the dollar amount of that component: 10.c. 1. Describe component.................................................................................................................................... TEXT5593 NR 10.c.1. 2. Amount of component.................................................................................................................................. RCON5593 0 10.c.2. d. Disclose component and the dollar amount of that component: 10.d. 1. Describe component.................................................................................................................................... TEXT5594 NR 10.d.1. 2. Amount of component.................................................................................................................................. RCON5594 0 10.d.2. e. Disclose component and the dollar amount of that component: 10.e. 1. Describe component.................................................................................................................................... TEXT5595 NR 10.e.1. 2. Amount of component.................................................................................................................................. RCON5595 0 10.e.2. 11. Items 11.a and 11.b are to be completed semiannually in the June and December reports only. 11.Year-to-date merchant credit card sales volume: a. Sales for which the reporting bank is the acquiring bank..................................................................................... RCONC223 0 11.a. b. Sales for which the reporting bank is the agent bank with risk............................................................................. RCONC224 0 11.b. 1. Sum of items 7.c.(1)(a) and 7.c.(2)(a), must equal sum of items 7.a.(1) through (4), column A. Sum of items 7.c.(1)(b), 7.c.(2)(b), and 7.c.(2)(c) must equal sum of items 7.a.(1) through (4), column B. 2. Sum of items 7.d.(1)(a) and (b), columns A through C, must equal sum of items 7.a.(1) through (4), column A. 3. Sum of items 7.d.(2)(a) and (b), columns A through C, must equal sum of items 7.a.(1) through (4), column B.
WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 36 Schedule RC-M - Memoranda(Form Type - 041) Dollar amounts in thousands 1. 1. Extensions of credit by the reporting bank to its executive officers, directors, principal shareholders, and their related interests as of the report date: RCON6164 35,773 1.a. a. Aggregate amount of all extensions of credit to all executive officers, directors, principal shareholders, and their related interests....................................................................................................................................................... RCON6165 1 1.b. b. Number of executive officers, directors, and principal shareholders to whom the amount of all extensions of credit by the reporting bank (including extensions of credit to related interests) equals or exceeds the lesser of $500,000 or 5 percent of total capital as defined for this purpose in agency regulations........................................ 2. Intangible assets: 2. a. Mortgage servicing assets.................................................................................................................................. RCON3164 1,281 2.a. 1. Estimated fair value of mortgage servicing assets........................................................................................ RCONA590 1,281 2.a.1. b. Goodwill............................................................................................................................................................... RCON3163 819,760 2.b. c. All other intangible assets.................................................................................................................................... RCONJF76 83,100 2.c. d. Total (sum of items 2.a, 2.b, and 2.c) (must equal Schedule RC, item 10)........................................................... RCON2143 904,141 2.d. 3. Other real estate owned: 3. a. Construction, land development, and other land.................................................................................................. RCON5508 0 3.a. b. Farmland............................................................................................................................................................. RCON5509 0 3.b. c. 1-4 family residential properties........................................................................................................................... RCON5510 0 3.c. d. Multifamily (5 or more) residential properties....................................................................................................... RCON5511 1,004 3.d. e. Nonfarm nonresidential properties...................................................................................................................... RCON5512 4,200 3.e. f. Total (sum of items 3.a through 3.e) (must equal Schedule RC, item 7)............................................................... RCON2150 5,204 3.f. RCONJA29 0 4. 4. Cost of equity securities with readily determinable fair values not held for trading (the fair value of which is reported in Schedule RC, item 2.c)1............................................................................................................................................. 5. Other borrowed money: 5. a. Federal Home Loan Bank advances: 5.a. 1. Advances with a remaining maturity or next repricing date of:1 5.a.1. a. One year or less................................................................................................................................... RCONF055 7,883 5.a.1.a. b. Over one year through three years........................................................................................................ RCONF056 43,159 5.a.1.b. c. Over three years through five years....................................................................................................... RCONF057 0 5.a.1.c. d. Over five years...................................................................................................................................... RCONF058 0 5.a.1.d. 2. Advances with a remaining maturity of one year or less (included in item 5.a.(1)(a) above)2...................... RCON2651 7,882 5.a.2. 3. Structured advances (included in items 5.a.(1)(a) - (d) above)..................................................................... RCONF059 0 5.a.3. b. Other borrowings: 5.b. 1. Other borrowings with a remaining maturity or next repricing date of:3 5.b.1. a. One year or less................................................................................................................................... RCONF060 23,100 5.b.1.a. b. Over one year through three years........................................................................................................ RCONF061 0 5.b.1.b. c. Over three years through five years....................................................................................................... RCONF062 0 5.b.1.c. d. Over five years...................................................................................................................................... RCONF063 0 5.b.1.d. 2. Other borrowings with a remaining maturity of one year or less (included in item 5.b.(1)(a) above)4........... RCONB571 23,100 5.b.2. c. Total (sum of items 5.a.(1)(a)-(d) and items 5.b.(1)(a)-(d)) (must equal Schedule RC, item 16).......................... RCON3190 74,142 5.c. 6. Does the reporting bank sell private label or third party mutual funds and annuities?................................................ RCONB569 Yes 6. 7. Assets under the reporting bank's management in proprietary mutual funds and annuities....................................... RCONB570 0 7. 8. Internet Web site addresses and physical office trade names: 8. TEXT4087 Click here for value 8.a. a. Uniform Resource Locator (URL) of the reporting institution's primary Internet Web site (home page), if any (Example: www.examplebank.com):........................................................................................................................ 1. Item 4 is to be completed only by insured state banks that have been approved by the FDIC to hold grandfathered equity investments. See instructions for this item and the Glossary entry for "Securities Activities" for further detail on accounting for investments in equity securities 1. Report fixed-rate advances by remaining maturity and floating-rate advances by next repricing date. 2. Report both fixed- and floating-rate advances by remaining maturity. Exclude floating-rate advances with a next repricing date of one year or less that have a remaining maturity of over one year 3. Report fixed-rate other borrowings by remaining maturity and floating-rate other borrowings by next repricing date. 4. Report both fixed- and floating-rate other borrowings by remaining maturity. Exclude floating-rate other borrowings with a next repricing date of one year or less that have a remaining maturity of over one year.
Dollar amounts in thousands 8.b. b. URLs of all other public-facing Internet Web sites that the reporting institution uses to accept or solicit deposits from the public, if any (Example: www.examplebank.biz):1 1. URL 1........................................................................................................................................................... TE01N528 Cred.ai 8.b.1. 2. URL 2........................................................................................................................................................... TE02N528 NR 8.b.2. 3. URL 3........................................................................................................................................................... TE03N528 NR 8.b.3. 4. URL 4........................................................................................................................................................... TE04N528 NR 8.b.4. 5. URL 5........................................................................................................................................................... TE05N528 NR 8.b.5. 6. URL 6........................................................................................................................................................... TE06N528 NR 8.b.6. 7. URL 7........................................................................................................................................................... TE07N528 NR 8.b.7. 8. URL 8........................................................................................................................................................... TE08N528 NR 8.b.8. 9. URL 9........................................................................................................................................................... TE09N528 NR 8.b.9. 10. URL 10....................................................................................................................................................... TE10N528 NR 8.b.10. 8.c. c. Trade names other than the reporting institution's legal title used to identify one or more of the institution's physical offices at which deposits are accepted or solicited from the public, if any: 1. Trade name 1............................................................................................................................................... TE01N529 WSFS Bank 8.c.1. 2. Trade name 2............................................................................................................................................... TE02N529 NR 8.c.2. 3. Trade name 3............................................................................................................................................... TE03N529 NR 8.c.3. 4. Trade name 4............................................................................................................................................... TE04N529 NR 8.c.4. 5. Trade name 5............................................................................................................................................... TE05N529 NR 8.c.5. 6. Trade name 6............................................................................................................................................... TE06N529 NR 8.c.6. RCON4088 Yes 9. Item 9 is to be completed annually in the December report only. 9. Do any of the bank's Internet Web sites have transactional capability, i.e., allow the bank's customers to execute transactions on their accounts through the Web site?..................................................................................................... 10. Secured liabilities: 10. a. Amount of "Federal funds purchased" that are secured (included in Schedule RC, item 14.a)........................... RCONF064 0 10.a. b. Amount of "Other borrowings" that are secured (included in Schedule RC-M, items 5.b.(1)(a) - (d)).................. RCONF065 23,100 10.b. RCONG463 Yes 11. 11. Does the bank act as trustee or custodian for Individual Retirement Accounts, Health Savings Accounts, and other similar accounts?............................................................................................................................................................ RCONG464 Yes 12. 12. Does the bank provide custody, safekeeping, or other services involving the acceptance of orders for the sale or purchase of securities?.................................................................................................................................................. 13. Assets covered by loss-sharing agreements with the FDIC:..................................................................................... RCONK192 0 13. 14. Items 14.a and 14.b are to be completed annually in the December report only. 14. Captive insurance and reinsurance subsidiaries: a. Total assets of captive insurance subsidiaries1.................................................................................................... RCONK193 5,210 14.a. b. Total assets of captive reinsurance subsidiaries1................................................................................................. RCONK194 0 14.b. 15. Item 15 is to be completed by institutions that are required or have elected to be treated as a Qualified Thrift Lender. 15. Qualified Thrift Lender (QTL) test: RCONL133 1 15.a. a. Does the institution use the Home Owners' Loan Act (HOLA) QTL test or the Internal Revenue Service Domestic Building and Loan Association (IRS DBLA) test to determine its QTL compliance? (for the HOLA QTL test, enter 1; for the IRS DBLA test, enter 2)............................................................................................................................. RCONL135 Yes 15.b. b. Has the institution been in compliance with the HOLA QTL test as of each month end during the quarter or the IRS DBLA test for its most recent taxable year, as applicable?............................................................................... 16. Item 16.a and, if appropriate, items 16.b.(1) through 16.b.(3) are to be completed annually in the December report only. 16. International remittance transfers offered to consumers:1 RCONN523 16853 16.a. a. Estimated number of international remittance transfers provided by your institution during the calendar year ending on the report date........................................................................................................................................ 16.b. Items 16.b.(1) through 16.b.(3) are to be completed by institutions that reported 501 or more international remittance transfers in item 16.a in either or both of the current report or the prior December report in which item 16.a was required to be completed. b. Estimated dollar value of remittance transfers provided by your institution and usage of regulatory exceptions during the calendar year ending on the report date: 1. Estimated dollar value of international remittance transfers......................................................................... RCONN524 2,004,843 16.b.1. 1. Report only highest level URLs (for example, report www.examplebank.biz, but do not also report www.examplebank.biz/checking). Report each top level domain name used (for example, report both www.examplebank.biz and www.examplebank.net). 1. Report total assets before eliminating intercompany transactions between the consolidated insurance or reinsurance subsidiary and other offices or consolidated subsidiaries of the reporting bank. 1. Report information about international electronic transfers of funds offered to consumers in the United States that: (a) are "remittance transfers" as defined by subpart B of Regulation E (12 CFR § 1005.30(e)), or (b) would qualify as "remittance transfers" under subpart B of Regulation E (12 CFR § 1005.30(e)) but are excluded from that definition only because the provider is not providing those transfers in the normal course of its business. See 12 CFR § 1005.30(f). For purposes of this item 16, such trans WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 37
Dollar amounts in thousands RCONMM07 0 16.b.2. 2. Estimated number of international remittance transfers for which your institution applied the permanent exchange rate exception.................................................................................................................................. RCONMQ52 0 16.b.3. 3. Estimated number of international remittance transfers for which your institution applied the permanent covered third-party fee exception...................................................................................................................... 17. 17. U.S. Small Business Administration Paycheck Protection Program (PPP) loans and the Federal Reserve PPP Liquidity Facility (PPPLF):2 a. Number of PPP loans outstanding...................................................................................................................... RCONLG26 56 17.a. b. Outstanding balance of PPP loans....................................................................................................................... RCONLG27 483 17.b. c. Outstanding balance of PPP loans pledged to the PPPLF................................................................................... RCONLG28 0 17.c. 17.d. d. Outstanding balance of borrowings from Federal Reserve Banks under the PPPLF with a remaining maturity of: 1. One year or less........................................................................................................................................... RCONLL59 0 17.d.1. 2. More than one year...................................................................................................................................... RCONLL60 0 17.d.2. RCONLL57 0 17.e. e. Quarterly average amount of PPP loans pledged to the PPPLF and excluded from "Total assets for the leverage ratio" reported in Schedule RC-R, Part I, item 30.................................................................................................... (TEXT4087) www.wsfsbank.com 2. Paycheck Protection Program (PPP) covered loans as defined in sections 7(a)(36) and 7(a)(37) of the Small Business Act (15 U.S.C. 636(a)(36) and (37)). WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 38
Schedule RC-N - Past Due and Nonaccrual Loans Leases and Other Assets(Form Type - 041) Amounts reported in Schedule RC-N, items 1 through 8, include guaranteed and unguaranteed portions of past due and nonaccrual loans and leases. Report in items 10 and 11 below certain guaranteed loans and leases that have already been included in the amounts reported in items 1 through 8 (Column B) Past due 90 (Column C) Nonaccrual days or more and still accruing (Column A) Past due 30 through 89 days and still Dollar amounts in thousands accruing 1. Loans secured by real estate: 1. a. Construction, land development, and other land loans: 1.a. 1. 1-4 family residential construction loans........................................ RCONF172 0 RCONF174 0 RCONF176 0 1.a.1. RCONF173 0 RCONF175 0 RCONF177 25,600 1.a.2. 2. Other construction loans and all land development and other land loans.................................................................................................. b. Secured by farmland.............................................................................. RCON3493 83 RCON3494 0 RCON3495 0 1.b. c. Secured by 1-4 family residential properties: 1.c. RCON5398 2,889 RCON5399 0 RCON5400 1,584 1.c.1. 1. Revolving, open-end loans secured by 1-4 family residential properties and extended under lines of credit.................................... 2. Closed-end loans secured by 1-4 family residential properties: 1.c.2. a. Secured by first liens............................................................... RCONC236 5,514 RCONC237 577 RCONC229 5,530 1.c.2.a. b. Secured by junior liens............................................................ RCONC238 1,378 RCONC239 0 RCONC230 1,126 1.c.2.b. d. Secured by multifamily (5 or more) residential properties..................... RCON3499 815 RCON3500 0 RCON3501 440 1.d. e. Secured by nonfarm nonresidential properties: 1.e. RCONF178 752 RCONF180 534 RCONF182 5,868 1.e.1. 1. Loans secured by owner-occupied nonfarm nonresidential properties........................................................................................... 2. Loans secured by other nonfarm nonresidential properties........... RCONF179 1,100 RCONF181 0 RCONF183 61,329 1.e.2. 2. Loans to depository institutions and acceptances of other banks................ RCONB834 0 RCONB835 0 RCONB836 0 2. 3. Not applicable 3. 4. Commercial and industrial loans................................................................... RCON1606 909 RCON1607 150 RCON1608 2,074 4. 5. Loans to individuals for household, family, and other personal expenditures: 5. a. Credit cards........................................................................................... RCONB575 403 RCONB576 5 RCONB577 0 5.a. b. Automobile loans................................................................................... RCONK213 0 RCONK214 0 RCONK215 0 5.b. RCONK216 13,314 RCONK217 7,370 RCONK218 0 5.c. c. Other (includes revolving credit plans other than credit cards and other consumer loans)........................................................................................ 6. Not applicable 6. 7. All other loans1............................................................................................. RCON5459 0 RCON5460 0 RCON5461 18,630 7. 8. Lease financing receivables.......................................................................... RCON1226 8,409 RCON1227 566 RCON1228 0 8. 9. Total loans and leases (sum of items 1 through 8)....................................... RCON1406 35,566 RCON1407 9,202 RCON1403 122,181 9. RCON3505 0 RCON3506 0 RCON3507 0 10. 10. Debt securities and other assets (exclude other real estate owned and other repossessed assets)............................................................................... RCONK036 9,579 RCONK037 6,017 RCONK038 0 11. 11. Loans and leases reported in items 1 through 8 above that are wholly or partially guaranteed by the U.S. Government, excluding loans and leases covered by loss-sharing agreements with the FDIC:........................................ RCONK039 9,396 RCONK040 5,901 RCONK041 0 11.a. a. Guaranteed portion of loans and leases included in item 11 above, excluding rebooked "GNMA loans"........................................................... RCONK042 0 RCONK043 0 RCONK044 0 11.b. b. Rebooked "GNMA loans" that have been repurchased or are eligible for repurchase included in item 11 above.................................................. RCONK102 0 RCONK103 0 RCONK104 0 12. 12. Loans and leases reported in items 1 through 8 above that are covered by loss-sharing agreements with the FDIC:.......................................................... M.1. 1. Loan modifications to borrowers experiencing financial difficulty included in Schedule RC-N, items 1 through 7, above (and not reported in Schedule RC-C, Part 1, Memorandum item 1): a. Construction, land development, and other land loans: M.1.a. 1. 1-4 family residential construction loans........................................ RCONK105 0 RCONK106 0 RCONK107 0 M.1.a.1. RCONK108 0 RCONK109 0 RCONK110 0 M.1.a.2. 2. Other construction loans and all land development and other land loans.................................................................................................. b. Loans secured by 1-4 family residential properties............................... RCONF661 0 RCONF662 0 RCONF663 342 M.1.b. c. Secured by multifamily (5 or more) residential properties..................... RCONK111 0 RCONK112 0 RCONK113 0 M.1.c. 1. Includes past due and nonaccrual "Loans to finance agricultural productions and other loans to farmers," "Obligations (other than securities and leases) of states and political subdivisions in the U.S.," and "Loans to nondepository financial institutions and other loans." WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 39
(Column B) Past due 90 (Column C) Nonaccrual
days or more and still
accruing
(Column A) Past due 30
through 89 days and still
Dollar amounts in thousands accruing
d. Secured by nonfarm nonresidential properties: M.1.d.
RCONK114 0 RCONK115 0 RCONK116 0 M.1.d.1.
1. Loans secured by owner-occupied nonfarm nonresidential
properties...........................................................................................
(Column B) Past due 90 (Column C) Nonaccrual days or more and still accruing (Column A) Past due 30 through 89 days and still Dollar amounts in thousands accruing RCONC240 0 RCONC241 0 RCONC226 0 M.5. 5. Loans and leases held for sale (included in Schedule RC-N, items 1 through 8, above)........................................................................................................... Dollar amounts in thousands 6. Not applicable M.6. Dollar amounts in thousands RCONC410 132,747 M.7. Memorandum items 7 and 8 are to be completed semiannually in the June and December reports only. 7. Additions to nonaccrual assets during the previous six months.................................................................................. 8. Nonaccrual assets sold during the previous six months.............................................................................................. RCONC411 0 M.8. (Column B) Past due 90 (Column C) Nonaccrual days or more and still accruing (Column A) Past due 30 through 89 days and still Dollar amounts in thousands accruing RCONPV23 0 RCONPV24 0 RCONPV25 18,603 M.9. 9. Loans to nondepository financial institutions included in Schedule RC-N, item 7................................................................................................................ WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 41
Schedule RC-O - Other Data for Deposit Insurance and FICO Assessments(Form Type - 041) All FDIC-insured depository institutions must complete items 1 and 2, 4 through 9,10, and 11, Memorandum item 1, and, if applicable, item 9.a, Memorandum items 2, 3, and 6 through 18 each quarter. Unless otherwise indicated, complete items 1 through 11 and Memorandum items 1 through 3 on an "unconsolidated single FDIC certificate number basis" (see instructions) and complete Memorandum items 6 through 18 on a fully consolidated basis. Dollar amounts in thousands RCONF236 17,457,366 1. 1.Total deposit liabilities before exclusions (gross) as defined in Section 3(l) of the Federal Deposit Insurance Act and FDIC regulations............................................................................................................................................................ 2. Total allowable exclusions, including interest accrued and unpaid on allowable exclusions........................................ RCONF237 0 2. 3. Not applicable 3. 4. Average consolidated total assets for the calendar quarter......................................................................................... RCONK652 21,423,003 4. a. Averaging method used (for daily averaging, enter 1; for weekly averaging, enter 2).......................................... RCONK653 1 4.a. 5. Average tangible equity for the calendar quarter1....................................................................................................... RCONK654 2,246,235 5. 6. Holdings of long-term unsecured debt issued by other FDIC-insured depository institutions..................................... RCONK655 0 6. 7. 7. Unsecured "Other borrowings" with a remaining maturity of (sum of items 7.a through 7.d must be less than or equal to Schedule RC-M, items 5.b.(1)(a)-(d) minus item 10.b): a. One year or less.................................................................................................................................................. RCONG465 0 7.a. b. Over one year through three years....................................................................................................................... RCONG466 0 7.b. c. Over three years through five years..................................................................................................................... RCONG467 0 7.c. d. Over five years.................................................................................................................................................... RCONG468 0 7.d. 8. 8. Subordinated notes and debentures with a remaining maturity of (sum of items 8.a through 8.d must equal Schedule RC, item 19): a. One year or less.................................................................................................................................................. RCONG469 0 8.a. b. Over one year through three years....................................................................................................................... RCONG470 0 8.b. c. Over three years through five years..................................................................................................................... RCONG471 0 8.c. d. Over five years.................................................................................................................................................... RCONG472 0 8.d. 9. Brokered reciprocal deposits (included in Schedule RC-E, Memorandum item 1.b)................................................... RCONG803 0 9. RCONL190 NR 9.a. Item 9.a is to be completed on a fully consolidated basis by all institutions that own another insured depository institution. a. Fully consolidated brokered reciprocal deposits.................................................................................................. RCONK656 No 10. 10. Banker's bank certification: Does the reporting institution meet both the statutory definition of a banker's bank and the business conduct test set forth in FDIC regulations? If the answer to item 10 is "YES," complete items 10.a and 10.b................................................................................................................................................................................. RCONK657 NR 10.a. If the answer to item 10 is "YES," complete items 10.a and 10.b. a. Banker's bank deduction..................................................................................................................................... b. Banker's bank deduction limit.............................................................................................................................. RCONK658 NR 10.b. RCONK659 No 11. 11. Custodial bank certification: Does the reporting institution meet the definition of a custodial bank set forth in FDIC regulations? If the answer to item 11 is "YES," complete items 11.a and 11.b............................................................... RCONK660 NR 11.a. If the answer to item 11 is "YES," complete items 11.a and 11.b. a. Custodial bank deduction.................................................................................................................................... b. Custodial bank deduction limit............................................................................................................................. RCONK661 NR 11.b. M.1. 1.Total deposit liabilities of the bank (including related interest accrued and unpaid) less allowable exclusions (including related interest accrued and unpaid) (sum of Memorandum items 1.a.(1), 1.b.(1), 1.c.(1), and 1.d.(1) must equal Schedule RC-O, item 1 less item 2): a. Deposit accounts (excluding retirement accounts) of $250,000 or less:1 M.1.a. 1. Amount of deposit accounts (excluding retirement accounts) of $250,000 or less....................................... RCONF049 8,044,818 M.1.a.1. 2. Number of deposit accounts (excluding retirement accounts) of $250,000 or less....................................... RCONF050 452957 M.1.a.2. b. Deposit accounts (excluding retirement accounts) of more than $250,000:1 M.1.b. 1. Amount of deposit accounts (excluding retirement accounts) of more than $250,000................................. RCONF051 9,176,110 M.1.b.1. 2. Number of deposit accounts (excluding retirement accounts) of more than $250,000................................. RCONF052 9609 M.1.b.2. c. Retirement deposit accounts of $250,000 or less:1 M.1.c. 1. Amount of retirement deposit accounts of $250,000 or less......................................................................... RCONF045 209,068 M.1.c.1. 2. Number of retirement deposit accounts of $250,000 or less........................................................................ RCONF046 14800 M.1.c.2. d. Retirement deposit accounts of more than $250,000:1 M.1.d. 1. See instructions for averaging methods. For deposit insurance assessment purposes, tangible equity is defined as Tier 1 capital as set forth in the banking agencies' regulatory capital standards and reported in Schedule RC-R, Part I, item 26, except as described in the instructions. 1. The dollar amounts used as the basis for reporting in Memorandum items 1.a through 1.d reflect the deposit insurance limits in effect on the report date. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 42
Dollar amounts in thousands 1. Amount of retirement deposit accounts of more than $250,000................................................................... RCONF047 27,369 M.1.d.1. 2. Number of retirement deposit accounts of more than $250,000................................................................... RCONF048 61 M.1.d.2. RCON5597 6,820,396 M.2. Memorandum item 2 is to be completed by banks with $1 billion or more in total assets. 2. Estimated amount of uninsured deposits, including related interest accrued and unpaid (see instructions)3............. M.3. 3. Has the reporting institution been consolidated with a parent bank or savings association in that parent bank's or parent savings association's Call Report? If so, report the legal title and FDIC Certificate Number of the parent bank or parent savings association: a. Legal title............................................................................................................................................................. TEXTA545 NR M.3.a. b. FDIC Certificate Number..................................................................................................................................... RCONA545 0 M.3.b. 4. Not applicable M.4. RCONMW53 NR M.5. Memorandum items 5 through 12 are to be completed by "large institutions" and "highly complex institutions" as defined in FDIC regulations. 5. Applicable portion of the CECL transitional amount or modified CECL transitional amount that has been added to retained earnings for regulatory capital purposes as of the current report date and is attributable to loans and leases held for investment......................................................................................................................................................... 6. Criticized and classified items: M.6. a. Special mention................................................................................................................................................... RCONK663 CONF M.6.a. b. Substandard........................................................................................................................................................ RCONK664 CONF M.6.b. c. Doubtful............................................................................................................................................................... RCONK665 CONF M.6.c. d. Loss..................................................................................................................................................................... RCONK666 CONF M.6.d. 7. "Nontraditional 1-4 family residential mortgage loans" as defined for assessment purposes only in FDIC regulations: M.7. a. Nontraditional 1-4 family residential mortgage loans........................................................................................... RCONN025 CONF M.7.a. b. Securitizations of nontraditional 1-4 family residential mortgage loans................................................................ RCONN026 CONF M.7.b. 8. "Higher-risk consumer loans" as defined for assessment purposes only in FDIC regulations: M.8. a. Higher-risk consumer loans................................................................................................................................ RCONN027 CONF M.8.a. b. Securitizations of higher-risk consumer loans...................................................................................................... RCONN028 CONF M.8.b. M.9. 9. "Higher-risk commercial and industrial loans and securities" as defined for assessment purposes only in FDIC regulations: a. Higher-risk commercial and industrial loans and securities................................................................................. RCONN029 CONF M.9.a. b. Securitizations of higher-risk commercial and industrial loans and securities..................................................... RCONN030 CONF M.9.b. 10. Commitments to fund construction, land development, and other land loans secured by real estate: M.10. a. Total unfunded commitments............................................................................................................................... RCONK676 598,572 M.10.a. b. Portion of unfunded commitments guaranteed or insured by the U.S. government (including the FDIC)............ RCONK677 0 M.10.b. RCONK669 0 M.11. 11. Amount of other real estate owned recoverable from the U.S. government under guarantee or insurance provisions (excluding FDIC loss-sharing agreements).................................................................................................................... 12. Nonbrokered time deposits of more than $250,000 (included in Schedule RC-E, Memorandum item 2.d).............. RCONK678 440,046 M.12. M.13. Memorandum item 13.a is to be completed by "large institutions" and "highly complex institutions" as defined in FDIC regulations. Memorandum items 13.b through 13.h are to be completed by "large institutions" only. 13. Portion of funded loans and securities guaranteed or insured by the U.S. government (including FDIC loss-sharing agreements): a. Construction, land development, and other land loans secured by real estate.................................................... RCONN177 776 M.13.a. b. Loans secured by multifamily residential and nonfarm nonresidential properties................................................ RCONN178 29,391 M.13.b. c. Closed-end loans secured by first liens on 1-4 family residential properties........................................................ RCONN179 1,264 M.13.c. RCONN180 0 M.13.d. d. Closed-end loans secured by junior liens on 1-4 family residential properties and revolving, open-end loans secured by 1-4 family residential properties and extended under lines of credit..................................................... e. Commercial and industrial loans.......................................................................................................................... RCONN181 32,532 M.13.e. f. Credit card loans to individuals for household, family, and other personal expenditures...................................... RCONN182 0 M.13.f. g. All other loans to individuals for household, family, and other personal expenditures.......................................... RCONN183 72,807 M.13.g. h. Non-agency residential mortgage-backed securities........................................................................................... RCONM963 0 M.13.h. RCONK673 CONF M.14. Memorandum items 14 and 15 are to be completed by "highly complex institutions" as defined in FDIC regulations. 14. Amount of the institution's largest counterparty exposure......................................................................................... 15. Total amount of the institution's 20 largest counterparty exposures.......................................................................... RCONK674 CONF M.15. RCONL189 0 M.16. Memorandum item 16 is to be completed by ''large institutions'' and ''highly complex institutions'' as defined in FDIC regulations. 16. Portion of loan modifications to borrowers experiencing financial difficulty that are in compliance with their modified terms and are guaranteed or insured by the U.S. government (including the FDIC) (included in Schedule RC-C, Part I, Memorandum item 1).................................................................................................................................................. 3. Uninsured deposits should be estimated based on the deposit insurance limits set forth in Memorandum items 1.a through 1.d. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 43
Dollar amounts in thousands M.17. Memorandum item 17 is to be completed on a fully consolidated basis by those “large institutions” and “highly complex institutions” as defined in FDIC regulations that own another insured depository institution. 17. Selected fully consolidated data for deposit insurance assessment purposes: RCONL194 NR M.17.a. a. Total deposit liabilities before exclusions (gross) as defined in Section 3(l) of the Federal Deposit Insurance Act and FDIC regulations........................................................................................................................................ b. Total allowable exclusions, including interest accrued and unpaid on allowable exclusions................................ RCONL195 NR M.17.b. c. Unsecured "Other borrowings" with a remaining maturity of one year or less..................................................... RCONL196 NR M.17.c. d. Estimated amount of uninsured deposits, including related interest accrued and unpaid.................................... RCONL197 NR M.17.d. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 44
(Column O) PDs Were Derived Using (Column N) Two-Year Probability of Default (PD) Total (Column M) Two-Year Probability of Default (PD) Unscoreable (Column L) Two-Year Probability of Default (PD) > 30% (Column K) Two-Year Probability of Default (PD) 26.01–30% (Column J) Two-Year Probability of Default (PD) 22.01–26% (Column I) Two-Year Probability of Default (PD) 20.01–22% (Column H) Two-Year Probability of Default (PD) 18.01–20% (Column G) Two-Year Probability of Default (PD) 16.01–18% (Column F) Two-Year Probability of Default (PD) 14.01–16% (Column E) Two-Year Probability of Default (PD) 10.01–14% (Column D) Two-Year Probability of Default (PD) 7.01–10% (Column C) Two-Year Probability of Default (PD) 4.01–7% (Column B) Two-Year Probability of Default (PD) 1.01–4% (Column A) Two-Year Probability of Default (PD) >= Dollar amounts in thousands 1% M.18. 18. Outstanding balance of 1-4 family residential mortgage loans, consumer loans, and consumer leases by two-year probability of default: M.18.a. RCONM978 CONF RCONM977 CONF RCONM976 CONF RCONM975 CONF RCONM974 CONF RCONM973 CONF RCONM972 CONF RCONM971 CONF RCONM970 CONF RCONM969 CONF RCONM968 CONF RCONM967 CONF RCONM966 CONF RCONM965 CONF RCONM964 CONF a. "Nontraditional 1-4 family residential mortgage loans" as defined for assessment purposes only in FDIC regulations.............................................. M.18.b. RCONM993 CONF RCONM992 CONF RCONM991 CONF RCONM990 CONF RCONM989 CONF RCONM988 CONF RCONM987 CONF RCONM986 CONF RCONM985 CONF RCONM984 CONF RCONM983 CONF RCONM982 CONF RCONM981 CONF RCONM980 CONF RCONM979 CONF b. Closed-end loans secured by first liens on 1-4 family residential properties........ RCONN009 M.18.c. CONF RCONN008 CONF RCONN007 CONF RCONN006 CONF RCONN005 CONF RCONN004 CONF RCONN003 CONF RCONN002 CONF RCONN001 CONF RCONM999 CONF RCONM998 CONF RCONM997 CONF RCONM996 CONF RCONM995 CONF RCONM994 CONF c. Closed-end loans secured by junior liens on 1-4 family residential properties............................................... RCONN024 M.18.d. CONF RCONN023 CONF RCONN022 CONF RCONN021 CONF RCONN020 CONF RCONN019 CONF RCONN018 CONF RCONN017 CONF RCONN016 CONF RCONN015 CONF RCONN014 CONF RCONN013 CONF RCONN012 CONF RCONN011 CONF RCONN010 CONF d. Revolving, open-end loans secured by 1-4 family residential properties and extended under lines of credit................ M.18.e. RCONN054 CONF RCONN053 CONF RCONN052 CONF RCONN051 CONF RCONN050 CONF RCONN049 CONF RCONN048 CONF RCONN047 CONF RCONN046 CONF RCONN045 CONF RCONN044 CONF RCONN043 CONF RCONN042 CONF RCONN041 CONF RCONN040 e. Credit cards........................................ CONF M.18.f. RCONN069 CONF RCONN068 CONF RCONN067 CONF RCONN066 CONF RCONN065 CONF RCONN064 CONF RCONN063 CONF RCONN062 CONF RCONN061 CONF RCONN060 CONF RCONN059 CONF RCONN058 CONF RCONN057 CONF RCONN056 CONF RCONN055 f. Automobile loans................................. CONF M.18.g. RCONN084 CONF RCONN083 CONF RCONN082 CONF RCONN081 CONF RCONN080 CONF RCONN079 CONF RCONN078 CONF RCONN077 CONF RCONN076 CONF RCONN075 CONF RCONN074 CONF RCONN073 CONF RCONN072 CONF RCONN071 CONF RCONN070 g. Student loans...................................... CONF M.18.h. RCONN099 CONF RCONN098 CONF RCONN097 CONF RCONN096 CONF RCONN095 CONF RCONN094 CONF RCONN093 CONF RCONN092 CONF RCONN091 CONF RCONN090 CONF RCONN089 CONF RCONN088 CONF RCONN087 CONF RCONN086 CONF RCONN085 CONF h. Other consumer loans and revolving credit plans other than credit cards........ M.18.i. RCONN114 CONF RCONN113 CONF RCONN112 CONF RCONN111 CONF RCONN110 CONF RCONN109 CONF RCONN108 CONF RCONN107 CONF RCONN106 CONF RCONN105 CONF RCONN104 CONF RCONN103 CONF RCONN102 CONF RCONN101 CONF RCONN100 i. Consumer leases................................. CONF M.18.j. RCONN128 CONF RCONN127 CONF RCONN126 CONF RCONN125 CONF RCONN124 CONF RCONN123 CONF RCONN122 CONF RCONN121 CONF RCONN120 CONF RCONN119 CONF RCONN118 CONF RCONN117 CONF RCONN116 CONF RCONN115 j. Total..................................................... CONF WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 45
Schedule RC-P - 1-4 Family Residential Mortgage Banking Activities(Form Type - 041) Schedule RC-P is to be completed by banks at which either 1-4 family residential mortgage loan originations and purchases for resale from all sources, loan sales, or quarter-end loans held for sale or trading exceed $10 million for two consecutive quarters. Dollar amounts in thousands 1. Retail originations during the quarter of 1-4 family residential mortgage loans for sale1............................................ RCONHT81 92,598 1. 2. Wholesale originations and purchases during the quarter of 1-4 family residential mortgage loans for sale2............ RCONHT82 0 2. 3. 1-4 family residential mortgage loans sold during the quarter..................................................................................... RCONFT04 89,220 3. RCONFT05 27,024 4. 4. 1-4 family residential mortgage loans held for sale or trading at quarter-end (included in Schedule RC, items 4.a and 5)............................................................................................................................................................................. RIADHT85 1,448 5. 5. Noninterest income for the quarter from the sale, securitization, and servicing of 1-4 family residential mortgage loans (included in Schedule RI, items 5.c, 5.f, 5.g, and 5.i)............................................................................................. 6. Repurchases and indemnifications of 1-4 family residential mortgage loans during the quarter................................ RCONHT86 0 6. 7. Representation and warranty reserves for 1-4 family residential mortgage loans sold: 7. a. For representations and warranties made to U.S. government agencies and government-sponsored agencies.. RCONL191 CONF 7.a. b. For representations and warranties made to other parties................................................................................... RCONL192 CONF 7.b. c. Total representation and warranty reserves (sum of items 7.a and 7.b)............................................................... RCONM288 0 7.c. Schedule RC-Q - Assets and Liabilities Measured at Fair Value on a Recurring Basis(Form Type - 041) Schedule RC-Q is to be completed by banks that: (1) Have elected to report financial instruments or servicing assets and liabilities at fair value under a fair value option with changes in fair value recognized in earnings, or (2) Are required to complete Schedule RC-D, Trading Assets and Liabilities. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands RCONG477 1. 0 RCONG476 3,510,648 RCONG475 0 RCONG474 0 RCONJA36 3,510,648 1. Available-for-sale debt securities and equity securities with readily determinable fair values not held for trading1........................................ 2. Not applicable 2. 3. RCONG487 0 RCONG486 0 RCONG485 0 RCONG484 0 RCONG483 3. Loans and leases held for sale.......................................................... 0 4. RCONG492 0 RCONG491 0 RCONG490 0 RCONG489 0 RCONG488 4. Loans and leases held for investment............................................... 0 5. Trading assets: 5. 5.a. RCONG496 0 RCONG495 0 RCONG494 0 RCONG493 0 RCON3543 a. Derivative assets........................................................................ 0 5.b. RCONG501 0 RCONG500 0 RCONG499 0 RCONG498 0 RCONG497 b. Other trading assets................................................................... 0 RCONF242 5.b.1. 0 RCONF241 0 RCONF692 0 RCONF684 0 RCONF240 0 1. Nontrading securities at fair value with changes in fair value reported in current earnings (included in Schedule RC-Q, item 5.b, above).............................................................................. 6. RCONG804 25 RCONG396 170,463 RCONG395 0 RCONG392 0 RCONG391 6. All other assets.................................................................................. 170,488 7. RCONG506 25 RCONG505 3,681,111 RCONG504 0 RCONG503 0 RCONG502 3,681,136 7.Total assets measured at fair value on a recurring basis (sum of items 1 through 5.b plus item 6)...................................................................... 8. RCONF254 0 RCONF253 0 RCONF694 0 RCONF686 0 RCONF252 8. Deposits............................................................................................. 0 9. Not applicable 9. 10. Trading liabilities: 10. 10.a. RCONG515 0 RCONG514 0 RCONG513 0 RCONG512 0 RCON3547 a. Derivative liabilities..................................................................... 0 10.b. RCONG520 0 RCONG519 0 RCONG518 0 RCONG517 0 RCONG516 b. Other trading liabilities................................................................ 0 11. Not applicable 11. 12. Not applicable 12. 1. Exclude originations and purchases of 1–4 family residential mortgage loans that are held for investment. 2. Exclude originations and purchases of 1–4 family residential mortgage loans that are held for investment. 1. The amount reported in item 1, column A, must equal the sum of Schedule RC, items 2.b and 2.c. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 46
(Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands 13. RCONG809 5,270 RCONG808 155,242 RCONG807 0 RCONG806 0 RCONG805 13. All other liabilities............................................................................. 160,512 14. RCONG535 5,270 RCONG534 155,242 RCONG533 0 RCONG532 0 RCONG531 160,512 14. Total liabilities measured at fair value on a recurring basis (sum of items 8 through 13)............................................................................... M.1. 1. All other assets (itemize and describe amounts included in Schedule RC-Q, item 6, that are greater than $100,000 and exceed 25% of item 6): M.1.a. RCONG540 NR RCONG539 NR RCONG538 NR RCONG537 NR RCONG536 a. Mortgage servicing assets......................................................... NR WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 47
(Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.1.b. RCONG545 25 RCONG544 170,463 RCONG543 NR RCONG542 NR RCONG541 b. Nontrading derivative assets...................................................... 170,488 Dollar amounts in thousands c. Disclose component and the dollar amount of that component: M.1.c. 1. Describe component................................................................................................................................................... TEXTG546 NR M.1.c.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.1.c.2. RCONG550 NR RCONG549 NR RCONG548 NR RCONG547 NR RCONG546 2. Amount of component....................................................................... NR Dollar amounts in thousands d. Disclose component and the dollar amount of that component: M.1.d. 1. Describe component................................................................................................................................................... TEXTG551 NR M.1.d.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.1.d.2. RCONG555 NR RCONG554 NR RCONG553 NR RCONG552 NR RCONG551 2. Amount of component....................................................................... NR Dollar amounts in thousands e. Disclose component and the dollar amount of that component: M.1.e. 1. Describe component................................................................................................................................................... TEXTG556 NR M.1.e.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.1.e.2. RCONG560 NR RCONG559 NR RCONG558 NR RCONG557 NR RCONG556 2. Amount of component....................................................................... NR Dollar amounts in thousands f. Disclose component and the dollar amount of that component: M.1.f. 1. Describe component................................................................................................................................................... TEXTG561 NR M.1.f.1. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 48
(Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.1.f.2. RCONG565 NR RCONG564 NR RCONG563 NR RCONG562 NR RCONG561 2. Amount of component....................................................................... NR M.2. 2. All other liabilities (itemize and describe amounts included in Schedule RC-Q, item 13, that are greater than $100,000 and exceed 25% of item 13): M.2.a. RCONF263 NR RCONF262 NR RCONF697 NR RCONF689 NR RCONF261 a. Loan commitments (not accounted for as derivatives)............... NR M.2.b. RCONG570 5,270 RCONG569 155,242 RCONG568 NR RCONG567 NR RCONG566 b. Nontrading derivative liabilities................................................... 160,512 Dollar amounts in thousands c. Disclose component and the dollar amount of that component: M.2.c. 1. Describe component................................................................................................................................................... TEXTG571 NR M.2.c.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.2.c.2. RCONG575 NR RCONG574 NR RCONG573 NR RCONG572 NR RCONG571 2. Amount of component....................................................................... NR Dollar amounts in thousands d. Disclose component and the dollar amount of that component: M.2.d. 1. Describe component................................................................................................................................................... TEXTG576 NR M.2.d.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.2.d.2. RCONG580 NR RCONG579 NR RCONG578 NR RCONG577 NR RCONG576 2. Amount of component....................................................................... NR Dollar amounts in thousands e. Disclose component and the dollar amount of that component: M.2.e. 1. Describe component................................................................................................................................................... TEXTG581 NR M.2.e.1. (Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.2.e.2. RCONG585 NR RCONG584 NR RCONG583 NR RCONG582 NR RCONG581 2. Amount of component....................................................................... NR Dollar amounts in thousands f. Disclose component and the dollar amount of that component: M.2.f. 1. Describe component................................................................................................................................................... TEXTG586 NR M.2.f.1. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 49
(Column E) Level 3 Fair Value Measurements (Column D) Level 2 Fair Value Measurements (Column C) Level 1 Fair Value Measurements (Column B) LESS: Amounts Netted in the Determination of Total Fair Value (Column A) Total Fair Value Reported on Schedule RC Dollar amounts in thousands M.2.f.2. RCONG590 NR RCONG589 NR RCONG588 NR RCONG587 NR RCONG586 2. Amount of component....................................................................... NR Dollar amounts in thousands 3. Loans measured at fair value (included in Schedule RC-C, Part I, items 1 through 9): M.3. a. Loans secured by real estate: M.3.a. 1. Secured by 1-4 family residential properties................................................................................................. RCONHT87 0 M.3.a.1. 2. All other loans secured by real estate........................................................................................................... RCONHT88 0 M.3.a.2. b. Commercial and industrial loans.......................................................................................................................... RCONF585 0 M.3.b. RCONHT89 0 M.3.c. c. Loans to individuals for household, family, and other personal expenditures (i.e., consumer loans) (includes purchased paper).................................................................................................................................................... d. Other loans.......................................................................................................................................................... RCONF589 0 M.3.d. 4. Unpaid principal balance of loans measured at fair value (reported in Schedule RC-Q, Memorandum item 3): M.4. a. Loans secured by real estate: M.4.a. 1. Secured by 1-4 family residential properties................................................................................................. RCONHT91 0 M.4.a.1. 2. All other loans secured by real estate........................................................................................................... RCONHT92 0 M.4.a.2. b. Commercial and industrial loans.......................................................................................................................... RCONF597 0 M.4.b. RCONHT93 0 M.4.c. c. Loans to individuals for household, family, and other personal expenditures (i.e., consumer loans) (includes purchased paper).................................................................................................................................................... d. Other loans.......................................................................................................................................................... RCONF601 0 M.4.d. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 50
Schedule RC-R Part I - Regulatory Capital Components and Ratios(Form Type - 041) Part I is to be completed on a consolidated basis. Dollar amounts in thousands RCOAP742 2,402,427 1. 1. Common stock plus related surplus, net of treasury stock and unearned employee stock ownership plan (ESOP) shares............................................................................................................................................................................. 2. Retained earnings1..................................................................................................................................................... RCOAKW00 739,270 2. RCOAJJ29 0 2.a. a. Does your institution have a CECL transition election in effect as of the quarter-end report date? (enter "0" for No; enter "1" for Yes with a 3-year CECL transition election; enter "2" for Yes with a 5-year 2020 CECL transition election.).................................................................................................................................................................. 3. Accumulated other comprehensive income (AOCI)..................................................................................................... RCOAB530 -624,877 3. a. AOCI opt-out election (enter "1" for Yes; enter "0" for No.)................................................................................... RCOAP838 1 3.a. 4. Common equity tier 1 minority interest includable in common equity tier 1 capital..................................................... RCOAP839 0 4. 5. Common equity tier 1 capital before adjustments and deductions (sum of items 1 through 4)................................... RCOAP840 2,516,820 5. 6. LESS: Goodwill net of associated deferred tax liabilities (DTLs)................................................................................. RCOAP841 812,923 6. 7. LESS: Intangible assets (other than goodwill and mortgage servicing assets (MSAs)), net of associated DTLs....... RCOAP842 60,188 7. RCOAP843 2,591 8. 8. LESS: Deferred tax assets (DTAs) that arise from net operating loss and tax credit carryforwards, net of any related valuation allowances and net of DTLs............................................................................................................................ 9. 9. AOCI-related adjustments (items 9.a through 9.e are effective January 1, 2015) (if entered "1" for Yes in item 3.a, complete only items 9.a through 9.e; if entered "0" for No in item 3.a, complete only item 9.f): RCOAP844 -537,362 9.a. a. LESS: Net unrealized gains (losses) on available-for-sale debt securities (if a gain, report as a positive value; if a loss, report as a negative value)........................................................................................................................ b. Not applicable. 9.b. RCOAP846 -7,297 9.c. c. LESS: Accumulated net gains (losses) on cash flow hedges (if a gain, report as a positive value; if a loss, report as a negative value)................................................................................................................................................ RCOAP847 -3,813 9.d. d. LESS: Amounts recorded in AOCI attributed to defined benefit postretirement plans resulting from the initial and subsequent application of the relevant GAAP standards that pertain to such plans (if a gain, report as a positive value; if a loss, report as a negative value)................................................................................................. RCOAP848 -76,405 9.e. e. LESS: Net unrealized gains (losses) on held-to-maturity securities that are included in AOCI (if a gain, report as a positive value; if a loss, report as a negative value)......................................................................................... RCOAP849 NR 9.f. f. LESS: Accumulated net gain (loss) on cash flow hedges included in AOCI, net of applicable income taxes, that relate to the hedging of items that are not recognized at fair value on the balance sheet (if a gain, report as a positive value; if a loss, report as a negative value) (To be completed only by institutions that entered "0" for No in item 3.a).............................................................................................................................................................. 10. Other deductions from (additions to) common equity tier 1 capital before threshold-based deductions: 10. RCOAQ258 0 10.a. a. LESS: Unrealized net gain (loss) related to changes in the fair value of liabilities that are due to changes in own credit risk (if a gain, report as a positive value; if a loss, report as a negative value).............................................. b. LESS: All other deductions from (additions to) common equity tier 1 capital before threshold-based deductions. RCOAP850 0 10.b. 11. Not applicable 11. 12. Subtotal (item 5 minus items 6 through 10.b)............................................................................................................ RCOAP852 2,265,995 12. RCOALB58 0 13. 13. LESS: Investments in the capital of unconsolidated financial institutions, net of associated DTLs, that exceed 25 percent of item 12........................................................................................................................................................... 14. LESS: MSAs, net of associated DTLs, that exceed 25 percent of item 12................................................................ RCOALB59 0 14. RCOALB60 0 15. 15. LESS: DTAs arising from temporary differences that could not be realized through net operating loss carrybacks, net of related valuation allowances and net of DTLs, that exceed 25 percent of item 12................................................ 16. Not applicable 16. RCOAP857 0 17. 17. LESS: Deductions applied to common equity tier 1 capital due to insufficient amounts of additional tier 1 capital and tier 2 capital to cover deductions1........................................................................................................................... 18. Total adjustments and deductions for common equity tier 1 capital (sum of items 13 through 17)............................ RCOAP858 0 18. 19. Common equity tier 1 capital (item 12 minus item 18).............................................................................................. RCOAP859 2,265,995 19. 20. Additional tier 1 capital instruments plus related surplus.......................................................................................... RCOAP860 0 20. 21. Non-qualifying capital instruments subject to phase out from additional tier 1 capital ............................................. RCOAP861 0 21. 22. Tier 1 minority interest not included in common equity tier 1 capital......................................................................... RCOAP862 -10,376 22. 23. Additional tier 1 capital before deductions (sum of items 20, 21, and 22)................................................................. RCOAP863 -10,376 23. 24. LESS: Additional tier 1 capital deductions................................................................................................................. RCOAP864 0 24. 25. Additional tier 1 capital (greater of item 23 minus item 24, or zero).......................................................................... RCOAP865 0 25. 26. Tier 1 capital (sum of items 19 and 25)..................................................................................................................... RCOA8274 2,265,995 26. 1. Institutions that have elected to apply the 3-year or the 5-year 2020 CECL transition provision should include the applicable portion of the CECL transitional amount or the modified CECL transitional amount, respectively, in this item. 1. An institution that has a CBLR framework election in effect as of the quarter-end report date is neither required to calculate tier 2 capital nor make any deductions that would have been taken from tier 2 capital as of the report date. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 51
Dollar amounts in thousands 27. Average total consolidated assets2.......................................................................................................................... RCOAKW03 21,423,003 27. RCOAP875 875,702 28. 28. LESS: Deductions from common equity tier 1 capital and additional tier 1 capital (sum of items 6, 7, 8, 10.b, 13 through 15, 17, and certain elements of item 24 - see instructions)............................................................................... 29. LESS: Other deductions from (additions to) assets for leverage ratio purposes....................................................... RCOAB596 -3,812 29. 30. Total assets for the leverage ratio (item 27 minus items 28 and 29).......................................................................... RCOAA224 20,551,113 30. 31. Leverage ratio (item 26 divided by 30)....................................................................................................................... RCOA7204 11.0261% 31. RCOALE74 0 31.a. a. Does your institution have a community bank leverage ratio (CBLR) framework election in effect as of the quarter-end report date? (enter "1" for Yes; enter "0" for No)................................................................................... 2. Institutions that have elected to apply the 3-year or the 5-year 2020 CECL transition provision should include the applicable portion of the CECL transitional amount or the modified CECL transitional amount, respectively, in item 27. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 52
Dollar amounts in thousands RCOANC99 NR 31.b. Item 31.b is to be completed only by non-advanced approaches institutions that elect to use the Standardized Approach for Counterparty Credit Risk (SA-CCR) for purposes of the standardized approach and supplementary leverage ratio. b. Standardized Approach for Counterparty Credit Risk opt-in election (enter "1" for Yes; leave blank for No.)1...... Dollar amounts in thousands (Column A) Amount (Column B) Percentage 32. Total assets (Schedule RC, item 12); (must be less than $10 billion).................................. RCOA2170 NR 32. RCOAKX77 NR RCOAKX78 NR 33. 33. Trading assets and trading liabilities (Schedule RC, sum of items 5 and 15). Report as a dollar amount in Column A and as a percentage of total assets (5% limit) in Column B........... 34. Off-balance sheet exposures: 34. a. Unused portion of conditionally cancellable commitments............................................. RCOAKX79 NR 34.a. b. Securities lent and borrowed (Schedule RC-L, sum of items 6.a and 6.b)..................... RCOAKX80 NR 34.b. c. Other off-balance sheet exposures................................................................................. RCOAKX81 NR 34.c. RCOAKX82 NR RCOAKX83 NR 34.d. d. Total off-balance sheet exposures (sum of items 34.a through 34.c). Report as a dollar amount in Column A and as a percentage of total assets (25% limit) in Column B........... Dollar amounts in thousands 35. Unconditionally cancellable commitments................................................................................................................. RCOAS540 NR 35. 36. Investments in the tier 2 capital of unconsolidated financial institutions.................................................................... RCOALB61 NR 36. 37. Allocated transfer risk reserve.................................................................................................................................. RCOA3128 NR 37. 38. Amount of allowances for credit losses on purchased credit-deteriorated assets: 38. a. Loans and leases held for investment.................................................................................................................. RCOAJJ30 NR 38.a. b. Held-to-maturity debt securities........................................................................................................................... RCOAJJ31 NR 38.b. c. Other financial assets measured at amortized cost............................................................................................. RCOAJJ32 NR 38.c. 39. Tier 2 capital instruments plus related surplus.......................................................................................................... RCOAP866 0 39. 40. Non-qualifying capital instruments subject to phase-out from tier 2 capital............................................................... RCOAP867 0 40. 41. Total capital minority interest that is not included in tier 1 capital.............................................................................. RCOAP868 0 41. 42. Adjusted allowances for credit losses (AACL) includable in tier 2 capital2................................................................ RCOA5310 204,187 42. 43. Not applicable. 43. 44. Tier 2 capital before deductions (sum of items 39 through 42).................................................................................. RCOAP870 204,187 44. 45. LESS: Tier 2 capital deductions................................................................................................................................ RCOAP872 0 45. 46. Tier 2 capital (greater of item 44 minus item 45, or zero).......................................................................................... RCOA5311 204,187 46. 47. Total capital (sum of items 26 and 46)....................................................................................................................... RCOA3792 2,470,182 47. 48. Total risk-weighted assets (from Schedule RC-R, Part II, item 31)............................................................................ RCOAA223 16,331,332 48. Dollar amounts in thousands 49. Common equity tier 1 capital ratio (item 19 divided by item 48)................................................................................ RCOAP793 13.8751% 49. 50. Tier 1 capital ratio (item 26 divided by item 48)......................................................................................................... RCOA7206 13.8751% 50. 51. Total capital ratio (item 47 divided by item 48)........................................................................................................... RCOA7205 15.1254% 51. Dollar amounts in thousands 52. Institution-specific capital buffer necessary to avoid limitations on distributions and discretionary bonus payments: 52. a. Capital conservation buffer.................................................................................................................................. RCOAH311 7.1254% 52.a. b. Institutions subject to Category III capital requirements only: Total applicable capital buffer............................... RCOWH312 NR 52.b. 53. Eligible retained income3.......................................................................................................................................... RCOAH313 NR 53. 54. Distributions and discretionary bonus payments during the quarter4........................................................................ RCOAH314 NR 54. 55. Institutions subject to Category III capital standards only: Supplementary leverage ratio information: 55. a. Total leverage exposure5..................................................................................................................................... RCOAH015 NR 55.a. b. Supplementary leverage ratio.............................................................................................................................. RCOAH036 NR 55.b. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 53
1. For the December 31, 2021, report date only, advanced approaches institutions that adopt SA-CCR prior to the mandatory compliance date should enter "1" in item 31.b. 2. Institutions should report the adjusted allowances for credit losses (AACL), as defined in the regulatory capital rule, in item 30.a. 3. Non-advanced approaches institutions other than Category III institutions must complete item 53 only if the amount reported in item 52.a above is less than or equal to 2.5000 percent. Category III institutions must complete item 53 only if the amount reported in item 52.a above is less than or equal to the amount reported in item 52.b above. 4. Non-advanced approaches institutions other than Category III institutions must complete item 54 only if the amount reported in Schedule RC-R, Part I, item 52.a, in the Call Report for the previous calendar quarter-end report date was less than or equal to 2.5000 percent. Category III institutions must complete item 54 only if the amount reported in Schedule RC-R, Part I, item 52.a, in the Call Report for the previous calendar quarter-end report date was less than or equal to the amount reported in Schedule 5. Institutions that have elected to apply the 3-year or the 5-year 2020 CECL transition provision should include the applicable portion of the CECL transitional amount or the modified CECL transitional amount, respectively, in item 55.a. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 54
Schedule RC-R Part II - Risk-Weighted Assets(Form Type - 041)
Institutions are required to assign a 100 percent risk weight to all assets not specifically assigned a risk weight under Subpart D of the federal banking agencies' regulatory capital rules and not deducted from tier 1 or tier 2 capital.
(Column J)
Allocation by
Risk-Weight
Category
150%
(Column I)
Allocation by
Risk-Weight
Category
100%
(Column H)
Allocation by
Risk-Weight
Category 50%
(Column G)
Allocation by
Risk-Weight
Category 20%
(Column F)
Allocation by
Risk-Weight
Category 10%
(Column E)
Allocation by
Risk-Weight
Category 4%
(Column D)
Allocation by
Risk-Weight
Category 2%
(Column C)
Allocation by
Risk-Weight
Category 0%
(Column B)
Adjustments
to Totals
Reported in
Column A
(Column A)
Totals from
Schedule RC
Dollar amounts in thousands
1.
RCONS398
0
RCOND960
5,020
RCONS397
0
RCOND959
110,903
RCOND958
1,035,193
RCONS396
0
RCOND957
1. Cash and balances due from depository institutions........... 1,151,116
2. Securities: 2.
2.a.
RCONS400
0
RCOND965
0
RCOND964
0
RCOND963
1,091,573
RCONHJ75
0
RCONHJ74
0
RCOND962
0
RCONS399
-76,411
RCOND961
a. Held-to-maturity securities3......................................... 1,015,161
RCONS403 2.b.
0
RCOND970
0
RCOND969
0
RCOND968
4,150,423
RCONHJ77
0
RCONHJ76
0
RCOND967
67,843
RCONS402
-707,617
RCONJA21
3,510,648
b. Available-for-sale debt securities and equity securities
with readily determinable fair values not held for
trading..............................................................................
3.
3. Federal funds sold and securities purchased under
agreements to resell:
3.a.
RCONS411
0
RCOND974
0
RCONS410
0
RCOND973
0
RCOND972
0
RCOND971
a. Federal funds sold........................................................ 0
3.b.
RCONH172
0
RCONH171
b. Securities purchased under agreements to resell........ 0
(Column S) Application of Other Risk-Weighting Approaches Risk-Weighted Asset Amount (Column R) Application of Other Risk-Weighting Approaches Exposure Amount (Column Q) Allocation by Risk-Weight Category 1,250% (Column P) Allocation by Risk-Weight Category 937.5% (Column O) Allocation by Risk-Weight Category 625% (Column N) Allocation by Risk-Weight Category 600% (Column M) Allocation by Risk-Weight Category 400% (Column L) Allocation by Risk-Weight Category 300% (Column K) Allocation by Risk-Weight Category 250% Dollar amounts in thousands b. Securities purchased under agreements to resell 3.b. 4. Loans and leases held for sale: 4. 4.a. RCONH274 0 RCONH273 a. Residential mortgage exposures......................................... 0 4.b. RCONH276 0 RCONH275 b. High volatility commercial real estate exposures................. 0 WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 56
(Column S) Application of Other Risk-Weighting Approaches Risk-Weighted Asset Amount (Column R) Application of Other Risk-Weighting Approaches Exposure Amount (Column Q) Allocation by Risk-Weight Category 1,250% (Column P) Allocation by Risk-Weight Category 937.5% (Column O) Allocation by Risk-Weight Category 625% (Column N) Allocation by Risk-Weight Category 600% (Column M) Allocation by Risk-Weight Category 400% (Column L) Allocation by Risk-Weight Category 300% (Column K) Allocation by Risk-Weight Category 250% Dollar amounts in thousands 4.c. RCONH278 0 RCONH277 c. Exposures past due 90 days or more or on nonaccrual6..... 0 (Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Category 0% (Column B) Adjustments to Totals Reported in Column A (Column A) Totals from Schedule RC Dollar amounts in thousands 4. Loans and leases held for sale (continued): 4. 4.d. RCONS437 0 RCONS436 0 RCONS435 0 RCONS434 22,675 RCONHJ81 0 RCONHJ80 0 RCONS433 0 RCONS432 0 RCONS431 d. All other exposures...................................................... 22,675 5. Loans and leases held for investment:2 5. 5.a. RCONS443 1,781,521 RCONS442 1,445,931 RCONS441 1,708 RCONH178 0 RCONS440 0 RCONS439 a. Residential mortgage exposures................................. 3,229,160 5.b. RCONS447 45,914 RCONH182 0 RCONH181 0 RCONH180 0 RCONH179 0 RCONS446 0 RCONS445 b. High volatility commercial real estate exposures......... 45,914 RCONS455 5.c. 102,930 RCONS454 0 RCONS453 0 RCONS452 0 RCONHJ83 0 RCONHJ82 0 RCONS451 0 RCONS450 0 RCONS449 102,930 c. Exposures past due 90 days or more or on nonaccrual7..................................................................... 5.d. RCONS463 0 RCONS462 9,665,325 RCONS461 0 RCONS460 116,813 RCONHJ85 0 RCONHJ84 0 RCONS459 31,357 RCONS458 0 RCONS457 d. All other exposures...................................................... 9,813,495 6. RCON3123 195,281 RCON3123 6. LESS: Allowance for credit losses on loans and leases...... 195,281 7. RCONS467 0 RCOND980 0 RCOND979 0 RCOND978 0 RCONHJ87 0 RCONHJ86 0 RCOND977 0 RCONS466 0 RCOND976 7. Trading assets..................................................................... 0 8. RCONH185 4,505 RCOND985 606,524 RCOND984 4,386 RCOND983 31,823 RCONHJ89 0 RCONHJ88 0 RCOND982 119 RCONS469 1,037,774 RCOND981 8. All other assets8.................................................................. 1,998,830 a. Separate account bank-owned life insurance 8.a. b. Default fund contributions to central counterparties 8.b. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 57
(Column S)
Application of
Other
Risk-Weighting
Approaches
Risk-Weighted
Asset Amount
(Column R)
Application of
Other
Risk-Weighting
Approaches
Exposure
Amount
(Column Q)
Allocation by
Risk-Weight
Category
1,250%
(Column P)
Allocation by
Risk-Weight
Category
937.5%
(Column O)
Allocation by
Risk-Weight
Category 625%
(Column N)
Allocation by
Risk-Weight
Category 600%
(Column M)
Allocation by
Risk-Weight
Category 400%
(Column L)
Allocation by
Risk-Weight
Category 300%
(Column K)
Allocation by
Risk-Weight
Category 250%
Dollar amounts in thousands
4. Loans and leases held for sale (continued): 4.
4.d.
RCONH280
0
RCONH279
d. All other exposures.............................................................. 0
5. Loans and leases held for investment: 5.
5.a.
RCONH282
0
RCONH281
(Column U) Total Risk-Weighted Asset Amount by Calculation Methodology Gross-Up (Column T) Total Risk-Weighted Asset Amount by Calculation Methodology SSFA (Column Q) Exposure Amount 1,250% (Column B) Adjustments to Totals Reported in Column A (Column A) Totals Dollar amounts in thousands 9. On-balance sheet securitization exposures: 9. 9.a. RCONS479 0 RCONS478 0 RCONS477 0 RCONS476 0 RCONS475 a. Held-to-maturity securities13...................................................... 0 9.b. RCONS484 0 RCONS483 0 RCONS482 0 RCONS481 0 RCONS480 b. Available-for-sale securities........................................................ 0 9.c. RCONS489 0 RCONS488 0 RCONS487 0 RCONS486 0 RCONS485 c. Trading assets............................................................................. 0 9.d. RCONS494 0 RCONS493 0 RCONS492 0 RCONS491 0 RCONS490 d. All other on-balance sheet securitization exposures.................. 0 10. RCONS499 0 RCONS498 0 RCONS497 47 RCONS496 0 RCONS495 10. Off-balance sheet securitization exposures..................................... 47 13. Institutions should report as a negative number in item 9.a, column B, those allowances for credit losses eligible for inclusion in tier 2 capital, which excludes allowances for credit losses on purchased credit-deteriorated assets. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 59
Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Category 0% (Column B) Adjustments to Totals Reported in Column A (Column A) Totals From Schedule RC Dollar amounts in thousands 11. RCONS503 153,349 RCOND990 12,066,151 RCOND989 1,467,197 RCOND988 5,528,301 RCONHJ91 0 RCONHJ90 0 RCOND987 1,134,512 RCONS500 58,465 RCON2170 11. Total balance sheet assets14............................................. 20,721,673 (Column R) Application of Other Risk-Weighting Approaches Exposure Amount (Column Q) Allocation by Risk-Weight Category 1,250% (Column P) Allocation by Risk-Weight Category 937.5% (Column O) Allocation by Risk-Weight Category 625% (Column N) Allocation by Risk-Weight Category 600% (Column M) Allocation by Risk-Weight Category 400% (Column L) Allocation by Risk-Weight Category 300% (Column K) Allocation by Risk-Weight Category 250% Dollar amounts in thousands 11. RCONH300 9,642 RCONS510 0 RCONS507 0 RCONS506 15,091 RCONS505 0 RCONS504 11. Total balance sheet assets14............................................................. 288,966 (Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Category 0% (Column B) Credit Equivalent Amount (Column A) Face, Notional, or Other Amount Dollar amounts in thousands 12. RCONS511 0 RCOND996 43,535 RCOND995 0 RCOND994 0 RCONHJ93 0 RCONHJ92 0 RCOND993 838 RCOND992 44,373 RCOND991 12. Financial standby letters of credit...................................... 44,373 13. RCONS512 0 RCONG605 28,338 RCONG604 0 RCONG603 0 RCOND999 0 RCOND998 28,338 RCOND997 56,675 13. Performance standby letters of credit and transaction-related contingent items....................................... 14. RCONS513 0 RCONG611 80 RCONG610 0 RCONG609 0 RCONHJ95 0 RCONHJ94 0 RCONG608 0 RCONG607 80 RCONG606 399 14. Commercial and similar letters of credit with an original maturity of one year or less..................................................... 15. RCONS514 0 RCONG617 0 RCONG616 0 RCONG615 0 RCONG614 0 RCONG613 0 RCONG612 0 15. Retained recourse on small business obligations sold with recourse.................................................................................. (Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Category 0% (Column B) Credit Equivalent Amount (Column A) Face, Notional, or Other Amount Dollar amounts in thousands 16. RCONS523 0 RCONS522 0 RCONS521 0 RCONS520 0 RCONS519 0 RCONS518 0 RCONS517 0 RCONS516 0 RCONS515 16. Repo-style transactions21................................................. 0 17. RCONS524 0 RCONG623 0 RCONG622 0 RCONG621 0 RCONG620 0 RCONG619 0 RCONG618 17. All other off-balance sheet liabilities.................................. 0 18. Unused commitments:* 18. 18.a. RCONS531 0 RCONS530 16,739 RCONS529 2,184 RCONS528 2,396 RCONHJ97 0 RCONHJ96 0 RCONS527 0 RCONS526 21,319 RCONS525 a. Original maturity of one year or less............................ 106,594 14. For each of columns A through R of item 11, report the sum of items 1 through 9. For item 11, the sum of columns B through R must equal column A. Item 11, column A, must equal Schedule RC, item 12. 21. Includes securities purchased under agreements to resell (reverse repos), securities sold under agreements to repurchase (repos), securities borrowed, and securities lent. *. Excludes unused commitments to asset-backed commercial paper conduits. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 60
(Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Category 0% (Column B) Credit Equivalent Amount (Column A) Face, Notional, or Other Amount Dollar amounts in thousands 18.b. RCONS539 11,611 RCONG629 1,175,224 RCONG628 11,718 RCONG627 2,858 RCONHJ99 0 RCONHJ98 0 RCONG626 0 RCONG625 1,201,411 RCONG624 b. Original maturity exceeding one year........................... 2,402,821 19. RCONS541 0 RCONS540 19. Unconditionally cancelable commitments......................... 1,283,741 20. RCONS548 0 RCONS547 117,256 RCONS546 0 RCONS545 0 RCONS544 0 RCONHK01 0 RCONHK00 0 RCONS543 197,980 RCONS542 20. Over-the-counter derivatives............................................. 315,236 21. RCONS557 0 RCONS556 0 RCONS555 0 RCONS554 0 RCONS552 0 RCONS551 0 RCONS550 0 RCONS549 21. Centrally cleared derivatives............................................. 0 22. RCONH197 0 RCONH196 0 RCONH195 0 RCONH194 0 RCONH193 0 RCONH191 22. Unsettled transactions (failed trades)22............................. 0 22. For item 22, the sum of columns C through Q must equal column A. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 61
Column S) Application of Other Risk-Weighting Approaches Risk-Weighted Asset Amount (Column R) Application of Other Risk-Weighting Approaches Credit Equivalent Amount (Column Q) Allocation by Risk-Weight Category 1,250% (Column P) Allocation by Risk-Weight Category 937.5% (Column O) Allocation by Risk-Weight Category 625% Dollar amounts in thousands 16. RCONH302 0 RCONH301 16. Repo-style transactions24................................................................ 0 17. All other off-balance sheet liabilities 17. 18. Unused commitments:* 18. 18.a. RCONH304 0 RCONH303 a. Original maturity of one year or less........................................... 0 18.b. RCONH308 0 RCONH307 b. Original maturity exceeding one year......................................... 0 19. Unconditionally cancelable commitments 19. 20. RCONH310 0 RCONH309 20. Over-the-counter derivatives........................................................... 0 21. Centrally cleared derivatives 21. 22. RCONH200 0 RCONH199 0 RCONH198 22. Unsettled transactions (failed trades)25........................................... 0 24. Includes securities purchased under agreements to resell (reverse repos), securities sold under agreements to repurchase (repos), securities borrowed, and securities lent. *. Excludes unused commitments to asset-backed commercial paper conduits. 25. For item 22, the sum of columns C through Q must equal column A. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 62
(Column J) Allocation by Risk-Weight Category 150% (Column I) Allocation by Risk-Weight Category 100% (Column H) Allocation by Risk-Weight Category 50% (Column G) Allocation by Risk-Weight Category 20% (Column F) Allocation by Risk-Weight Category 10% (Column E) Allocation by Risk-Weight Category 4% (Column D) Allocation by Risk-Weight Category 2% (Column C) Allocation by Risk-Weight Dollar amounts in thousands Category 0% 23. RCONS561 164,960 RCONG633 13,447,323 RCONG632 1,481,099 RCONG631 5,533,555 RCONS560 0 RCONS559 0 RCONS558 0 RCONG630 1,333,330 23. Total assets, derivatives, off-balance sheet items, and other items subject to risk weighting by risk-weight category (for each of columns C through P, sum of items 11 through 22; for column Q, sum of items 10 through 22).............................................................................................. 24. Risk weight factor 24. 25. RCONS572 247,440 RCONG637 13,447,323 RCONG636 740,550 RCONG635 1,106,711 RCONS571 0 RCONS570 0 RCONS569 0 RCONG634 0 25. Risk-weighted assets by risk-weight category (for each column, item 23 multiplied by item 24)......................................................................... (Column Q) Allocation by Risk-Weight Category 1,250% (Column P) Allocation by Risk-Weight Category 937.5% (Column O) Allocation by Risk-Weight Category 625% (Column N) Allocation by Risk-Weight Category 600% (Column M) Allocation by Risk-Weight Category 400% (Column L) Allocation by Risk-Weight Category 300% (Column K) Allocation by Risk-Weight Dollar amounts in thousands Category 250% RCONS568 23. 47 RCONS567 0 RCONS566 0 RCONS565 0 RCONS564 15,091 RCONS563 0 RCONS562 288,966 23. Total assets, derivatives, off-balance sheet items, and other items subject to risk weighting by risk-weight category (for each of columns C through P, sum of items 11 through 22; for column Q, sum of items 10 through 22)......... 24. Risk weight factor 24. 25. RCONS579 588 RCONS578 0 RCONS577 0 RCONS576 0 RCONS575 60,364 RCONS574 0 RCONS573 722,415 25. Risk-weighted assets by risk-weight category (for each column, item 23 multiplied by item 24)........................................................................................ WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 63
Dollar amounts in thousands RCONS580 16,335,033 26. 26. Risk-weighted assets base for purposes of calculating the adjusted allowances for credit losses (AACL) 1.25 percent threshold............................................................................................................................................................ RCONS581 0 27. 27. Standardized market-risk weighted assets (applicable only to banks that are covered by the market risk capital rule)................................................................................................................................................................................ 28. Risk-weighted assets before deductions for excess AACL and allocated risk transfer risk reserve27....................... RCONB704 16,335,033 28. 29. LESS: Excess AACL28............................................................................................................................................. RCONA222 3,701 29. 30. LESS: Allocated transfer risk reserve........................................................................................................................ RCON3128 0 30. 31. Total risk-weighted assets (item 28 minus items 29 and 30)..................................................................................... RCONG641 16,331,332 31. 1. Current credit exposure across all derivative contracts covered by the regulatory capital rules................................. RCONG642 219,210 M.1. (Column C) With a remaining maturity of Over five years (Column B) With a remaining maturity of Over one year through five years (Column A) With a remaining maturity of One year or less Dollar amounts in thousands 2. Notional principal amounts of over-the-counter derivative contracts: M.2. a. Interest rate........................................................................................... RCONS582 279,835 RCONS583 4,487,767 RCONS584 3,194,703 M.2.a. b. Foreign exchange rate and gold............................................................ RCONS585 52,640 RCONS586 0 RCONS587 0 M.2.b. c. Credit (investment grade reference asset)............................................. RCONS588 0 RCONS589 0 RCONS590 0 M.2.c. d. Credit (non-investment grade reference asset)..................................... RCONS591 12,208 RCONS592 53,688 RCONS593 142,253 M.2.d. e. Equity..................................................................................................... RCONS594 0 RCONS595 54,073 RCONS596 0 M.2.e. f. Precious metals (except gold)................................................................ RCONS597 0 RCONS598 0 RCONS599 0 M.2.f. g. Other..................................................................................................... RCONS600 0 RCONS601 0 RCONS602 0 M.2.g. 3. Notional principal amounts of centrally cleared derivative contracts: M.3. a. Interest rate........................................................................................... RCONS603 0 RCONS604 0 RCONS605 0 M.3.a. b. Foreign exchange rate and gold............................................................ RCONS606 0 RCONS607 0 RCONS608 0 M.3.b. c. Credit (investment grade reference asset)............................................. RCONS609 0 RCONS610 0 RCONS611 0 M.3.c. d. Credit (non-investment grade reference asset)..................................... RCONS612 0 RCONS613 0 RCONS614 0 M.3.d. e. Equity..................................................................................................... RCONS615 0 RCONS616 0 RCONS617 0 M.3.e. f. Precious metals (except gold)................................................................ RCONS618 0 RCONS619 0 RCONS620 0 M.3.f. g. Other..................................................................................................... RCONS621 0 RCONS622 0 RCONS623 0 M.3.g. Dollar amounts in thousands 4. Amount of allowances for credit losses on purchased credit-deteriorated assets: M.4. a. Loans and leases held for investment.................................................................................................................. RCONJJ30 0 M.4.a. b. Held-to-maturity debt securities........................................................................................................................... RCONJJ31 0 M.4.b. c. Other financial assets measured at amortized cost............................................................................................. RCONJJ32 0 M.4.c. Schedule RC-S - Servicing Securitization and Asset Sale Activities(Form Type - 041) (Column G) All Other Loans, All Leases, and All Other Assets (Column A) 1-4 Family Dollar amounts in thousands Residential Loans RCONB705 0 RCONB711 0 1. 1. Outstanding principal balance of assets sold and securitized by the reporting bank with servicing retained or with recourse or other seller-provided credit enhancements................... RCONHU09 0 RCONHU15 0 2. 2. Maximum amount of credit exposure arising from recourse or other seller-provided credit enhancements provided to structures reported in item 1.......................................................... 3. Not applicable 3. 4. Past due loan amounts included in item 1: 4. a. 30-89 days past due....................................................................................................... RCONB733 0 RCONB739 0 4.a. b. 90 days or more past due............................................................................................... RCONB740 0 RCONB746 0 4.b. 27. Sum of items 2.b through 20, column S; items 9.a, 9.b, 9.c, 9.d, and 10, columns T and U; item 25, columns C through Q; and item 27 (if applicable). 28. Institutions that have elected to apply the 3-year or the 5-year 2020 CECL transition provision should subtract the applicable portion of the AACL transitional amount or the modified AACL transitional amount, respectively, from the AACL, as defined in the regulatory capital rule, before determining the amount of excess AACL. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 64
(Column G) All Other Loans, All Leases, and All Other Assets (Column A) 1-4 Family Dollar amounts in thousands Residential Loans 5. 5. Charge-offs and recoveries on assets sold and securitized with servicing retained or with recourse or other seller-provided credit enhancements (calendar year-to-date): a. Charge-offs..................................................................................................................... RIADB747 0 RIADB753 0 5.a. b. Recoveries..................................................................................................................... RIADB754 0 RIADB760 0 5.b. RCONHU19 0 6. Item 6 is to be completed by banks with $10 billion or more in total assets. 6. Total amount of ownership (or seller's) interest carried as securities or loans1..................... 7. Not applicable 7. 8. Not applicable 8. RCONB776 0 RCONB782 0 9. 9. Maximum amount of credit exposure arising from credit enhancements provided by the reporting bank to other institutions' securitization structures in the form of standby letters of credit, purchased subordinated securities, and other enhancements....................................... RCONB783 0 RCONB789 0 10. Item 10 is to be completed by banks with $10 billion or more in total assets. 10. Reporting bank's unused commitments to provide liquidity to other institutions' securitization structures1................................................................................................................................ RCONB790 6,367 RCONB796 0 11. 11. Assets sold with recourse or other seller-provided credit enhancements and not securitized by the reporting bank................................................................................................................. RCONB797 293 RCONB803 0 12. 12. Maximum amount of credit exposure arising from recourse or other seller-provided credit enhancements provided to assets reported in item 11.............................................................. Dollar amounts in thousands 1. Not applicable M.1. 2. Outstanding principal balance of assets serviced for others (includes participations serviced for others): M.2. RCONB804 0 M.2.a. a. Closed-end 1-4 family residential mortgages serviced with recourse or other servicer-provided credit enhancements......................................................................................................................................................... RCONB805 215,674 M.2.b. b. Closed-end 1-4 family residential mortgages serviced with no recourse or other servicer-provided credit enhancements......................................................................................................................................................... c. Other financial assets (includes home equity lines)1............................................................................................ RCONA591 487,951 M.2.c. RCONF699 291 M.2.d. d. 1-4 family residential mortgages serviced for others that are in process of foreclosure at quarter-end (includes closed-end and open-end loans)............................................................................................................................. M.3. Memorandum item 3 is to be completed by banks with $10 billion or more in total assets. 3. Asset-backed commercial paper conduits:2 M.3.a. a. Maximum amount of credit exposure arising from credit enhancements provided to conduit structures in the form of standby letters of credit, subordinated securities, and other enhancements: 1. Conduits sponsored by the bank, a bank affiliate, or the bank's holding company....................................... RCONB806 0 M.3.a.1. 2. Conduits sponsored by other unrelated institutions...................................................................................... RCONB807 0 M.3.a.2. b. Unused commitments to provide liquidity to conduit structures: M.3.b. 1. Conduits sponsored by the bank, a bank affiliate, or the bank's holding company....................................... RCONB808 0 M.3.b.1. 2. Conduits sponsored by other unrelated institutions...................................................................................... RCONB809 0 M.3.b.2. 4. Outstanding credit card fees and finance charges2..................................................................................................... RCONC407 0 M.4. 1. The $10 billion asset-size test is based on the total assets reported on the June 30, 2023, Report of Condition. 1. The $10 billion asset-size test is based on the total assets reported on the June 30, 2023, Report of Condition. 1. Memorandum item 2.c is to be completed if the principal balance of other financial assets serviced for others is more than $10 million. 2. The $10 billion asset-size test is based on the total assets reported on the June 30, 2023, Report of Condition. 2. Memorandum item 4 is to be completed by banks that (1) together with affiliated institutions, have outstanding credit card receivables (as defined in the instructions) that exceed $500 million as of the report date, or (2) are credit card specialty banks as defined for Uniform Bank Performance Report purposes. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 65
Schedule RC-T - Fiduciary and Related Services(Form Type - 041) Dollar amounts in thousands 1. Does the institution have fiduciary powers? (If "NO," do not complete Schedule RC-T.)............................................ RCONA345 Yes 1. 2. Does the institution exercise the fiduciary powers it has been granted?..................................................................... RCONA346 Yes 2. RCONB867 Yes 3. 3. Does the institution have any fiduciary or related activity (in the form of assets or accounts) to report in this schedule? (If "NO," do not complete the rest of Schedule RC-T.).................................................................................................... (Column D) Number of Non-Managed Accounts (Column C) Number of Managed Accounts (Column B) Non-Managed Assets (Column A) Managed Assets Dollar amounts in thousands 4. Personal trust and agency accounts........................................... RCONB868 2,107,439 RCONB869 15,525,246 RCONB870 1133 RCONB871 975 4. 5. 5. Employee benefit and retirement-related trust and agency accounts: a. Employee benefit - defined contribution.............................. RCONB872 50,585 RCONB873 0 RCONB874 7 RCONB875 0 5.a. b. Employee benefit - defined benefit...................................... RCONB876 7,965 RCONB877 477,568 RCONB878 7 RCONB879 5 5.b. c. Other employee benefit and retirement-related accounts..... RCONB880 569,842 RCONB881 2,789 RCONB882 973 RCONB883 7 5.c. 6. Corporate trust and agency accounts......................................... RCONB884 759 RCONB885 27,992,087 RCONC001 2 RCONC002 4413 6. RCONB886 2,112,704 RCONJ253 0 RCONB888 1089 RCONJ254 0 7. 7. Investment management and investment advisory agency accounts......................................................................................... 8. Foundation and endowment trust and agency accounts............ RCONJ255 442,295 RCONJ256 21,900 RCONJ257 193 RCONJ258 13 8. 9. Other fiduciary accounts............................................................. RCONB890 22,584 RCONB891 0 RCONB892 22 RCONB893 0 9. 10. Total fiduciary accounts (sum of items 4 through 9).................. RCONB894 5,314,173 RCONB895 44,019,590 RCONB896 3426 RCONB897 5413 10. 11. Custody and safekeeping accounts.......................................... RCONB898 1,088,678 RCONB899 312 11. 12. Not applicable 12. RCONJ259 569,842 RCONJ260 2,789 RCONJ261 973 RCONJ262 7 13. 13. Individual Retirement Accounts, Health Savings Accounts, and other similar accounts (included in items 5.c and 11)..................... Dollar amounts in thousands 14. Personal trust and agency accounts......................................................................................................................... RIADB904 18,239 14. 15. Employee benefit and retirement-related trust and agency accounts: 15. a. Employee benefit - defined contribution............................................................................................................... RIADB905 231 15.a. b. Employee benefit - defined benefit....................................................................................................................... RIADB906 454 15.b. c. Other employee benefit and retirement-related accounts..................................................................................... RIADB907 3,794 15.c. 16. Corporate trust and agency accounts....................................................................................................................... RIADA479 57,835 16. 17. Investment management and investment advisory agency accounts....................................................................... RIADJ315 11,452 17. 18. Foundation and endowment trust and agency accounts........................................................................................... RIADJ316 1,629 18. 19. Other fiduciary accounts........................................................................................................................................... RIADA480 1,582 19. 20. Custody and safekeeping accounts.......................................................................................................................... RIADB909 735 20. 21. Other fiduciary and related services income............................................................................................................. RIADB910 118 21. RIAD4070 96,069 22. 22. Total gross fiduciary and related services income (sum of items 14 through 21) (must equal Schedule RI, item 5.a)................................................................................................................................................................................. 23. Less: Expenses........................................................................................................................................................ RIADC058 70,394 23. 24. Less: Net losses from fiduciary and related services................................................................................................ RIADA488 165 24. 25. Plus: Intracompany income credits for fiduciary and related services....................................................................... RIADB911 63,885 25. 26. Net fiduciary and related services income................................................................................................................. RIADA491 89,395 26. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 66
(Column C) All Other Accounts (Column B) Employee Benefit and Retirement-Related Trust and Agency Accounts (Column A) Personal Trust and Agency and Investment Management Dollar amounts in thousands Agency Accounts 1. Managed assets held in fiduciary accounts: M.1. a. Noninterest-bearing deposits................................................................ RCONJ263 440 RCONJ264 15 RCONJ265 212 M.1.a. b. Interest-bearing deposits....................................................................... RCONJ266 0 RCONJ267 0 RCONJ268 0 M.1.b. c. U.S. Treasury and U.S. Government agency obligations....................... RCONJ269 110,246 RCONJ270 11,214 RCONJ271 69,418 M.1.c. d. State, county, and municipal obligations................................................ RCONJ272 269,405 RCONJ273 10,122 RCONJ274 11,101 M.1.d. e. Money market mutual funds.................................................................. RCONJ275 320,230 RCONJ276 57,824 RCONJ277 111,322 M.1.e. f. Equity mutual funds................................................................................ RCONJ278 616,292 RCONJ279 174,967 RCONJ280 83,479 M.1.f. g. Other mutual funds................................................................................ RCONJ281 1,265,928 RCONJ282 268,000 RCONJ283 126,856 M.1.g. h. Common trust funds and collective investment funds........................... RCONJ284 0 RCONJ285 0 RCONJ286 0 M.1.h. i. Other short-term obligations................................................................... RCONJ287 0 RCONJ288 0 RCONJ289 0 M.1.i. j. Other notes and bonds........................................................................... RCONJ290 15,111 RCONJ291 367 RCONJ292 370 M.1.j. k. Investments in unregistered funds and private equity investments....... RCONJ293 181,800 RCONJ294 48 RCONJ295 0 M.1.k. l. Other common and preferred stocks...................................................... RCONJ296 1,377,450 RCONJ297 105,713 RCONJ298 60,794 M.1.l. m. Real estate mortgages......................................................................... RCONJ299 0 RCONJ300 0 RCONJ301 0 M.1.m. n. Real estate............................................................................................ RCONJ302 20,148 RCONJ303 0 RCONJ304 1,227 M.1.n. o. Miscellaneous assets............................................................................ RCONJ305 43,093 RCONJ306 122 RCONJ307 859 M.1.o. RCONJ308 4,220,143 RCONJ309 628,392 RCONJ310 465,638 M.1.p. p.Total managed assets held in fiduciary accounts (for each column, sum of Memorandum items 1.a through 1.o).................................................... (Column B) Number of Managed Accounts (Column A) Managed Assets Dollar amounts in thousands q. Investments of managed fiduciary accounts in advised or sponsored mutual funds............. RCONJ311 0 RCONJ312 0 M.1.q. (Column B) Principal Amount Outstanding (Column A) Number of Issues Dollar amounts in thousands 2. Corporate trust and agency accounts: M.2. a. Corporate and municipal trusteeships............................................................................ RCONB927 1126 RCONB928 78,674,726 M.2.a. 1. Issues reported in Memorandum item 2.a that are in default.................................. RCONJ313 18 RCONJ314 4,437,369 M.2.a.1. b. Transfer agent, registrar, paying agent, and other corporate agency............................. RCONB929 1 M.2.b. (Column B) Market Value of Fund Assets (Column A) Number of Funds Dollar amounts in thousands M.3. Memoranda items 3.a through 3.g are to be completed by banks with collective investment funds and common trust funds with a total market value of $1 billion or more as of the preceding December 31. 3. Collective investment funds and common trust funds: a. Domestic equity.............................................................................................................. RCONB931 NR RCONB932 NR M.3.a. b. International/Global equity.............................................................................................. RCONB933 NR RCONB934 NR M.3.b. c. Stock/Bond blend............................................................................................................ RCONB935 NR RCONB936 NR M.3.c. d. Taxable bond.................................................................................................................. RCONB937 NR RCONB938 NR M.3.d. e. Municipal bond............................................................................................................... RCONB939 NR RCONB940 NR M.3.e. f. Short term investments/Money market............................................................................ RCONB941 NR RCONB942 NR M.3.f. g. Specialty/Other............................................................................................................... RCONB943 NR RCONB944 NR M.3.g. h. Total collective investment funds (sum of Memorandum items 3.a through 3.g)............ RCONB945 0 RCONB946 0 M.3.h. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 67
(Column B) Gross Losses (Column C) Recoveries Non-Managed Accounts (Column A) Gross Losses Dollar amounts in thousands Managed Accounts 4. Fiduciary settlements, surcharges, and other losses: M.4. a. Personal trust and agency accounts..................................................... RIADB947 30 RIADB948 90 RIADB949 0 M.4.a. b. Employee benefit and retirement-related trust and agency accounts..... RIADB950 0 RIADB951 0 RIADB952 0 M.4.b. c. Investment management agency accounts........................................... RIADB953 0 RIADB954 0 RIADB955 0 M.4.c. d. Other fiduciary accounts and related services...................................... RIADB956 56 RIADB957 55 RIADB958 66 M.4.d. RIADB959 86 RIADB960 145 RIADB961 66 M.4.e. e. Total fiduciary settlements, surcharges, and other losses (sum of Memorandum items 4.a through 4.d) (sum of columns A and B minus column C must equal Schedule RC-T, item 24)........................................ Schedule RC-V - Variable Interest Entities(Form Type - 041) (Column A) Securitization (Column B) Other VIEs Dollar amounts in thousands Vehicles 1. 1. Assets of consolidated variable interest entities (VIEs) that can be used only to settle obligations of the consolidated VIEs: a. Cash and balances due from depository institutions...................................................... RCONJ981 0 RCONJF84 0 1.a. b. Securities not held for trading......................................................................................... RCONHU20 0 RCONHU21 0 1.b. c. Loans and leases held for investment, net of allowance, and held for sale.................... RCONHU22 0 RCONHU23 561,496 1.c. d. Other real estate owned................................................................................................. RCONK009 0 RCONJF89 0 1.d. e. Other assets................................................................................................................... RCONJF91 0 RCONJF90 10,678 1.e. 2. 2. Liabilities of consolidated VIEs for which creditors do not have recourse to the general credit of the reporting bank: a. Other borrowed money................................................................................................... RCONJF92 0 RCONJF85 0 2.a. b. Other liabilities................................................................................................................ RCONJF93 0 RCONJF86 4,945 2.b. 3. All other assets of consolidated VIEs (not included in items 1.a. through 1.e above)............ RCONK030 0 RCONJF87 0 3. 4. All other liabilities of consolidated VIEs (not included in items 2.a and 2.b above)................ RCONK033 0 RCONJF88 0 4. Dollar amounts in thousands 5. Total assets of asset-backed commercial paper (ABCP) conduit VIEs........................................................................ RCONJF77 0 5. 6. Total liabilities of ABCP conduit VIEs........................................................................................................................... RCONJF78 0 6. Optional Narrative Statement Concerning the Amounts Reported in the Consolidated Reports of Condition and Income(Form Type - 041) Dollar amounts in thousands 1. Comments?................................................................................................................................................................ RCON6979 No 1. 2. Bank Management Statement.................................................................................................................................... TEXT6980 NR 2. WILMINGTON SAVINGS FUND SOCIETY, FSB FFIEC 041 RSSD-ID 437914 Report Date 12/31/2024 Last Updated on 1/30/2025 68
Registre de Commerce et des Societes Numero RCS : B178497 Reference de depot : L170227365 Depose et enregistre le 22/11/2017 Document emis electroniquement Gol Finance societe anonyme Siege social: 6, rue Guillaume Schneider, L-2522 Luxembourg R.C.S. Luxembourg: B 178497 STATUTSCOORDONNES Constituee suivant acte de Maitre Leonie GRETHEN, notaire de residence a Luxembourg, en date du 21 juin 2013, publie au Memorial C, Recueil des Societes et Associations numero 2080 du 27 ao0t 2013. odifie suivant un acte recu par Maitre Leonie GRETHEN, notaire de residence a Luxembourg, en date du 6 novembre 2017, publie au Recueil Electronique des Societes et Associations (RESA) numero RESA_2017_261.549 le 10 novembre 2017. 1
Exhibit T3A.1 - Statuts Coordonnes of GOL Finance, and Constat D’augmentation de Capital of GOL Finance, as of September 22, 2023
Document emis electroniquement CHAPTER I. FORM, CORPORATE NAME, REGISTERED OFFICE, OBJECT, DURATION Article 1. Form, Corporate Name There is hereby established among the subscriber(s) and all those who may become owners of the shares hereafter issued, a company in the form of a public limited liability company (societe anonyme) (the "Company") which will be governed by the laws of the Grand Duchy of Luxembourg, notably the law of 10 August 1915 on commercial companies, as amended (the "Law"), by article 1832 of the Civil Code, as amended, and by the present articles of incorporation (the "Articles"). The Company exists under the name of "Gol Finance". Article 2. Registered Office The Company has its registered office in the City of Luxembourg. The Director or, as the case may be, the Board ofDirectors is authorised to change the address of the Company's registered office inside the municipality of the Company's registered office. Branches or other offices may be established either in the Grand Duchy of Luxembourg or abroad by resolution of the Director or, as the case may be, the Board ofDirectors. In the event that in the view of the Director or, as the case may be, the Board of Directors, extraordinary political, economic or social developments occur or are imminent which would interfere with the normal activities of the Company at its registered office or with the ease of communications with the said office or between the said office and persons abroad, it may temporarily transfer the registered office abroad, until the end ofthese abnormal circumstances. Such temporary measures will have no effect on the nationality of the Company, which notwithstanding the temporary transfer of the registered office, will remain a company governed by the laws of the Grand Duchy ofLuxembourg. Article3._ Corporate Object The object of the Company is the investment in, acquisition of, disposal of, granting or issuing of loans, bonds, notes debentures and other debt instruments and derivatives including, but not limited to swaps, and any combination ofthe foregoing, in each case whether readilymarketable or not, and obligations (including but not limited to synthetic securities obligations) in any type of company, entity or other legal person. The Company may grant pledges, guarantees, liens, mortgages and any other form of security interests as well as any form of indemnities, to Luxembourg or foreign entities, in respect of its own obligations and debts. The Companymay also provide assistance in any form (including but not limited to the granting of advances, loans, money deposits and credits as well as the providing ofpledges, guarantees, liens, mortgages and any other form of securities, in any kind of form) to direct or indirect subsidiaries of its shareholder(s). On a more occasional basis, the Company may provide the 2
Document emis electroniquement same kind of assistance to undertakings which are part of the same group of companies which the Company belongs to or to third parties, provided that doing so falls within the Company's best interest and does not trigger any license requirements. Notwithstanding the above, the Company shall not enter into any transaction whichwould cause it to be engaged in any activity which would be considered as a regulated activity or that would require the Company to have any other license. Article 4. Duration The Company is formed for an unlimited duration. CHAPTER II. SHARE CAPITAL, SHARES Article 5. Share Capital The subscribed share capital of the Company is set at sixty thousand United States Dollars (USD 60,000.-) divided into sixty thousand (60,000) shares with a par value of one United States Dollar (USD 1.-) each. Article 6. Shares All the shares will be and remain in registered form. A register of shares will be kept at the registered office of the Company, where it will be available for inspection by any shareholder. This register shall contain all of the information required by Article 39 of the Law. Each shareholder will notify to the Company by registered letter any change of address. The Company will be entitled to rely on the last address so communicated. Ownership of registered shares will result from the recordings in the said register. Transfers of shares shall be carried out by record in the register of shares, dated and signed by the transferor and transferee, or by any duly authorised representatives of them or of the Company. Shareholders may request the Company to issue and deliver certificates setting out their respective holdings of shares which certificate shall be signed by the sole Director or, if the Company is managed by a Board ofDirectors, by two Directors. Each share is indivisible as far as the Company is concerned. Co-owners of shares must be represented towards the Company by a common representative, whether appointed amongst them or not. The Company has the right to suspend the exercise of all rights attached to the relevant share until that common representative has been appointed. Article 7. Payment of Shares Payments on shares not fully paid up at the time of subscription must be made at the time and upon the conditions which the Director or, as the case may be, the Board ofDirectors shall from time to time determine in compliance with the Law. Any amount called up on shares will be charged equally on all outstanding shares which are not fully paid up. 3
Document emis electroniquement Article 8. Increase and Reduction of the Share Capital The subscribed share capital ofthe Companymay be increased or reduced once or several times by a resolution of the sole shareholder or, as the case may be, the general meeting of shareholders voting with the quorum and majority rules set by these Articles or, as the case may be, by the Law for any amendment of these Articles. Except if issued by decision of the Director or, as the case may be, the Board of Directors pursuant to the powers granted to the Director or, as the case may be the Board of Directors, under article 5, the new shares to be subscribed for in cash will be offered in preference to the existing shareholders, proportionally to the part of the capital held by those shareholders. The Board ofDirectors shall determine the period within which the preferred subscription right shall be exercised. This period may not be less than thirty days. Notwithstanding the above, the sole shareholder or, as the case may be, the general meeting, voting with the quorum and majority rules required for any amendment of the Articles, may limit or withdraw the preferential subscription right or authorise the Director or, as the case may be, the Board ofDirectors to do so in compliance with the Law. Article 9. Acquisition of Own Shares The Company may acquire its own shares. The acquisition and holding of its own shares will be in compliance with the Law. CHAPTER III. DIRECTORS, BOARD OF DIRECTORS, STATUTORY AUDITORS Article 10. Board of Directors In the event the Company is composed of a single shareholder, the latter may appoint one sole Director (the "Director"). A single shareholder may however also appoint a board of directors (the "Board of Directors") composed of at least three members, if it so chooses. When the Company is composed of several shareholders, it must be managed by a Board of Directors composed of at least three members who need not be shareholders. The Director(s) shall be appointed by the sole shareholder or, as the case may be, by the general meeting of shareholders, which will determine their number, their remuneration and the duration of their mandate which shall not exceed six years. The Directors will hold office until their successors are elected. They may be re-elected at the end of their term and they may be removed at any time, with or without cause, by a resolution of the sole shareholder or, as the case may be, of the general meeting of shareholders. The sole shareholder or, as the case may be, the general meeting of shareholders may decide to qualify the appointed Directors as Class A Directors and Class B Directors. If a corporate entity is appointed as Director, it must designate an individual to exercise its functions and to act in the name and on the behalf of the corporate entity. In the event of a vacancy on the Board of Directors, if applicable, the remaining Director(s) may meet and may elect a director to fill such vacancy on a provisional basis until the next meeting of shareholders. 4
Document emis electroniquement Even after the term of their mandate, the Director(s) shall not disclose Company information which may be detrimental to the Company's interests - except when such a disclosure is mandatory by law or is in the public interest Article 11. Meetings of the Board of Directors If the Company is composed of one sole Director, the latter will exercise the power granted by the Law to the Board ofDirectors. The Board ofDirectors will appoint a chairman (the "Chairman") from among its members. It may also appoint a secretary, who need not be a Director and who will be responsible for keeping the minutes of the meetings of the Board ofDirectors and of the shareholder(s). The Board of Directors will meet upon notice given by the Chairman. A meeting of the Board ofDirectors must be convened if any two Directors so require. The Chairman will preside at all meetings of the Board of Directors. In her/his absence the Board of Directors may appoint another Director as chairman pro tempore by vote of the majority present or represented at such meeting. Except in cases of urgency or with the prior consent of all those entitled to attend, at least twenty-four hours' written notice of board meetings shall be given. Any such notice shall specify the place, the date, time and agenda of the meeting. The notice may be waived by unanimous written consent by all the Directors at the meeting or otherwise. No separate notice is required for meetings held at times and places specified in a time schedule previously adopted by resolution of the Board ofDirectors. Every board meeting shall be held in Luxembourg or at such other place indicated in the notice. Any Director may act at any meeting ofthe Board ofDirectors by appointing in writing another Director as her/his representative. A quorum of the Board ofDirectors shall be the presence or the representation of a majority of the Directors holding office including at least one Class B Director (if the sole shareholder or the general meeting of shareholders, as the case may be, has appointed one or several Class A Directors and one or several Class B Directors). Decisions will be taken by a majority of the votes of the Directors present or represented at the relevant meeting. Each Director has one vote. In case of a tied vote, the Chairman has a casting vote. One or more Directors may participate in a meeting by means of a conference call, by videoconference or by any similar means of communication enabling several persons participating therein to simultaneously communicate with each other. Such methods of participation are to be considered equivalent to a physical presence at the meeting. A written decision passed by circular means and transmitted by cable, email, facsimile or any other similarmeans of communication, signed by all the Directors, is proper and valid as though it had been adopted at a meeting of the Board ofDirectors which was duly convened and held. 5
Document emis electroniquement Such a decision can be documented in a single document or in several separate documents having the same content and each of them signed by one or several Directors. Article 12. Minutes ofMeetings of the Board of Directors The minutes of the meeting of the Board of Directors or, as the case may be, of the written decisions of the sole Director, shall be drawn up and signed by all Directors present at the meeting or, as the case may be, by the sole Director. Any proxies will remain attached thereto. Copies or extracts thereof shall be certified by the sole Director or, as the case may be, by the Chairman of the Board ofDirectors or by any two Directors. Article 13. General Powers of the Board of Directors The Director or, as the case may be, the Board ofDirectors is vested with the broadest powers to act on behalfofthe Company and to perform or authorise all acts ofadministrative or disposal nature, necessary or useful for accomplishing the Company's object. All powers not expressly reserved by the Law to the sole shareholder or, as the case may be, to the general meeting of shareholders, fall within the competence of the Director or, as the case may be, the Board of Directors. Article 14. Delegation of Powers The Director or, as the case may be, the Board ofDirectors, may delegate its powers to conduct the daily management and affairs of the Company and the representation of the Company for such daily management and affairs to any member or members of the Board ofDirectors or to any other person, who need not be a Director or a Shareholder of the Company, acting either alone or jointly, under such terms and with such powers as the Director or, as the case may be, the Board ofDirectors shall determine. When the Company is managed by a Board of Directors, the delegation of the daily management to a member of the Board of Directors entails the obligation for the Board of Directors to report each year to the ordinary general meeting of shareholders on the salary, fees and any advantages granted to the delegate. The Director or, as the case may be, the Board of Directors may also confer certain powers and/or special mandates to any member or members of the Board of Directors or to any other person, who need not be a Director or a Shareholder of the Company, acting either alone or jointly, under such terms and with such powers as the Director or, as the case may be, the Board ofDirectors shall determine. The Director, or, as the case may be, the Board of Directors may also appoint one or more advisory committees and determine their composition and purpose. Article 15. Representation of the Company In case only one Director has been appointed, the Company will be bound toward third parties by (A) the sole signature of that Director or (B) the joint signatures or single signature of any person(s) to whom the Director has delegated such signatory power, within the limits of such power. 6
Document emis electroniquement In case the Company is managed by a Board ofDirectors, subject to the following, the Company will be bound towards third parties by (A) the joint signatures of any two Directors or (B) the joint signatures or single signature of any person(s) to whom the Board of Directors has delegated such signatory power, within the limits of such power. Notwithstanding the above, if the sole shareholder or the general meeting of shareholders, as the case may be, has appointed more than one Class A Director and one or several Class B Directors, the Company will be bound towards third parties only by (A) the joint signatures of one Class A Directors and one Class B Director or (B) the joint signatures or single signature of any person(s) to whom the Board of Directors has delegated such signatory power, within the limits of such power. Article 16. Conflict of Interests No contract or other transaction between the Company and any other company or firm shall be affected or invalidated by the sole fact that any one or more of the Directors, managers, associates, members, officers or employees of the Company has a personal interest in, or is a director, manager, associate, member, officer or employee of such other company or firm. Except as otherwise provided for hereafter, any Director or officer of the Company who serves as a director, associate, officer or employee of any company or firm with which the Company shall contract or otherwise engage in business, shall not solely, by reason of such affiliation with such other company or firm, be automatically prevented from considering and voting or acting upon any matters with respect to such contract or other business. Notwithstanding the above, in the event that any Director of the Company has a personal interest in any transaction to which the Company is a party, other than transactions concluded under normal conditions and falling within the scope of the day-to-day management of the Company which is conflicting with the Company's interest therein, he shall make known to the Board of Directors (if any) such personal interest and shall not consider or vote on any such transaction, and such transaction and such Director's interest therein shall be reported to the sole shareholder or as the case may be, to the next general meeting of shareholders. When the Company is composed of a sole Director, any transaction to which the Company shall become a party, other than transactions concluded under normal circumstances, and in which the sole Director has a personal interest therein which is conflicting with the Company's interest therein, the relevant transaction shall be approved by the sole shareholder. Article 17. Indemnification The Company shall indemnify any Director and his heirs, executors and administrators, against expenses reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a Director of the Company, or, at the request of the Company, of any other company of which the Company is a shareholder or creditor and by which he is not entitled to be indemnified, except for such action, suit or procedure in relation to matters for which he shall be held liable for gross negligence or misconduct. In the event of a settlement, indemnification shall only be provided formatters that the Company has been advised by its legal counsel that the person to be indemnified did not 7
Document emis electroniquement commit such a breach of duty. The foregoing right of indemnification shall not exclude other rights which the relevant person may be entitled to. Article 18. Audit Except if the Company's annual accounts are audited by an independent auditor in accordance with the requirements of the Law, the supervision of the operations of the Company shall be entrusted to one or more statutory auditors. The statutory auditors or, as the case may be, the independent auditor, shall be appointed by the sole shareholder or, as the case may be, by the general meeting of shareholders, which will determine the number of statutory auditors, if applicable, the remuneration of the statutory or independent auditor and the duration of their mandate which shall not exceed six years. The auditors will hold office until their successors are elected. They may be re-elected at the end of their term and they may be removed at any time, with or without cause, by a resolution of the sole shareholder or, as the case may be, of the general meeting of shareholders. CHAPTER IV. MEETINGS OF SHAREHOLDERS Article 19. Annual General Meeting The annual general meeting will be held at the registered office of the Company or at such other place as may be specified in the notice convening the meeting on 30 June of each year, at 4 p.m. If such day is not a business day in Luxembourg, the meeting will be held on the next following business day. Article 20. Other General Meetings of Shareholders If the Company is composed ofone sole shareholder, the latter exercises the powers granted by the Law to the general meeting of shareholders. The decisions of the sole shareholder shall be recorded in minutes. The Director or, as the case may be, the Board ofDirectors may convene other general meetings. Such meetings must be convened if shareholders representing at least one tenth of the Company's capital so require in writing with an indication of the agenda of the up coming meeting. If the general meeting is not held within one month of the scheduled date, it may be convened by an agent designated by the judge presiding the Luxembourg District Court (Tribunal d'Arrondissement) dealing with commercial matters and hearing interim relief matters, upon the request of one or more shareholders representing the ten per cent threshold. General meetings of shareholders, including the annual general meeting, may be held abroad only if, in the discretionary opinion of the Director or, as the case may be, the Board of Directors, circumstances of force majeure so require. Article 21. Powers of the Meeting of Shareholders Any regularly constituted general meeting of shareholders of the Company represents the entire body of shareholders. The general meeting of shareholders shall have the powers vested to it by the Law and by these Articles. 8
Document emis electroniquement Article 22. Procedure, Vote, Minutes The general meeting of shareholders will meet upon call by the Director or, as the case may be, by the Board of Directors or the auditor(s) made in compliance with the Law and the present Articles. They are obliged to convene a general meeting of shareholders so that it is held within a period ofone month, if shareholders representing one tenth of the capital so require in writing with an indication of the agenda. The notice sent to the shareholders in accordance with the Lawwill specify the date, time, place and agenda of the meeting. Shareholders representing at least one tenth of the Company's share capital may request in writing that additional items be included on the agenda of any general meeting. Such request shall be addressed to the registered office ofthe Company by registered letter at least five days before the date on which the general meeting shall be held. If all the shareholders are present or represented at a general meeting ofshareholders and ifthey state that they have been informed of the agenda of the meeting, the meeting may be held without prior notice. Ashareholdermay act at anymeeting ofshareholders by appointing in writing or by fax another person as his proxy who need not be a shareholder. One or several shareholders may participate in a meeting by means of a conference call, by videoconference or by any similar means of communication enabling several persons participating therein to simultaneously communicate with each other. Such participation shall be deemed equivalent to a physical presence at the meeting. The Director or, as the case may be, the Board ofDirectors may determine all other conditions that must be fulfilled in order to take part in a general meeting of shareholders. One vote is attached to each share, except otherwise provided for by the Law. Any shareholder may cast his vote by correspondence. For such purpose, the shareholder may only use the voting forms provided by the Company. Any executed and filled in voting forms shall be delivered to the Company at its registered office either by hand with acknowledgment of receipt, by registered post or by special courier. Any voting form ("formulaire") which is not signed by the relevant shareholder or its authorised representative(s), as applicable, and does not bear at least the following mentions or indications is to be considered null and void: • name and registered office and/ or residence of the relevant shareholder; • total number ofshares and, ifapplicable, number ofshares ofeach class, held by the relevant shareholder in the share capital of the Company; • place, date and time of the general meeting to be held; • agenda of the general meeting to be held; 9
Document emis electroniquement • vote by the relevant shareholder indicating, with respect to each ofthe proposed resolutions, whether the relevant shareholder is abstaining, voting in favour of or against such proposed resolution; and • name and title of the authorised representative of the relevant shareholder, if applicable. Any voting form ("formulaire") shall be received by the Company no later than 6 p.m., Luxembourg time, on the day which immediately precedes the day on which the general meeting shall be held and on which banks are generally open for business in the Grand Duchy ofLuxembourg. Any voting form (''formulaire") received by the Company after such deadline shall be disregarded. Any general meeting of shareholders shall be presided by the Chairman of the Board of Directors, or, in his absence, by any other person appointed by the general meeting of shareholders. The chairman of the general meeting of shareholders shall appoint a secretary. The general meeting of shareholders shall appoint one or several scrutineer(s). The chairman of the general meeting of shareholders together with the secretary and the scrutineer(s) so appointed, form the bureau of the general meeting. An attendance list indicating the name of the shareholders, the number of shares held by them and, if applicable, the name of their representative, is drawn up and signed by the bureau of the general meeting of the shareholders or, as the case may be, their representatives. Except as otherwise required by the Law or by the present Articles, all resolutions passed by the shareholders will be taken by a simple majority of the votes cast irrespective ofthe number of shares present or represented at the meeting. For any resolution the purpose of which is to amend the present Articles or the adoption of which is subject by virtue of these Articles or, as the case may be, the Law, to the quorum and majority rules set for the amendment of the Articles, the quorum shall be at least one half of all the shares issued and outstanding. If the said quorum is not reached at a first meeting, a second meeting, with exactly the same agenda as for the first meeting, may be convened at which there shall be no quorum requirement. Except as otherwise required by the Law or by the present Articles, all resolutions the purpose ofwhich is to amend the present Articles or the adoption ofwhich is subject by virtue of these Articles or, as the case may be, the Law, to the quorum andmajority rules set for the amendment of theArticles, must be taken by a two thirds majority of the votes cast. Article 23. Minutes of Shareholders Resolutions Minutes of the written decisions of the sole shareholder or, as the case may be, of the general meetings of shareholders shall be drawn up and signed by the sole shareholder or, as the case may be, by the bureau of the meeting. Copies or extracts of the minutes of the resolutions passed by sole shareholder or, as the case may be, by the general meeting of shareholders shall be certified by the sole Director or, as the case may be, by the Chairman of the Board ofDirectors or by any two Directors. 10
Document emis electroniquement CHAPTER V. FINANCIAL YEAR, DISTRIBUTION OF PROFITS Article 24. Financial Year The Company's financial year begins on the first day of the month of January and ends on the last day of the month of December every year. Article 25. Approval ofAnnual Accounts At the end of each financial year, the accounts are closed and the Director or, as the case may be, the Board of Directors, shall draw up the annual accounts of the Company in accordance with the Law and submit them to the auditor(s) for review and to the sole shareholder or, as the case may be, to the general meeting of shareholders for approval. Each shareholder or its/her/his representative may inspect the annual accounts at the registered office of the Company as provided for by the Law. Article 26. Allocation of Profits From the annual net profits of the Company, five per cent (5%) shall be allocated to the reserve required by the Law. That allocationwill cease to be required as soon and as long as such reserve amounts to ten per cent (10%) of the subscribed share capital of the Company. The sole shareholder or the general meeting of shareholders, as the case may be, shall determine how the remainder of the annual net profits will be allocated. It may decide to use the whole or part of the remainder to existing losses, if any, to carry it forward to the next following financial year or to distribute it to the shareholder(s) as dividend. Article 27. Interim Dividends The Director or, as the case may be, the Board of Directors are authorised to pay out interim dividends in compliance with the Law. CHAPTER VI. DISSOLUTION, LIQUIDATION OF THE COMPANY Article 28. Dissolution, Liquidation The Companymay be dissolved by a decision of the sole shareholder or, as the case may be, of the general meeting of shareholders voting with the same quorum and majority as for the amendment of these Articles, unless otherwise provided for by the Law. Should the Company be dissolved, the liquidation will be carried out by one ormore liquidators (who may be physical persons or legal entities) appointed by the sole shareholder or by the general meeting of shareholders, as the case may be, which will determine their powers and their compensation. After payment ofall the outstanding debts of and charges against the Company, including taxes and expenses pertaining to the liquidation process, the remaining net assets of the Company shall be distributed equally to the shareholders pro rata to the number of the shares held by them. CHAPTER VII. APPLICABLE LAW Article 29. Applicable Law 11
Document emis electroniquement All matters not governed by theseArticles shall be determined in accordance with the applicable Law. SUIT LA VERSION FRANCAISE DU TEXTE QUI PRECEDE : CHAPITRE I__FORE_ DENOMINATION_SOC1ALE_ SIEGE_ QBJET,_ DUREE Article_I._Forme, Denomination Sociale II est form par le(s) souscripteur(s) et toutes les personnes qui pourraient devenir detenteurs des parts sociales emises ci-apres, une societe sous la forme d'une societe anonyme (la "Societe") regie par les lois du Grand-Duche de Luxembourg, notamment par la loi du 10 aout 1915 concernant les societes commerciales, telle que modifiee (la "Loi"), par l'article 1832 du Code Civil, tel que modifie, ainsi que par les presents statuts (les "Statuts"). La Societe adopte la denomination "Gol Finance". Article 2_ Sige Socia] Le siege social est etabli dans la ville de Luxembourg, Grand-Duche de Luxembourg. Le Conseil d'Administration est autorise a changer l'adresse du siege social de la Societe a l'interieur de la ville mentionnee ci-dessus. Des succursales ou autres bureaux peuvent etre etablis soit au Grand-Duche de Luxembourg, soit a l'etranger par une decision du Conseil d'Administration. Au cas ou le Conseil d'Administration estimerait que des evenements extraordinaires d'ordre politique, economique ou social sont de nature a compromettre l'activite normale de la societe au siege social ou la communication aisee avec ce siege ou entre ce siege et des personnes a l'etranger ou que de tels evenements sont imminents, il pourra transferer temporairement le siege social a l'etrangerjusqu'a cessation complete de ces circonstances anormales. Ces mesures provisoires n'auront aucun effet sur la nationalite de la Societe, laquelle, nonobstant ce transfert provisoire du siege, restera regie par la loi du Grand-Duche de Luxembourg. Article 3. Obj et La Societe a pour objet l'investissement, l'acquisition, la vente, l'octroi ou l'emission de prets, obligations, reconnaissances de dettes et autres formes de dettes, d'instruments derives, incluant notamment mais non exclusivement, swaps, et toute combinaison de ce qui precede, qu'ils soient facilement negociables ou non, ainsi que des engagements (incluant notammentmais non exclusivement des engagements relatifs a des valeurs synthetiques) de societes, entites ou autres personnes juridiques de tout type. La Societe peut accorder des gages, garanties, privileges, hypotheques et toute autre forme de saretes ainsi que toute forme d'indemnites, a des entites luxembourgeoises ou etrangeres, en relation avec ses propres obligations et dettes. La Societe peut accorder toute forme d'assistance (incluant notamment mais non exclusivement l'octroi d'avances, pr@ts, depots d'argent et credits ainsi que l'octroi de gages, garanties, privileges, hypotheques et toute autre forme de suretes, de toute sorte) aux filiales directes ou indirectes de ses actionnaires. De maniere plus occasionnelle, la Societe peut accorder le meme type d'assistance aux entites qui font partie du meme groupe de societes que la Societe ou a des 12
Document emis electroniquement tiers, sous condition que cela tombe dans l'interet social et sans engendrer une obligation d'une autorisation specifique. Nonobstant ce qui precede, la Societe ne s'engagera dans aucune transaction qui entrainerait son engagement dans une quelconque activite qui serait consideree comme une activite reglementee ou qui requerrait de la Societe la possession de toute autre autorisation. Article 4. Duree La Societe est constituee pour une duree illimitee. CHAPITRE II. CAPITAL SOCIAL, PARTS SOCIALES Article 5._ Capital Social Le capital social de la Societe est fixe a soixante mille dollars americains (USD 60,000.-) divise en soixante mille (60,000) actions ayant une valeur nominale de un dollar americain (USD 1,00- ) chacune. Article 6. Actions Chaque action sera et restera sous forme nominale. Un registre des actions sera tenu au siege social de la Societe, ou il sera disponible pour consultation par chaque actionnaire. Ce registre contiendra toute information exigee par !'Article 39 de la Loi. Chaque actionnaire notifiera a la Societe tout changement d'adresse par voie de lettre recommandee. La Societe pourra se prevaloir de la derniere adresse ainsi communiquee. La propriete des actions nominatives resultera de leur enregistrement dans ledit registre. Les cessions d'actions se realiseront par leur enregistrement dans le registre des actions, date et signe par le cedant et le cessionnaire, ou par tout representant dament autorise par eux ou par la Societe. Les actionnaires peuvent demander a la Societe d'emettre et de delivrer des certificats detaillant leur participation, lequel certificat devra etre signe par l'Administrateur unique ou, si la Societe est geree par un Conseil d'Administration, par deux administrateurs. Chaque action est indivisible a l'egard de la Societe. Les proprietaires indivis d'actions sont tenus de se faire representer aupres de la Societe par un mandataire commun nomme ou non parmi eux. La Societe a le droit de suspendre l'exercice de tous les droits attaches a l'action concernee et ce jusqu'a la nomination d'un mandataire commun. Article 7. Paiement des Actions Les paiements sur les actions non entirement liberes a la date de la souscription devront etre effectues au moment et selon les conditions qui seront fixees de periodiquement par l'Administrateur ou, le cas echeant par le Conseil d' Administration, conformement a la Loi. Toute somme appelee sur les actions sera prelevee egalement sur toutes les actions non encore liberees. Article 8. Augmentation et Reduction du Capital Social 13
Document emis electroniquement Le capital social souscrit de la Societe peut etre augmente ou reduit, en une ou en plusieurs fois, par resolution de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires votant aux conditions de quorum et de majorite determinees par ces Statuts ou, le cas echeant, par la Loi pour toute modification des statuts. Sauf si emises par une resolution de l'Administrateur, ou le cas echeant par le Conseil d'Administration conformement aux pouvoirs accordes a l'Administrateur ou le cas echeant le Conseil d'Administration selon l'article 5, les nouvelles actions devant etre souscrites par un apport en especes seront proposees par preference aux actionnaires existants, au prorata de la part de capital detenue par ces actionnaires. Le Conseil d'Administration determinera le delai dans lequel le droit preferentiel de souscription devra etre exerce. Ce delai ne pourra pas etre inferieur a trente jours. Nonobstant ce qui precede, l'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires, votant aux conditions de quorum et de majorite requises pour toute modification des Statuts pourra limiter ou revoquer le droit preferentiel de souscription, ou autoriser l'Administrateur ou, le cas echeant, le Conseil d'Administration d'agir ainsi conformement a la Loi. Article 9. Acquisition d'Actions Propres La Societe peut acquerir ses propres actions. L'acquisition et la detention de ses propres actions se fera en conformite a et dans les limites definies par la Loi. CHAPITRE III. GERANCE, COMMISSAIRES AUX COMPTES Article 10.Conseil d'Administration Dans le cas ou la Societe est composee d'un actionnaire unique, celui-ci pourra nommer un seul administrateur (l'"Administrateur"). Un actionnaire unique pourra toutefois choisir de designer un conseil d'administration (le "Conseil d'Administration") compose d'au moins trois membres. Si la Societe est composee de plusieurs actionnaires, elle devra etre geree par un Conseil d'Administration compose d'au moins trois membres qui ne devront pas etre des actionnaires. L'/Les Administrateur(s) est/sont nomme(s) par l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires, qui fixe leur nombre, leur remuneration et la duree de leur mandat, qui n'excedera pas six ans. L'/Les Administrateur(s) restera/resteront en fonction jusqu'a la nomination de leur successeur. II(s) peut/peuvent etre renomme(s) a la fin de leur mandat et peut/peuvent etre revoque(s) a tout moment, avec ou sans motif, par une decision de l'actionnaire unique ou, le cas echeant, de l'assemblee des actionnaires. L'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires peuvent decider de designer les administrateurs nommes comme Administrateur de Classe A et Administrateur de Classe B. 14
Document emis electroniquement Si une personne morale est nommee aux fonctions d'Administrateur, il devra designer une personne physique pour exercer ses fonctions et agir au nom et pour le compte de la personne morale. En cas de vacance au Conseil d'Administration, si applicable, l'/les Administrateur(s) restant(s) pourra/pourront se reunir et elire un administrateur pour remplir ce poste vacant a titre provisoire jusqu'a la prochaine assemblee generale des actionnaires. L'/Le(s) Administrateur(s) ne revelera/reveleront pas, y compris apres le terme de leur mandat, les informations concernant la Societe dont la revelation pourrait porter prejudice aux interets de la Societe, excepte lorsqu'une telle revelation est obligatoire selon la loi ou d'inter@et public. Article 11. Reunions du Conseil d'Administration Si la Societe est composee d'un seul Administrateur, ce demnier exercera le pouvoir qui est octroye par la Loi au Conseil d'Administration. Le Conseil d'Administration choisira parmi ses membres un president (le "President"). II pourra egalement choisir un secretaire qui n'a pas besoin d'etre Administrateur et qui sera responsable des proces-verbaux des reunions du Conseil d'Administration et des assemblees des actionnaires. Le Conseil d'Administration se reunira sur convocation du President. Une reunion du Conseil d'Administration devra etre convoquee si deux Administrateurs le requierent. Le President presidera toutes les reunions du Conseil d'Administration. En son absence, le Conseil d'Administration designera un autre Administrateur comme president pro tempore a la majorite des personnes presentes ou representees lors d'une telle reunion. Sauf en cas d'urgence ou avec l'accord prealable de toutes les personnes autorisees a participer, une convocation ecrite de toute reunion du Conseil d'administration sera donnee avec un preavis d'au mains vingt-quatre heures. La convocation indiquera le lieu, la date et l'heure de la reunion et en contiendra l'ordre dujour. II pourra etre passe outre cette convocation avec l'accord ecrit unanime de tous les Administrateurs ou autrement. Une convocation speciale ne sera pas requise pour les reunions se tenant a une date et a un endroit determines dans un calendrier prealablement adopte par le Conseil d'Administration. Toute reunion du Conseil d'administration se tiendra a Luxembourg ou a tout autre endroit indique dans la convocation. Tout Administrateur pourra se faire representer aux reunions du Conseil d'Administration en designant par ecrit un autre Administrateur comme son mandataire. Le quorum du Conseil d'Administration est atteint par la presence ou la representation d'une majorite d'Administrateurs en fonction incluant au mains un Administrateur de Classe B (si un ou plusieurs Administrateurs de Classe A et un ou plusieurs Administrateurs de Classe B sont nommes par l'actionnaire unique ou, le cas echeant, l'assemblee generales des actionnaires). 15
Document emis electroniquement Les decisions sont prises a la majorite des votes des Administrateurs presents ou representes a la reunion. Chaque Administrateur a une voix. En cas de parite des votes, le President a une voix preponderante. Un ou plusieurs Administrateurs peuvent participer a une reunion par conference telephonique, videoconference ou tout moyen de telecommunication similaire permettant a plusieurs personnes y participant de communiquer simultanement l'une avec l'autre. De telles participations doivent etre considerees comme equivalentes a une presence physique a la reunion. Une decision ecrite par voie circulaire signee par tous les Administrateurs est reguliere et valable comme si elle avait ete adoptee a une reunion du Conseil d'Administration, diment convoquee et tenue. Une telle decision pourra etre documentee par un ou plusieurs ecrits separes ayant le meme contenu, signes chacun par un ou plusieurs Administrateurs. Article 12. Proces-verbaux du Conseil d'Administration Les proces-verbaux de la reunion du Conseil d'Administration ou, le cas echeant, les decisions ecrites de l'Administrateur unique, doivent etre etablis par ecrit et signes par tous les Administrateurs presents ou representes a la reunion ou, le cas echeant, par l'Administrateur unique de la Societe. Toutes les procurations y seront annexes. Les copies ou les extraits de ceux-ci doivent etre certifiees par l'Administrateur unique ou le cas echeant, par le President du Conseil d'Administration ou, le cas echeant, par deux Administrateurs. Article13._Pouyoirs_generauy des Administrateurs L'Administrateur unique ou, le cas echeant, le Conseil d'Administration est investi des pouvoirs les plus etendus pour agir au nom et pour le compte de la Societe et pour accomplir et autoriser tous les actes d'administration ou de disposition necessaires ou utiles pour la realisation de l'objet social de la Societe. Tous les pouvoirs qui ne sont pas expressement reserves par la Loi ou par les presents Statuts a l'actionnaire unique ou, le cas echeant, a l'assemblee generale des actionnaires sont de la competence de l'Administrateur unique ou, le cas echeant, du Conseil d'Administration. Article_14._Delegation de_Pouyoirs L'Administrateur ou, le cas echeant, le Conseil d'Administration peut deleguer ses pouvoirs relatifs a la conduite de la gestion et des affaires journalieres de la Societe a un ou plusieurs membres du Conseil d'Administration ou a une ou plusieurs autres personnes qui peuvent ne pas etre un Administrateur ou un Actionnaire de la Societe, agissant seul ou ensemble, selon les conditions et les pouvoirs determines par l'Administrateur ou, le cas echeant, par le Conseil d'Administration. Lorsque la Societe est geree par un Conseil d'Administration, la delegation de la gestion journaliere a un membre du Conseil d'Administration comprend l'obligation pour le Conseil d'Administration de reporter chaque annee a l'assemblee generale des actionnaires le salaire, les honoraires, et tout avantage accorde au delegue. 16
Document emis electroniquement L'Administrateur ou, le cas echeant, le Conseil d'Administration peut aussi conferer certains pouvoirs et/ou mandats speciaux a un ou plusieurs membres du Conseil d'Administration ou a toute autre personne, qui n'a pas besoin d'etre Administrateur ou Actionnaire de la Societe, agissant seul ou ensemble, selon les termes et avec les pouvoirs tels que determines par le Conseil d'Administration. L'Administrateur ou, le cas echeant, le Conseil d'Administration peut aussi nommer un ou plusieurs comites consultatifs et determiner leur composition et leur objet. Article15._Representation de la Societe En cas de nomination d'un Administrateur unique, la Societe sera engagee a l'egard des tiers par (A) la signature individuelle de cet Administrateur ou (B) par les signatures conjointes ou la signature unique de toute personne a qui l'Administrateur a delegue un tel pouvoir de signature, dans les limites d'un tel pouvoir. Dans le cas ou la Societe est geree par un Conseil d'Administration et sous reserve de ce qui suit, la Societe sera engagee vis-a-vis des tiers par (A) les signatures conjointes de deux Administrateurs ou (B) par la signature unique de toute personne a qui le Conseil d'Administration a delegue un tel pouvoir de signature, dans les limites d'un tel pouvoir. Nonobstant ce qui precede, si plus d'un Administrateur de Classe A et plus d'un Administrateur de Classe B sont nommes par l'actionnaire unique ou, le cas echeant, le Conseil d'Administration, la Societe ne sera engagee aupres des tiers que (A) sur signature conjointe de un Administrateur de Classe A et un Administrateur de Classe Bou (B) la signature conjointe ou individuel de toute personne a qui le Conseil d'Administration ait accorde un tel pouvoir, et dans les limites d'un tel pouvoir. Article 16. Conflit d'inter@ts Aucun contrat ou autre transaction entre la Societe et toute autre societe ou entreprise ne sera affecte ou invalide du fait qu'un ou plusieurs Administrateurs, actionnaires, membres, fondes de pouvoir ou employs de la Societe y aura un interet personnel ou en est un administrateur, actionnaire, membre, fonde de pouvoir ou employe d'une telle autre societe ou entreprise. Sauf dispositions contraires ci-dessous, tout administrateur ou fonde de pouvoir valablement autorise de la Societe, en ce compris tout Administrateur qui remplira en meme temps des fonctions de representant valablement autorise pour le compte d'une autre societe ou firme avec laquelle la Societe contractera ou entrera en toute relation d'affaire, ne sera pas, pour ce seul motif, automatiquement emp@che de donner son avis ou d'agir quant a toutes operations relatives a un tel contrat ou operation. Nonobstant ce qui precede, au cas ou un Administrateur ou un fonde de pouvoir de la Societe aurait un interet personnel dans une operation a laquelle la Societe est partie, autre que les transactions conclues dans des conditions normales et dans la cadre de la gestionjournaliere de la Societe qui est en conflit avec l'interet de la Societe dans cette transaction, il/elle avisera le Conseil d'Administration (s'il existe) de cet interet personnel et ne pourra prendre part aux deliberations ou emettre un vote au sujet de cette transaction, et une telle operation ainsi que l'interet personnel de l'Administrateur dans celle-ci seront portes a la connaissance de 17
Document emis electroniquement l'actionnaire unique ou, le cas echeant, a la prochaine assemblee generale des actionnaires. Lorsque la Societe est composee d'un seul Administrateur, toute transaction a laquelle la Societe devient partie, conclue dans des conditions normales et dans laquelle l'Administrateur unique a un inter@t personnel qui est en conflit avec l'interet de la Societe, la transaction concernee doit etre approuvee par l'actionnaire unique. Article 17. Indemnisation La Societe doit indemniser tout Administrateur et ses heritiers, executeurs et administrateurs testamentaires, de ses depenses raisonnables en relation avec toute action, proces ou procedure a laquelle il a pu etre partie en raison de sa fonction passee ou actuelle de Administrateur, ou, a la demande de la Societe, de toute autre societe dans laquelle la Societe est Actionnaire ou creanciere et par laquelle il n'est pas autorise a etre indemnise, excepte en relation avec les affaires pour lesquelles il est finalement declare dans de telles actions, proces et procedures responsable d'une grosse negligence ou d'une faute grave. En cas de reglement amiable d'un conflit, des indemnites doivent etre accordees uniquement dans les matieres en relation avec le reglement amiable du conflit pour lesquelles, selon le conseiller juridique de la Societe, la personne indemnisee n'a pas commis une telle violation de ses obligations. Le droit a indemnite ci-avant n'exclut pas d'autres droits que la personne concernee pourrait revendiquer. Article 18. Audit Sauf si les comptes annuels de la Societe sont audites par un reviseur d'entreprises independant conformement aux obligations de la Loi, le controle des operations de la Societe doit etre confie a un ou plusieurs comrnissaires aux comptes. Les commissaires aux comptes ou, le cas echeant, le reviseur d'entreprises independant seront nommes par decision de l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires, selon le cas, qui determinera leur remuneration et la duree de leur mandat. Les commissaires aux comptes resteront en fonctionjusqu'a ce que leurs successeurs soient elus. Ils sont reeligibles a la fin de leurmandat et ils peuvent etre revoques a tout moment, avec ou sans motif, par decision de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires. CHAPITRE IV. ASSEMBLEE GENERALE DES ASSOCIES Article 19. Assemblee Generale des Actionnaires L'assemblee generale annuelle sera tenue au siege social de la Societe ou a un autre endroit tel qu'indique dans la convocation de l'assemblee le 30 juin de chaque annee, a 16.00 heure. Si ce jour est un jour ferie au Luxembourg, l'assemblee se tiendra le premier jour ouvrable suivant. Article 20. Autres Assemblees Generales des Actionnaires Si la Societe ne compte qu'un seul actionnaire unique, ce dernier exerce les pouvoirs accordes par la Loi a l'assemblee generale des actionnaires. Les decisions de l'actionnaire unique doivent etre enregistrees dans un proces-verbal. 18
Document emis electroniquement L'Administrateur ou, le cas echeant, le Conseil d'Administration peut convoquer d'autres assemblees generales. De telles assemblees doivent etre convoquees si les actionnaires representant au moins un dixieme du capital social de la Societe le requierent par ecrit avec indication de l'ordre du jour de la reunion prevue. Si l'assemblee generale n'est pas tenue dans le mois suivant la date prevue, elle peut etre convoquee par un agent designe par le juge presidant le Tribunal d'Arrondissement, section des affaires commerciales et statuant en refere, et ce a la requete d'un ou plusieurs actionnaires representant le quota des dix pour cent. Les assemblees generales des actionnaires, y compris l'assemblee generale annuelle, peuvent se tenir a l'etranger seulement si, a l'avis discretionnaire de l'Administrateur ou, le cas echeant, du Conseil d'Administration, des circonstances de force majeure l'exigent. Article 21. Pouvoirs de l'Assemblee Generale Toute assemblee generale des actionnaires regulierement constituee represente l'ensemble des actionnaires. L'assemblee generale des actionnaires exerce les pouvoirs qui lui sont attribues par la Loi et les presents Statuts. Article 22. Procedure, Vote L'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires se reunit sur convocation de I'Administrateur ou, le cas echeant, du Conseil d'Administration, ou du commissaire aux comptes en conformite avec la Loi et les presents Statuts. Ils sont obliges de convoquer une assemblee generale des actionnaires de facon qu'elle soit tenue dans le delai d'un mois, lorsque les actionnaires representant un dixieme du capital social les en requierent par une demande ecrite, indiquant l'ordre dujour. La convocation envoyee aux actionnaires en conformite avec la Loi, specifiera la date, l'heure, l'endroit et l'ordre du jour de la reunion. Les actionnaires representant un minimum de dix pour cent du capital social de la societe peuvent demander par ecrit que des points supplementaires soient ajoutes a l'ordre du jour de toute assemblee generale. Une telle requete doit etre adressee au siege social de la Societe par courrier recommande au moins cinq jours avant la date a laquelle l'assemblee generale doit etre tenue. Si tous les actionnaires sont presents ou representes a l'assemblee generale des actionnaires et declarent avoir eu connaissance de l'ordre du jour de l'assemblee, l'assemblee pourra etre tenue sans convocation prealable. Tout actionnaire peut prendre part aux assemblees en designant par ecrit ou par telecopieur un mandataire, lequel peut ne pas etre actionnaire. Un ou plusieurs actionnaires peuvent participer a une assemblee par conference telephonique, par videoconference ou par tout moyen de telecommunication similaire permettant a plusieurs personnes y participant de communiquer simultanement l'une avec l'autre. De telles participations doivent etre considerees comme equivalentes a une presence physique a l'assemblee. 19
Document emis electroniquement L'Administrateur ou, le cas echeant, le Conseil d'Administration peut determiner toutes les autres conditions devant etre remplies pour la participation a l'assemblee generale des actionnaires. Un vote est attache a chaque action, sauf autrement prevu par la Loi. Chaque actionnaire peut voter par correspondance. Pour ce faire, l'actionnaire ne peut utiliser que les formulaires de vote fourni par la Societe. Chaque formulaire de vote signe et rempli doit etre delivre au siege social de la Societe soit manuellement avec accuse de reception, soit par courrier recommande soit par coursier. Tout formulaire de vote qui n'est pas signe par l'actionnaire concern€ ou son/ses representant(s) autorise(s) selon le cas, et qui ne comporte pas au moins les mentions et indications suivantes doit etre considere comme nul et non avenu: • Le nom et siege social et/ou la residence de l'actionnaire concerne; • Le nombre d'actions et, le cas echeant, le nombre d'actions de chaque classe detenu par l'actionnaire concerne dans le capital social de la Societe; • Le lieu, la date et l'heure de l'assemblee generale devant se tenir; • L'ordre du jour de l'assemblee generale devant se tenir; o Le vote par l'actionnaire concerne indiquant, pour chacune des resolutions proposees, si l'actionnaire concemne s'abstient, vote en faveur ou contre une telle proposition concemnee; et • Le nom et le titre du representant autorise de l'actionnaire concemne, si applicable. Chaque formulaire de vote doit etre recu par la Societe au plus tard a 18 heures, heure de Luxembourg, au jour qui precede immediatement le jour auquel l'assemblee generale doit etre tenue et auquel les banques sont generalement ouvertes pour les affaires au Grand-Duche de Luxembourg. Tout formulaire de vote recu apres cette date limite ne peut etre considere. Toute assemblee generale des actionnaires doit etre presidee par le president du Conseil d'Administration ou, en son absence, par toute autre personne nommee par l'assemblee generale des actionnaires. Le president de l'assemblee des actionnaires doit nommer un secretaire. L'assemblee generale des actionnaires doit nommer un ou plusieurs scrutateurs. Le president de l'assemblee generale des actionnaires ensemble avec le secretaire et le(s) scrutateur(s) nommes forment le bureau de l'assemblee generale. Une liste de presence indiquant le nom des Actionnaires, le nombre de actions detenues par eux et, si possible, le nom de leur representant, est dressee et signee par le bureau de l'assemblee generale des actionnaires ou, le cas echeant, leurs representants. Sauf autrement prevu par la Loi ou par les presents Statuts, toute resolution des actionnaires sera prise par une majorite simple des votes emis sans egard au nombre de voix presentes ou representees a l'assemblee. 20
Document emis electroniquement Pour toute resolution dont l'objet est la modification des presents Statuts ou dont l'adoption est en vertu des presents Articles, ou le cas echeant, de la Loi aux regles de quorum et de majorite determinees pour la modification des Articles, le quorum doit atteindre au moins la moitie des actions emises et en circulation. Si un tel quorum n'est pas atteint a une premiere assemblee, une deuxieme assemblee, avec exactement le meme ordre du jour que celui de la premiere assemblee, peut etre convoquee sans exigence de quorum. Sauf disposition contraire de la Loi ou par les presents Statuts, toute resolution dont l'objet est de modifier les presents Statuts ou dont l'adoption est en vertu des presents articles ou, le cas echant, par la Loi aux regles de quorum et de majorite determinee pour lamodification des Statuts, doit etre prise a unemajorite de deux tiers des votes emis. Article 23. Proces-verbaux des resolutions des Actionnaires Les proces-verbaux des decisions ecrites de l'actionnaire unique ou, le cas echeant, des assemblees generales des actionnaires doivent etre etablies par ecrit et signees par le seul Actionnaire ou, le cas echeant, par le bureau de l'assemblee. Les copies ou les extraits des proces-verbaux de l'actionnaire unique ou, le cas echeant, de l'assemblee des actionnaires doivent etre certifiees par l'Administrateur unique ou, le cas echeant, par le President du Conseil d' Administration ou par deux Administrateurs. CHAPITRE V. ANNEE SOCIALE, REPARTITION DES BENEFICES Article 24. Annee Sociale L'annee sociale de la Societe commence le premier jour du mois de janvier et finit le dernier jour du mois de decembre de chaque annee. Article 25. Approbation des Comptes Annuels A la fin de chaque annee sociale, les comptes sont arretes et l'Administrateur ou, le cas echeant, le Conseil d'Administration dresse les comptes annuels de la Societe conformement a la loi et les soumet, le cas echeant, au commissaire aux comptes ou, le cas echeant, au reviseur d'entreprises independant, pour revision et a l'associe unique ou, le cas echeant, a l'assemblee generale des associes pour approbation. Tout associe ou son mandataire peut prendre connaissance des comptes annuels au siege social de la Societe conformement aux dispositions de la Loi. Article 26. Affectation des Benefices Sur les benefices nets de la Societe il sera preleve cinq pour cent (5 %) pour la formation d'un fonds de reserve legale. Ce prelevement cesse d'etre obligatoire lorsque et aussi longtemps que la reserve legale atteindra dix pour cent (10%) du capital social souscrit de la Societe. L'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires decide de l'affectation du solde des benefices annuels nets. Elle peut decider de verser la totalite ou une part du solde pour absorber des pertes, s'il y en a, de le verser sur un compte de reserve ou de provision, de le reporter a nouveau sur l'annee financiere suivante ou de le distribuer a l'/aux actionnaire(s) comme dividendes. 21
Document emis electroniquement Article 27. Dividendes Interimaires L'Administrateur unique ou, le cas echeant, le Conseil d'Administration est autorise a verser des acomptes sur dividendes conformement a la Loi. CHAPITRE VI. Dissolution, Liquidation Article 28. Dissolution, Liquidation La Societe peut etre dissoute par une decision de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires deliberant aux memes conditions de quorum et de majorite que celles exigees pour la modification des Statuts, sauf dispositions contraires de la Loi. En cas de dissolution de la Societe, la liquidation s'effectuera par les soins d'un ou de plusieurs liquidateurs (personnes physiques ou morales), nommes par l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires qui determinera leurs pouvoirs et leurs emoluments. Apres paiement de toutes les dettes et charges de la Societe, tous les taxes et frais de liquidation compris, l'actif net restant sera reparti equitablement entre tous les actionnaires au prorata du nombre d'actions qu'ils detiennent. CHAPITRE VII. LOI APPLICABLE Article 29. Loi Applicable Toutes les matieres qui ne sont pas regies par les presents Statuts seront reglees conformement a la Loi. POUR COPIE CONFORME DES STATUTS COORDONNES Luxembourg, le 10 novembre 2017. 22
GOL Finance Societe anonyme Siege social: 17, Boulevard Raiffeisen, L-2411 Luxembourg RCS Luxembourg: B178497 CONSTAT D'AUGMENTATION DE CAPITAL Me. E. DELOSCH Du 22 SEPTEMBRE 2023 No. In the year two thousand and twenty-three, on the twenty-second day of September. Before Maitre Edouard DELOSCH, notary residing in Luxembourg, Grand Duchy of Luxembourg, THERE APPEARED: Ms Tessy BODENVING, notary clerk, residing professionally in Luxembourg, Grand Duchy of Luxembourg, acting in the name and on behalf of the board of managers of GOL Finance, a public limited liability company (societe anonyme), having its registered office at 17, Boulevard Raiffeisen, L-2411 Luxembourg, Grand Duchy of Luxembourg, and registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Societes, Luxembourg) under number B 178497 (the "Company"), pursuant to (i) the minutes of the meeting of the board of directors of the Company held on 28 August 2023 (the "Minutes 1") and (ii) the minutes of the meeting of the board of directors of the Company held on 12 Septembre 2023 (the "Minutes 2") which, after having been signed ne varietur by the appearing person and the undersigned notary, will remain attached to the present deed for the purpose of registration. The appearing person requested the undersigned notary to record the following statements: 1. The Company has been incorporated under the laws of the Grand Duchy of Luxembourg, by a deed of Maitre Leonie GRETHEN, notary residing in Esch-sur-Alzette, Grand Duchy of Luxembourg, dated 21 June 2013 and published in the Memorial C, Recueil des Societes et Associations number 2080 of 27 August 2013. The articles of association (the "Articles") have been amended for the last time on 11 August 2023 by a deed of the undersigned notary, published in the Recueil Electronique des Societes et
Associations under the reference RESA_2023_184.22 on 29 August 2023. 2. Pursuant to article 5.1 of the Articles, the share capital of the Company is set at sixty thousand United States dollars (USO 60,000) divided into sixty thousand (60,000) shares, with a nominal value of one United States Dollar (USD 1) each. 3. Pursuant to article 5.2 of the Articles. the board of directors of the Company is authorized to increase the share capital of the Company by an amount of up to one billion five hundred million United States Dollars (USO 1,500,000,000), represented by one billion five hundred million (1,500,000,000) shares, with a nominal value of one United States Dollar (USD 1) each. 4. Based on the Minutes 1, the Minutes 2 and the subscription confirmation agreements dated and covering the amounts as detailed under statement 6 below, entered into by and between the Company and Gol Linhas Aereas Inteligentes S.A. and in accordance with the authority conferred on it pursuant to the Articles, the board of directors of the Company approved and confirmed the issuance of an aggregate number of one billion one hundred eighty-eight million (1,188,000,000) shares with a nominal value of one United States Dollar (USO 1) each (the "New Shares"), with the same rights and obligations as the existing shares, so as to bring the share capital of the Company from its current amount of sixty thousand United Slates Dollars (USO 60,000) to the amount of one billion one hundred eighty-eight million sixty thousand United States dollars (USD 1,188,060,000) represented by one billion one hundred eighty-eight million sixty thousand (1,188,060,000) shares, with a nominal value of one United States Dollar (USO 1) each. 5. The New Shares have been subscribed and fully paid up in several instalments as detailed under statement 6 below by contributions in cash in the aggregate amount of of one billion one hundred eighty-eight million (USO 1,188,000,000) (the "Contributions in Cash") by Gol Linhas Aereas Inteligentes S.A., a Sociedade anonima organised under the laws of Brazil, having its registered address at Praca Comandante Linneu Gomes, s/n, potaria 3, predio 24, parte, Jardim Aeroporto, Sao Paulo, Brazil, and registered with the CNPJ under number 06.164.253/0001-87. 6. The amounts of the Contributions in Cash have been paid up as follows: Date of Payment Amount of funds transferred In Date of Confirmation Agree- USD ment 28 August 2023 70,000,000 2
NIA. - Initial payment approved in the Minutes 1 28 August 2023 70,000,000 28 August 2023 29 August 2023 95,000,000 29 August 2023 30 August 2023 95,000,000 30 August 2023 31 August 2023 140,000,000 31 August 2023 1 September 2023 145,000,000 1 September 2023 5 September 2023 165,000,000 5 September 2023 6 September 2023 150,000,000 6 September 2023 8 September 2023 70,000,000 8 September 2023 11 September 2023 71,000,000 11 September 2023 12 September 2023 111,244,452 12 September 2023 12 September 2023 5,755,548 NIA. - Payment approved in the Minutes 2 Total: 1,188,000,000 7. Proof of the Contributions in Cash has been given to the undersigned notary. 8. As a consequence of the above-mentioned increase of the share capital, articles 5.1 and 5.2 of the Articles shall be amended and shall forthwith read as follows: "5.1 Share capital The Company's share capital is set at one billion one hundred eighty-eight million sixty thousand United States dollars (USD 1,188,060,000) represented by one billion one hundred eightyeight milfion sixty thousand (1,188,060,000) shares, with a nominal value of one United States Dollar (USD 1) each, all of which are subscribed and fully paid up." "5.2 Authorised share capital The Company shall have an authorised share capital of up to three hundred twelve million United States dollars (USD 312,000,000), represented by three hundred twelve million (312,000,000) shares with a nominal value of one United States Dollar (USO 1) each. The Board of Directors (or any duly authorised representative thereof, who need not be a Director or shareholder of the Company) is authorised, for a period of five (5) years from the date of this delegation of authority, or resolution to renew such authority, to: 3
a. increase, on one or more occasions, the share capital and issue new shares (in existing or newly created classes), within the limits of the authorised capital, to be paid up in cash or in kind, through the incorporation of available reserves or retained earnings or in any other manner; b. determine the terms and conditions for any such share capital increase and the issuance of new shares, specifically: i. when the new shares are to be issued; ii. the number of new shares to be issued and the subscriber(s); iii. the subscription and payment formalities for the new shares; iv. whether the new shares are to be issued with or without an issue premium; and v. whether the new shares are to be paid-up in cash or in kind or through the incorporation of retained earnings, available reserves or funds held in the capital contribution account (Compte 115 "Apport en capitaux propres non remunere par des titres") or share premium account. When issuing new shares further to these powers, the Board of Directors (or its duly authorised representative) is also expressly authorised to limit or cancel the shareholders' preferential subscription right. After each capital increase, these Articles shall be amended accordingly and the Board of Directors shall take or authorise the steps required by the Law." EXPENSES The expenses, costs, fees and charges of any kind whatsoever, to be borne by the Company as a result of this document are estimated at approximately seven thousand three hundred euros (EUR 7,300). DECLARATION WHEREOF the present notarial instrument was drawn up in Luxembourg, Grand Duchy of Luxembourg, on the date indicated at the beginning of this document. The undersigned notary, who understands and speaks English, stated that at the request of the appearing party hereto, the present instrument has been drawn up in English followed by a French translation; at the request of the proxy holder of the appearing party in the event of discrepancy between the English and French versions, the English version shall prevail. 4
This deed having been read to the proxyholder of the appearing party, whose full name, civil status and residence are known to the notary, the said person signed together with the notary, this original deed. SUIT LA TRADUCTION FRANCAISE DU TEXTE QUI PRECEDE : En l'annee deux mille vingt-trois, le vingt-seuxieme jour du mois de septembre. Par devant Maitre Edouard DELOSCH, notaire de residence a Luxembourg, Grand-Duche de Luxembourg, A COMPARU: Mme Tessy BODENVING, clerc de notaire, demeurant professionnellement a Luxembourg, Grand-Duche de Luxembourg, agissant au nom et pour le compte du conseil d'administration de GOL Finance, une societe anonyme ayant son siege social au 17, Boulevard Raiffeisen, L-2411 Luxembourg, Grand-Duche de Luxembourg, et immatricule aupres du Registre de Commerce et des Societes, Luxembourg sous le numero B178497 (la « Societ »), en vertu (i) du proces-verbal de la reunion du conseil d'administration de la Societe tenue le 28 aout 2023 (le « Proces-Verbal ») et (ii) du procesverbal de la reunion du conseil d'administration de la Societe tenue le 12 septembre 2023 (le « Proces-Verbal 2 ») qui, apres avoir ete signes ne varietur par la personne comparante et le notaire instrumentant, resteront attache au present acte pour les besoins de l'enregistrement. La personne comparante a requis le notaire instrumentant de declarer ce qui suit: 1. La Societe a ete constituee sous les lois du Grand-Duche de Luxembourg par un acte de Maitre Leonie GRETHEN, notaire de residence a Esch-sur-Alzette, Grand-Duche de Luxembourg, le 21 juin 2013 et publie au Memorial C, Recueil des Societes et Associations sous le numero 2080 du 27 ao0t 2013. Les statuts de la Societe (les « Statuts ») ont ete modifies pour la derniere fois le 11 aout 2023 par un acte du notaire soussigne, publie au Recueil Electronique des Societes et Associations sous la reference RESA_2023_184.22 le 29 a00t 2023. 2. En vertu de l'article 5.1 des Statuts, le capital social de la Societe est fixe a soixante mille Dollars americains (60.000 USD) divise en soixante mille (60.000) actions ayant une valeur nominale d'un Dollar americain (1 USD) chacune. 3. En vertu de l'article 5.2 des Statuts, le conseil d'administration de la Societe est autorise a augmenter le capital social de la Societe par un montant d'un milliard cinq cent millions de Dollars americains (1.500.000.000 USD) divise en un milliard cinq cent millions (1.500.000.000) d'actions ayant une valeur nominale d'un Dollar americain (1 USD) chacune. 5
4. Sur la base du Proces-Verbal 1 et du Proces-Verbal 2 et de l'accord de confirmation de souscription datees et portant sur les montants tels que detailles dans le point 6 ci-dessous, conclu par et entre la Societe et Gol Linhas Aereas Inteligentes S.A. et conformement a l'autorite qui lui est conferee en vertu des Statuts, le conseil d'administration de la Societe a approuve et confirme l'emission d'un milliard cent quatre-vingt-huit millions (1.188.000.000) actions d'une valeur nominale d'un Dollar americain (1 USD) chacune (les « Nouvelles Actions »), ayant les memes droits et obligations que les actions existantes, afin d'amener le capital social de la Societe de son montant actuel de soixante mille Dollars americains (60.000 USD) au montant d'un milliard cent quatre-vingt-huit millions soixante mille Dollars americains (1.188.060.000 USD) represente par un milliard cent quatre-vingt-huit millions soixante mille (1.188.060.000) actions d'une valeur nominale d'un Dollar americain (1 USD) chacune. 5. es Nouvelles Actions ont ete souscrites et totalement liberees en plusieurs tranches, comme indique au point 6 ci-dessous, par des apports en numeraire d'un montant total d'un milliard cent quatrevingt- huit millions de Dollars americains (1.188.000.000 USD) (les « Apports en Numeraires ») par Gol Linhas Aereas Inteligentes S.A., une Sociedade anonima regie par les lois du Bresil, ayant son siege social a Praca Comandante Linneu Gomes, s/n, potaria 3, predio 24, parte, Jardim Aeroporto, Sao Paulo, Bresil, et immatriculee aupres du CNPJ sous le numero 06.164.253/0001- 87. 6. Les montants des apports en numeraire ont ete liberes comme suit: Date de Paiement Montant des fonds transfe- Date de l'accord de confirmation res en USD de souscription 28 aout 2023 70.000.000 NIA. - Paiement initial approuve dans le Proces-Verbal 1 28 ao0t 2023 70.000.000 28 a00t 2023 29 ao0t 2023 95.000.000 29 ao0t 2023 30 ao0t 2023 95.000.000 30 ao0t 2023 31 a00t 2023 140.000.000 31 ao0t 2023 1e septembre 2023 145.000.000 1 septembre 2023 5 septembre 2023 165.000.000 5 septembre 2023 6 septembre 2023 150.000.000 6 septembre 2023 6
8 septembre 2023 70.000.000 8 septembre 2023 11septembre 2023 71.000.000 11 septembre 2023 12 septembre 2023 111.244.452 12 septembre 2023 12 septembre 2023 5.755.548 N/A. - Paiement initial approuve dans le Procs-Verbal 2 Total: 1.188.000.000 7. La preuve des Apports en Numeraire a ete donnee au notaire instrumentant. 8. En consequence de l'augmentation du capital social susmentionnee, les articles 5.1 et 5.2 des Statuts doivent etre modifies et seront dorenavant lus comme suit : « Article 5.1 Capital social Le capital social de la Societo est fixe a un milliard cent quatre-vingt-huit millions soixante mille dollars americains (USD 1.188.060.000) divise en un milliard cent quatre-vingt-huit millions soixante mille (1.188.060.000) actions ayant une valeur nominale d'un dollar americain (USD 1.00) chacune, toutes souscrites et entierement liberees. » « Article 5.2 Capital social autorise La Societe a un capital social autorise dun montant maximum de trois cent douze millions de dollars americain (uSD 312.000.000), represente par trois cent douze millions (312.000. 000) actions, d'une valeur nominale d'un dollar americain (USD 1,00) chacune. Le Conseil d'Administration (ou tout representant doment autorise de celui-ci, qui ne doit pas necessairement etre un Administrateur ou un actionnaire de la Societe) est autorise, pour une periode de cinq (5) ans a compter de la date de la presente delegation de pouvoir ou de la resolution visant a renouveler cette autorisation, a : a. augmenter, en une ou plusieurs fois, le capital social et emettre de nouvelles actions (dans /es classe d'actions existantes, le cas 6ch6ant, ou dans les classes nouvellement creees), dans les limites du capital autonise, a liberer en especes ou en nature, par l'incorporation de reserves disponibles ou de ban6fices non distribues ou de toute autre maniere, b. determiner les modalites de cette augmentation de capital et de l'emission des nouvelles actions, notamment : i. la date d'emission des nouvelles actions ; ii. le nombre de nouvelles actions a emettre et le(s) souscripteur(s) ; 7
iii. les formalites de souscription et de liberation des nouvelles actions ; iv. si les nouvelles actions doivent @tre emises avec ou sans prime d'emission ; et v. si la liberation des nouvelles actions doit se faire en numeraire ou en nature ou par incorporation de benefices non distribues, de reserves disponibles ou de fonds detenus dans le compte 115 « Apport en capitaux propres non remuneres par des titres » ou dans le compte de primes d'emission. Lors de l'emission des nouvelles actions dans le cadre de ces pouvoirs, le conseil d'administration (ou son representant dament autorise) est egalement expressement autorise a limiter ou a supprimer le droit preferentiel de souscription des actionnaires. Apres chaque augmentation de capital, les presents statuts seront modifies en consequence et le Conseil d'Administration prendra ou autorisera les mesures requises par la Loi.» COUTS Les depenses, coats, frais et charges de toute nature qui devront etre supportes par la Societe du fait du present acte sont estimes a environ sept mille trois cents euros (EUR 7.300). DECLARATION DONT ACTE le present acte notarie a ete dresse a Luxembourg, GrandDuche de Luxembourg, au jour indique au debut du present acte. Le notaire instrumentant, qui comprend et parle l'anglais, a declare qu'a la demande de la partie comparante, le present acte a ete redige en anglais, suivi d'une traduction francaise, a la requete du mandataire de la partie comparante et en cas de divergence entre les versions anglaises et francaises, la version anglaise prevaudra. Apres avoir lu ce proces-verbal au mandataire de la partie comparante, connu du notaire par son nom, statut civil et residence, lad@Pp)5.a signe avec le notaire le present acte original. /0! O; f(:i° () ..i 1e (ii 1 Pour copie contormt [k e # s. No~mre Edouard Delosclt I ; ~ t.embourg, lo \, .SS t, % 22 SEP. 2023 "xgy
GOL Equity Finance Societe anonyme 48, Boulevard Grande-Duchesse Charlotte, L-1330 Luxembourg R.C.S. Luxembourg: B 224920 [STATUTS COORDONNESAU_05decembre 2018 CHAPTER I. FORM, CORPORATE NAME, REGISTERED OFFICE, OBJECT, DURATION Article 1. Form, Corporate Name There is hereby established among the subscriber(s) and all those who may become owners of the shares hereafter issued, a company in the form of a public limited liability company (societe anonyme) (the "Company") which will be governed by the laws of the Grand Duchy of Luxembourg, notably the Act of 10 August 1915 on commercial companies, as amended (the "Act"), by article 1832 of the Civil Code, as amended, and by the present articles of incorporation (the "Articles"). The Company exists under the name of "GOL Equity Finance". Article 2. Registered Office The Company has its registered office in the City of Luxembourg. The Director or, as the case may be, the Board of Directors is authorised to transfer the Company's registered office to another location within the Grand Duchy of Luxembourg and to amend this article accordingly. Branches or other offices may be established either in the Grand Duchy of Luxembourg or abroad by resolution of the Director or, as the case may be, the Board ofDirectors. In the event that in the view of the Director or, as the case may be, the Board of Directors, extraordinary political, economic or social developments occur or are imminent which would interfere with the normal activities of the Company at its registered office or with the ease of communications with the said office or between the said office and persons abroad, it may temporarily transfer the registered office abroad, until the end of these abnormal circumstances. Such temporary measures will have no effect on the nationality of the Company, which notwithstanding the temporary transfer of the registered office, will remain a company governed by the laws of the Grand Duchy of Luxembourg. Article 3. Corporate Object The object of the Company is the direct and indirect acquisition and holding of participating interests, in any form whatsoever, in Luxembourg and/or in foreign undertakings, as well as the administration, development and management of such interests. This includes but is not limited to, investment in, acquirement of, disposal of, granting or issuing of preferred equity certificates, whether convertible into shares or not, loans, guarantees, bonds, notes debentures and any other debt instruments, shares, warrants and any other equity instruments or rights, including, but not limited to, shares of capital stock, limited partnership interests, limited liability company interests, preferred stock, convertible securities and swaps, and any combination of the foregoing, in each case whether readily marketable or not, and obligations (including but not limited to synthetic securities obligations) in any type of company, entity or other legal person. The Company may grant pledges, guarantees, liens, mortgages and any other form of securities as well as any form of indemnities, to Luxembourg or foreign entities, in respect of its own obligations and debts. The Company may also provide assistance in any form (including but not limited to the granting of 1 Registre de Commerce et des Societes Numero RCS : B224920 Reference de depot : L190040363 Depose et enregistre le 11/03/2019
Exhibit T3A.2 - Statuts Coordonnes of GOL Equity Finance, dated December 5, 2018
advances, loans, money deposits and credits as well as the providing of pledges, guarantees, liens, mortgages and any other form of securities, in any kind of form) to the Company's subsidiaries. On a more occasional basis, the Company may provide the same kind of assistance to undertakings which are part of the same group of companies which the Company belongs to or to third parties, provided that doing so falls within the Company's best interest and does not trigger any license requirements. In general the Company may carry out any commercial, industrial or financial operation and engage in such other activities as the Company deems necessary, advisable, convenient, incidental to, or not inconsistent with, the accomplishment and development of the foregoing. Notwithstanding the above, the Company shall not enter into any transaction which would cause it to be engaged in any activity which would be considered as a regulated activity or that would require the Company to have any other license. Article 4. Duration The Company is formed for an unlimited duration. CHAPTER II. SHARE CAPITAL, SHARES Article 5. Share Capital The subscribed share capital of the Company is set at thirty seven thousand two hundred twenty seven United States dollars (USD 37,227) divided into thirty seven thousand two hundred twenty seven (37,227) registered shares with a nominal value of one United States dollar (USD 1) each. In addition to the share capital, a premium account may be set up into which any premium paid on any share in addition to the par value is transferred. The amount of the premium account may be used to provide for the payment of any shares which the Company may redeem from its shareholders, to offset any net realised losses, to make distributions to the shareholders or to allocate funds to the legal reserve. Article 6. Shares All the shares will be and remain in registered form. A register of shares will be kept at the registered office of the Company, where it will be available for inspection by any shareholder. This register shall contain all of the information required by Article 430-3 of the Act. Each shareholder will notify to the Company by registered letter any change of address. The Company will be entitled to rely on the last address so communicated. Ownership of registered shares will result from the recordings in the said register. Transfers of shares shall be carried out by record in the register of shares, dated and signed by the transferor and transferee, or by any duly authorised representatives of them or of the Company. Shareholders may request the Company to issue and deliver certificates setting out their respective holdings of shares which certificate shall be signed by the sole Director or, if the Company is managed by a Board ofDirectors, by two Directors. Each share is indivisible as far as the Company is concerned. Co-owners of shares must be represented towards the Company by a common representative, whether appointed amongst them or not. The Company has the right to suspend the exercise of all rights attached to the relevant share until that common representative has been appointed. Article 7. Payment of Shares Payments on shares not fully paid up at the time of subscription must be made at the time and upon the conditions which the Director or, as the case may be, the Board of Directors shall from time to 2
time determine in compliance with the Act. Any amount called up on shares will be charged equally on all outstanding shares which are not fully paid up. Article 8. Increase and Reduction of the Share Capital The subscribed share capital of the Company may be increased or reduced once or several times by a resolution of the sole shareholder or, as the case may be, the general meeting of shareholders voting with the quorum and majority rules set by these Articles or, as the case may be, by the Act for any amendment of these Articles. New shares to be subscribed for by contribution in cash will be offered in preference to the existing shareholders, proportionally to the part of the capital held by those shareholders. The Board of Directors shall determine the period within which the preferred subscription right shall be exercised. This period may not be less than thirty days. Notwithstanding the above, the sole shareholder or, as the case may be, the general meeting, voting with the quoruin and majority rules required for any amendment of the Articles, may limit or withdraw the preferential subscription right or authorise the Director or, as the case may be, the Board ofDirectors to do so in compliance with the Act. Article 9. Acquisition of Own Shares The Company may acquire its own shares. The acquisition and holding of its own shares will be in compliance with the Act. CHAPTER III. DIRECTORS, BOARD OF DIRECTORS, STATUTORY AUDITORS Article 10. Board of Directors In the event the Company is composed of a single shareholder, the latter may appoint one sole Director (the "Director"). A single shareholder may however also appoint a board of directors (the "Board of Directors") composed of at least three members, if it so chooses. When the Company is composed of several shareholders, it must be managed by a Board of Directors composed of at least three members who need not be shareholders. The Director(s) shall be appointed by the sole shareholder or, as the case may be, by the general meeting of shareholders, which will determine their number, their remuneration and the duration of their mandate which shall not exceed six years. The Directors will hold office until their successors are elected. They may be re-elected at the end of their term and they may be removed at any time, with or without cause, by a resolution of the sole shareholder or, as the case may be, of the general meeting of shareholders. The sole shareholder or, as the case may be, the general meeting of shareholders may decide to qualify the appointed Directors as Class A Directors and Class B Directors. If a corporate entity is appointed as Director, it must designate an individual to exercise its functions and to act in the name and on the behalf of the corporate entity. In the event of a vacancy on the Board of Directors, if applicable, the remaining Director(s) may meet and may elect a director to fill such vacancy on a provisional basis until the next meeting of shareholders. Even after the term of their mandate, the Director(s) shall not disclose Company information which may be detrimental to the Company's interests - except when such a disclosure is mandatory by law or is in the public interest. Article 11. Meetings of the Board of Directors If the Company is composed of one sole Director, the latter will exercise the power granted by the Act to the Board ofDirectors. 3
The Board ofDirectors will appoint a chairman (the "Chairman") from among its members. It may also appoint a secretary, who need not be a Director and who will be responsible for keeping the minutes of the meetings of the Board of Directors and of the shareholder(s). The Board of Directors will meet upon notice given by the Chairman. A meeting of the Board of Directors must be convened if any two Directors so require. The Chairman will preside at all meetings of the Board ofDirectors. In her/his absence the Board of Directors may appoint another Director as chairman pro tempore by vote of the majority present or represented at such meeting. Except in cases of urgency or with the prior consent of all those entitled to attend, at least twentyfour hours' written notice of board meetings shall be given. Any such notice shall specify the place, the date, time and agenda of the meeting. The notice may be waived by unanimous written consent by all the Directors at the meeting or otherwise. No separate notice is required for meetings held at times and places specified in a time schedule previously adopted by resolution of the Board ofDirectors. Every board meeting shall be held in Luxembourg or at such other place indicated in the notice. Any Director may act at any meeting of the Board of Directors by appointing in writing another Director as her/his representative. A quorum of the Board of Directors shall be the presence or the representation of a majority of the Directors holding office. Decisions will be taken by a majority of the votes of the Directors present or represented at the relevant meeting. Each Director has one vote. In case of a tied vote, the Chairman has a casting vote. One or more Directors may participate in a meeting by means of a conference call, by videoconference or by any similar means of communication enabling several persons participating therein to simultaneously communicate with each other. Such methods of participation are to be considered equivalent to a physical presence at the meeting. A written decision passed by circular means and transmitted by cable, facsimile or any other similar means of communication, signed by all the Directors, is proper and valid as though it had been adopted at a meeting of the Board ofDirectors which was duly convened and held. Such a decision can be documented in a single document or in several separate documents having the same content and each of them signed by one or several Directors. Article 12. Minutes of Meetings of the Board of Directors The minutes of the meeting of the Board ofDirectors or, as the case may be, of the written decisions of the sole Director, shall be drawn up and signed by all Directors present at the meeting or, as the case may be, by the sole Director. Any proxies will remain attached thereto. Copies or extracts thereof shall be certified by the sole Director or, as the case may be, by the Chairman of the Board ofDirectors or by any two Directors. Article 13. General Powers of the Board of Directors The Director or, as the case may be, the Board ofDirectors is vested with the broadest powers to act on behalf of the Company and to perform or authorise all acts of administrative or disposal nature, necessary or useful for accomplishing the Company's object. All powers not expressly reserved by the Act to the sole shareholder or, as the case may be, to the general meeting of shareholders, fall within the competence of the Director or, as the case may be, the Board ofDirectors. Article 14. Delegation of Powers The Director or, as the case may be, the Board of Directors, may delegate its powers to conduct the 4
daily management and affairs of the Company and the representation of the Company for such daily management and affairs to any member or members of the Board of Directors or to any other person, who need not be a Director or a shareholder of the Company, acting either alone or jointly, under such terms and with such powers as the Director or, as the case may be, the Board of Directors shall determine. When the Company is managed by a Board of Directors, the delegation of the daily management to a member of the Board of Directors entails the obligation for the Board of Directors to report each year to the ordinary general meeting of shareholders on the salary, fees and any advantages granted to the delegate. The Director or, as the case may be, the Board of Directors may also confer certain powers and/or special mandates to any member or members of the Board of Directors or to any other person, who need not be a Director or a Shareholder of the Company, acting either alone or jointly, under such terms and with such powers as the Director or, as the case may be, the Board of Directors shall determine. The Director, or, as the case may be, the Board of Directors may also appoint one or more advisory committees and determine their composition and purpose. Article 15. Representation of the Company In case only one Director has been appointed, the Company will be bound toward third parties by the sole signature of that Director as well as by the joint signatures or single signature of any person(s) to whom the Director has delegated such signatory power, within the limits of such power. In case the Company is managed by a Board of Directors, subject to the following, the Company will be bound towards third parties by the joint signatures of any two Directors as well as by the joint signatures or single signature of any person(s) to whom the Board of Directors has delegated such signatory power, within the limits of such power. Notwithstanding the above, if the sole shareholder or, as the case may be, the general meeting of shareholders has appointed one or several Class A Directors and one or several Class B Directors, the Company will be bound towards third parties only by the joint signatures of one Class A Director and one Class B Director, as well as by the joint signatures or single signature of any person(s) to whom the Board of Directors has delegated such signatory power, within the limits of such power. Article 16. Conflict of Interests The Directors shall observe the conflicts-of-interest procedure provided for by Article 441-7 of the Act. For the sake of clarity and insofar as permitted by the Act, no contract or transaction between the Company and another party shall be affected or invalidated based solely on the fact that one or more Directors, managers, partners, members, officers or employees of the Company have a personal interest in the contract or transaction or are duly authorised representatives of that other party. Unless otherwise provided herein, any Director or officer of the Company who serves as a director, manager, partner, member, officer or employee of any company or firm with which the Company contracts or otherwise engages in business shall not automatically be prevented from taking part in the deliberations and voting or acting on any matters with respect to such contract or other business. Article 17. Indemnification The Company shall indemnify any Director and his heirs, executors and administrators, against expenses reasonably incurred by him in connection with any action, suit or proceeding to which he may be made a party by reason of his being or having been a Director of the Company, or, at the request of the Company, of any other company of which the Company is a shareholder or creditor 5
and by which he is not entitled to be indemnified, except for such action, suit or procedure in relation to matters for which he shall be held liable for gross negligence or misconduct. In the event of a settlement, indemnification shall only be provided for matters where the Company has been advised by its legal counsel that the person to be indemnified did not commit a breach of duty. The foregoing right of indemnification shall not exclude other rights which the relevant person may be entitled to. Article 18. Audit Except if the Company's annual accounts are audited by an independent auditor in accordance with the requirements of the Act, the supervision of the operations of the Company shall be entrusted to one or more statutory auditors. The statutory auditors or, as the case may be, the independent auditor, shall be appointed by the sole shareholder or, as the case may be, by the general meeting of shareholders, which will determine the number of statutory auditors, if applicable, the remuneration of the statutory or independent auditor and the duration of their mandate which shall not exceed six years. The auditors will hold office until their successors are elected. They may be re-elected at the end of their term and they may be removed at any time, with or without cause, by a resolution of the sole shareholder or, as the case may be, of the general meeting of shareholders. CHAPTER IV. MEETINGS OF SHAREHOLDERS Article 19. Annual General Meeting The annual general meeting will be held at the registered office of the Company or at such other place as may be specified in the notice convening the meeting on the second Tuesday of the month of June of each year. If such day is not a business day in Luxembourg, the meeting will be held on the next following business day. Article 20. Other General Meetings of Shareholders If the Company is composed of one sole shareholder, the latter exercises the powers granted by the law to the general meeting of shareholders. The decisions of the sole shareholder shall be recorded in minutes. The Director or, as the case may be, the Board of Directors may convene other general meetings. Such meetings must be convened if shareholders representing at least one tenth of the Company's capital so require in writing with an indication of the agenda of the upcoming meeting. If the general meeting is not held within one month of the scheduled date, it may be convened by an agent designated by the judge presiding the Luxembourg District Court (Tribunal d'Arrondissement) dealing with commercial matters and hearing interim reliefmatters, upon the request of one or more shareholders representing the ten per cent threshold. General meetings of shareholders, including the annual general meeting, may be held abroad only if, in the discretionary opinion of the Director or, as the case may be, the Board of Directors, circumstances of force majeure so require. Article 21. Powers of the Meeting of Shareholders Any regularly constituted general meeting of shareholders of the Company represents the entire body of shareholders. The general meeting of shareholders shall have the powers vested to it by the Act and by these Articles. Article 22. Procedure, Vote, Minutes The general meeting of shareholders will meet upon call by the Director or, as the case may be, by 6
the Board of Directors or the auditor(s) made in compliance with the Act and the present Articles. They are obliged to convene a general meeting of shareholders so that it is held within a period of one month, if shareholders representing one tenth of the capital so require in writing with an indication of the agenda. The notice sent to the shareholders in accordance with the Act will specify the date, time, place and agenda of the meeting. Shareholders representing at least one tenth of the Company's share capital may request in writing that additional items be included on the agenda of any general meeting. Such request shall be addressed to the registered office of the Company by registered letter at least five days before the date on which the general meeting shall be held. If all the shareholders are present or represented at a general meeting of shareholders and if they state that they have been informed of the agenda of the meeting, the meeting may be held without prior notice. A shareholder may act at any meeting of shareholders by appointing in writing or by fax another person as his proxy who need not be a shareholder. One or several shareholders may participate in a meeting by means of a conference call, by videoconference or by any similar means of communication enabling several persons participating therein to simultaneously communicate with each other. Such participation shall be deemed equivalent to a physical presence at the meeting. The Director or, as the case may be, the Board of Directors may determine all other conditions that must be fulfilled in order to take part in a general meeting of shareholders. One vote is attached to each share, except otherwise provided for by the Act. Any shareholder may cast his vote by correspondence. For such purpose, the shareholder may only use the voting forms provided by the Company. Any executed and filled in voting forms shall be delivered to the Company at its registered office either by hand with acknowledgment of receipt, by registered post or by special courier. Any voting form (formulaire) which is not signed by the relevant shareholder or its authorised representative(s), as applicable, and does not bear at least the following mentions or indications is to be considered null and void: • name and registered office and/or residence of the relevant shareholder; • total number of shares and, if applicable, number of shares of each class, held by the relevant shareholder in the share capital of the Company; • place, date and time of the general meeting to be held; • agenda of the general meeting to be held; • vote by the relevant shareholder indicating, with respect to each of the proposed resolutions, whether the relevant shareholder is abstaining, voting in favour of or against such proposed resolution; and • name and title of the authorised representative of the relevant shareholder, if applicable. Any voting form (formulaire) shall be received by the Company no later than 6 p.m., Luxembourg time, on the day which immediately precedes the day on which the general meeting shall be held and on which banks are generally open for business in the Grand Duchy of Luxembourg. Any voting form (formulaire) received by the Company after such deadline shall be disregarded. Any general meeting of shareholders shall be presided by the Chairman of the Board of Directors, or, in his absence, by any other person appointed by the general meeting of shareholders. 7
The chairman of the general meeting of shareholders shall appoint a secretary. The general meeting of shareholders shall appoint one or several scrutineer(s). The chairman of the general meeting of shareholders together with the secretary and the scrutineer(s) so appointed, form the bureau of the general meeting. An attendance list indicating the name of the shareholders, the number of shares held by them and, if applicable, the name of their representative, is drawn up and signed by the bureau of the general meeting of the shareholders or, as the case may be, their representatives. Except as otherwise required by the Act or by the present Articles, all resolutions passed by the shareholders will be taken by a simple majority of the votes cast irrespective of the number of shares present or represented at the meeting. For any resolution the purpose ofwhich is to amend the present Articles or the adoption ofwhich is subject by virtue of these Articles or, as the case may be, the Act, to the quorum and majority rules set for the amendment of the Articles, the quorum shall be at least one half of all the shares issued and outstanding. If the said quorum is not reached at a first meeting, a second meeting, with exactly the same agenda as for the first meeting, may be convened at which there shall be no quorum requirement. Except as otherwise required by the Act or by the present Articles, all resolutions the purpose of which is to amend the present Articles or the adoption of which is subject by virtue of these Articles or, as the case may be, the Act, to the quorum and majority rules set for the amendment of the Articles, must be taken by a two thirds majority of the votes cast. Article 23. Minutes of Shareholders Resolutions Minutes of the written decisions of the sole shareholder or, as the case may be, of the general meetings of shareholders shall be drawn up and signed by the sole shareholder or, as the case may be, by the bureau of the meeting. Copies or extracts of the minutes of the resolutions passed by the sole shareholder or, as the case may be, by the general meeting of shareholders shall be certified by the sole Director or, as the case may be, by the Chairman of the Board ofDirectors or by any two Directors. CHAPTER V. FINANCIAL YEAR, DISTRIBUTION OF PROFITS Article 24. Financial Year The Company's financial year begins on the first day of the month of January and ends on the last day of the month ofDecember every year. Article 25. Approval ofAnnual Accounts At the end of each financial year, the accounts are closed and the Director or, as the case may be, the Board of Directors, shall draw up the annual accounts of the Company in accordance with the Act and submit them to the auditor(s) for review and to the sole shareholder or, as the case may be, to the general meeting of shareholders for approval. Each shareholder or its/her/his representative may inspect the annual accounts at the registered office of the Company as provided for by the Act. Article 26. Allocation of Profits From the annual net profits of the Company, five per cent (5%) shall be allocated to the reserve required by the Act. That allocation will cease to be required as soon and as long as such reserve amounts to ten per cent (10%) of the subscribed share capital of the Company. The sole shareholder or, as the case may be, the general meeting of shareholders shall determine how the remainder of the annual net profits will be allocated. It may decide to allocate the whole or part of the remainder to absorb existing losses, if any, to put it into a reserve or a provision, to carry it forward to the next following financial year or to distribute it to the shareholder(s) as dividend. 8
Article 27. Interim Dividends The Director or, as the case may be, the Board of Directors are authorised to pay out interim dividends in accordance with the Act. CHAPTER VI. DISSOLUTION, LIQUIDATION OF THE COMPANY Article 28. Dissolution, Liquidation The Company may be dissolved by a decision of the sole shareholder or, as the case may be, of the general meeting of shareholders voting with the same quorum and majority as for the amendment of these Articles, unless otherwise provided for by the Act. Should the Company be dissolved, the liquidation will be carried out by one or more liquidators (who may be physical persons or legal entities) appointed by the sole shareholder or by the general meeting of shareholders, as the case may be, which will determine their powers and their compensation. After payment of all the outstanding debts of and charges against the Company, including taxes and expenses pertaining to the liquidation process, the remaining net assets of the Company shall be distributed equally to the shareholders pro rata to the number of the shares held by them. CHAPTERVII. APPLICABLE LAW Article 29. Applicable Law All matters not governed by these Articles shall be determined in accordance with the applicable law. SUIT LAVERSION FRANCAISE DU TEXTE QUI PRECEDE: CHAPITRE I. FORME, DENOMINATION SOCIALE, SIEGE, OBJET, DUREE Article l. Forme, Denomination Sociale II est fore par le(s) souscripteur(s) et toutes les personnes qui pourraient devenir detenteurs des actions emises ci-apres, une societe sous la forme d'une societe anonyme (la "Societe") regie par les lois du Grand-Duche de Luxembourg, notamment par la loi du 10 aodt 1915 concernant les societes commerciales, telle que modifiee (la "Loi"), par l'article 1832 du Code Civil, tel que modifie, ainsi que par les presents statuts (les "Statuts"). La Societe adopte la denomination "GOL Equity Finance". Article 2. Siege Social Le siege social de la Societe sera etabli a Luxembourg-Ville. L'Administrateur ou, le cas echeant, le Conseil d'Administration est autorise a transferer le siege social de la Societe au sein du GrandDuche de Luxembourg et a modifier cet article en consequence. Des succursales ou autres bureaux peuvent etre etablis soit au Grand-Duche de Luxembourg, soit a l'etranger par une decision de l'Administrateur ou, le cas echeant, du Conseil d'Administration. Au cas ou l'Administrateur ou, le cas echeant, le Conseil d'Administration estimerait que des evenements extraordinaires d'ordre politique, economique ou social sont de nature a compromettre l'activite normale de la societe au siege social ou la communication aisee avec ce siege ou entre ce siege et des personnes a l'etranger ou que de tels evenements sont imminents, il pourra transferer temporairement le siege social a l'etranger jusqu'a cessation complete de ces circonstances anormales. Ces mesures provisoires n'auront aucun effet sur la nationalite de la Societe, laquelle, nonobstant ce transfert provisoire du siege, restera regie par la loi du GrandDuche de Luxembourg. Article 3. Objet La Societe a pour objet la prise de participations directes ou indirectes et la detention de ces 9
participations, sous n'importe quelle forme, dans toutes entreprises luxembourgeoises ou etrangeres, ainsi que l'administration, la gestion et la mise en valeur de ces participations. Ceci inclut, mais n'est pas limite a l'investissement, l'acquisition, la vente, l'octroi ou l'emission de certificats de capital preferentiels, convertibles ou non en actions, pr@ts, obligations, garanties, reconnaissances de dettes et autres formes de dettes, actions, bans de souscriptions et autres instruments de capital ou droits, incluant sans limitation, des parts de capital social, participations dans une association (limited partnership), participations dans une societe a responsabilite limitee (limited liability company), parts preferentielles, valeurs mobilieres et swaps, et toute combinaison de ce qui precede, qu'ils soient facilement realisables ou non, ainsi que des engagements (incluant mais non limite a des engagements relatives a des valeurs synthetiques) de societes, entites ou autres personnes juridiques de tout type. La Societe peut accorder des gages, garanties, privileges, hypotheques et toute autre forme de suretes ainsi que toute forme d'indemnites, a des entites luxembourgeoises ou etrangeres, en relation avec ses propres obligations et dettes. La Societe peut accorder toute forme d'assistance (incluant mais non limite a l'octroi d'avances, pr@ts, depots d'argent et credits ainsi que l'octroi de gages, garanties, privileges, hypotheques et toute autre forme de suretes, de toute sorte et forme) aux filiales de la Societe. De maniere plus occasionnelle, la Societe peut accorder le meme type d'assistance aux societes qui font partie du meme groupe de societes que la Societe ou a des tiers, sous condition que cela tombe dans l'interet social et sans engendrer une obligation d'une autorisation specifique. D'une maniere generale, la Societe peut effectuer toute operation commerciale, industrielle ou financiere et s'engager dans toute autre activite qu'elle jugera necessaire, conseillee, appropriee, incidente a ou non contradictoire avec l'accomplissement et le developpement de ce qui precede. Nonobstant ce qui precede, la Societe ne s'engagera dans aucune transaction qui entrainerait son engagement dans une quelconque activite qui serait consideree comme une activite reglementee ou qui requerrait de la Societe la possession de toute autre autorisation specifique. Article 4. Duree La Societe est constituee pour une duree illimitee. CHAPITRE II. CAPITAL SOCIAL, ACTIONS Article 5. Capital Social Le capital social de la Societe est fixe a trente-sept mille deux cent vingt-sept dollars americains (USD 37.227) divise en trente-sept mille deux cent vingt-sept (37.227) actions ayant une valeur nominale d'un dollar americain (USD 1) chacune. En plus du capital social, un compte de prime d'emission peut etre etabli auquel toutes les primes payees sur une action en plus de la valeur nominale seront transferees. L'avoir de ce compte de primes peut etre utilise pour payer les actions que la Societe pourrait racheter des actionnaires, pour compenser des pertes nettes realisees, pour effectuer des distributions aux actionnaires, ou pour etre affect a la reserve legale. Article 6. Actions Chaque action sera et restera sous forme nominate. Un registre des actions sera tenu au siege social de la Societe, ou il sera disponible pour consultation par chaque actionnaire. Ce registre contiendra toute information exigee par l'Article 430-3 de la Loi. Chaque actionnaire notifiera a la Societe tout changement d'adresse par voie de lettre recommandee. La Societe pourra se prevaloir de la derniere adresse ainsi communiquee. IO
La propriete des actions nominatives resultera de leur enregistrement dans ledit registre. Les cessions d'actions se realiseront par leur enregistrement dans le registre des actions, date et signe par le cedant et le cessionnaire, ou par tout representant dament autorise par eux ou par la Societe. Les actionnaires peuvent demander a la Societe d'emettre et de delivrer des certificats detaillant leur participation, lequel certificat devra etre signe par l'Administrateur unique ou, si la Societe est geree par un Conseil d'Administration, par deux administrateurs. Chaque action est indivisible a l'egard de la Societe. Les proprietaires indivis d'actions sont tenus de se faire representer aupres de la Societe par un mandataire commun nomme ou non parmi eux. La Societe a le droit de suspendre l'exercice de tous les droits attaches a l'action concernee et ce jusqu'a la nomination d'un mandataire commun. Article 7. Paiement des Actions Les paiements sur les actions non entierement liberes a la date de la souscription devront etre effectues au moment et selon les conditions qui seront fixees de periodiquement par l'Administrateur ou, le cas echeant par le Conseil d'Administration, conformement a la Loi. Toute somme appelee sur les actions sera prelevee egalement sur toutes les actions non encore liberees. Article 8. Augmentation et Reduction du Capital Social Le capital social souscrit de la Societe peut etre augment ou reduit, en une ou en plusieurs fois, par resolution de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires votant aux conditions de quorum et de majorite determinees par ces Statuts ou, le cas echeant, par la Loi pour toute modification des statuts. Les nouvelles actions devant etre souscrites par un apport en especes seront proposees par preference aux actionnaires existants, au prorata de la part de capital detenue par ces actionnaires. Le Conseil d'Administration determinera le delai dans lequel le droit preferentiel de souscription devra etre exerce. Ce delai ne pourra pas etre inferieur a trente jours. Nonobstant ce qui precede, l'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires, votant aux conditions de quorum et de majorite requises pour toute modification des Statuts pourra limiter ou revoquer le droit preferentiel de souscription, ou autoriser l'Administrateur ou, le cas echeant, le Conseil d'Administration d'agir ainsi conformement a la Loi. Article 9. Acquisition d'Actions Propres La Societe peut acquerir ses propres actions. L'acquisition et la detention de ses propres actions se fera en conformite a et dans les limites definies par la Loi. CHAPITRE III. GERANCE, COMMISSAIRES AUX COMPTES Article 10.Conseil d'Administration Dans le cas ou la Societe est composee d'un actionnaire unique, celui-ci pourra nommer un seul administrateur (l"'Administrateur"). Un actionnaire unique pourra toutefois choisir de designer un conseil d'administration (le "Conseil d'Administration") compose d'au moins trois membres. Si la Societe est composee de plusieurs actionnaires, elle devra etre geree par un Conseil d'Administration compose d'au moins trois membres qui ne devront pas etre des actionnaires. L'/Les Administrateur(s) est/sont nomme(s) par l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires, qui fixe leur nombre, leur remuneration et la duree de leur mandat, qui n'excedera pas six ans. L'/Les Administrateur(s) restera/resteront en fonction jusqu'a la nomination de leur successeur. II(s) peut/peuvent etre renomme(s) a la fin de leur mandat et 11
peut/peuvent etre revoque(s) a tout moment, avec ou sans motif, par une decision de l'actionnaire unique ou, le cas echeant, de l'assemblee des actionnaires. Si une personne morale est nommee aux fonctions d'Administrateur, il devra designer une personne physique pour exercer ses fonctions et agir au nom et pour le compte de la personne morale. En cas de vacance au Conseil d'Administration, si applicable, l'/les Administrateur(s) restant(s) pourra/pourront se reunir et elire un administrateur pour remplir ce poste vacant a titre provisoire jusqu'a la prochaine assemblee generale des actionnaires. L'/Le(s) Administrateur(s) ne revelera/reveleront pas, y compris apres le terme de leur mandat, les informations concernant la Societe dont la revelation pourrait porter prejudice aux interets de la Societe, excepte lorsqu'une telle revelation est obligatoire selon la loi ou d'interet public. Article 11. Reunions du Conseil d'Administration Si la Societe est composee d'un seul Administrateur, ce dernier exercera le pouvoir qui est octroye par la Loi au Conseil d'Administration. Le Conseil d'Administration choisira parmi ses membres un president (le "President"). II pourra egalement choisir un secretaire qui n'a pas besoin d'etre Administrateur et qui sera responsable des proces-verbaux des reunions du Conseil d'Administration et des assemblees des actionnaires. Le Conseil d'Administration se reunira sur convocation du President. Une reunion du Conseil d'Administration devra etre convoquee si deux Administrateurs le requierent. Le President presidera toutes les reunions du Conseil d'Administration. En son absence, le Conseil d'Administration designera un autre Administrateur comme president pro tempore a la majorite des personnes presentes ou representees lors d'une telle reunion. Sauf en cas d'urgence ou avec l'accord prealable de toutes les personnes autorisees a participer, une convocation ecrite de toute reunion du Conseil d'administration sera donnee avec un preavis d'au mains vingt-quatre heures. La convocation indiquera le lieu, la date et l'heure de la reunion et en contiendra l'ordre du jour. II pourra etre pass outre cette convocation avec l'accord ecrit unanime de tous les Administrateurs ou autrement. Une convocation speciale ne sera pas requise pour les reunions se tenant a une date et a un endroit determines dans un calendrier prealablement adopte par le Conseil d'Administration. Toute reunion du Conseil d'administration se tiendra a Luxembourg ou a tout autre endroit indique dans la convocation. Tout Administrateur pourra se faire representer aux reunions du Conseil d'Administration en designant par ecrit un autre Administrateur comme son mandataire. Le quorum du Conseil d'Administration est atteint par la presence ou la representation d'une majorite d'Administrateurs en fonction. Les decisions sont prises a la majorite des votes des Administrateurs presents ou representes a la reunion. Chaque Administrateur a une voix. En cas de parite des votes, le President a une voix preponderante. Un ou plusieurs Administrateurs peuvent participer a une reunion par conference telephonique, videoconference ou tout moyen de telecommunication similaire permettant a plusieurs personnes y participant de communiquer simultanement l'une avec l'autre. De telles participations doivent etre considerees comme equivalentes a une presence physique a la reunion. Une decision ecrite par voie circulaire signee par tous les Administrateurs est reguliere et valable comme si elle avait ete adoptee a une reunion du Conseil d'Administration, dament convoquee et tenue. Une telle decision pourra etre documentee par un ou plusieurs ecrits separes ayant le m@me contenu, signes chacun par un ou plusieurs Administrateurs. 12
Article 12. Proces-verbaux du Conseil d'Administration Les proces-verbaux de la reunion du Conseil d'Administration ou, le cas echeant, les decisions ecrites de l'Administrateur unique, doivent etre etablis par ecrit et signes par tous les Administrateurs presents ou representes a la reunion ou, le cas echant, par l'Administrateur unique de la Societe. Toutes les procurations y seront annexes. Les copies ou les extraits de ceux-ci doivent etre certifiees par l'Administrateur unique ou le cas echeant, par le President du Conseil d'Administration ou, le cas echeant, par deux Administrateurs. Article 13. Pouvoirs generaux des Administrateurs L'Administrateur unique ou, le cas echeant, le Conseil d'Administration est investi des pouvoirs les plus etendus pour agir au nom et pour le compte de la Societe et pour accomplir et autoriser tous les actes d'administration ou de disposition necessaires ou utiles pour la realisation de l'objet social de la Societe. Tous les pouvoirs qui ne sont pas expressement reserves par la Loi ou par les presents Statuts a l'actionnaire unique ou, le cas echeant, a l'assemblee generale des actionnaires sont de la competence de l'Administrateur unique ou, le cas echeant, du Conseil d'Administration. Article 14. Delegation de Pouvoirs L'Administrateur ou, le cas echeant, le Conseil d'Administration peut deleguer ses pouvoirs relatifs a la conduite de la gestion et des affaires journalieres de la Societe a un ou plusieurs membres du Conseil d'Administration ou a une ou plusieurs autres personnes qui peuvent ne pas etre un Administrateur ou un Actionnaire de la Societe, agissant seul ou ensemble, selon les conditions et les pouvoirs determines par l'Administrateur ou, le cas echeant, par le Conseil d'Administration. Lorsque la Societe est geree par un Conseil d'Administration, la delegation de la gestion journaliere a un membre du Conseil d'Administration comprend l'obligation pour le Conseil d'Administration de reporter chaque annee a l'assemblee generale des actionnaires le salaire, les honoraires, et tout avantage accorde au delegue. L'Administrateur ou, le cas echeant, le Conseil d'Administration peut aussi conferer certains pouvoirs et/ou mandats speciaux a un ou plusieurs membres du Conseil d'Administration ou a toute autre personne, qui n'a pas besoin d'etre Administrateur ou Actionnaire de la Societe, agissant seul ou ensemble, selon les termes et avec les pouvoirs tels que determines par le Conseil d'Administration. L'Administrateur ou, le cas echeant, le Conseil d'Administration peut aussi nommer un ou plusieurs comites consultatifs et determiner leur composition et leur objet. Article 15. Representation de la Societe En cas de nomination d'un Administrateur unique, la Societe sera engagee a l'egard des tiers par la signature individuelle de cet Administrateur, ainsi que par les signatures conjointes ou la signature unique de toute personne a qui l'Administrateur a delegue un tel pouvoir de signature, dans les limites d'un tel pouvoir. Dans le cas ou la Societe est geree par un Conseil d'Administration et sous reserve de ce qui suit, la Societe sera engagee vis-a-vis des tiers par les signatures conjointes de deux Administrateurs ainsi que par la signature unique de toute personne a qui le Conseil d'Administration a delegue un tel pouvoir de signature, dans les limites d'un tel pouvoir. Nonobstant ce qui precede, si un ou plusieurs Administrateurs de Classe A et un ou plusieurs Administrateurs de Classe B sont nommes par l'actionnaire unique ou, le cas echeant, le Conseil d'Administration, la Societe ne sera engagee aupres des tiers que sur signature conjointe d'un Administrateur de Classe A et un Administrateur de Classe B, ainsi que par la signature conjointe ou individuel de toute personne a qui le Conseil d'Administration ait accorde un tel 13
pouvoir, et dans les limites d'un tel pouvoir. Article 16. Conflit d'inter@ts Les Administrateurs devront observer la procedure applicable aux conflits d'inter@ts telle que prevue a l'Article 441-7 de la Loi. Pour eviter toute equivoque et dans la limite permise par la Loi, aucun contrat ou transaction entre la Societe et une autre partie ne sera affecte ou invalide par le simple fait qu'un ou plusieurs Administrateurs, actionnaires, membres, dirigeants ou salaries de la Societe auraient un interet personnel dans ledit contrat ou ladite transaction, ou s'il est un representant dament autorise de l'autre partie concernee. Sauf dispositions contraires des presents Statuts, tout Administrateur ou dirigeant qui agit en tant qu'Administrateur, gerant, associe, actionnaire, dirigeant ou salarie pour le compte d'une autre societe ou firme avec laquelle la Societe contractera ou entrera autrement en relations d'affaires, ne sera pas, pour ce seul motif, automatiquement empeche de prendre part aux deliberations et de voter ou d'agir en ce qui concemne toutes operations relatives a un tel contrat ou transaction. Article 17. lndemnisation La Societe doit indemniser tout Administrateur et ses heritiers, executeurs et administrateurs testamentaires, de ses depenses raisonnables en relation avec toute action, proces ou procedure a laquelle il a pu etre partie en raison de sa fonction passee ou actuelle de Administrateur, ou, a la demande de la Societe, de toute autre societe dans laquelle la Societe est Actionnaire ou creanciere et par laquelle il n'est pas autorise a etre indemnise, excepte en relation avec les affaires pour lesquelles il est finalement declare dans de telles actions, proces et procedures responsable d'une grosse negligence ou d'une faute grave. En cas de rglement amiable d'un conflit, des indemnites doivent etre accordees uniquement dans les matieres en relation avec le reglement amiable du conflit pour lesquelles, selon le conseiller juridique de la Societe, la personne indemnisee n'a pas commis une telle violation de ses obligations. Le droit a indemnite ci-avant n'exclut pas d'autres droits que la personne concernee pourrait revendiquer. Article 18. Audit Sauf si les comptes annuels de la Societe sont audites par un reviseur d'entreprises independant conformement aux obligations de la Loi, le controle des operations de la Societe doit etre confie a un ou plusieurs cornmissaires aux comptes. Les commissaires aux comptes ou, le cas echeant, le reviseur d'entreprises independant seront nommes par decision de l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires, selon le cas, qui determinera leur remuneration et la duree de leur mandat. Les commissaires aux comptes resteront en fonction jusqu'a ce que leurs successeurs soient elus. Ils sont reeligibles a la fin de leur mandat et ils peuvent etre revoques a tout moment, avec ou sans motif, par decision de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires. CHAPITRE IV. ASSEMBLEE GENERALE DES ACTIONNAIRES Article 19. Assemblee Generale des Actionnaires L'assemblee generale annuelle sera tenue au siege social de la Societe ou a un autre endroit tel qu'indique dans la convocation de l'assemblee le deuxieme mardi du mois de juin de chaque annee. Si ce jour est un jour ferie au Luxembourg, l'assemblee se tiendra le premier jour ouvrable suivant. Article 20. Autres Assemblees Generales des Actionnaires Si la Societe ne compte qu'un seul actionnaire unique, ce dernier exerce les pouvoirs accordes 14
par la Loi a l'assemblee generale des actionnaires. Les decisions de l'actionnaire unique doivent etre enregistrees dans un proces-verbal. L'Administrateur ou, le cas echeant, le Conseil d'Administration peut convoquer d'autres assemblees generales. De telles assemblees doivent etre convoquees si les actionnaires representant au moins un dixieme du capital social de la Societe le requierent par ecrit avec indication de l'ordre du jour de la reunion prevue. Si l'assemblee generale n'est pas tenue dans le mois suivant la date prevue, elle peut etre convoquee par un agent design€ par le juge presidant le Tribunal d'Arrondissement, section des affaires commerciales et statuant en refere, et ce a la requete d'un ou plusieurs actionnaires representant le quota des dix pour cent. Les assemblees generales des actionnaires, y compris l'assemblee generale annuelle, peuvent se tenir a l'etranger seulement si, a l'avis discretionnaire de l'Administrateur ou, le cas echeant, du Conseil d'Administration, des circonstances de force majeure l'exigent. Article 21. Pouvoirs de l'Assemblee Generale Toute assemblee generale des actionnaires regulierement constituee represente l'ensemble des actionnaires. L'assemblee generale des actionnaires exerce les pouvoirs qui lui sont attribues par la Loi et les presents Statuts. Article 22. Procedure, Vote L'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires se reunit sur convocation de l'Administrateur ou, le cas echeant, du Conseil d'Administration, ou du commissaire aux comptes en conformite avec la Loi et les presents Statuts. Ils sont obliges de convoquer une assemblee generale des actionnaires de facon qu'elle soit tenue dans le delai d'un mois, lorsque les actionnaires representant un dixieme du capital social les en requierent par une demande ecrite, indiquant l'ordre dujour. La convocation envoyee aux actionnaires en conformite avec la Loi, specifiera la date, l'heure, l'endroit et l'ordre du jour de la reunion. Les actionnaires representant un minimum de dix pour cent du capital social de la societe peuvent demander par ecrit que des points supplementaires soient ajoutes a l'ordre du jour de toute assemblee generale. Une telle requete doit etre adressee au siege social de la Societe par courrier recommande au moins cinq jours avant la date a laquelle l'assemblee generale doit etre tenue. Si tous les actionnaires sont presents ou representes a l'assemblee generale des actionnaires et declarent avoir eu connaissance de l'ordre du jour de l'assemblee, l'assemblee pourra etre tenue sans convocation prealable. Tout actionnaire peut prendre part aux assemblees en designant par ecrit ou par telecopieur un mandataire, lequel peut ne pas etre actionnaire. Un ou plusieurs actionnaires peuvent participer a une assemblee par conference telephonique, par videoconference ou par tout moyen de telecommunication similaire permettant a plusieurs personnes y participant de communiquer simultanement l'une avec l'autre. De telles participations doivent etre considerees comme equivalentes a une presence physique a l'assemblee. L'Administrateur ou, le cas echeant, le Conseil d'Administration peut determiner toutes les autres conditions devant etre remplies pour la participation a l'assemblee generale des actionnaires. Un vote est attache a chaque action, sauf autrement prevu par la Loi. Chaque actionnaire peut voter par correspondance. Pour ce faire, l'actionnaire ne peut utiliser que les formulaires de vote fourni par la Societe. 15
Chaque formulaire de vote signe et rempli doit etre delivre au siege social de la Societe soit manuellement avec accuse de reception, soit par courier recommande soit par coursier. Tout formulaire de vote qui n'est pas signe par l'actionnaire concern ou son/ses representant(s) autorise(s) selon le cas, et qui ne comporte pas au moins les mentions et indications suivantes doit etre considere comme nul et non avenu: • Le nom et siege social et/ou la residence de l'actionnaire concerne; • Le nombre d'actions et, le cas echeant, le nombre d'actions de chaque classe detenu par l'actionnaire concerne dans le capital social de la Societe; • Le lieu, la date et l'heure de l'assemblee generale devant se tenir; • L'ordre du jour de l'assemblee generale devant se tenir; • Le vote par l'actionnaire concern€ indiquant, pour chacune des resolutions proposees, si l'actionnaire conceme s'abstient, vote en faveur ou contre une telle proposition concernee; et • Le nom et le titre du representant autorise de l'actionnaire concemne, si applicable. Chaque formulaire de vote doit etre recu par la Societe au plus tard a 18 heures, heure de Luxembourg, au jour qui precede immediatement le jour auquel l'assemblee generale doit etre tenue et auquel les banques sont generalement ouvertes pour les affaires au Grand-Duche de Luxembourg. Tout formulaire de vote recu apres cette date limite ne peut etre considere. Toute assemblee generale des actionnaires doit etre presidee par le president du Conseil d'Administration ou, en son absence, par toute autre personne nommee par l'assemblee generale des actionnaires. Le president de l'assemblee des actionnaires doit nommer un secretaire. L'assemble generale des actionnaires doit nommer un ou plusieurs scrutateurs. Le president de l'assemblee generale des actionnaires ensemble avec le secretaire et le(s) scrutateur(s) nommes forment le bureau de l'assemblee generale. Une liste de presence indiquant le nom des Actionnaires, le nombre de actions detenues par eux et, si possible, le nom de leur representant, est dressee et signee par le bureau de l'assemblee generale des actionnaires ou, le cas echeant, leurs representants. Sauf autrement prevu par la Loi ou par les presents Statuts, toute resolution des actionnaires sera prise par une majorite simple des votes emis sans egard au nombre de voix presentes ou representees a l'assemblee. Pour toute resolution dont l'objet est la modification des presents Statuts ou dont l'adoption est en vertu des presents Articles, ou le cas echeant, de la Loi aux regles de quorum et de majorite determinees pour la modification des Articles, le quorum doit atteindre au moins la moitie des actions emises et en circulation. Si un tel quorum n'est pas atteint a une premiere assemblee, une deuxieme assemblee, avec exactement le meme ordre du jour que celui de la premiere assemblee, peut etre convoquee sans exigence de quorum. Sauf disposition contraire de la Loi ou par les presents Statuts, toute resolution dont l'objet est de modifier les presents Statuts ou dont l'adoption est en vertu des presents articles ou, le cas echant, par la Loi aux regles de quorum et de majorite determinee pour la modification des Statuts, doit etre prise a une majorite de deux tiers des votes emis. Article 23. Proces-verbaux des resolutions des Actionnaires Les proces-verbaux des decisions ecrites de l'actionnaire unique ou, le cas echeant, des assemblees generales des actionnaires doivent etre etablies par ecrit et signees par le seul Actionnaire ou, le cas echeant, par le bureau de l'assemblee. 16
Les copies ou les extraits des proces-verbaux de l'actionnaire unique ou, le cas echeant, de l'assemblee des actionnaires doivent etre certifiees par l'Administrateur unique ou, le cas echeant, par le President du Conseil d' Administration ou par deux Administrateurs. CHAPITRE V. ANNEE SOCIALE, REPARTITION DES BENEFICES Article 24. Annee Sociale L'annee sociale de la Societe commence le premier jour du mois de janvier et finit le dernier jour du mois de decembre de chaque annee. Article 25. Approbation des Comptes Annuels A la fin de chaque annee sociale, les comptes sont arretes et l'Administrateur ou, le cas echeant, le Conseil d'Administration dresse les comptes annuels de la Societe conformement a la loi et les soumet, le cas echeant, au commissaire aux comptes ou, le cas echeant, au reviseur d'entreprises independant, pour revision et a l'actionnaire unique ou, le cas echeant, a l'assemblee generale des actionnaires pour approbation. Tout actionnaire ou son mandataire peut prendre connaissance des comptes annuels au siege social de la Societe conformement aux dispositions de la Loi. Article 6. Affectation des Benefices Sur les benefices nets de la Societe il sera preleve cinq pour cent (5%) pour la formation d'un fonds de reserve legale. Ce prelevement cesse d'etre obligatoire lorsque et aussi longtemps que la reserve legale atteindra dix pour cent (10%) du capital social souscrit de la Societe. L'actionnaire unique ou, le cas echeant, l'assemblee generale des actionnaires decide de l'affectation du solde des benefices annuels nets. Elle peut decider de verser la totalite ou une part du solde pour absorber des pertes, s'il y en a, de le verser sur un compte de reserve ou de provision, de le reporter a nouveau sur l'annee financiere suivante ou de le distribuer a l'/aux actionnaire(s) comme dividendes. Article 27. Dividendes Interimaires L'Administrateur unique ou, le cas echeant, le Conseil d'Administration est autorise a verser des acomptes sur dividendes conformement a la Loi. CHAPITRE VI. Dissolution, Liquidation Article 28. Dissolution, Liquidation La Societe peut etre dissoute par une decision de l'actionnaire unique ou, le cas echeant, de l'assemblee generale des actionnaires deliberant aux memes conditions de quorum et de majorite que celles exigees pour la modification des Statuts, sauf dispositions contraires de la Loi. En cas de dissolution de la Societe, la liquidation s'effectuera par les soins d'un ou de plusieurs liquidateurs (personnes physiques ou morales), nommes par l'actionnaire unique ou, le cas echeant, par l'assemblee generale des actionnaires qui determinera leurs pouvoirs et leurs emoluments. Apres paiement de toutes les dettes et charges de la Societe, tous les taxes et frais de liquidation compris, l'actif net restant sera reparti equitablement entre tous les actionnaires au prorata du nombre d'actions qu'ils detiennent. CHAPITRE VII. LOI APPLICABLE Article 29. Loi Applicable Toutes les matieres qui ne sont pas regies par les presents Statuts seront reglees conformement a la Loi. POUR STATUTS CONFORMES AU 05 DECEMBRE 2018. 17
GOL LINHAS AÉREAS INTELIGENTES S.A. CNPJ/MF No. 06.164.253/0001-87 NIRE 35.300.314.441 Publicly-held Company BYLAWS CHAPTER I NAME, HEADQUARTERS, JURISDICTION, DURATION AND PURPOSE ARTICLE 1 – Gol Linhas AÉreas Inteligentes S.A. (“Company”) is a joint stock company governed by the laws and use of commerce, by these By-Laws (“Bylaws”) and applicable legislation. 1st Paragraph - Upon admission of the Company in the special listing segment called Level 2 of Corporate Governance (Nível 2 de Governança Corporativa) of the BM&FBOVESPA S.A. – Bolsa de Valores, Mercadorias e Futuros (“BM&FBOVESPA”) (Stock, Commodities and Futures Exchange), the Company, its shareholders, executive officers and members of the Board of Directors and of the Fiscal Board, when installed, are bound by the provisions set forth in the Regulation of Level 2 Corporate Governance of BM&FBOVESPA (“Regulation”). The Company, its management and shareholders will also be bound by the listing and trading rules of the BM&FBOVESPA. 2nd Paragraph - The provisions in the Regulation shall prevail over the provisions in the Bylaws, in the event of loss to the rights of the investors in public offerings provided for in these Bylaws. ARTICLE 2 - The objective of the Company is to exercise corporate control of VRG Linhas AÉreas S.A. or of its successor at any title, and by means of controlled or affiliate companies, to exploit: (a) regular and non-regular air transportation services of passengers, cargo and mail bags, nationally or internationally, according to the concessions granted by the competent authorities; (b) complementary activities of chartering air transportation of passengers, cargo and mail bags; (c) the rendering of maintenance services, repair of aircrafts, own or third parties, motors, items and parts; (d) the rendering of services of aircraft hangar; (e) the rendering of services of attendance of patio and road, supplying of flight attendance and aircrafts cleaning; (f) the development of other activities related, connected or auxiliary to air transportation and to the other activities above described; and (g) participation in other companies, as a partner, quotaholder or shareholder.
Exhibit T3B.1 - Bylaws of GOL Linhas Aéreas Inteligentes S.A.
Sole Paragraph - The transfer of the corporate control of VRG Linhas AÉreas S.A. shall be considered a change in corporate objective for purposes of exercise of the withdrawal right by the shareholders of the Company. ARTICLE 3 - The Company’s head office is located in the City of São Paulo, State of São Paulo, at Pça. Comandante Linneu Gomes, s/n, portaria 3, prÉdio 24, parte, Jardim Aeroporto, and it may open and close branches, agencies, warehouses or representation offices in any part of the Brazilian territory or abroad, by resolution of the Board of Directors. ARTICLE 4 - The Company’s term is indefinite. CHAPTER II CAPITAL STOCK AND SHARES ARTICLE 5 - The Share Capital, fully subscribed and paid in, is BRL 4,202,543,932.30 (four billion, two hundred and two million, five hundred and forty-three thousand, nine hundred and thirty-two reais and thirty centavos), divided into 3,202,276,835 (three billion, two hundred and two million, two hundred and seventy-six thousand, eight hundred and thirty-five) shares, of which 2,863,682,500 (two billion, eight hundred and sixty-three million, six hundred and eighty-two thousand, five hundred) common shares and 338,594,335 (three hundred and thirty-eight million, five hundred and ninety-four thousand, three hundred and thirty-five) preferred shares, all registered and without par value. 1st Paragraph - The Company’s shares shall be registered, with the adoption of book-entry shares being permitted, in which case they will be held in deposit accounts opened in the name of their respective holders, with a financial institution duly authorized by the Brazilian Securities and Exchange Commission (“CVM”), it being permitted that the fee mentioned in paragraph 3, article 35, of Law nº 6,404/76, as amended, be charged to the shareholders (“Brazilian Corporate law”). 2nd Paragraph - Each common share shall be entitled to one vote in the Shareholders Meetings. 3rd Paragraph - Preferred shares shall not be entitled to voting rights, except in the case of the subjects specified in the 4th Paragraph below, the preferences and advantages consisting of the following: a) priority in the reimbursement of capital with respect to common shares, in the case of the liquidation of the Company, for the value per preferred share equal to the value of the Capital Stock of the Company divided by the total number of issued shares of the Company, multiplied by thirty-five (35). b) the right to be included in the public tender offer arising from the sale of corporate control, for the same condition and for a price per share that is equal to thirty-five (35) times the value per common share that is paid to the shareholder selling control (as defined in the Regulation);
c) right to receive dividends per share equal to thirty-five (35) times the value of the dividends received per common share; and d) in case of liquidation of the Company, the right to receive, after the capital priority reimbursement and the reimbursement of the capital of the common shares have been paid, thirty-five (35) times the value attributed to each common share at the time that any remaining assets are liquidated. 4th Paragraph - Preferred shares shall be entitled the right to vote in any deliberations of the Shareholders’ Meeting concerning (the “Extraordinary Matters”): a) transformation, incorporation, spin-off and merger of the Company; b) approval of agreement between the Company and the Controlling Shareholder (as defined in the Regulation), directly or through third parties, as well as any other companies in which the Controlling Shareholder has interest, always when by operation of law or the Bylaws are deliberated in a general meeting; c) evaluation of goods destined to the paying up of increase of the Company’s corporate capital; d) choice of specialized institution or company for the determination of the Economic Value of the Company according to the definition and terms of item 10.1.1. of the Regulation; e) change of the Company’s corporate purpose; f) amendment or revocation of statutory provisions that amend or modify any of the requirements provided for in item 4.1. of the Regulation, being agreed that such voting right shall prevail while the Level 2 Corporate Governance Listing Agreement (as defined in the Regulation) is effective; g) amendments to or exclusion of Articles 12 through 16, paragraphs 3, 5 and 6 of Article 18, Articles 36 through 38 and 50; and h) any change in the voting rights determined in this paragraph and in paragraphs 5 and 8 below. 5th Paragraph - In case the Controlling Shareholder holds shares of the Company that represent, in aggregate, Participation in the Dividends (as defined below) equal to or less than fifty percent (50%), the approval of the Extraordinary Matters referred to in items (a) through (f) above by the Shareholders’ Meeting (as defined below) will depend on the prior approval by an Extraordinary Meeting, observing the applicable quorums and approvals under these Bylaws and the Regulation. Regardless of the interest held by the Controlling Shareholder, the approval of the Extraordinary Matters referred to in items (g) and (h) above by the Shareholders’ Meeting will always depend on the prior approval by an Extraordinary Meeting,
observing the applicable quorums and approvals under these Bylaws and the Regulation. 6th Paragraph - If there is a shareholder withdrawal, the amount to be paid by the Company as reimbursement for the shares held by the shareholder that has exerted this withdrawal right, when authorized by Brazilian Corporate Law, shall correspond to the economic value of such shares, to be calculated according to the procedure of evaluation accepted by Brazilian Corporate Law, as amended, whenever such value is lower than the equity value calculated according to article 45 of Brazilian Corporate Law. 7th Paragraph - Observing the transfer restrictions indicated in Chapter IX of these Bylaws, the shareholders may, at any time, convert common shares into preferred shares, in the proportion of thirty-five (35) common shares to one (1) preferred share, provided that such shares are paid-up and with due regard to the legal limit. The conversion requests shall be sent to the Board of Officers in writing. The conversion requests, made pursuant to the terms of these Bylaws, received by the Board of Officers shall be ratified in the first meeting of the Board of Directors to be held. 8th Paragraph - Any rights conferred to the shareholders by law as a result of their ownership of a certain percentage of the capital stock may be exercised by shareholders who are owners of shares representing the same percentage in the Participation in the Dividends pursuant to these Bylaws. ARTICLE 6 - Observing the legal limitations applicable, the Company is authorized to increase its corporate capital up to seventeen billion Reais (R$17,000,000,000.00). 1st Paragraph - Within the limit authorized by this Section, the Company may, by resolution of the Board of Directors, increase the corporate capital, regardless of amendment to the By-Laws, either upon issuance of shares, warrants, or upon issuance of debentures convertible into stock, without respecting the proportionality between the different types of shares. The Board of Directors shall determine the conditions for the issuance, including the price and pay-up term. 2nd Paragraph - At the Board of Directors’ discretion, the right of first refusal may be excluded or have its term for exercise reduced concerning the issuance of shares, or debentures convertible into shares, in which placement is held in the stock market or by public subscription, or even by exchange per shares, in a public offering for acquisition of corporate control, according to the provisions of law. 3rd Paragraph - The Company may, within the limit of the authorized capital established herein and according to a plan approved by the Shareholders’ Meeting (defined below), grant stock options to its officers or employees or to individuals that render services to the Company or to a company under its control.
ARTICLE 7 - The issuance of participation certificates by the Company is forbidden. CHAPTER III SHAREHOLDERS’ MEETINGS ARTICLE 8 - The shareholders’ meetings (“Shareholders’ Meeting”) have authority to decide on all matters related to the purpose of the Company and take any resolutions deemed convenient to its protection and development. Shareholder Meetings shall be called, installed and held for the purposes of and as provided for by Brazilian Corporate Law, and resolutions shall be taken according to the quorum established by law. The minutes of the Shareholders’ Meeting shall register the number of votes submitted by shareholders entitled to vote in favor and against each item and shall indicate the total Participation in the Dividends of the shareholders who voted for and against each item. 1st Paragraph - The Shareholders’ Meeting shall be called by means of a call notice published at least fifteen (15) days prior to the first call and eight (8) days prior to the second call. 2nd Paragraph - All documents to be analyzed or discussed in the Shareholders’ Meeting shall be made available to the shareholders in the BM&FBOVESPA, as well as in the Company’s headquarters, as from the date of publication of the first call notice mentioned in the previous paragraph. 3rd Paragraph - Any shareholder may be represented at the Shareholders’ Meeting by proxy pursuant to paragraph 1 of Article 126 of Brazilian Corporate law, and the power-of-attorney granting the proxy shall conform to the law and shall be submitted to the Company at its headquarter at least three (3) days prior to the Shareholders’ Meeting. The shareholder or his legal representative shall bear proof of identity to the Shareholders’ Meeting. 4th Paragraph - Without prejudice to the provision above, any shareholder present at the start of a Shareholders’ Meeting with the above required meetings will be entitled to participate and vote in that meeting, even if such shareholder failed to present any documents in advance. ARTICLE 9 - The Shareholders’ Meeting shall be installed and presided by the Chairman of the Board of Directors or, upon his absence or impediment, by another member of the Board of Directors or, in the absence of either of these, by any of the Company’s officers present. Sole Paragraph - The President of the Shareholders’ Meeting shall choose one or more secretaries. ARTICLE 10 - The shareholders shall meet annually during the four (4) months immediately following the end of the fiscal year and they shall decide on the matters for which they are responsible as provided for by Brazilian Corporate Law.
ARTICLE 11 - The shareholders shall meet on an extraordinary basis whenever the Company’s interests require a decision by the shareholders and in the cases provided by Brazilian Corporate Law and under these Bylaws. CHAPTER IV EXTRAORDINARY MEETING ARTICLE 12 - Pursuant to the terms of Paragraph 5 of Article 5 of these Bylaws, the approval of an Extraordinary Matter at a Shareholders’ Meeting may depend on the prior approval by holders of preferred shares present at an extraordinary meeting (“Extraordinary Meeting”). ARTICLE 13 - The Extraordinary Meeting shall be called by means of a call notice published at least fifteen (15) days prior to the first call and eight (8) days prior to the second call. Sole Paragraph - All documents to be analyzed or discussed at the Extraordinary Meeting shall be made available to the preferred shareholders at BM&FBOVESPA as well as at the Company’s headquarters, from the date that the first call notice is published pursuant to this Article. ARTICLE 14 - The Extraordinary Meeting shall be commenced and presided by the Chairman of the Board of Directors or, upon his absence or impediment, by another member of the Board of Directors or, in the absence of either of these, by any of the Company’s officers present. Sole Paragraph - The President of the Shareholders’ Meeting shall choose one or more secretaries. ARTICLE 15 - The Extraordinary Meeting shall be held, on first call, with the presence of shareholders representing at least twenty-five percent (25%) of the preferred shares, and, on second call, with the presence of shareholders representing any number of preferred shares, except as provided in the Regulation. The minutes of the Extraordinary Meeting shall register the number of votes submitted by shareholders entitled to vote in favor and against each item and shall indicate the total Participation in the Dividends of the shareholders who voted in favor and against each item. ARTICLE 16 - Any shareholder may be represented at the Extraordinary Meeting by proxy pursuant to paragraph 1 of Article 126 of Brazilian Corporate law, and the power-of-attorney granting the proxy shall conform to the law and shall be submitted to the Company at its headquarter at least three (3) days before the date established for the Extraordinary Meeting. The shareholder or his legal representative shall bear proof of identity to the Extraordinary Meeting. Sole Paragraph - Without prejudice to the provision above, any shareholder present at the start of a Shareholders’ Meeting with the above required meetings will be entitled to participate and vote in that meeting, even if such shareholder failed to present any documents in advance.
CHAPTER V MANAGEMENT ARTICLE 17 - The Company shall be managed by a Board of Directors and a Board of Officers. Sole Paragraph - The total aggregate compensation of the Board of Directors (as defined in the Regulation) shall be determined at the Shareholders’ Meeting, and the Board of Directors shall be responsible for determining the individual compensation of each of the members of the Board of Directors and of the Board of Officers. SECTION I BOARD OF DIRECTORS ARTICLE 18 - The Board of Directors shall be comprised of at least five (5) and at most ten (10) members, resident or not in Brazil, appointed by the Shareholders’ Meeting and subject to dismissal by the Shareholders’ Meeting at any time, for a unified term of office of one (1) year, reelection being permitted. The Shareholders’ Meeting shall also designate the Chairman of the Board, who may not be simultaneously the Chief Executive Officer of the Company. 1st Paragraph - Each member of the Board of Directors shall have a good reputation and the professional experience necessary to carry out its duties, and no person who has, or represents someone who has, a conflict of interest shall be elected, except with a waiver from the Shareholders’ Meeting. Without prejudice to the authority of the Shareholder’s Meeting, members of the Board of Directors should preferably have diverse business and professional qualifications, including experience managing large companies, in the civil aviation industry, in financial, accounting and risk management, investment management, commercial management and in leading boards of directors of listed companies. 2nd Paragraph - At least twenty percent (20%) of the Directors shall be Independent Directors (as defined in the Regulation) and expressly declared as such in the minutes of the Shareholders’ Meeting at which they are elected. A Director will be also deemed as independent if elected in accordance with the provisions set forth in paragraphs 4 and 5 of Article 141 of the Brazilian Corporate Law. In case, as a result of compliance with the above mentioned percentage, there shall be a fractional number of directors, such number shall be rounded: (i) to the next whole number when the fraction is equal to or greater than 0.5; or (ii) to the preceding whole number when the fraction is less than 0.5. 3rd Paragraph - Without prejudice to the foregoing provisions, the following additional rules with respect to the composition of the Board of Directors shall be observed, noting that if the percentages in clauses “a” through “c” of this paragraph result in a fractional number of directors, such number shall be rounded: (i) to the next whole number when the fraction is equal to or greater than 0.5; or (ii) to the preceding whole number when the fraction is less than 0.5.
a) If the Controlling Shareholder, at any time, holds an amount of shares that represents a Participation in the Dividends of equal to or less than thirty-five percent (35%) and greater than fifteen percent (15%), at least forty percent (40%) of the directors shall be Independent Directors with the holders of preferred shares having the right to elect, in a separate vote, one (1) of the Independent Directors. b) If the Controlling Shareholder, at any time, holds an amount of shares that represents a Participation in the Dividends of equal to or less than fifteen percent (15%) and greater than seven and a half percent (7.5%), at least fifty percent (50%) of the directors shall be Independent Directors with the holders of preferred shares having the right to elect, in a separate vote, two (2) of the Independent Directors. c) If the Controlling Shareholder, at any time, holds an amount of shares that represents a Participation in the Dividends of equal to or less than seven and a half percent (7.5%), at least sixty percent (60%) of the directors shall be Independent Directors with the holders of preferred shares having the right to elect, in a separate vote, two (2) of the Independent Directors. 4th Paragraph - If the holders of preferred shares elect a member to the Board of Directors pursuant to paragraph 4 of Article 141 of Brazilian Corporate Law, the right described in clause “a” of the 3rd paragraph shall not be applicable, and with respect to clauses “b” and “c,” the holders of preferred shares shall have the right to elect, in a separate vote, only one (1) of the Independent Directors. 5th Paragraph - In addition to the provisions in the 3rd paragraph above, if the Controlling Shareholder, at any time, holds an amount of shares that represents a Participation in the Dividends of equal to or less than thirty five percent (35%), the Governance Committee shall be installed and shall function in accordance with the provisions of these Bylaws. 6th Paragraph - In addition to the provisions in the 3rd paragraph above, if the Controlling Shareholder, at any time, holds an amount of shares that represents a Participation in the Dividends of equal to or less than fifteen percent (15%), the Independent Directors may only be removed from office during their mandates with the prior approval of the Extraordinary Meeting. 7th Paragraph - The members of the Board of Directors shall be vested in office upon signature of the respective term, drawn up in the proper book, being the vesting in office conditioned to the signature of the Statement of Consent from Senior Managers (as defined in the Regulation). The Directors shall, immediately after vested in office, inform the BM&FBOVESPA the amount and the characteristics of the securities issued by the Company that they hold, directly or indirectly, including its derivatives. 8th Paragraph - The members of the Board of Directors not reelected shall remain in office until their substitutes are vested in office.
th Paragraph - Any vacancies of the members of the Board of Directors, if there are no substitutes, shall be filled at the first Shareholders Meeting that occurs after such vacancy, according to the terms of this Article 18, except if the vacancy results in the Board of Directors having less than five (5) members. In case the vacancy results in the Board of Directors having less than five (5) members, then current members of the Board of Directors shall appoint any number of additional members until the Board of Directors has five (5) members, which additional members shall be in office for the remainder of the term. ARTICLE 19 - The Board of Directors shall meet whenever called by its Chairman or by three (3) of its members. The Directors may participate in the Board of Directors’ meetings through conference call or video conference. 1st Paragraph - The meeting shall be called at least seven (7) days in advance, by registered mail or other written means, with a brief description of the agenda, and the attending members shall be deemed regularly called. 2nd Paragraph - Minutes of the meeting shall be recorded. 3rd Paragraph - The meetings shall be installed in the presence of at least the majority of the members of the Board of Directors, in the two (2) first calls, and with the presence of at any number of members in the third call. The decisions shall be taken by a majority of votes among the attending members. The Chairman is entitled to cast the deciding vote in case of a tie. 4th Paragraph - Regardless of the formalities related to its call, a meeting shall be deemed regularly called if all members attend. 5th Paragraph - The members of the Board of Officers and of the Fiscal Board (Conselho Fiscal) may attend the Board of Directors’ meetings and shall have the right to speak but not the right to vote. ARTICLE 20 - The Board of Directors shall decide on the matters described in Section 142 of Brazilian Corporate Law as well as in these Bylaws (and, if applicable, shall speak favorably with respect to the matters of exclusive responsibility of the Shareholders’ Meeting), by the favorable vote of the majority of the members present at the meeting. ARTICLE 21 - The Board of Directors is responsible for the following decisions: a) Determine the general orientation of the business of the Company; b) Elect and dismiss the Company’s Officers; c) Arrogate to itself and decide about any subject which is not of exclusive responsibility of the Shareholders’ Meeting or of the Board of Officers; d) Determine whether to call a Shareholders’ Meeting or an Extraordinary Meeting, whenever it deems necessary, or pursuant to article 132 of Brazilian Corporate Law;
e) Audit the administration of the Officers, by examining, at any time, books and papers of the Company, and requesting information on agreements executed or under execution and any other acts; f) Elect and dismiss the independent auditors; g) Call the independent auditors to render the explanations deemed necessary; h) Analyze the Management Report and the Board of Officers’ accounts and decide about their submission to a Shareholders’ Meeting; i) Approve the annual and pluriannual budgets, the strategic plans, the expansion projects, and monitor their execution; j) Approve the incorporation of a subsidiary and the participation of the Company in the corporate capital of other companies in the country and abroad; k) Approve or determine the powers of the Board of Officers to approve the secured fiduciary sale or encumbrance of the Company´s permanent assets, including mortgaging, pledging, granting of lien, antichresis, surety or guarantee, confessing, waiving rights, discharging third parties´ obligations to the Company, compromising and otherwise determining, as deemed convenient, which members of the Board of Officers shall perform the authorized act, and being entitled to define cases in which the previous authorization of the Board of Directors is a necessary condition; l) Authorize the Company to render guarantees on behalf of third parties; m) Assessing and overseeing the implementation of the related party transactions policy for the Company; n) Authorize the opening, transfer or closing of offices, branches, facilities or other establishments of the Company; o) Decide about the acquisition by the Company of shares of its own issuance, to be held in treasury and/or later canceled or disposed; p) Grant stock options to its administrators and employees according to the terms of the plan approved by the Shareholders’ Meeting, without right of preference to the shareholders; q) Pass a resolution approving the issuance of secured or unsecured simple debentures, whether convertible into stock or not; r) Authorize the issuance of any credit instruments for the raising of funds, either “bonds”, “notes”, “commercial papers”, or others usual in the market, deciding about its conditions of issuance and redemption; s) At its discretion, periodically establish parameters of the amount involved, the time/term, extension of effects and others, under which certain
corporate and/or financial acts, including loans of assets and liabilities, may be performed by the Board of Officers; t) Authorize borrowing of money or granting of loans or other credit facilities, by the Company; u) Decide on procedural matters regarding its activities and adopt an internal charter, observing these Bylaws and applicable law; v) Approve any capital increases within the Company’s authorized capital as provided for in Article 6; w) State its favorable or dissenting opinion with respect to any public offering for shares issued by the Company, by means of a duly substantiated opinion, disclosed within fifteen (15) days prior to the publication of the invitation to the public offering, which shall address, at least (i) the convenience and opportunity of the public offering of shares as for the interests of all the shareholders and in relation to the liquidity of the securities owned by it; (ii) the consequences of the public offering of shares on the Company’s interest; (iii) the strategic plans disclosed by the offeror in relation to the Company; (iv) other issues the Board of Directors may deem to be pertinent, as well as the information required by the applicable rules set forth by the CVM; and x) Define a list with the names of three firms specialized in economic evaluation of companies for preparing an appraisal report of the Company’s shares, in the cases of a public tender offer of shares for cancellation of registration of the company as a publicly-held company or for delisting from the Level 2 Corporate Governance segment of the BM&FBOVESPA. 1st Paragraph - The Company and the Directors shall, at least once a year, call a public meeting with analysts and any other interested parties, to divulge information regarding its respective economic-financial situation, projects and perspectives. 2nd Paragraph - The Board of Directors is responsible for the institution of Committees and the definition of their regulations and responsibilities. The following Committees shall be permanent: Audit Committee and People Management as well as the Governance Committee, installed in accordance with the terms of Article 27. SECTION II BOARD OF OFFICERS ARTICLE 22 - The Board of Officers shall be comprised of at least two (2) and up to seven (7) Officers, being one Chief Executive Officer, one Chief Financial Officer, one Investor Relations Officer and four (4) Officers, all resident in the Country, appointed by the Board of Directors and being its dismissal possible at any time, with a term of office of one (1) year, reelection permissible.
1st Paragraph - The responsibilities of the officers shall be defined by the Board of Directors, which shall also establish the fixed compensation of each member of the Board of Officers, and shall distribute, whenever applicable, the participation in the profits established by the Shareholders’ Meeting. 2nd Paragraph - The officers shall ensure the compliance of the law and the Bylaws. 3rd Paragraph - The Chief Executive Officer shall be responsible, in particular, for coordinating the regular activities of the Company, including the following activities: a) To cause the compliance with these Bylaws and the guidelines and resolutions passed at the Shareholders’ Meetings, the Board of Directors’ Meetings and the Board of Officers’ Meetings; b) To administer, manage and superintend the corporate business, and to issue and approve internal instructions and regulations deemed by him to be useful or necessary for causing the compliance with the general guidelines of the Board of Directors relating to the Company´s business, under the terms of article 21, “a” of these Bylaws. c) To keep the members of the Board of Directors informed about the activities of the Company and the progress of its operations; d) To annually submit to the Board of Directors, for their approval, the Management Report and the Board of Officers´ accounts, accompanied with the independent auditors´ report, as well as the proposal for allocation of the profit for the previous fiscal year; e) To prepare and propose, to the Board of Directors, the annual and multiannual budgets, the strategic plans, the expansion projects and the investment projects; and f) To exercise other duties as may be assigned to him by the Board of Directors. 4th Paragraph - The Chief Executive Officer shall be the Company´s representative before public authorities and, in the exercise of his duties regarding relationship and institutional policies, he shall be supported by the Chairman of the Board of Directors. 5th Paragraph - In case of vacancy or impediment of any officer, the Board of Directors shall designate a new officer or a substitute and shall set forth, in either case, the respective term-of-office and compensation. 6th Paragraph - The Board of Officers shall meet whenever necessary, and the meeting shall be called by the Chief Executive Officer, who shall also be the chairman of the meeting.
7th Paragraph - The meeting shall be installed with the presence of the officers representing the majority of the members of the Board of Officers. 8th Paragraph - Minutes of the meetings and the decisions of the Board shall be registered in the proper book. 9th Paragraph - The members of the Board of Officers shall be vested in office upon signature of the respective term, drawn up in the proper book, and the vesting in office shall be conditioned to the signature of the Statement of Consent of Senior Managers (as defined in the Regulation). The Officers shall, immediately after vested in office, inform the BM&FBOVESPA the amount and the characteristics of the securities issued by the Company that they hold, directly or indirectly, including its derivatives. ARTICLE 23 - The Board of Officers shall have all the powers and attributions that the law, the Bylaws and the Board of Directors of the Company confer upon it for the performance of the necessary acts to the regular operation of the Company, being entitled to decide on the performance of all actions and transactions related to the purpose of the Company which are not within the responsibilities of the Shareholders’ Meeting or the Board of Directors, as well as all actions and transactions which do not require previous authorization from the Board of Directors. 1st Paragraph - With due regard to the provisions above, the Board of Officers shall: a) Represent the Company in accordance with its Bylaws, whether in court or out-of-court, with due regard to the attributions set forth in law, and appoint ad negotia or ad judicia attorneys-in-fact; b) Prepare and perform the plans and investment and development policies, as well as the respective budgets, with due regard to the deliberative capacity of the Board of Directors; and c) Control and analyze the behavior of the controlled, affiliate and subsidiary companies in view of the expected results. 2nd Paragraph - The Board of Officers may designate one of its members to represent the Company in acts or transactions in the country or abroad, or designate an attorney-in-fact to perform a specific act. ARTICLE 24 - In addition to the provisions listed in Paragraph 3 of Article 22 above, the Company’s Chief Executive Officer shall have powers to preside over the meetings of the Board of Officers and supervise the compliance of general decisions. ARTICLE 25 - All acts that create responsibility for the Company, or discharge third parties obligations to the Company, including the representation of the Company
n court, actively or passively, shall only be deemed valid if approved according to the Bylaws and if they have: a) the joint signature of the Chief Executive Officer and another Officer; or b) the joint signature of two Officers; or c) the signature of one Officer together with an attorney-in-fact; or d) the joint signature of two attorneys-in-fact of the Company. 1st Paragraph - The powers-of-attorney shall always be executed by two members of the Board of Officers, and shall be granted for specific purposes and for a determined term, except for those with the powers of the ad judicia clause. 2nd Paragraph - The Company shall be represented solely by any of the Officers, without regard to the formalities set forth in this Section in the cases of personal testimony and in their condition of representatives of the Company on judicial hearings. SECTION III AUDIT COMMITTEE ARTICLE 26 - The Audit Committee, an advisory body to the Board of Directors and permanently installed, shall have the responsibilities set under CVM Rule No. 308/99, as amended, these Bylaws and its internal charter. 1st Paragraph - The Audit Committee shall have operational autonomy with an annual and per project budget allocation. 2nd Paragraph - The Audit Committee shall have a procedure to receive complaints, including confidentially, both internal and external to the Company, regarding the matters within its responsibility. 3rd Paragraph - The Audit Committee may hire outside independent advisers. 4th Paragraph - The Audit Committee shall be comprised of at least three (3) members, appointed by the Board of Directors and subject to dismissal by the Board of Directors, for a term of office of up to ten (10) years and as provided under CVM Rule No. 308/99. In case of any vacancy, the Board of Directors shall appoint new members which shall be in office for the remainder of the term. 5th Paragraph - At least one (1) member of the Audit Committee shall have knowledge of corporate accounting. 6th Paragraph - In addition to any authority granted by Board of Directors and under its internal charter, the Audit Committee is responsible for: a) supervising the relationship between the Company and its external auditors, including (i) opining in connection with their appointment and compensation, (ii) recommending the performance of other services, (iii) assessing the independence, quality and adequacy of services, and (iv)
mediating the resolution of disagreements between management and the external auditors; b) supervising the Company’s departments responsible for: (i) internal controls, (ii) internal audit, and (iii) financial reporting; c) monitoring the quality and integrity of (i) internal controls, (ii) internal audit, and (iii) financial reporting; d) assessing and monitoring the Company’s risk exposure, including requesting specific information regarding internal policies and procedures in connection with (i) management compensation, (ii) the use of corporate resources, and (iii) corporate expenses; e) assessing and monitoring, jointly with management, the Company’s internal audit department and the adequacy of related party transactions; f) investigating any complaints in connection with financial statements, internal controls and external auditors; g) preparing an annual summarized report, to be presented with the Company’s financial statements, on (i) the Audit Committee’s activities and any recommendations, (ii) any matters in which there was a material disagreement between management, external auditors and the Audit Committee in connection with the Company’s financial statements. 7th Paragraph - Without prejudice to the above, the Audit Committee will also perform the roles of an audit committee under United States laws, specially the Sarbanes-Oxley Act of 2002. 8th Paragraph - The members of the Audit Committee will select one of their peers to act as chairman, which shall be an independent member of the Board of Directors and will be in charge of convening Extraordinary Meetings and determining the agenda for meetings, provided that the Audit Committee shall meet at least prior to the publication of any financial statements. All decisions of the Audit Committee shall be recorded in minutes signed by all members present. 9th Paragraph - The Audit Committee’s internal charter shall provide rules and procedures regarding its activities and meetings supplemental to these Bylaws. 10th Paragraph - The Audit Committee, or its chairman, shall meet with the Board of Directors at least quarterly and shall be present at any Shareholder’s Meeting. SECTION IV GOVERNANCE COMMITTEE ARTICLE 27 - The Governance Committee shall be installed if the Controlling Shareholder holds an amount of shares that represents a Participation in the Dividends of less than thirty five percent (35%).
1st Paragraph - The Governance Committee, when installed, shall be comprised of at least three (3) members, with a majority being Independent Directors. 2nd Paragraph - The Governance Committee shall be chaired by an Independent Director, who shall have the power to call extraordinary meetings and determine the agenda of any meetings. ARTICLE 28 - The Governance Committee is responsible for the following decisions: a) opining on the appointments of Independent Directors chosen by the Controlling Shareholder, provided that it may issue a confidential opinion prior to the Shareholder’s Meeting upon consultation from the Controlling Shareholder; b) opining on the composition of the Board of Directors with regard to the experience and professional qualification attributes that should be represented in the Board of Directors according to Paragraph 1 of Article 18; c) recommending to the Board of Directors corporate governance guidelines applicable to the Company and monitor its implementation; d) analyzing and approving annually the Company’s Code of Conduct; and e) analyzing and opining with regards to situations that create potential conflicts of interests between the Directors and the Company. Sole Paragraph – In case the Governance Committee verifies that any Independent Director of the Board of Directors appointed by the Controlling Shareholder does not in fact meet the independence criteria (as set forth in the Regulation), the Audit Committee shall notify the Board of Directors so that the Board of Directors may notify the Controlling Shareholder and request the appointment of another member. CHAPTER VI FISCAL BOARD (CONSELHO FISCAL) ARTICLE 29 - The Company shall have a Fiscal Board composed of three (3) to five (5) members and alternates in equal number. The Fiscal Board shall not be permanent. It shall only be elected and installed by the Shareholders’ Meeting upon the request of the shareholders, in the cases provided by Brazilian Corporate Law. Sole Paragraph - The members of the Fiscal Board shall be vested in office upon signature of the respective term, drawn up in the proper book, being the vesting in office conditioned to the signature of the Statement of Consent from Fiscal Board Members (as defined in the Regulation). The members of the Fiscal Board shall, immediately after vested in office, inform the BM&FBOVESPA the amount and the characteristics of the securities issued by the Company that they hold, directly or indirectly, including its derivatives.
ARTICLE 30 - The Fiscal Board shall meet whenever called by any of its members, at least once every three months. The operation of the Fiscal Board shall end on the Annual Shareholders’ Meeting subsequent to its installation, and reelection of its members is permitted. ARTICLE 31 - The compensation of the members of the Fiscal Board shall be determined at the Shareholders’ Meeting during which they are elected. CHAPTER VII CORPORATE YEAR, FINANCIAL STATEMENT AND PROFIT ALLOCATION ARTICLE 32 - The Company’s fiscal year shall have a term of one (1) year and shall end on the last day of December of each year. ARTICLE 33 - At the end of each fiscal year the financial statements required by law shall be drawn up based on the Company’s accountancy: a) Balance sheet; b) Statement of changes in net worth position; c) Statement of results of the fiscal year; and d) Statement of origin and application of resources. 1st Paragraph - Jointly with the financial statements of the fiscal year, the Board of Directors shall present during the Annual Shareholders’ Meeting a proposal on the destination to be given to the net profit, observing the provisions of Brazilian Corporate Law and these Bylaws. 2nd Paragraph - The Board of Directors may determine the preparation of balance sheets at any time, respecting provisions of law, and approve the distribution of intercalary dividends based on the profits verified. 3rd Paragraph - At any time, the Board of Directors may also deliberate the distribution of intermediary dividends, to the account of accumulated profits or reserve of existing profits. 4th Paragraph - The amount paid or credited as interest on equity capital under the terms of article 9, Paragraph 7 of Law nº 9.249/95, and the applicable laws and regulations, may be regarded as obligatory dividend and integrate the total value of the dividends distributed by the Company for all legal purposes. 5th Paragraph - Intermediate and intercalary dividends shall always be credited and considered as anticipation of the mandatory dividend. ARTICLE 34 - From the results of the fiscal year, occasional accumulated losses and income tax provision shall be deducted from the results of the fiscal year prior to any participation.
1st Paragraph - Over the remaining profit calculated as described in this Section’s mainline, the statutory participation of the Managers shall be calculated to the maximum extent permitted by law. 2nd Paragraph - The net profit of the fiscal year after the deduction referred to in the previous paragraph, shall be applied as follows: a) five percent (5%) for the legal reserve until it reaches twenty percent (20%) of the Company’s paid up capital; b) twenty-five percent (25%) of the balance of the net profit of the fiscal year, after the deduction referred to in the previous paragraph and adjusted pursuant to article 202 of Brazilian Corporate Law, shall be used to pay mandatory dividend to all of its shareholders; c) every time the amount of the minimum dividend is greater than the amount of the realized part of the fiscal year, the administration may suggest, and a Shareholders’ Meeting approve, the destination of the excess to the constitution of profit reserve to be realized, pursuant to article 197 of Brazilian Corporate Law; and d) the remaining balance shall have the destination attributed to it by the Board of Directors, provided it has been approved during the Shareholders’ Meeting, or it has not been decided otherwise, pursuant to article 196 of Brazilian Corporate Law. CHAPTER VIII LIQUIDATION ARTICLE 35 - The Company shall be liquidated in the cases established by law or by virtue of a decision of the Shareholders’ Meeting, and shall be extinguished at the end of the liquidation process. Sole Paragraph - The Board of Directors shall appoint the liquidator and determine the process and the directives to be observed and shall establish its compensation. CHAPTER IX RULES CONCERNING THE TRANSFER OF SHARES ARTICLE 36 - The Controlling Shareholder, as established on March 23, 2015, shall observe the following restrictions concerning the transfer of 31,463,850 (thirty one million, four hundred sixty three thousand, eight hundred and fifty) preferred shares held on March, 23th 2015: a) 31,463,850 (thirty one million, four hundred sixty three thousand, eight hundred and fifty) preferred shares must be held by the Controlling Shareholder and its permitted transferees, pursuant to the terms established in the 1st and 2nd paragraphs of this Article 36, without interruption until March, 23th 2016; and
b) after the time period established in clause “a” above, the Controlling Shareholder and its permitted transferees, pursuant to the terms established in the 1st and 2nd paragraphs of this Article 36, shall hold, without interruption, at least 15,731,925 (fifteen million, seven hundred and thirty one thousand, nine hundred twenty five) preferred shares, being permitted to transfer 15,731,925 (fifteen million, seven hundred and thirty one thousand, nine hundred twenty five), without being subject to the restrictions of Article 37 below. 1st Paragraph - Until March 23, 2017, the Controlling Shareholder, as determined on March 23, 2015, shall only be allowed to transfer preferred shares covered by this Article 36 in private transactions, outside of a stock exchange or organized over-the-counter market, to acquirers who agree to comply with the restrictions provided in this Article 36. For the purposes of this paragraph, the sale by the Controlling Shareholder of preferred shares pursuant to a restricted efforts offering under CVM Rule No. 476/09, as amended, or a single block auction will be deemed to be a private transaction provided the acquirer of these shares agrees to be bound by the restrictions provided herein. 2nd Paragraph - Any subsequent private transfer of preferred shares initially transferred by the Controlling Shareholder, as determined on March 23, 2015, pursuant to the terms of the 1st paragraph above and the time restrictions established in this Article 36, shall only occur if the new acquirer of these preferred shares agrees to comply with the restrictions provided in this Article 36. 3rd Paragraph - The transfer restrictions of preferred shares provided in this Article 36 shall not apply to preferred shares derived from the conversion of common shares or that are acquired by the Controlling Shareholder after March 23, 2015. ARTICLE 37 - The transfer of common shares owned by the Controlling Shareholder or of preferred shares resulting from the conversion of common shares, shall be subject to the restrictions of this Article 37. 1st Paragraph - The transfer of common shares owned by the Controlling Shareholder or of preferred shares resulting from the conversion of common shares, in one or more private transactions, outside of an exchange or organized over-the-counter market, shall only be allowed, independently of the percentage of common shares or preferred shares subject to such transaction, if the acquirer of those common shares or preferred shares agrees not to transfer the acquired shares on an exchange or organized over-the-counter market for twelve (12) months commencing on the date of the transaction. In these cases, the Controlling Shareholder shall not make a new private transfer, outside of a stock exchange or a block trade, of common shares or preferred shares resulting from the conversion of common shares for six (6) months commencing on the date of the transaction.
2nd Paragraph - Any subsequent private transfer of the shares initially transferred by the Controlling Shareholder pursuant to the terms of the 1st paragraph above within the twelve (12) month period shall only occur if the new acquirer agrees not to transfer such shares on an exchange or organized over-the-counter market until the end of the twelve (12) months commencing on the date that such shares were transferred by the Controlling Shareholder. 3rd Paragraph - Except in the case of an organized sale process, as provided in the 4th paragraph below, the Controlling Shareholder shall not transfer, in any transaction on an exchange or organized over-the-counter market, a number of preferred shares that represents a Participation in the Dividends greater than three percent (3%). Any sale on an exchange or organized over-the-counter market shall automatically impede the Controlling Shareholder from making a new transfer of preferred shares, on an exchange or organized over-the-counter market, for at least six (6) months commencing on the date such sale occurs, without prejudice to the provisions of the 4th paragraph below. 4th Paragraph - The transfer of preferred shares that represent Participation in the Dividends greater than three percent (3%) shall only be made through a public offering registered with the CVM, the Controlling Shareholder in this case will be subject only to the transfer restrictions that are part of the public offering. ARTICLE 38 - The transfer restrictions contemplated in this Chapter IX shall cease definitively and immediately at the moment in which (a) a public tender offer for the acquisition of shares occurs as a result of the transfer of control of the Company as provided in Article 40; or (b) the Controlling Shareholder holds an amount of shares in the Company that represents Participation in the Dividends equal to or less than fifteen percent (15%). Sole Paragraph – In case the Controlling Shareholder has Participation in the Dividends greater than fifteen percent (15%) and is part of a group of shareholders, acting together through a shareholders agreement or through any other means, the restrictions provided in this Chapter IX will not apply to shareholders of the controlling group who hold less than fifteen percent (15%) of the Participation in the Dividends. In order to calculate the Participation in the Dividends for purposes of this Article 38, all of the shares of the Company owned by the shareholder that are under common Control of the shareholder should be aggregated. ARTICLE 39 - In case the Controlling Shareholder acquires preferred shares after March, 23th 2015, such Controlling Shareholder shall be allowed to transfer preferred shares in amounts equal to the preferred shares acquired after such date, without the application of any restriction provided in Articles 37 and 38 on the transfer of such preferred shares. CHAPTER X TRANSFER OF THE CORPORATE CONTROL, CANCELLATION OF THE REGISTRATION OF PUBLICLY HELD COMPANY THE DISCONTINUATION OF
THE DIFFERENTIATED CORPORATE GOVERNANCE PRACTICES AND OF THE ACQUISITION OF THE RELEVANT PARTICIPATION ARTICLE 40 - Without prejudice to Chapter IX of these Bylaws, the disposal of control of the Company, whether by one single transaction or in a series of successive transactions shall be carried out on precedent or resolutive condition, namely, that the Buyer (as defined in the Regulation) undertakes to tender a public offer for the acquisition of further shares held by the other shareholders in the Company, observing the conditions and terms provided for in applicable law and the Regulation, so that they may be accorded the same treatment as the Selling Controlling Shareholder (as defined in the Regulation). Sole Paragraph - The price of the public offer referred in the caput of this article (a) shall be the price paid per share of the block of control, for the holders of preferred and common shares of the Company with voting rights, and (b) shall be equal to thirty-five (35) times the price paid for the block of control for the owners of preferred shares of the Company. ARTICLE 41 - The public offer referred in the previous article will also be mandatory: a) when there has been a paid assignment of subscription rights for shares and other securities or rights related to share convertibles, that may result in Disposal of the Company’s Share Control (as defined in the Regulation); and b) whenever there has been disposal of controlling interest in a company that holds the Company’s Share Control (as defined in the Regulation); in such case, the Selling Controlling Shareholder shall be obliged to inform the BM&FBOVESPA the value ascribed to the company in under the aforesaid disposal transaction and attach supporting documents of such value. ARTICLE 42 - Without prejudice to Chapter IX of these Bylaws, whoever acquires the Share Control of the Company, by means of a private share purchase agreement entered into with the Controlling Shareholder, whatever the amount of shares involved, shall be required to: a) tender the public offer referred in article 40 of these Bylaws; and b) pay, in the terms described below, amount equal to the difference between the price of the public offer and the value paid for share bought on the stock exchanges over the period of six (6) months prior to the date of the acquisition of Company’s Control, duly updated until the payment date, provided that the amount to be paid per preferred share pursuant to the terms in this clause (b) shall correspond to thirty-five (35) times the price paid per common share. Said amount shall be distributed among all the persons selling the Company’s shares in the floor sessions in which the Purchaser (as defined in the Regulation) effected the acquisitions,
proportionally to the net daily selling balance of each person, it being the duty of the BM&FBOVESPA to carry out the distribution, under the terms of its regulations. ARTICLE 43 - The Company shall not register any transfer of shares for the Buyer (as defined in the Regulation) or to those who come to hold the Share Control (as defined in the Regulation) while they do not execute the Statement of Consent from Controlling Shareholders (as defined in the Regulation). ARTICLE 44 - The Company shall not register shareholders’ agreements that include provisions on the exercise of Share Control while its signatories do not sign the Statement of Consent from Controlling Shareholders. ARTICLE 45 - It is hereby established the obligation of the Controlling Shareholder or the Company to launch a public tender offer for acquisition of shares for cancellation of registration as a publicly held company. The minimum price to be offered shall correspond to the Economic Value verified in the appraisal report referred in item 10.1 of the Regulation, respecting the legal and regulatory applicable rules and observing the different economic rights of each class of shares. ARTICLE 46 - It is hereby established the obligation: a) of the Controlling Party to launch a public tender offer for acquisition of shares pertaining to the other shareholders of the Company, in case of exit of the Company of the Level 2, so that the shares of the Company are registered for negotiation outside of Level 2; and b) of the Controlling Party to launch a public tender offer for acquisition of shares pertaining to the other shareholders of the Company, in case of a corporate restructuring after which the resulting company does not have its securities admitted for trading in the Level 2, within one hundred and twenty (120) days counted from the date of the shareholders’ meeting at which the transaction was approved. 1st Paragraph - In both cases, the price to be offered shall correspond, at least, to the Economic Value to be calculated as according to the provisions of Section X of the Regulation, observing legal and regulatory applicable rules. 2nd Paragraph - The Controlling Shareholder is discharged from proceeding to the public tender offer of the shares referred to in the head paragraph of this article if the Company exits Level 2 of Corporate Governance by reason of the entry into an Agreement for listing of the Company’s shares in the special segment of the BM&FBOVESPA called Novo Mercado (“Novo Mercado”) or if the company surviving from a corporate reorganization obtains authorization for trading securities in the Novo Mercado within one hundred and twenty (120) days counted from the date of the general meeting at which the referred transaction was approved.
ARTICLE 47 - The appraisal report referred in Article 45 above shall be prepared by a specialized company or institution, with proven experience and independent from the decision-making body of the company, its senior managers and/or controlling shareholders, provided that such report shall also comprise with provisions of paragraph 1 of article 8º of Brazilian Corporate Law without prejudice of the liability set out in paragraph 6 of the same article of the Law. 1st Paragraph - The choice of the institution or specialized company responsible for the determination of the Economic Value of the Company is of exclusive competence of the Shareholders’ Meeting, as of the presentation, by the Board of Officers, of a triple list, and such deliberation shall, blank votes not being computed to that end, and being each share, irrespective of kind or class, shall carry one vote, be taken by the majority of votes, of the shareholders representative of the Shares on the Market (as defined in the Regulation) present in such shareholders’ meeting, which, if installed in the first call, shall count with the presence of shareholders that represent, at least, twenty percent (20%) of the total Shares on the Market or, if installed on the second call, may count with the presence of any number of shareholders representative of the Shares on the Market. 2nd Paragraph - The costs for preparation of the appraisal report shall be undertaken in whole by the offering shareholder. ARTICLE 48 - In the event there is no Controlling Shareholder, in case it is approved the exit of the Company of Level 2 of Corporate Governance segment, in order that the securities issued thereby may be listed for trading outside the Level 2 of Corporate Governance segment, or by reason of a corporate reorganization in which the company surviving from such corporate reorganization does not have its securities admitted for trading in the Level 2 of Corporate Governance segment or in the “Novo Mercado” segment within one hundred and twenty (120) days counted from the date of the general meeting at which the referred transaction was approved, said exit will be conditioned on a public tender offer being carried out under the same conditions provided for in article 46 above. 1st Paragraph - The general meeting at which the referred transaction was approved shall define the party(ies) responsible for carrying out the public tender offer, which, being present at the meeting, shall expressly undertake the obligation to carry out the public tender offer. 2nd Paragraph - In the absence of definition of the party(ies) responsible for carrying out the public tender offer, in case of corporate reorganization, pursuant to the terms of the 1st Paragraph above, it shall be the duty of the shareholders having voted favorably for the corporate reorganization to carry out the public offering. ARTICLE 49 - The exit of the Company from the Level 2 of Corporate Governance segment by reason of failure to comply with the obligations provided for in the
Regulation shall be conditioned on the public tender offer of the shares being effected, at least, for the Economic Value of the shares, to be determined in an appraisal report as mentioned in article 47 above, with due regard to the applicable legal and regulatory rules. 1st Paragraph - The Controlling Shareholder shall conduct the public tender offer provided for in the head paragraph of this article. 2nd Paragraph - In the event there is no Controlling Shareholder and the exit from Level 2 of Corporate Governance segment referred to in the head paragraph of this article arises out of a decision made at the general meeting, the shareholders having voted favorably to the adoption of the resolution that gave rise to the respective noncompliance will conduct the public tender offer as set forth in the head paragraph of this article. 3rd Paragraph - In the event there is no Controlling Shareholder and the exit from Level 2 of Corporate Governance segment referred to in the head paragraph of this article is due to a management’s act or fact, the directors of the Company shall call a shareholders’ meeting whose agenda shall be to adopt a resolution on how to remedy the noncompliance with the obligations provided for in the Regulation or, if the case may be, to decide that the Company shall exit from the Level 2 of Corporate Governance segment. 4th Paragraph - In case the general meeting mentioned in Paragraph 2 above shall decide that the Company shall exit from Level 2 of Corporate Governance segment, the referred general meeting shall define the party(ies) responsible for conducting the public tender offer provided for in the head paragraph of this article, which, being present at the meeting, shall expressly undertake the obligation to conduct the public tender offer. ARTICLE 50 - Without prejudice to Articles 40 and 49 of these Bylaws, any person or group of persons (“Relevant Buyer”), who acquires or becomes the owner of, for any reason, shares of the Company that represents Participation in the Dividends equal to or greater than thirty percent (30%), independent of whether the shareholder was a shareholder of the Company prior to the specific transaction that results in the ownership of these shares, shall launch a public tender offer pursuant to this Article 50 (“30% Tender Offer”) for the acquisition of up to all shares of the Company, observing CVM’s applicable regulation, BM&FBOVESPA’s applicable regulation and the terms of this Article. The Relevant Buyer shall request the registration of, if applicable, or launch the 30% Tender Offer within thirty (30) days from the date of acquisition or the date of the event that resulted in the ownership of the shares or rights representing Participation in the Dividends equal or greater than thirty percent (30%). 1st Paragraph - The 30% Tender Offer shall (i) be open to all shareholders of the Company, (ii) provide an auction to be carried out through the BM&FBOVESPA, (iii)
be launched at the price determined in accordance with the second paragraph of this Article, and (iv) be paid in cash in Brazilian reais. 2nd Paragraph - The acquisition price in the 30% Tender Offer for each share of the Company shall be determined based on the greatest price paid by the Relevant Buyer per share of the Company in any negotiation, with respect to any kind or class, in the twelve (12) month period preceding the date in which the 30% Tender Offer becomes mandatory pursuant to the terms of this Article 50, adjusted for corporate events such as distribution of dividends and interest on stockholder’s equity, groupings, splits or warrants. If the greatest price paid by the Relevant Buyer in the twelve (12) month period refers to common shares, such price shall be the acquisition price in the 30% Tender Offer for each common share of the Company, and the acquisition price in the 30% Tender Offer for each preferred share shall be thirty-five (35) times the price of each common share. Inversely, if the greatest price paid by the Relevant Buyer in the twelve (12) month period refers to preferred shares, such price shall be the acquisition price in the 30% Tender Offer for each preferred share of the Company, and the acquisition price in the 30% Tender Offer for each common share shall be 1/35 times the price of each preferred share. 3rd Paragraph - Launch of a 30% Tender Offer does not preclude another shareholder or the Company from launching a competing tender offer according to the terms of the applicable regulation. 4th Paragraph - The Relevant Buyer shall meet any requests and requirements by the CVM within the prescribed timeframe of the applicable regulation. 5th Paragraph - If the Relevant Buyer does not comply with the obligations imposed by this Article, including with respect to the maximum timeframes (i) for the implementation or application to register, if applicable, the 30% Tender Offer; or (ii) to comply with any requests and requirements of the CVM, the Board of Directors of the Company may call a Shareholders’ Meeting, in which the Relevant Buyer will not be allowed to vote, to vote on the suspension of the rights of the Relevant Buyer who did not comply with any of the obligations imposed by this Article, in accordance with Article 120 of Brazilian Corporate Law, without prejudice to the responsibility of the Relevant Buyer for damages and losses caused to the other shareholders as a result of failing to comply with the obligations imposed by this Article 50. 6th Paragraph - The calculation of the Participation in the Dividends that is equal to or greater than thirty percent (30%), pursuant to the terms in the caput of this Article 50, shall not include involuntary increases in the shareholders’ participation that result from the cancellation of treasury shares or reduction of the capital stock of the Company due to the cancellation of shares. 7th Paragraph - The obligation to make a 30% Tender Offer shall not apply to the Controlling Shareholder, as determined on March, 23th 2015, as well as its
quotaholders, indirect partners, heirs and successors, provided that such Controlling Shareholder or its quotaholders, indirect partners, heirs and successors maintain, without interruption, ownership of a number of shares of the Company that represent a Participation in the Dividends equal to or greater than seven and a half percent (7.5%) from March, 23th 2015 until the date in which they acquire, or become owners, for whatever reason, of shares of the Company that represent Participation in the Dividends equal to or greater than thirty percent (30%), pursuant to the terms in the caput of this Article. ARTICLE 51 - The Company or the shareholders responsible for the public tender offer for the acquisition of shares described in this Chapter X, in the Regulation or in the CVM regulation may conduct such offer through an intermediary that is a shareholder or a third-party. The Company or the shareholder, as the case may be, shall have the obligation to effect a public offer for the acquisition of shares until such public tender offer is concluded in accordance with the applicable laws. ARTICLE 52 - A single public tender offer may be effected to fulfill more than one of the requirements in this Chapter X, the Regulation or CVM’s regulation, as long as it is possible to make the procedures required for each of the public tender offers compatible, the buyers in the offer are not harmed and CVM authorizes it, when required by applicable law. CHAPTER XI INTERPRETATION ARTICLE 53 - For purposes of these Bylaws: a) the Participation in the Dividends of any shareholder or represented by a certain number of shares shall be expressed as a percentage, without taking into consideration any profit or its distribution in a given fiscal year and shall be determined pursuant to the application of the following formula: ......= 100 .. [......+35 .. (......)]......+35 .. ...... Whereas: PnD = expression in percentage of the Participation in the Dividends of the given shareholder; XON = number of common shares of the Company held by the shareholder or involved in the specific transaction in question on the calculation date. XPN = number of preferred shares of the Company held by the shareholder or involved in the specific transaction in question on the calculation date.
TON = number of total common shares issued by the Company on the calculation date. TPN = number of total preferred shares issued by the Company on the calculation date. b) Controlling Shareholder is a person or a group of persons (i) bound by agreements or voting contracts of any nature, directly or through controlling, controlled or sister companies; or (ii) where there exists a control relationship; or (iii) under common control (“Group of Shareholders”), that, in effect exercises the power to direct the social activities and guides the functioning of the Company’s bodies, directly or indirectly, in fact or by law, regardless of the interest actually held. There is a presumption of control with respect to persons or a Group of Shareholders who own shares that have given them an absolute majority of shareholder votes present at three (3) consecutive Shareholders’ Meetings, even if the amount of shares held does not give them an absolute majority of the voting shares. CHAPTER XII GENERAL PROVISIONS ARTICLE 54 - The situations not provided for in these bylaws shall be resolved by the Shareholders’ Meeting and regulated according to the provisions of Brazilian Corporate Law and the Regulation. ARTICLE 55 - The Company, its Shareholders, its Senior Managers and the members of the Fiscal Board undertake to resolve, by means of arbitration, before the Market Arbitration Chamber, any and all dispute or controversy that may arise between them, related to or arising from, specially, the application, validity, effectiveness, interpretation, violation and its effects, of the provisions contained in the Brazilian Corporate Law, Company’s Bylaws, in the rules issued by the National Monetary Council, the Brazilian Central Bank and the Securities Commission, as well in the other rules applicable to functioning of the securities market in general, as well as those of the Regulation, of the Sanctions Regulation (as defined in the Regulation), of the Agreement for Listing in the Level 2 of Corporate Governance of the BM&FBOVESPA, and of the Arbitration Regulation (as defined in the Regulation). ARTICLE 56 - Dividends not received or claimed shall lapse within 03 (three) years from the date on which they were made available to the shareholder, and shall revert to the Company. ARTICLE 57 - The Company shall observe the shareholder agreements registered in accordance with article 118 of the Corporations Law, with the administration refraining from registering transfers of shares contrary to their respective terms, and the President of the General Meeting and the President of the Board of Directors refraining from counting votes cast against the same agreements.
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COMMERCIAL REGISTRY OF THE STATE OF RIO DE JANEIRO - JUCERJA (QR Code) State Registration Number (NIRE) (OF THE PRINCIPAL PLACE OF BUSINESS OR BRANCH WHEN THE PLACE OF BUSINESS PRINCIPAL PLACE OF BUSINESS IS IN ANOTHER STATE) 33.3.0027672-6 Legal Type Joint-stock company Business Size Normal Filing No. 2024/00419004-5 JUCERJA Last filing: 00006205580 - 04/26/2024 NIRE: 33.3.0027672-6 GOL LINHAS AEREAS S/A Payment Form(s): Hash: E9FBDD77-3CBF-4D7F-95B3-3FF96B9B6D28 Body Calculated Paid Commercial Registry 754.00 754.00 National Department of Business Registration and Integration (DNRC) 0.00 0.00 AUTHENTICATION INSTRUMENT Name GOL LINHAS AEREAS S/A Act Code Events 008 Code Qty. Description of the Act / Event 999 1 Minutes of Annual and Extraordinary General Meeting / Without Events (Company) xxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Exhibit T3B.2 - Bylaws of GOL Linhas Aéreas S.A.
xxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx I CERTIFY THE APPROVAL BY FERNANDO ANTONIO MARTINS AND IGOR EDELSTEIN DE OLIVEIRA UNDER THE NUMBER AND ON THE DATE BELOW: NIRE / Filing National Corporate Taxpayers’ Register (CNPJ) Address / Full address abroad District Municipality State 00006239660 07.575.651/0001-59 Praça SENADOR SALGADO FILHO. No number Downtown Rio de Janeiro RJ xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx xxxxxxxxxxxx xx.xxx.xxx/xxxx-xx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxx xx Granted on 05/16/2024 and filed on 05/16/2024 (sgd)
Gabriel Oliveira de Souza Voi. SECRETARY GENERAL No. of Pages 24 Cover No. of Pages 1/1 Note: Presidency of the Republic Office of Very Small and Small Businesses Streamlining and Simplification Office Business Registration and Integration Department Commercial Registry of the State of Rio de Janeiro State Registration Number (NIRE) (OF THE PRINCIPAL PLACE OF BUSINESS OR BRANCH WHEN THE PRINCIPAL PLACE OF BUSINESS IS IN ANOTHER STATE) 33.3.0027672-6 Legal Type Joint-stock company Business Size Normal Filing No. 2024/00419004-5 JUCERJA Last filing: 00006205580 - 04/26/2024 NIRE: 33.3.0027672-6 GOL LINHAS AEREAS S/A Payment Form(s): 104727618 Hash: E9FBDD77-3CBF-4D7F-95B3-3FF96B9B6D28 05/15/2024 11:45:03 AM Body Calculated Paid Commercial Registry 754.00 754.00 National Corporate Register and Integration Department 0.00 0.00
- DREI REQUEST Honorable President of the Commercial Registry of the State of Rio de Janeiro GOL LINHAS AEREAS S/A requests that You grant the following act: Act Code Event Code Qty. Description of the act / Description of the event 008 999 1 Minutes of Annual and Extraordinary General Meeting / Without Events (Company) xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Requesting Party Rio de Janeiro Location 05/15/2024 Date Name: Fabio Monteiro Marques Signature: DIGITALLY SIGNED The Applicant DECLARES, under his personal liability, without prejudice to administrative, civil, and criminal sanctions, the veracity of the documents and signatures presented in this process. Contact phone number: 2135509150 E-mail: junta.rj@PLBRASIL.COM.BR Document type: Digital Created on: 05/15/2024 Date of 1st entry: (bar code) 2024/00419004-5 DocuSign Envelope ID: 6315DA64-8A5E-4A99-9B7D-DE12B35E36DB
GOL LINHAS AÉREAS S.A. National Corporate Taxpayers’ Register (CNPJ) No. 07.575.651/0001-59 State Registration Number (NIRE) 33.3.0027672-6 MINUTES OF THE ANNUAL AND EXTRAORDINARY GENERAL MEETING HELD ON APRIL 30, 2024 I. Date, Time, and Place: Held on April 30, 2024, at 5:00 p.m., at the principal place of business of Gol Linhas Aéreas S.A. (“Company”), located at Praça Senador Salgado Filho, no number, ground floor, Santos Dumont Airport, public area, axes 46-48 O-P, Management Room - Back Office, Postal Code (CEP) 20021-340, in the Capital City of the State of Rio de Janeiro. II. Call Notice and Attendance: The sole shareholder representing the entire capital stock of the Company attended, as per the attendance list (“Exhibit I”), and the legal formalities of call notice were waived, pursuant to Article 124, paragraph 4 of Law No. 6.404/76 (“LSA”). III. Board: The sole shareholder elected Mr. Constantino de Oliveira Junior as Chairman of the Board, who invited me, Renata Domingues da Fonseca Guinesi, to act as secretary of the meeting. IV. Agenda: The Company's shareholders met to examine, discuss, and resolve on: (i) At the Annual General Meeting (a) the Management accounts, to examine, discuss, and vote on the Financial Statements for the fiscal year ended December 31, 2023; (b) the allocation of the result for the fiscal year ended December 31, 2023; (c) the amount of the Management overall annual compensation for the fiscal year 2024; and (d) other items of general interest, (ii) At the Extraordinary General Meeting: (a) the amendment to Article 18 of the Company's Bylaws; and (b) the restatement of the Company's Bylaws by virtue of the amendments mentioned in the previous item. V. Resolutions: Having provided the necessary clarifications, after analyzing the relevant documents, referring to the matters contained in this agenda, the Company's sole shareholder approved, without reservations: (i) At the Annual General Meeting: (a) The Management accounts and the Financial Statements of the Company, accompanied by the Opinion of the independent Auditors, the Management Report, and other related documents, relating to the fiscal year ended December 31, 2023; (b) The Management proposal for allocation of the loss recorded in the fiscal year ended December 31, 2023, in the amount of one million three hundred and seventy-two thousand nine hundred and fifty-seven Reais (R$1,372,957.00), against retained losses. (c) The overall compensation for the fiscal year 2024 of the member of the Board of Directors Joaquim Constantino Neto, as per the proposal filed at the Company's principal place of business. It is hereby stated that the compensation of the other Managers of the Company (members of the Statutory Executive Board and the Board of Directors) for the fiscal year 2024 will be paid directly by the Company's controlling shareholder, GOL Linhas Aéreas Inteligentes S.A. (“GLAI”), included in the overall compensation approved on April 30, 2024 at the Annual and Extraordinary General Meeting of GLAI and, subsequently, distributed by the Board of Directors of GLAI, in compliance with the provisions of the applicable law and the Company's Bylaws. (d) As with other items of general interest, it is noted that the installation of the Fiscal Council was not requested. (ii) At the Extraordinary General Meeting:
(a) The amendment to article 18 of the Company's Bylaws with the aim of adapting the form of representation of the Company. In this sense, article 18 of the Bylaws shall come into force with the following new wording: “Article 18 - The representation of the Company, in or out of Court, as plaintiff or defendant, before third parties, in Brazil or abroad, shall be exercised: (i) by two (2) Statutory Officers acting jointly; (ii) by one (1) Statutory Officer acting jointly with one (1) duly appointed Attorney-in-Fact; or (iii) by two (2) duly appointed Attorneys-in-Fact, acting jointly.” (b) In view of the resolution passed above, the restatement of the Company's Bylaws, which shall become part of these Minutes of the Annual and Extraordinary General Meeting in the form of Exhibit I. IV. Adjournment of the Meeting and Drawing up of the Minutes: The floor was offered to anyone who wished to speak, and as no one did so, the meeting was adjourned for the time necessary to draw up these minutes, which were read, checked, and signed. Signatures: Board: Constantino de Oliveira Junior - Chairman and Renata Domingues da Fonseca Guinesi - Secretary. Shareholder Present: Gol Linhas Aéreas Inteligentes S.A. I certify that this is a true copy of the minutes drawn up in the appropriate book. Rio de Janeiro/RJ, April 30, 2024. Board: (electronic signature via DocuSign) (electronic signature via DocuSign) Celso Guimarães Ferrer Junior Renata Domingues da Fonseca Guinesi Chairman Secretary Attending shareholder: GOL LINHAS AÉREAS INTELIGENTES S.A. (electronic signature via DocuSign) (electronic signature via DocuSign) Celso Guimarães Ferrer Junior Mario Tsuwei Liao Officer Officer GOL LINHAS AÉREAS S.A. CNPJ No. 07.575.651/0001-59 NIRE 33.3.0027672-6 ANNUAL AND EXTRAORDINARY GENERAL MEETING HELD ON APRIL 30, 2024 EXHIBIT I BYLAWS GOL LINHAS AÉREAS SA. Chapter I Name, Duration, Principal Place of Business, and Purpose
Article 1 - Gol Linhas Aéreas S.A. is a joint-stock company governed by the provisions of these Bylaws and other applicable legal provisions. Article 2 - The term of duration of the Company is indefinite. Article 3 - The Company has its principal place of business and jurisdiction in the Capital City of the State of Rio de Janeiro, at Praça Senador Salgado Filho, no number, Management Room - Back Office, public area, axes 46-48/O-P, Postal Code (CEP) 20.021-340. Sole Paragraph - By resolution of the General Meeting, the Company may open or close branches, agencies, offices and representations and any other establishments anywhere in the Brazilian territory and abroad, for the purpose of carrying out the Company's activities. Article 4 - The Company's main corporate purpose is: (i) the activity of regular and non-regular air transportation of passengers and cargo, in the domestic and international markets, and it may also; (ii) hold interest in companies of all types, which carry out activities of operating air and land transportation services, in compliance with the applicable law; (iii) own establishments, groups of assets, rights, and obligations; (iv) commercially explore, through concession or authorization granted by the competent public authorities, activities complementary to air transportation services by chartering passengers, baggage, parcels, cargo, and mail; (v) provide maintenance and repair services for its own or third-party aircraft, engines, parts, and pieces; provision of aircraft hangar services; (vi) provide apron and runway services; (vii) explore franchising activities; (viii) teach courses in civil aviation safety and others under the terms of and in accordance with the applicable regulations; (ix) engage in activities connected, related, and complementary to air transportation, including land transportation, as well as to engage in activities of trade in goods and complementary travel and entertainment services; (x) provide services related to air navigation to third parties; (xi) support for the Smiles loyalty program, in particular, with regard to administrative, management, and financial activities related to the program; (xii) provide information and solutions for fraud prevention and financial management and reconciliation services to third parties; (xiii) advisory and consultancy services in scientific and technical areas; (xiv) provide advertising agency services; and (xv) agency of advertising spaces.” Chapter II Capital Stock and Shares Article 5 - The capital stock, fully subscribed and paid in, is six billion, nine hundred and forty-seven million, one hundred and eleven thousand, forty-one Reais and thirty-eight cents (R$6,947,111,041.38), representing four billion, one hundred and ninety-eight million, four hundred and eighty-three thousand, six hundred and fourteen (4,198,483,614) shares, of which three billion, four hundred and eighty million, two hundred and sixteen thousand, eight hundred and ninety-two (3,480,216,892) are common shares and seven hundred and eighteen million, two hundred and sixty-six thousand, seven hundred and twenty-two (718,266,722) are preferred shares, all registered and with no par value. Paragraph One - The Company is authorized, by resolution of the Board of Directors, regardless of any amendment to the bylaws, to increase its capital stock up to the limit of ten percent (10%) of the total capital stock, regardless of any amendment to the bylaws, by issuing shares or by issuing debentures convertible into shares, without maintaining any proportion among the different types of shares, in compliance with the applicable law and regulations. The Board of Directors shall establish the conditions of the issuance, including the price and term for payment. Paragraph Two - Each common share shall entitle its holder to one (1) vote in the resolutions of the General Meetings. Paragraph Three - Class A common shares may only be held shareholders of Brazilian nationality.
Paragraph Four - Class B common shares shall not be convertible into Class A common shares and may not exceed twenty percent (20%) of the total common shares issued by the Company. Paragraph Five - All shares shall be permanently registered and at least eighty percent (80%) of the common shares shall always belong to Brazilians. Paragraph Six - In the cases provided for in the Brazilian Aeronautics Code, common shares may only be transferred with prior authorization from the competent aeronautical authority. Subject to this rule regarding common shares, shareholders may, at any time, freely trade in their shares of both types. The Company's Officer may temporarily suspend, for justifiable reasons, the share transfer and split services. Article 6th - Preferred shares shall not have voting rights, and their conversion into common shares is prohibited. Sole Paragraph - Preferred shares shall have the advantage of priority in the reimbursement of capital, without premium, and the right to be included in the public offering for the sale of control, under the conditions provided for in article 254-A of Law No. 6.404 of December 15, 1976, ensuring a dividend at least equal to that of common shares. Chapter III General Meetings Article 7 - General Meetings shall be called by any Officer of the Company or by the Fiscal Council, in cases provided for by law, and also at the request of any shareholder, which request shall be accompanied by a description of the matters to be discussed at said General Meeting. Paragraph One - The work of the General Meetings shall be directed by a board composed of a chairman and a secretary chosen by the attending shareholders. Paragraph Two - Without prejudice to the formalities provided for in the applicable law, the Company's shareholders shall be called to the General Shareholders' Meetings by written notice at least eight (8) days in advance of the date set for the meeting. Paragraph Three - The General Meeting attended by all shareholders shall be regular, regardless of the legal formalities relating to the call notice. Paragraph Four - The minutes shall be drawn up in the form of a summary of the facts, unless otherwise decided by the Chairman of the Meeting, and they shall be published without the signatures of the shareholders. Article 8 - The General Meetings of the Company shall be annual or extraordinary, and they shall be held as follows: a) annually, in the first four months following the end of the financial year, in accordance with Article 132 of Law No. 6.404/76; and b) extraordinarily, whenever necessary, when the corporate interest so requires it, or when the provisions of these Bylaws or of the applicable law require shareholder resolutions. Article 9 - Except for the cases provided for by law, the resolutions of the General Meeting shall be passed by a majority vote of those present, with blank votes not being counted. Chapter IV Management Article 10 - The Company shall be managed by a Board of Directors and an Executive Board.
Sole Paragraph - The following common rules shall apply to the Directors and Officers: a) They shall be Brazilian citizens, resident in Brazil; b) They shall be elected for a term of office of three (3) years, re-election being permitted, and may be removed from office at any time; c) They shall take office in accordance with a document drawn up and signed in the respective body's own book, without any guarantee of management; d) They shall receive the compensation set for them by the General Meeting. Chapter V Section I Board of Directors Article 11 - The Board of Directors shall be composed of at least three (3) and at most eight (8) sitting members, elected by the General Meeting, which shall also choose the Chairman and Vice- Chairman of this body. Article 12 - In the event of a vacancy or the sitting member being prevented from carrying out their duties, the following shall be observed: the Chairman shall be replaced by the Vice-Chairman; the Vice-Chairman or any other Director shall be replaced by appointment of the other Directors. The substitute who fills the vacant position shall remain in office until the first General Meeting, at which time a new member of the Board of Directors shall be elected to complete the term of office of the person replaced. Sole Paragraph - Upon completion of the term of office, the Directors shall remain in office until the election and investiture of their successors. Article 13 - The Board of Directors shall have the duties and powers granted thereto by law and these Bylaws, in particular: a) Establish the objectives, policy, and general direction of the Company's business; b) Call General Meetings through its Chairman or two Directors; c) Elect and remove the Company's Officers, set their duties and establish their respective compensation, within the limits established by the General Meeting; d) Provide prior feedback on the Management report, the Executive Board’s accounts, the Financial Statements for the Year, as well as monthly balance sheets; e) Approve the general budget of the Company; f) Monitor the management of the Officers; g) Submit to the General Meeting the destination to be given to the net profit for the year; h) Choose and dismiss the Company’s independent auditors; i) Establish the authority of the Executive Board for the sale, even fiduciary sale, or encumbrance of items of the company’s permanent assets, including mortgaging, pledging, guaranteeing, giving in antichresis, giving endorsement or suretyship, confessing, waiving rights, waiving obligations of third parties to the company, entering into settlements, and also establishing, when deemed convenient, which among the members of the Executive Board shall perform the authorized act, and may, in the cases it defines, require prior authorization from the Board of Directors as a condition for the validity of the act;
j) Authorize the Company to guarantee third-party obligations; k) Periodically establish criteria for: amount involved, time/term, extent of effects and others, by which certain corporate and/or financial acts, including active or passive loans, may be carried out by the Executive Board; l) Authorize, until the criteria referred to in letter “k” above are established, the taking out of loans, as well as the granting of loans or other credits by the Company; m) Quarterly resolve on the Fleet Plan, Network Plan and Proposal, and Change of the Company's staff, according to proposals to be presented by the Chief Executive Officer, in accordance with the provisions of art. 16, “e” of these Bylaws; n) Resolve on the issuance of commercial promissory notes for public distribution, in accordance with applicable regulations; o) Resolve on the issuance of subscription warrants, within the limits of its legal authority; p) Resolve on the issuance of debentures convertible or not into shares, with or without security interest; q) Authorize the acquisition of shares of the Company itself for cancellation or maintenance in treasury, as well as their subsequent sale; r) Allocate shares in the Company’s profits to officers and/or employees; and s) Exercise other legal powers granted to it by the General Meeting, as well as resolve cases not covered by these Bylaws. Article 14 - The Board of Directors shall meet ordinarily at least once per quarter and extraordinarily whenever called by its Chairman, or by the majority of its members. Paragraph One - Meetings shall be called in writing, with a brief explanation of the agenda, at least three (3) business days in advance, unless all Directors waive such formality. Paragraph Two - The Board of Directors meeting may only be opened and operate with the presence of more than half of the incumbent Directors. Paragraph Three - The decisions of the Board of Directors shall only be valid if approved by the vote of a majority of its members present. Article 15 - The General Meeting shall set the compensation of the managers as a global amount and it shall be incumbent upon the Board of Directors to distribute it among them. Section II Executive Board Article 16 - The Board of Directors shall consist of at least two (2) and at most six (6) Officers, with a specific designation assigned at the General Meeting, being one (1) Chief Executive Officer and 5 Vice-Chief Executive Officers, who may be shareholders or not, resident in Brazilian and elected by the Board of Directors, which may remove them from office at any time. Paragraph One - The Chief Executive Officer is responsible, in particular, for coordinating the conduct of the Company's regular activities, including the following: a) enforce these Bylaws, implement the guidelines, and comply with the resolutions passed at General Meetings and at meetings of the Board of Directors;
b) administer, manage, and supervise the company's business, and issue and approve internal instructions and regulations that it deems useful or necessary to comply with the general guidelines of the Company's business, as established by the Board of Directors, pursuant to the provisions of art. 13, “a” of these Bylaws; c) keep the members of the Board of Directors informed about the Company's activities and the progress of its operations; d) submit, annually, for the consideration of the Board of Directors, the Management Report and the Executive Board's accounts, accompanied by the independent auditors' report, as well as the proposal for the allocation of profits recorded in the previous year; e) prepare and propose to the Board of Directors the annual and multi-year budgets, strategic plans, expansion projects, and investment programs and, in particular, submit quarterly, and in detail, for approval by the Board of Directors: (i) the Company's Fleet Plan; (ii) the network plan and proposal; and (c) any changes in the staff, which shall include senior management positions, as well as any other positions, even if non-managerial, the specific functions and/or characteristics of which are relevant to the Company; and f) perform other duties assigned to it by the Board of Directors. Paragraph Two - The Chief Executive Officer shall be the Company's representative before the various audiences and in the responsibilities of relationships and institutional policies, having the support of the Chairman of the Board of Directors. Article 17 - Should any position on the Executive Board become vacant for any reason, the respective substitute shall be chosen by the Board of Directors at a meeting to be held within a maximum period of thirty (30) days after the vacancy occurs. Sole Paragraph - Officers appointed under the terms of the Article shall exercise their duties for the remaining term of the term of office of the Officer who is replaced. Article 18 - The representation of the Company, in or out of Court, as plaintiff or defendant, before third parties, in Brazil or abroad, shall be exercised: (i) by two (2) Statutory Officers acting jointly; (ii) by one (1) Statutory Officer acting jointly with one (1) duly appointed Attorney-in-Fact; or (iii) by two (2) duly appointed Attorneys-in-Fact, acting jointly. Article 19 - The Executive Board shall meet when called by any of its members, whenever the company's business so requires it, with at least five (5) days' notice, and the meeting shall only be held with the presence of all its members. Resolutions at Executive Board meetings shall be passed by unanimous vote. Copies of the Minutes of Executive Board meetings shall be mandatorily forwarded to all Shareholders of the Company. Article 20 - The Executive Board is responsible for representing the Company, managing the company's business in general, in accordance with the guidelines established by the Board of Directors, and for carrying out, to that end, all necessary or convenient acts, except for those for which the General Meeting is responsible by law or under these Bylaws. Article 21 - Powers of attorney granted on behalf of the Company shall always be signed jointly by two (2) Statutory Directors of the Company, and shall specify the powers granted and, with the exception of those for legal purposes, shall have a term of validity period limited to a maximum of one (1) year, subject to the limits stipulated by the General Meeting, by these Bylaws, and by law. Article 22 - The acts of any Officer, attorney-in-fact, or employee that involve the Company in obligations related to business or transactions unrelated to the Company's purpose, such as suretyships, co-signatures, endorsements, or any other guarantees in favor of third parties are expressly prohibited and
are null and void with respect to the Company, except when expressly authorized by the Board, in a meeting, in compliance with the limits set by the General Meeting and/or Board of Directors, as applicable, by these Bylaws, and by law. Chapter V Fiscal Council Article 23 - The Company shall have a non-permanent Fiscal Council composed of three (3) members, who may be shareholders or not, elected by the General Meeting that resolves on its installation and which shall set its compensation, subject to the legal limits, it being understood that any shareholder may, at any time, request the installation of the Company's Fiscal Council. When operating, the Fiscal Council shall have the powers and duties granted by law. Chapter VI Fiscal Year, Balance Sheet and Profits Article 24 - The fiscal year begins on January 1st and ends on December 31st of each year. At the end of each fiscal year, a general balance sheet shall be prepared, as well as other financial statements, in accordance with the legal provisions in force and the provisions of this Article. Sole Paragraph - The Executive Board is authorized to determine the preparation of balance sheets in shorter periods, including monthly, for the purpose of distributing interim dividends which, when distributed, may be attributed to the mandatory minimum dividend. Article 25 - The net profit recorded in the fiscal year shall be allocated as follows: a) absorption of retained losses; b) a portion of five percent (5%) shall be deducted for the formation of the legal reserve, which shall not exceed twenty percent (20%) of the capital stock; and c) a portion of twenty-five percent (25%) of the remaining balance, after deducting the portion intended for the formation of the legal reserve, shall be fully distributed to the shareholders. Article 26 - The Company may pay, to its shareholders, subject to approval by the General Meeting, interest on equity, which may be attributed to the mandatory minimum dividend. Chapter VII General Provisions Article 27 - The Company shall comply with the shareholders' agreements filed at its principal place of business, and the Executive Board shall refrain from filing share transfers and the chairman of the General Meeting and the chairman of the Board of Directors meeting shall refrain from counting votes contrary to their terms. Chapter VIII Liquidation and Dissolution Article 28 - The Company shall be liquidated in the cases provided for by law, and the General Meeting is the competent body to determine the form of liquidation and appoint the liquidator and the Fiscal Council that shall operate during the liquidation period. (Approved at the Annual and Extraordinary General Meeting of Gol Linhas Aéreas S.A. held on April 30, 2024.) DocuSign
Certificate of Completion Envelope ID: 6315DA648A5E4A999B7DDE12B35E36DB Status: Completed Subject: Complete with DocuSign: 2024 04 30_GLA_AGOE_Contas e Estatuto Social_limpa.docx CPF: Source envelope: Document pages: 13 Signatures: 4 Envelope sender: Certify pages: 5 Initials: 0 ANA PAULA FRIGO PEREIRA Guided subscription: Enabled Commander Limeu Gomes no number SP, 04626-900 Stamp with EnvelopeId: Enabled anppereira@voegol.com.br Time zone (UTC-03:00) Brasilia IP Address: 157.167.132.180 Record tracking Status: Original Holder: ANA PAULA FRIGO PEREIRA Location: DocuSign 05/07/2024 12:21:24 p.m. anppereira@voegol.com.br Signatory Events Signature Time and date stamp Celso Guimarães Ferrer Junior (electronic signature via DocuSign) Sent on: 05/07/2024 12:31:02 p.m. cgfjunior@voegol.com.br Re-sent on: 05/07/2024 4:03:05 p.m. Chairman Re-sent on: 05/07/2024 4:03:29 p.m. GOL Linhas Aéreas S.A. Signature Adoption: Pre-selected Style Re-sent on: 05/07/2024 7:32:14 p.m. Security Level: Email Account Authentication (None) Using IP address: 172.225.83.34 Re-sent on: 05/08/2024 10:58:53 a.m. Viewed on: 05/08/2024 2:46:46 p.m. Signed on: 05/08/2024 2:46:54 p.m. Electronic Signature and Registration Terms: Not offered through DocuSign
Mario Tsuwei Liao (electronic signature via DocuSign) Sent on: 05/07/2024 12:31:02 p.m. mtliao@voegol.com.br Viewed on: 05/07/2024 12:36:10 p.m. CFO Signed on: 05/07/2024 12:36:22 p.m. GOL Linhas Aéreas SA Signature Adoption: Designed on the Device Security Level: Email Account Authentication (None) Using IP address: 157.167.132.180 Electronic Signature and Registration Terms: Accepted on: 07/24/2020 1:39:10 p.m. ID: 8cd4b797-a5b0-4f59-bdde-d3f1d8067304 RENATA DOMINGUES DA FONSECA GUINESI (electronic signature via DocuSign) Sent on: 05/07/2024 12:31:03 p.m. rddfonseca@voegol.com.br Re-sent on: 05/07/2024 4:03:06 p.m. General Counsel Re-sent on: 05/07/2024 16:03:29 p.m. Gol Linhas Aéreas Signature Adoption: Pre-selected Style Viewed on: 05/07/2024 7:15:51 p.m. Security Level: Email, Account Authentication (None) Using IP address: 157.167.132.180 Signed on: 05/07/2024 7:15:58 p.m. Electronic Signature and Registration Terms: Accepted on: 06/07/2020 8:12:59 p.m. ID: f65bf4a2-02da-4ff7-9821-b4d4d2aecaf2 In-person signatory events Signature Time and date stamp Editor Delivery Events Status Time and date stamp Agent Delivery Event Status Time and date stamp Intermediate delivery events Status Time and date stamp Certified Delivery Events Status Time and date stamp Copy events Status Time and date stamp Events with witnesses Signature Time and date stamp
Notary events Signature Time and date stamp Envelope Summary Events Status Timestamp Envelope sent Hashed/encrypted 05/07/2024 12:31:03 p.m. Certified delivery Security verified 05/07/2024 7:15:51 p.m. Signature completed Security verified 05/07/2024 7:15:58 p.m. Completed Security verified 05/08/2024 2:46:54 p.m. Payment events Status Timestamp Electronic Signature and Registration Instruments Commercial Registry of the State of Rio de Janeiro Company: GOL LINHAS AEREAS S/A NIRE: 333.0027672-6 Filing: 2024/00419004-5 Filing date: 05/15/2024 I CERTIFY THE FILING on 05/16/2024 UNDER NUMBER 00006239660 and other information contained in the authentication instrument. Authentication: 323924F22B461F1BB2D8C33602988A504BCCC6C6C342F4A4381C11808A77213B To validate the document, go to https://www.jucerja.rj.gov.br/servicos/chanceladigital and enter the filing number. JUCERJA digitally signed page pgi/273546.doc 03/07/25
DocuSign Envelope ID: BB777E48-C457-4397-9E28-E298C6F16D23 COMMERCIAL REGISTRY OF THE STATE OF SÃO PAULO (JUCESP) - FILING 0.578.565/23-7 (bar code) SMILES FIDELIDADE S.A. National Corporate Taxpayers’ Registry of the Ministry of Finance (CNPJ/MF) No. 48.946.987/000 State Registration Number (NIRE) 35300606485 MINUTES OF THE EXTRAORDINARY GENERAL MEETING HELD ON MARCH 16, 2023 1 DATE, TIME, AND PLACE: Held on March 16, 2023, at 5:00 p.m., at the principal place of business of Smiles Fidelidade S.A.. (“Company”), in the city of São Paulo, State of São Paulo, at Pça. Comandante Linneu Gomes, no number, gate 3, building 17, part, Jardim Aeroporto, Postal Code (CEP) 04626-020. 2 CALL NOTICE AND ATTENDANCE: The publication of the call notice for this Extraordinary General Meeting of the Company (“Meeting”) was waived, pursuant to article 124, paragraph 4 of Law No. 6.404 of December 15, 1976, as amended (“Corporation Law”), due to the presence of the shareholder holding the entire capital stock of the Company, as identified below (“Sole Shareholder”). 3 BOARD: The board was composed of Mr. Eduardo José Bernardes Neto - as Chairman; and Ms. Renata Domingues da Fonseca Guinesi - as Secretary. 4 AGENDA: To discuss and resolve on the following matters: (i) the increase in the Company’s capital stock, through the issuance of common, registered shares with no par value (“Shares”), to be fully paid up by transferring the Contributed Assets (as defined below) to the Company’s capital stock; (ii) ratification of the appointment and retainment of the Experts (as defined below) responsible for preparing the Valuation Report (as defined below); (iii) approval of the Appraisal Report; (iv) approval of the amendment to the Company’s bylaws (“Bylaws”) to reflect the resolution to be approved under item (i) above, as well as its restatement; and (v) authorization for the Company’s managers and attorneys-in-fact to take all measures and perform all acts related to the implementation of the matters to be resolved at this Meeting. 5 RESOLUTIONS: After analyzing the matters on the agenda, the Sole Shareholder resolved to approve the following, without any reservations: (i) approval of the increase in the Company’s capital stock, in the total amount of six hundred Reais (R$600.00), through the issuance of six hundred (600) Shares, at the issue price of one Real (R$1.00) per Share, set in accordance with article 170, paragraph 1, item II of the Brazilian Corporation Law, so that the Company’s capital stock will be increased from four hundred Reais (R$400.00) represented by four hundred (400) Shares, to one thousand Reais(R$1,000.00), represented by one thousand (1,000) Shares. The Shares issued in connection with said increase are hereby subscribed by the Sole Shareholder and paid in by means of the transfer to the Company’s capital stock of the assets indicated in the Appraisal Report (“Contributed Assets”), as per the subscription bulletin that constitutes Exhibit I to these minutes; (ii) approval of the ratification of the appointment and retainment of accountants (i) Gabriel Duarte Patricio, Brazilian citizen, single, born, resident and domiciled in the city of Rio de Janeiro, State of Rio de Janeiro, at Rua Cândido Mendes No. 236, block B, apt. 509, Glória, Postal Code (CEP) 20.241-220,
Exhibit T3B.3 - Restated Bylaws of Smiles Fidelidade S.A.
bearer of identity card No. RJ-120315/0-1 issued by CRC-RJ and registered with the Individual Taxpayer’s Register of the Ministry of Finance (“CPF/MF”) under No. 116.728.497-64; (ii) Jorge Dias Patricio, Brazilian citizen, married under the partial community property regime, born, resident, and domiciled in the city of Rio de Janeiro, State of Rio de Janeiro, at Rua Cândido Mendes No. 236, block B, apt. 509, Glória, Postal Code (CEP) 20.241-220, holder of identity card No. RJ-015540-2 issued by CRC-RJ and registered with the CPF/MF under No. 023.958.357-49; and (iii) Leonardo Patricio Giráldez, Brazilian citizen, married under the partial community property regime, born, resident, and domiciled in the city of Rio de Janeiro, State of Rio de Janeiro, at Rua Joaquim Nabuco No. 212, apt. 402, Ipanema, Postal Code (CEP) 22.080-060, holder of identity card RJ-086962/O-0 issued by CRC-RJ and registered with the CPF/MF under No. 034.100.867-22, as experts responsible for preparing the Appraisal Report, in accordance with articles 8 and 170, paragraph 3 of the Corporation Law (collectively, “Experts”); (iii) approval of the appraisal report of the Contributed Assets, at book value, as per Exhibit II to these minutes (“Appraisal Report”); (iv) approval, in view of the resolution passed pursuant to item 5(i) above, of the amendment to article 5, head paragraph of the Bylaws, which shall come into force as follows: “Article 5. The Company’s capital stock is one thousand Reais(R$1,000.00), fully subscribed and paid up, divided into one thousand (1,000) common, registered shares, with no par value.” Immediately afterwards, the restatement of the Bylaws was approved, which shall come into force in the form of Exhibit III hereto; and (v) approval, by unanimous vote and without any provisos, reservations, or restrictions, of the authorization for the Company’s managers and attorneys-in-fact to take all measures and perform all acts related to the implementation of the matters resolved at this Meeting, and all measures and acts that have already been taken or performed relating to the matters hereby approved are hereby ratified. 6 DRAWING UP: The Sole Shareholder authorized the drawing up of these minutes in summary form, in accordance with article 130, paragraph 1 of the Corporation Law. 7 ADJOURNMENT: There being no further business to be transacted, this Meeting was adjourned, and these minutes were drawn up, read, and approved, and signed by all those present. 8 SIGNATURES: Board: Eduardo José Bernardes Neto (Chairman); and Renata Domingues da Fonseca Guinesi (Secretary). Shareholder present: Gol Linhas Aéreas S.A. (matches the original drawn up in the appropriate book) São Paulo, March 16, 2023. Board: (electronic signature via DocuSign) (electronic signature via DocuSign) Eduardo José Bernardes Neto Renata Domingues da Fonseca Guinesi Chairman Secretary SMILES FIDELIDADE S.A. CNPJ/MF No. 48.946.987/0001-68 NIRE 35300606485 MINUTES OF THE EXTRAORDINARY GENERAL MEETING
HELD ON MARCH 16, 2023 EXHIBIT I Subscription Bulletin GOL LINHAS AÉREAS S.A., herein represented in accordance with the provisions of its bylaws, subscribes and pays in six hundred (600) common shares, all registered and with no par value, issued by Smiles Fidelidade S.A. (“Company”), in the total amount of six hundred Reais (R$600.00), at the issue price of R$1.00 per share, subject to the capital stock increase approved by the Company’s Extraordinary General Meeting held at 5:00 p.m. on March 16, 2023 (“Meeting”), paid in as described below. Shareholder Number of Shares Subscribed Subscription Amount Payment Method GOL LINHAS AÉREAS S.A., a joint-stock company registered with the National Corporate Taxpayers’ Register of the Ministry of Finance (CNPJ/MF) under No. 07.575.651/0001-59, with principal place of business in the city of Rio de Janeiro, State of Rio de Janeiro, at Praça Senador Salgado Filho, no number, Back Office Management Room, public area, axes 46-48/O-P, Postal Code (CEP) 20021-340. Six hundred (600) common registered shares, without par value. Six hundred Reais (R$600.00). The shares now subscribed are hereby fully paid up through the contribution to the Company’s capital of all the assets listed in Exhibit I to the minutes of the Meeting by the signatory hereof. Subscriber: GOL LINHAS AÉREAS S.A. (electronic signature via DocuSign) (electronic signature via DocuSign) Celso Guimarães Ferrer Junior Eduardo José Bernardes Neto Chief Executive Officer Officer SMILES FIDELIDADE S.A. CNPJ/MF No. 48.946.987/0001-68 NIRE 35300606485 MINUTES OF THE EXTRAORDINARY GENERAL MEETING HELD ON MARCH 16, 2023 EXHIBIT II Appraisal Report
(This exhibit begins on the next page.) (Remainder of page intentionally left blank.) Accounting appraisal report of assets determined based on accounting practices adopted in Brazil To the Shareholders and Managers of GOL Linhas Aéreas Inteligentes S.A. Independent accountants, statement, and scope of opinion This REPORT was prepared jointly by the accountants GABRIEL DUARTE PATRICIO, Brazilian citizen, single, born in Rio de Janeiro, resident and domiciled in this City at Rua Cândido Mendes No. 236, block B, apt. 509, Glória, Postal Code (CEP). 20.241-220, holder of identity card RJ-120315/0-1, CRC-RJ, and registered with the CPF-MF under No. 116.728.497-64; JORGE DIAS PATRICIO, Brazilian citizen, married under the partial community property regime, born in Rio de Janeiro, resident and domiciled in this City at Rua Cândido Mendes No. 236, block B, apt. 509, Glória, Postal Code (CEP). 20.241-220, holder of identity card RJ-015540-2, issued by CRC-RJ, and registered with the CPF-MF under No. 023.958.357-49, and LEONARDO PATRICIO GIRÁLDEZ, Brazilian citizen, married under the partial community property regime, born in Rio de Janeiro, resident and domiciled in this City at Rua Joaquim Nabuco No. 212, apt. 402, Ipanema, Postal Code (CEP). 22.080-060 holder of identity card RJ-086962/O-0, issued by CRC-RJ, and registered with the CPF-MF under No. 034.100.867-22. For all legal and accounting purposes, they declare that they have no direct or indirect interest in the legal entity involved in this work, or in its operation, there being no relevant circumstance that could characterize a conflict of interests for the issuance of this REPORT, as well as that there was no attempt to direct, limit, hinder, or perform any act that could have compromised the access to, use or knowledge of information, assets, documents, or work methodologies relevant to the quality of the conclusions, and they now appraise, in light of the faithful representation, for legal purposes, formalized in this REPORT. Context, scope, and objective The Appraisal Report (REPORT) was prepared by independent qualified accountants (ACCOUNTANTS), at the request of the management of GOL Linhas Aéreas Inteligentes S.A. (GOL), a privately-held corporation with principal place of business (parent company) at Praça Senador Salgado Filho no number, Ground Floor, Downtown, Rio de Janeiro - RJ, Postal Code (CEP): 20.021-340, registered with the CNPJ under No. 07.575.651/0001-59, and aims to check and validate the book values of observable intellectual assets, internally generated assets, and financial assets, typified among internet domains, list of consumers, suppliers, advertising materials, regulations, and operational and commercial rules related to the Smiles program and other financial assets. The scope of this report is limited to appraising the assets that will be incorporated into the Capital Stock of a related party (investee) of the Company in accordance with the applicable accounting standards in force. The purpose of this report is to support the accounting assessment of assets in accordance with the understanding of CPC (Accounting Pronouncements Committee) 04 – Intangible Assets, CPC 00 (R2) - Conceptual Framework for Financial Reporting and other pronouncements that may apply, so that the appraised assets are represented by the appropriate measurement basis. Management’s responsibility for accounting information The entity’s management is responsible for keeping the books and preparing accounting information in accordance with accounting practices adopted in Brazil, as well as for the relevant internal controls that it has determined are necessary to allow the preparation of such accounting information free from material
distortion, whether caused by fraud or error. The summary of the main accounting practices is described in Exhibit II to this REPORT. Conclusion Pursuant to the accounting appraisal criterion, the understanding according to item 33 of CPC 04 (R1) - Intangible Assets, is that intellectual assets generated internally, which meet the conditions to generate economic benefits, are controllable by the entity and identifiable, may only be measured in accounting terms (at fair value) if they are acquired or transferred through a Business Combination between companies that do not have common control (item B1 of CPC 15 - Business Combination defines that the Business Combination between entities under common control, before and after the Combination, is outside the scope of the standard), and therefore there is no change in the measurement basis. In the same sense of this accounting appraisal, CPC 39 - Financial Instruments describes that the item to be settled at its net cash value shall be recognized until its delivery, expected sale, or usage requirements, with equity instruments, financial instruments, and financial assets being included in the scope. For the purposes of appraising the net assets covered in this report, no provisions were identified that were linked to the assets assessed in the most recent Financial Statements audited and published by the Company, in accordance with the guidelines of CPC 25 - Provisions, Contingent Liabilities, and Contingent Assets, which define provisions as being a present obligation resulting from a past event, probable disbursement of future funds and for which a reliable value estimate can be made. Provisions or liabilities may arise from labor and civil proceedings, corporate restructuring, guarantees, onerous contracts, etc. Considering the criteria adopted and described in this REPORT, we conclude that the total value of the Assets corresponds, in reliable amounts on March 16, 2023, to six hundred Reais (R$600.00). The book value of the appraised Assets is given below in Reais (R$) in the statement: Asset Useful life Holder Class Type Book Value clubsmiles.com.br 06/24/2030 Smiles Fidelidade S.A. Intangible Domain R$0.00 diamondsmile.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 dicassmiles.com.br 12/12/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 dicassmiles.net.br 12/12/2032 Smiles Fidelidade S.A. Intangible Domain R$0.00 eticanasmiles.com.br 08/09/2032 Smiles Fidelidade S.A. Intangible Domain R$0.00 letssmile.com.br 12/19/2024 Smiles Fidelidade S.A. Intangible Domain R$0.00
milesdobem.com.br 07/26/2032 Smiles Fidelidade S.A. Intangible Domain R$0.00 orangeweek.com.br 08/02/2031 Smiles Fidelidade S.A., Intangible Domain R$0.00 orangeweeksmiles.com.br 08/02/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 orthosmiley.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 pizzasmile.com.br 12/19/2024 Smiles Fidelidade S.A. Intangible Domain R$0.00 portaldevantagenssmiles.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 programajunto.com.br 01/08/2029 Smiles Fidelidade S.A. Intangible Domain R$0.00 programasmiles.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 saudesmile.com.br 12/19/2024 Smiles Fidelidade S.A. Intangible Domain R$0.00 smartsmile.bsb.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilecare.com.br 12/19/2025 Smiles Fidelidade S.A. Intangible Domain R$0.00 smileinstitute.com.br 12/19/2024 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilekids.com.br 12/19/2025 Smiles Fidelidade S.A. Intangible Domain R$0.00 smileproject.com.br 12/19/2024 Smiles Fidelidade S.A. Intangible Domain R$0.00
smiles.eco.br 09/21/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 smiles.net.br 10/21/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesdigital.com.br 12/12/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesdigital.net.br 09/25/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesfidelidade.com.br 07/25/2032 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesite.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesofagirl.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilespromocao.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesviagem.com.br 09/21/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilesviagens.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilex.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smilexcenter.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smillesgol.com.br 06/21/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 smillestours.tur.br 06/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00
televodemilhas.net.br 12/12/2031 Smiles Fidelidade S.A. Intangible Domain R$0.00 varig.com.br 01/30/2033 Smiles Fidelidade S.A. Intangible Domain R$0.00 yoursmile.com.br 12/19/2023 Smiles Fidelidade S.A. Intangible Domain R$0.00 shoppingsmiles.com.br 06/04/2023 Gol Linhas Aéreas S.A. Intangible Domain R$0.00 smiler.com.br 06/21/2023 Gol Linhas Aéreas S.A. Intangible Domain R$0.00 smiles.com.br 08/06/2032 Gol Linhas Aéreas S.A. Intangible Domain R$0.00 smilestravel.com.br 09/16/2032 Gol Linhas Aéreas S.A. Intangible Domain R$0.00 Smiles no ar - p. 820347450 01/04/2030 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles + X-p.820403598 03/27/2031 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 E-Ponte - p. 823063445 09/09/2028 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Click-Smiles - p. 823146049 09/09/2028 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles Chef Brasil - p. 827427247 06/15/2030 Gol Linhas Aéreas Intangible Mark R$0.00
S.A. Estrela Brasileira - p. 828371172 06/29/2030 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smilesnet - p. 828975841 09/15/2029 Gol Linhas Aéreas S.A. intangible Mark R$0.00 Varigtravel - p. 828975876 09/15/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Bistrô da Ponte - p. 830113240 11/25/2024 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles Club - p. 830167374 07/12/2031 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 830239120 03/13/2032 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 830239138 03/13/2023 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 830284400 03/13/2023 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Rota Preferida Smiles - p. 905078349 07/31/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles Shopping - p. 840365632 06/28/2026 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Clube Smiles -p. 906726824 08/08/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00
Smiles Mais - p. 906726832 08/08/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 907697399 01/03/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 907697461 01/03/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Smiles - p. 907697577 01/03/2027 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Milhar - p. 912089792 10/02/2028 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Milhar - p. 912089830 10/02/2028 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Milhar - p. 912089890 10/02/2028 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Milhas do bem Smiles - p. 913894290 09/10/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Milhas do bem Smiles - p. 913894320 02/26/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 915096617 06/18/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 915096633 06/18/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00
Junto by Smiles - p. 915096650 06/18/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 916807517 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 916807550 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 916807584 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 916807614 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 916807649 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 916807665 11/19/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 917068556 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 917068580 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto - p. 917068599 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 917068645 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00
Junto by Smiles - p 917068688 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Junto by Smiles - p. 917068718 12/24/2029 Gol Linhas Aéreas S.A. Intangible Mark R$0.00 Consumer list (fair value) N/A Gol Linhas Aéreas S.A. Intangible Clients R$0.00 Supplier list (fair value) N/A Gol Linhas Aéreas S.A. Intangible Suppliers R$0.00 Advertising materials N/A Gol Linhas Aéreas S.A. Intangible Others R$0.00 Smiles Program Regulations N/A Gol Linhas Aéreas S.A. Intangible Others R$0.00 Clube Smiles Regulations N/A Gol Linhas Aéreas S.A. Intangible Others R$0.00 Operational and commercial rules of the Smiles program N/A Gol Linhas Aéreas S.A. Intangible Others R$0.00 Capital Contribution N/A Gol Linhas Aéreas S.A. Other current assets Financial Instruments R$600.00 Rio de Janeiro, March 16, 2023 (sgd) Gabriel Duarte Patricio CRC/RJ: 120315/0-1 (sgd) Leonardo Patricio Giráldez
CRC/RJ 086962/0-0 (sgd) Jorge Dias Patricio CRC/RJ: 15554/0-2 Exhibit I to the accounting appraisal Report of assets determined based on accounting practices adopted in Brazil: The observed Assets (scope) of the entity Gol Linhas Aéreas Inteligentes S.A., raised on January 12, 2023, to demonstrate the net book value (VCL) recorded in the entity’s most recent financial statements and the book value according to applicable standards determined in this report are reproduced below in Reais (R$): Assets Net Book Value Accounting appraisal value Current assets 600.00 600.00 Other assets 600.00 600.00 Non-current assets 0.00 0.00 Intangible assets 0.00 0.00 Total assets 600.00 600.00 Exhibit II to the accounting appraisal Report of assets determined based on accounting practices adopted in Brazil Explanatory Notes, standards, methodology, and accounting practices 1. Functional currency and preparation basis The amounts are presented in Reais, which is the entity’s functional currency. The financial information presented has been rounded to thousands of Reais, unless otherwise indicated. The entity’s financial statements are the responsibility of management and were prepared in accordance with accounting practices adopted in Brazil, which include the pronouncements issued by the Accounting Pronouncements Committee - CPC. 2. Measurement bases The assets appraised in this report have non-monetary, identifiable characteristics and no physical substance (intangible) and are governed by the “CPC 04 (R1) - Intangible Assets”. The measurement basis was based on their respective historical costs, less any accrued amortization and accrued impairment losses. Regarding the measurement basis, the reappraisal of these classes of assets is prohibited in situations that are not authorized by Brazilian legislation, as would be the permitted case, for example, in a Business Combination, whose measurement basis would be fair value. In correlation with current Brazilian legislation, accounting pronouncement “CPC 15 - Business Combinations” states that the cost of an intangible asset acquired in a business combination, whether or not it originated from internal generation, should be the fair value on the acquisition date, which reflects the expectations of market participants on the acquisition date regarding the probability that the future economic benefits incorporated in the asset shall be generated in favor of the entity and that the amount of the values delivered in excess of the capital gains (fair value), after the effect of deferred taxes, would therefore be considered as Goodwill (new concept of goodwill paid for expected future profitability).
3. Fair Value By definition, fair value is the price that would be received in the settlement of an asset or liability between knowledgeable market parties in an orderly transaction. Fair value measurement techniques are divided into 3 levels of inputs, with priority given to the hierarchy that uses prices quoted in active markets for identical assets or liabilities and a lower hierarchy to unobservable market data. 4. Related parties It is the person or entity that has an affinity with the entity in question. Among several types, the following may be included, according to CPC 05 (R1) - Disclosure about Related Parties: (i) Persons or their close family members, if the latter have full or shared control of the entity in question or have significant influence or are part of the key management personnel; (ii) A person identified in letter (i) who has significant influence over the entity, or is part of the key management personnel of the entity (or the entity’s controlling entity); (iii) Entities that are members of the same associated economic group; (iv) Controlled entity; (v) Jointly controlled entity; (vi) Entity jointly controlled by an entity that is a member of an economic group of which the other entity is a member; (vii) Entities under joint control of a third entity and the other entity is an affiliate of that third entity; (viii) The entity is a post-employment benefit plan that meets certain requirements; (ix) The entity is controlled by a person listed in item (i); (x) The entity, or any member of the group of which it is a part, provides key management personnel services to the reporting entity or to the parent of the reporting entity 5. Related party transactions Refers to the transfer of funds, services, or obligations between a reporting entity and a related party, regardless of whether a price is charged in return. 6. Business combination It is an operation to acquire control of the financial and operational policies of another entity. The most common methods are: acquisition of control, consolidation, spin-off, merger, etc. The methods can be operationalized through: transfer of cash or assets, assumption of liabilities, issuance of equity instruments, or without the transfer of any consideration, including through purely contractual agreements. A business combination only exists when the business (set of assets), the acquirer (entity that obtains control of another company), the acquired entity (entity whose controls are obtained by the acquirer), and owners (holders of equity interest in an entity) are identified. According to items B1 to B4 of CPC 15 (R1) - Business Combinations, the pronouncement does not apply to business combinations of entities or businesses under common control, as control is not transitory. “This Pronouncement does not apply to business combinations of entities or businesses under common control. A business combination involving entities or businesses under common control is a business
combination in which all of the entities or businesses in the combination are controlled by the same party or parties, both before and after the business combination, and such control is not transitory.” 7. Financial Instruments A Financial Instrument is a contract that gives rise to a financial asset for the entity, and consequently, a financial liability (debt) or equity instrument for the other entity (equity). 8. Subsequent events No provisions or liabilities for contingencies linked to the assets assessed in this report were identified between the date of disclosure of the audited Quarterly Information - ITR for the period ended September 30, 2022 and the base date of this report. SMILES FIDELIDADE S.A. CNPJ/MF No. 48.946.987/0001-68 NIRE 35300606485 MINUTES OF THE EXTRAORDINARY GENERAL MEETING HELD ON MARCH 16, 2023 EXHIBIT III Restated Bylaws CHAPTER I NAME, PRINCIPAL PLACE OF BUSINESS, PURPOSE, AND DURATION Article 1. Smiles Fidelidade S.A. (“Company”) is a joint-stock company governed by these bylaws (“Bylaws”) and by the applicable statutory and regulatory provisions, in particular by Law No. 6.404 of December 15, 1976, as amended (“Corporation Law”). Article 2. The Company has its principal place of business, jurisdiction, and domicile in the city of São Paulo, State of São Paulo, at Pça. Comandante Linneu Gomes, no number, gate 3, building 17, part, Jardim Aeroporto, Postal Code (CEP) 04626-020, and may open or close branches, agencies, offices and representations and any other establishments anywhere in the Brazilian territory and abroad, for the performance of its activities, upon resolution of the Executive Board. Article 3. The Company’s corporate purpose is: (a) to develop and manage its own or third-party customer loyalty program; (b) to market the rights to redeem prizes under the customer loyalty program; (c) to create a database of individuals and legal entities; (d) to represent other Brazilian or foreign companies; (e) to obtain and process transactional information regarding consumer habits; (f) to provide auxiliary services for the trade of goods and products, including, but not limited to, their import and export, in addition to the acquisition of items and products directly and indirectly related to the performance of the activities described above; (g) to operate the travel and tourism agency business; (h) to provide tourism services in general; (i) to sell commissioned or provide paid intermediation of individual or group tickets, tours, trips and excursions; (j) to provide paid intermediation in the reservation of accommodations; (k) to represent transport companies, accommodation companies, and other companies providing tourism services; (l) to own intellectual property rights and assets related to technological infrastructure; (m) to engage in activities connected, related, or complementary to air transport, in accordance with the applicable law; and (n) to hold interest in other companies. Article 4. The term of duration of the Company shall be indefinite. CHAPTER II
CAPITAL STOCK Article 5. The Company’s capital stock is one thousand Reais (R$1,000.00), fully subscribed and paid up, divided into one thousand (1,000) common, registered shares without par value. Paragraph 1. Each common share shall grant its holder the right to one vote in the resolutions of the Company’s General Meetings, which resolutions shall be passed in accordance with the applicable law. Paragraph 2. Shares resulting from a capital increase shall be distributed among shareholders, pursuant to the law, within the term set by the meeting that resolves on the capital increase. Paragraph 3. Upon approval by shareholders representing a majority of the capital stock, the Company may acquire its own shares for cancelling them or holding them in treasury, without reducing the capital stock, and subsequently selling them, in compliance with the applicable statutory and regulatory provisions. CHAPTER III GENERAL MEETING Article 6. The General Meeting, with the functions and attributions provided for by law and in these Bylaws, shall meet once a year, within four (4) months following the end of the fiscal year to resolve on the matters provided for in the Corporation Law and, extraordinarily, whenever the law or corporate interests require it, observing, in its call notice, opening, and resolutions, the applicable legal provisions and the provisions of these Bylaws. Paragraph 1. The General Meeting shall be chaired by a shareholder or officer elected at the time, who shall invite the secretary of the meeting from among the officers or shareholders present. Paragraph 2. Except in cases of qualified quorum, as provided for by law, the resolutions of the General Meeting shall be passed by an absolute majority of votes of the shareholders present, with blank votes not being counted, subject to the restrictions established in the Corporation Law and in these Bylaws. Article 7. In addition to other duties assigned to it by law, in compliance with the quorums provided for in these Bylaws and in applicable legislation, it is incumbent upon the General Meeting: (a) to review the management accounts for the last fiscal year; (b) to examine, discuss, and vote on the financial statements, accompanied by the opinion of the Fiscal Council, when installed; (c) to elect and remove members of the Executive Board; (d) to set the annual global remuneration of the members of the Executive Board, as well as that of the members of the Fiscal Council, if installed; (e) to resolve, in accordance with the proposal presented by the management, on the allocation of the net profit for the year and the distribution of dividends; (f) to amend these Bylaws; (g) to resolve on capital increases; (h) to resolve on capital reductions; (i) to resolve on consolidations, spin-offs, transformations, mergers, or mergers of shares involving the Company;
(j) to award bonuses in shares issued by the Company, as well as to resolve on any redemptions, amortizations, reverse split, and stock split of shares issued by the Company; (k) to approve plans to grant options to purchase or subscribe for shares issued by the Company to its managers, employees, and individuals who provide services to the Company, as well as to managers, employees, and individuals who provide services to other companies that directly or indirectly control, are affiliated to, or are controlled by the Company; (l) to resolve on the issuance of shares or any securities by the Company, defining the respective issue price and the quantity of securities to be issued, in accordance with the provisions and subject to the exceptions provided for in the Corporation Law and in these Bylaws; (m) to resolve on the judicial or extrajudicial reorganization of the Company or to file for its bankruptcy; (n) to resolve on the dissolution or liquidation of the Company, or termination of its liquidation status, as well as elect the liquidator and the Fiscal Council that shall operate during the liquidation period; (o) to resolve on any matter submitted to it by the Executive Board; and (p) to resolve any cases not covered by these Bylaws, in compliance with the provisions of the Corporation Law. CHAPTER IV MANAGEMENT Article 8. The Company shall be managed by an Executive Board composed of at least one (1) and at most three (3) members, one (1) of whom shall be the Chief Executive Officer and the remaining Officers shall have no specific designation, and who may be shareholders or not, resident in Brazil, elected annually by the General Meeting, re-election being permitted. Paragraph 1. The Officers are exempt from posting bond and their compensation shall be set by the General Meeting that elects them, unless otherwise decided by shareholders representing an absolute majority of votes. Paragraph 2. Upon expiration of the term of office, the Officers shall continue to hold office until their successors take office. Paragraph 3. The investiture in office shall be carried out by means of a document drawn up in the appropriate book. Paragraph 4. Subject to the provisions of these Bylaws and applicable legislation, the Executive Board shall meet with the presence of a majority of its respective members, and its resolutions shall be considered valid by the affirmative vote of a majority of those present. Paragraph 5. Minutes of Executive Board meetings shall be drawn up in the appropriate book, signed by all Officers present. Paragraph 6. The Chief Executive Officer shall be responsible for coordinating the activities of the Executive Board and supervising all activities of the Company, in addition to: (a) formulating the Company’s operational strategies and guidelines, as well as establishing the criteria for executing the resolutions of the General Meeting, with the participation of the other Officers; (b) supervising all activities of the Company and keeping the other members of the Executive Board informed about the activities of the Company and the progress of its operations; (c) enforcing these Bylaws and the guidelines and compliance with the resolutions passed at General Meetings and at its own meetings; (d) administering, managing, and supervising the corporate business, as well as issuing and approving internal instructions and regulations they deem useful or necessary to ensure compliance with the corporate
purpose of the Company; (e) coordinating and supervising the activities of the Executive Board, calling and presiding over its meetings; (f) exercising other duties conferred upon them by the General Meeting; (g) appointing the Officer who shall replace them in their absences and temporary impediments; and (h) representing the Company before various audiences and in relationship and institutional policy responsibilities. Paragraph 7. The other Officers shall have the functions assigned to them at the time of their election, except for the authority of the Chief Executive Officer to assign them other non-conflicting duties, in addition to managing the progress of the Company’s business, performing all acts necessary for its regular operation. Article 9. In the event of occasional impediment of an officer, their duties shall be performed by any other officer, nominated by the others. In the event of a vacancy, the nominated officer shall remain in office until the election and investiture of a substitute by the General Meeting. Article 10. The Executive Board has broad powers to administer and manage the company’s business, and may perform all acts necessary to manage the Company and represent it before third parties, in or out of court, and before any public authority and federal, state, or municipal government agencies; exercise normal management powers, sign documents, deeds, contracts, and credit instruments; issue and endorse checks; open, operate, and close bank accounts; take out loans, offer guarantees, acquire, sell, encumber, or assign, in whole or in part, personal or real property. Article 11. The representation of the Company in any act that creates liability for the Company or releases third parties from obligations to the Company, including the representation of the Company in court, as plaintiff or defendant, is the responsibility of: (a) the Chief Executive Officer, acting individually; or (b) two (2) Officers, jointly; (c) one (1) Director acting jointly with one (1) attorney-in-fact; or (d) two (2) attorneys-in-fact of the Company, provided that such attorneys have been appointed by the Chief Executive Officer or by any two (2) Officers acting jointly, in accordance with article 11 of these Bylaws. Paragraph 1. The Company may be represented by one (1) single Officer or attorney-in-fact (i) at General Meetings or meetings of members of companies in which it holds interest; (ii) before bodies of any sphere of government, professional councils or associations or workers’ unions; (iii) in cases of providing personal testimony; (iv) as representatives in hearings; and (v) in any ordinary acts that do not create liability for the Company. Paragraph 2. The performance of acts or operations of the Company abroad may be carried out by one (1) single Officer or attorney-in-fact, provided that such attorneys-in-fact have been appointed with specific powers by the Chief Executive Officer or by any two (2) Directors acting jointly. Article 12. Powers of attorney shall always be granted on behalf of the Company by the Chief Executive Officer or by any two (2) Officers, acting jointly, and they shall specify the powers granted and, with the exception of those with the clause ad judicia, they shall have a pre-determined term of validity, observing the limits stipulated by these Bylaws or by law. Sole Paragraph. In the absence of a determination of the term of validity in the powers of attorney granted by the Company, it shall be presumed that they were granted for a term of one (1) year. Article 13. The acts of any Officer, attorney-in-fact or employee that involve the Company in obligations and business or operations alien to its corporate purpose are expressly prohibited and are null and void with respect to the Company. CHAPTER V FISCAL COUNCIL
Article 14. The Company shall have a Fiscal Council, which shall not operate permanently and, when installed, under the terms provided for by law, shall be composed of at least three (3) and at most five (5) sitting members and an equal number of alternates, whether shareholders or not. Paragraph 1. The Fiscal Council members shall be elected by the Annual General Meeting for a term of one (1) year, re-election being permitted. Paragraph 2. The Fiscal Council members shall have the duties, attributions, and responsibilities established by the current corporate legislation, by the Corporation Law. Paragraph 3. The investiture of the sitting and alternate Fiscal Council members is subject to the signing of an instrument of investiture, recorded in a specific book. Paragraph 4. The Fiscal Council members shall be replaced, in their absence or impediment, by their respective alternate. In the event of a vacancy in office as Fiscal Council member, the respective alternate shall take their place. In the absence of an alternate, the General Meeting shall be called to elect a member for the vacant office. Paragraph 5. The compensation of the Fiscal Council members shall be established by the General Meeting that elects them, in compliance with the provisions of article 162, paragraph 3 of the Corporation Law. CHAPTER VI GENERAL PROVISIONS Article 15. The Company’s fiscal year shall begin on January 1st and end on December 31st of each year. Article 16. At the close of the fiscal year, the Company shall prepare a balance sheet and other financial statements required by the applicable law. Article 17. The profits recorded in each fiscal year shall be allocated as determined by the General Meeting, as recommended by the Executive Board, after hearing the Fiscal Council, when in operation, and after making the deductions determined by the applicable law. Article 18. By decision of shareholders representing a majority of the capital stock, the Company may prepare interim balance sheets at any time in order to determine results and distribute profits in shorter periods. Article 19. The company shall distribute, as a mandatory dividend in each fiscal year, twenty-five percent (25%) of the net profit, as adjusted in accordance with the Corporation Law. Article 20. The Company shall be liquidated in the cases provided for by law or by resolution of the General Meeting, with the quorum of shareholders representing a majority of the capital stock, which shall determine the form of its liquidation, elect the liquidators and set their remuneration. Article 21. Any cases not covered by these Bylaws shall be resolved by the General Meeting and governed in accordance with the provisions of the Corporation Law. Article 22. Any action between shareholders or against the Company shall be brought before the courts of the Judicial District of São Paulo, State of São Paulo. DocuSign Certificate of Completion Envelope ID: BB777E48C45743979E28E298C6F16D23 Status: Completed Subject: AGE 20230316 - Aporte - Incorporação do IP Rigths_VF
CPF: Source envelope: Document pages: 16 Signatures: 4 Envelope sender: Certify pages: 5 Initials: 0 Guilherme Vignola Santoro Guided Subscription: Enabled Comandante Limeu Gomes no number SP, 04626-900 Stamp with EnvelopeId: Enabled GVSANTORO@voegol.com.br Time zone: (UTC-03:00) Brasilia IP Address: 157.167.132.180 Record tracking Status: Original Bearer: Guilherme Vignola Santoro Location: DocuSign 03/17/2023 6:52:51 PM GVSANTORO@voegol.com.br Signatory Events Signature Time and date stamp Celso Guimarães Ferrer Junior (electronic signature via DocuSign) Sent on: 03/17/2023 7:00:08 PM cgfjunior@voegol.com.br Viewed on: 03/19/2023 11:36:30 AM Chairman Signed on: 03/19/2023 11:36:36 AM GOL Linhas Aéreas S.A. Signature Adoption: Pre-selected Style Security Level: Email, Account Authentication (None) Using IP address: 157.167.132.180 Electronic Signature and Registration Terms: Not available through DocuSign Eduardo Bernardes Neto ebernardesneto@voegol.com.br (electronic signature via DocuSign) Sent on: 03/17/2023 7:00:08 PM REVENUE VP Viewed on: 03/17/2023 7:06:50 PM Gol Linhas Aéreas Signature Adoption: Pre-selected Style Signed on: 03/17/2023 7:09:19 PM Security Level: Email, Account Authentication (None) Using IP address: 129.159.52.114 Electronic Signature and Registration
Terms: Accepted on: 12/08/2021 5:38:43 PM ID: 10e3c1d4-8f2c-4639-b895-eccd0500640e RENATA DOMINGUES DA FONSECA GUINESI (electronic signature via DocuSign) Sent on: 03/17/2023 7:00:09 PM rddfonseca@voegol.com.br Viewed on: 03/17/2023 7:39:49 PM General Counsel Gol Linhas Aéreas Signature Adoption: Pre-selected Style Signed on: 03/17/2023 7:40:33 PM Security Level: Email, Account Authentication (None) Using IP address: 157.167.132.180 Electronic Signature and Registration Terms: Accepted on: 06/07/2020 08:12:59 p.m. ID: f65bf4a2-02da-4ff7-9821-b4d4d2aecaf2 In-person signatory events Signature Time and date stamp Editor Delivery Events Status Time and date stamp Agent Delivery Event Status Time and date stamp Intermediate delivery events Status Time and date stamp Certified Delivery Events Status Time and date stamp Copy events Status Time and date stamp Events with witnesses Signature Time and date stamp Notary events Signature Time and date stamp Envelope Summary Events Status Timestamp Envelope sent Hashed/encrypted 03/17/2023 7:00:09 PM Certified delivery Security verified 03/17/2023 7:39:49 PM Signature completed Security verified 03/17/2023 7:40:33 PM Completed Security verified 03/19/2023 11:36:36 AM Payment events Status Timestamp Electronic Signature and Registration Instruments pgi/273545.doc 03/07/25
Exhibit T3E.1 - Second Modified Third Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors, dated as of March 20, 2025
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: | : | Chapter 11 |
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GOL Linhas Aéreas Inteligentes S.A., | : | Case No. 24-10118 (MG) |
et al.,[1] | : | |
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Debtors. | : | (Jointly Administered) |
: | ||
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SECOND
MODIFIED THIRD amended
JOINT Chapter 11 Plan of REORGANIZATION OF
GOL Linhas Aéreas Inteligentes S.A. AND ITS AFFILIATED DEBTORS
Evan R. Fleck
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Andrew M. Leblanc Erin E. Dexter (admitted pro hac vice) MILBANK LLP 1850 K St. NW, Suite 1100 Washington, DC 20006 Telephone: (202) 835-7500 Facsimile: (202) 263-7586
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Gregory A. Bray MILBANK LLP 2029 Century Park East, 33rd Floor Los Angeles, CA 90067 Telephone: (424) 386-4000 Facsimile: (213) 629-5063
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Counsel for Debtors and Debtors-in-Possession
Dated: March 20, 2025 New York, New York |
[1] | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: GOL Linhas Aéreas Inteligentes S.A. (N/A); GOL Linhas Aéreas S.A. (0124); GTX S.A. (N/A); GAC, Inc. (N/A); Gol Finance (Luxembourg) (N/A); Gol Finance (Cayman) (N/A); Smiles Fidelidade S.A. (N/A); Smiles Viagens e Turismo S.A. (N/A); Smiles Fidelidade Argentina S.A. (N/A); Smiles Viajes y Turismo S.A. (N/A); Capitânia Air Fundo de Investimento Multimercado Crédito Privado Investimento no Exterior (N/A); Sorriso Fundo de Investimento em Cotas de Fundos de Investimento Multimercado Crédito Privado Investimento no Exterior (N/A); and Gol Equity Finance (N/A). The Debtors’ service address is Praça Comandante Linneu Gomes, S/N, Portaria 3, Jardim Aeroporto, 04626-020 São Paulo, São Paulo, Federative Republic of Brazil. |
TABLE OF CONTENTS
Article I Definitions, Rules of Interpretation, Computation of Time, and Governing Law | 1 |
A. Definitions | 1 |
B. Rules of Interpretation | 28 |
C. Computation of Time | 29 |
D. Governing Law | 29 |
E. Reference to Monetary Figures and Exchange Rates | 29 |
F. Plan Support Agreement | 29 |
Article II Administrative Expenses and Other Unclassified Claims | 30 |
A. Administrative Expenses | 30 |
1. Treatment of Administrative Expenses | 30 |
2. Administrative Expense Bar Date | 30 |
B. Professional Fees | 31 |
1. Final Fee Applications | 31 |
2. Professional Fees Escrow Account | 31 |
3. Post-Effective Date Fees and Expenses | 32 |
C. DIP Facility Claims | 32 |
D. DIP Fees and Expenses | 33 |
E. Priority Tax Claims | 33 |
Article III Classification and Treatment of Claims and Interests | 33 |
A. Classification of Claims and Interests | 33 |
B. Treatment of Claims and Interests | 35 |
1. Class 1 – Priority Non-Tax Claims | 35 |
2. Class 2 – Other Secured Claims | 35 |
3. Class 3 – 2028 Notes Claims | 36 |
4. Class 4 – 2026 Senior Secured Notes Claims | 36 |
5. Class 5 – Glide Notes Claims | 37 |
6. Class 6 – Debenture Banks Claims | 37 |
7. Class 7 – AerCap Secured Note Claims | 38 |
8. Class 8 – Safra Claims | 38 |
9. Class 9 – Non-U.S. General Unsecured Claims | 39 |
10. Class 10(a) – GLAI General Unsecured Claims | 39 |
11. Class 10(b) – GLA General Unsecured Claims | 39 |
12. Class 10(c) – GFL General Unsecured Claims | 40 |
13. Class 10(d) – GFC General Unsecured Claims | 40 |
14. Class 10(e) – GEF General Unsecured Claims | 40 |
15. Class 10(f) – GAC General Unsecured Claims | 41 |
16. Class 10(g) – GTX General Unsecured Claims | 41 |
17. Class 10(h) – Smiles Fidelidade General Unsecured Claims | 41 |
18. Class 10(i) – Smiles Viagens General Unsecured Claims | 42 |
i |
19. Class 10(j) – Smiles Argentina General Unsecured Claims | 42 |
20. Class 10(k) – Smiles Viajes General Unsecured Claims | 42 |
21. Class 10(l) – CAFI General Unsecured Claims | 43 |
22. Class 10(m) – Sorriso General Unsecured Claims | 43 |
23. Class 11 – General Unsecured Convenience Class Claims | 43 |
24. Class 12 – Subordinated Claims | 44 |
25. Class 13 – Intercompany Claims | 44 |
26. Class 14 – Existing GLAI Equity Interests | 44 |
27. Class 15 – Intercompany Interests | 45 |
C. Special Provision Governing Unimpaired Claims | 45 |
D. Subordination of Claims | 45 |
E. Third-Party Beneficiaries / Derivative Claimants | 46 |
F. Abra Noteholder Claims | 46 |
G. Banco Pine and Banco Rendimento Settlements | 46 |
H. Tax Agreement | 46 |
I. Boeing Agreement | 47 |
Article IV Acceptance or Rejection of Plan | 47 |
A. Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code | 47 |
B. Voting Classes | 47 |
C. Presumed Acceptance by Non-Voting Classes | 47 |
D. Presumed Acceptance by Unimpaired Classes | 47 |
E. Deemed Rejection by Impaired Classes | 48 |
F. Elimination of Vacant Classes | 48 |
G. Controversy Concerning Impairment | 48 |
Article V Means for Implementation of Plan | 48 |
A. General Settlement of Claims and Interests | 48 |
B. Restructuring Transactions | 48 |
C. Sources of Consideration for Plan Distributions | 49 |
1. Cash | 49 |
2. Exit Financing | 50 |
3. Take-Back Notes | 50 |
4. 2026 Alternative Notes | 52 |
5. Execution of New Debt Documents | 52 |
6. New Equity | 54 |
D. General Unsecured Claimholder Distribution | 55 |
1. General Unsecured Claimholder Initial Distribution | 55 |
2. General Unsecured Claimholder Escrowed Shares | 55 |
3. Mandatory Redemption/Exchange & Offer to Purchase/Exchange | 56 |
E. Corporate Existence | 57 |
F. Vesting of Assets in the Reorganized Debtors | 57 |
G. Cancellation of Loans, Securities, and Agreements | 57 |
H. Corporate and Other Entity Action | 59 |
ii |
I. New Organizational Documents | 60 |
J. Directors and Officers of Reorganized Debtors | 60 |
1. New GOL Parent Board | 60 |
2. Officers of Reorganized Debtors | 60 |
3. New Subsidiary Boards | 61 |
K. Management Incentive Plan | 61 |
L. Effectuating Documents; Further Transactions | 61 |
M. Section 1146 Exemption | 61 |
N. Preservation of Causes of Action | 61 |
Article VI Treatment of Executory Contracts and Unexpired Leases | 62 |
A. Assumption and Rejection of Executory Contracts and Unexpired Leases | 62 |
B. Aircraft Leases | 63 |
1. Assumption and Rejection of Prepetition Aircraft Leases | 63 |
2. Aircraft Leases Entered into After the Petition Date | 64 |
C. Cure of Defaults for Executory Contracts and Unexpired Leases Assumed | 65 |
D. Dispute Resolution | 65 |
E. Rejection Damages Claims | 66 |
F. Insurance Policies & Indemnification Obligations | 66 |
G. Modifications, Amendments, Supplements, Restatements, or Other Agreements | 68 |
H. Reservation of Rights | 68 |
I. Contracts and Leases (other than Aircraft Leases) Entered into After the Petition Date | 68 |
J. Compensation and Benefits Plans | 68 |
Article VII Procedures for resolving contingent, unliquidated, and Disputed Claims | 69 |
A. Allowance of Claims and Interests | 69 |
B. Claims Administration Responsibilities | 69 |
C. General Unsecured Claim Observer | 69 |
D. Estimation of Claims | 70 |
E. Adjustment to Claims Register Without Objection | 70 |
F. Time to File Objections to Claims | 71 |
G. Disallowance of Claims | 71 |
H. Amendments to Claims | 71 |
I. No Distributions Pending Allowance | 71 |
J. Distributions After Allowance | 71 |
K. Disputed Claims Reserve | 72 |
L. Claims Resolution Procedures Cumulative | 73 |
Article VIII Provisions Governing Distributions | 73 |
A. Timing and Calculation of Amounts to Be Distributed | 73 |
B. Disbursing Agent | 74 |
iii |
C. Rights and Powers of Disbursing Agent | 74 |
1. Powers of the Disbursing Agent | 74 |
2. Incurred Expenses | 74 |
D. Delivery of Distributions and Undeliverable or Unclaimed Distributions | 74 |
1. Delivery of Distributions in General | 74 |
2. Delivery of Distributions on 2028 Notes Claims | 74 |
3. Delivery of Distributions on 2026 Senior Secured Notes Claims | 75 |
4. Delivery of Distributions on 2025 Senior Notes | 75 |
5. Delivery of Distributions on 2024 Senior Exchangeable Notes | 76 |
6. Delivery of Distributions on Perpetual Notes | 76 |
7. Delivery of Distributions on Glide Notes | 77 |
8. Minimum Distributions | 77 |
9. Undeliverable Distributions and Unclaimed Property | 77 |
E. Exemption from Securities Laws | 78 |
F. Compliance with Tax and Antitrust Requirements | 81 |
G. No Postpetition Interest on Claims and Interests | 82 |
H. Setoffs and Recoupment | 82 |
I. Claims Paid or Payable by Third Parties | 82 |
1. Claims Paid by Third Parties | 82 |
2. Claims Payable by Third Parties | 83 |
3. Applicability of Insurance Contracts | 83 |
J. Allocation Between Principal and Accrued Interest | 83 |
Article IX Settlement, Release, Injunction, and Related Provisions | 84 |
A. Compromise and Settlement | 84 |
B. Discharge of Claims and Termination of Interests | 84 |
C. Release of Liens | 84 |
D. Release by the Debtors | 85 |
E. Releases by Holders of Claims or Interests | 86 |
F. Exculpation | 87 |
G. Injunction | 88 |
H. Additional Provisions Regarding SEC | 89 |
Article X Conditions to Effective Date | 89 |
A. Conditions to Effective Date | 89 |
B. Waiver of Conditions | 91 |
Article XI Modification, Revocation or Withdrawal of Plan | 92 |
A. Modification and Amendments | 92 |
B. Effect of Confirmation on Modifications | 92 |
C. Revocation or Withdrawal of Plan | 92 |
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Article XII Retention of Jurisdiction | 92 |
Article XIII Miscellaneous Provisions | 95 |
A. Immediate Binding Effect | 95 |
B. Additional Documents | 95 |
C. Statutory Fees and Quarterly Reports | 95 |
D. Reservation of Rights | 95 |
E. Successors and Assigns | 96 |
F. Notices | 96 |
G. Notice of Entry of Confirmation Order | 97 |
H. Term of Injunctions or Stays | 97 |
I. Entire Agreement | 98 |
J. Exhibits | 98 |
K. Non-Severability of Plan Provisions | 98 |
L. Votes Solicited in Good Faith | 98 |
M. Document Retention | 98 |
N. Conflicts | 99 |
O. Dissolution of Committee | 99 |
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Introduction
GOL Linhas Aéreas Inteligentes S.A. (“GLAI”) and its affiliated debtors and debtors in possession (each a “Debtor” and, collectively, the “Debtors”), jointly propose this chapter 11 plan of reorganization (the “Plan”) pursuant to section 1121(a) of title 11 of the United States Code (the “Bankruptcy Code”). Although proposed jointly for administrative purposes and voting, the Plan constitutes a separate chapter 11 plan of reorganization for each Debtor. Each Debtor is a proponent of the Plan within the meaning of section 1129 of the Bankruptcy Code.
Holders of Claims and Interests may refer to the Disclosure Statement for a discussion of the Debtors’ history, businesses, assets, results of operations, historical financial information, and projections of future operations, as well as a summary and description of the Plan.
All holders of Claims and Interests are encouraged to read the Plan and the Disclosure Statement in their entirety before voting to accept or reject the Plan.
Article
I
Definitions, Rules of Interpretation, Computation of Time, and Governing Law
A. | Definitions |
As used in the Plan, capitalized terms have the meanings set forth below.
1. “12(g) Obligations” has the meaning specified in Article V.C.6.
2. “2017 FINIMP Note” means that certain Import Financing Bank Credit Note FP-32044/17 (Cédula de Crédito Bancário para Financiamento à Importação) issued by GLA on December 4, 2017 to the Luxembourg branch of Safra.
3. “2018 FINIMP Note” means that certain Import Financing Bank Credit Note FP-32108/17 (Cédula de Crédito Bancário para Financiamento à Importação) issued by GLA on January 29, 2018 to the Luxembourg branch of Safra.
4. “2020 Bank Credit Note” means that certain Bank Credit Note n. 6383843 (Cédula de Crédito Bancário) issued by GLA on October 23, 2020 to Safra, guaranteed by Fundo Garantidor para Investimentos and managed by Banco Nacional de Desenvolvimento Econômico e Social – BNDES.
5. “2022 Bank Credit Note” means that certain Bank Credit Note n. 6409150 (Cédula de Crédito Bancário) issued by GLA on August 30, 2022 to Safra.
6. “2024 Senior Exchangeable Notes” means the 3.75% Exchangeable Senior Notes due 2024 issued pursuant to the 2024 Senior Exchangeable Notes Documents.
7. “2024 Senior Exchangeable Notes Claims” means all Claims on account of, arising under, or related to the 2024 Senior Exchangeable Notes Documents, except any Indenture Trustee Fees.
8. “2024 Senior Exchangeable Notes Documents” means the documents that govern the 2024 Senior Exchangeable Notes, including that certain Indenture, dated as of March 26, 2019, among GEF, as issuer, GLAI and GLA, as guarantors, and the 2024 Senior Exchangeable Notes Trustee, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
9. “2024 Senior Exchangeable Notes Trustee” means The Bank of New York Mellon in its capacity as trustee, note registrar, paying agent, and exchange agent under the 2024 Senior Exchangeable Notes Documents.
10. “2025 Senior Notes” means the 7.000% Senior Notes due 2025 issued pursuant to the 2025 Senior Notes Documents.
11. “2025 Senior Notes Claims” means all Claims on account of, arising under, or related to the 2025 Senior Notes Documents, except any Indenture Trustee Fees.
12. “2025 Senior Notes Documents” means the documents that govern the 2025 Senior Notes, including that certain Indenture, dated as of December 11, 2017, among GFL, as issuer, GLAI and GLA, as guarantors, and the 2025 Senior Notes Trustee, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
13. “2025 Senior Notes Trustee” means The Bank of New York Mellon in its capacity as trustee, registrar, transfer agent, and paying agent under the 2025 Senior Notes Documents.
14. “2026 Alternative Notes” means, if the Class of 2026 Senior Secured Notes Claims votes to reject the Plan, new non-exchangeable notes in the aggregate principal amount of $33.6 million to be issued by the 2026 Alternative Notes Issuer on the Effective Date on the terms set forth herein and such other terms set forth in the 2026 Alternative Notes Documents.
15. “2026 Alternative Notes Collateral” has the meaning specified in ArticleV.C.4.
16. “2026 Alternative Notes Documents” means the documents that will govern the 2026 Alternative Notes, including any financing documents related to the 2026 Alternative Notes and any related term sheets, indentures, note purchase agreements, intercreditor agreements, pledges, mortgages, guarantees, and any similar documents, in each case which shall be in form and substance reasonably acceptable to the Debtors and Abra and subject to the Committee Consent Right.
17. “2026 Alternative Notes Issuer” means one or more of Reorganized GFL and Reorganized GEF and/or such other Reorganized Debtor or entity owned directly or indirectly by the Reorganized Debtors and/or New GOL Parent as determined by the Debtors, with the consent of Abra and subject to the Committee Consent Right in accordance with the terms of the Plan Support Agreement.
18. “2026 Senior Secured Notes” means the 8.00% Senior Secured Notes due 2026 issued pursuant to the 2026 Senior Secured Notes Documents.
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19. “2026 Senior Secured Notes Claims” means all Claims on account of, arising under, or related to the 2026 Senior Secured Notes Documents.
20. “2026 Senior Secured Notes Collateral Agent” means TMF Brasil Administração e Gestão De Ativos Ltda. in its capacity as collateral agent under the 2026 Senior Secured Notes Documents.
21. “2026 Senior Secured Notes Documents” means the documents that govern the 2026 Senior Secured Notes, including that certain Indenture, dated as of December 23, 2020, among GFL, as issuer, GLAI and GLA, as guarantors, the 2026 Senior Secured Notes Trustee, and the 2026 Senior Secured Notes Collateral Agent, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
22. “2026 Senior Secured Notes Trustee” means Wilmington Trust, National Association, as successor to The Bank of New York Mellon, in its capacity as trustee, registrar, transfer agent, and paying agent under the 2026 Senior Secured Notes Documents.
23. “2028 Notes” means the 2028 Senior Secured Notes and 2028 Senior Secured Exchangeable Notes.
24. “2028 Notes Claims” means all Claims on account of, arising under, or related to the 2028 Notes Documents.
25. “2028 Notes Collateral Agent” means TMF Brasil Administração e Gestão De Ativos Ltda as collateral agent under the 2028 Senior Secured Note Purchase Agreement and 2028 Senior Secured Exchangeable Note Purchase Agreement.
26. “2028 Notes Documents” means the documents that govern 2028 Senior Secured Notes and the 2028 Senior Secured Exchangeable Notes, including the 2028 Senior Secured Note Purchase Agreement and the 2028 Senior Secured Exchangeable Note Purchase Agreement, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
27. “2028 Senior Secured Exchangeable Note Purchase Agreement” means that certain Senior Secured Exchangeable Note Purchase Agreement, dated as of September 29, 2023, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GEF, as issuer, GLA, GLAI, and Smiles Fidelidade, as guarantors, Abra Group Limited and Abra Global Finance, as purchasers, and the 2028 Notes Collateral Agent.
28. “2028 Senior Secured Exchangeable Notes” means the Senior Secured Exchangeable Notes due 2028 issued pursuant to the 2028 Senior Secured Exchangeable Note Purchase Agreement.
29. “2028 Senior Secured Note Purchase Agreement” means that certain Senior Secured Note Purchase Agreement, dated as of March 2, 2023, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GFL, as issuer, GLA, GLAI, and Smiles Fidelidade, as guarantors, Abra Group Limited, as purchaser, and the 2028 Notes Collateral Agent.
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30. “2028 Senior Secured Notes” means the Senior Secured Notes due 2028 issued pursuant to the 2028 Senior Secured Note Purchase Agreement.
31. “4(a)(2) Securities” has the meaning specified in Article VIII.E.
32. “7a Debentures” means the seventh issuance of simple, non-convertible secured debentures issued by GLA, in three series, on October 28, 2018, April 16, 2020, and October 1, 2020.
33. “7a Debentures Claims” means all Claims on account of, arising under, or related to the 7a Debentures.
34. “8a Debentures” means the eighth issuance of simple, non-convertible secured debentures issued by GLA on October 27, 2021.
35. “8a Debentures Claims” means all Claims on account of, arising under, or related to the 8a Debentures.
36. “Abra” means, collectively, Abra Group Limited, Abra Global Finance, Abra Kingsland LLP, and Abra Mobi LLP (and their respective successors).
37. “Abra Equity Distribution” means 100% of the shares of New Equity, subject to dilution by (i) the General Unsecured Claimholder Distribution, (ii) any Incremental New Money Equity, (iii) any New Equity issued to holders of Allowed 2026 Senior Secured Notes Claims (and any shares held in escrow pursuant to Article V.D.2 on account of such 2026 Senior Secured Notes Claims), if applicable, and (iv) any New Equity issued after the Effective Date, including in connection with the Management Incentive Plan, upon exchange of the Exchangeable Take-Back Notes, and upon exchange of any Incremental New Money Exchangeable Debt.
38. “Abra Notes” has the meaning specified in the DIP Order.
39. “Abra Notes Agents” has the meaning specified in the DIP Order.
40. “Ad Hoc Group of Abra Noteholders” has the meaning specified in the DIP Order.
41. “Adequate Protection” has the meaning specified in the DIP Order.
42. “Adjusted Specified Value” means an amount equal to (i) the Specified Value plus (ii) $250 million.
43. “Administrative Expense” means any cost or expense of administration of the Chapter 11 Cases entitled to priority pursuant to sections 503(b), 507(a)(2), or 507(b) of the Bankruptcy Code, including: (i) the actual and necessary costs and expenses of preserving the Estates and operating the Debtors’ business that are incurred after the Petition Date and through the Effective Date; (ii) professional compensation and reimbursement awarded or allowed pursuant to sections 330(a) or 331 of the Bankruptcy Code, including the Professional Fees; (iii) any administrative expense described in section 503(b)(9) of the Bankruptcy Code; and (iv) any
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and all fees and charges assessed against the Estates pursuant to chapter 123 of title 28 of the United States Code.
44. “Administrative Expense Bar Date” means the deadline for filing requests for payment of Administrative Expenses (other than Professional Fees), which shall be the first Business Day that is thirty (30) days after the Effective Date.
45. “AerCap Secured Note Claims” means the secured amounts due under the AerCap Secured Note Documents entered into pursuant to the AerCap Secured Note Order and the AerCap Settlement Order.
46. “AerCap Secured Note Documents” means the Secured Promissory Note dated August 26, 2024, by and between GFL, GLA, GLAI, and Ballyfin Aviation II Limited, any security agreements or other documents, instruments, and agreements entered into in connection therewith, and the AerCap Secured Note Order.
47. “AerCap Secured Note Order” means the Order (I) Authorizing the Debtors to Amend Post-Petition Payment Obligation with AerCap Ireland Limited and (II) Granting Related Relief [Docket No. 895].
48. “AerCap Settlement Order” means the Order (I) Approving the Global Restructuring Term Sheet with AerCap Ireland Limited, (II) Authorizing and Approving the Amendment and Assumption of Certain Aircraft and Engine Leases, (III) Authorizing Entry into the Definitive Documentation, (IV) Approving the Settlement, and (V) Granting Related Relief [Docket No. 491].
49. “AerCap Term Sheet” means the global restructuring term sheet (together with all exhibits, annexes, and schedules attached thereto) attached as Exhibit 1 to the AerCap Settlement Order.
50. “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 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.
51. “Agents/Trustees” means, collectively, the Abra Notes Agents, the DIP Agent, the DIP Trustee, the 2024 Senior Exchangeable Notes Trustee, the 2025 Senior Notes Trustee, the 2026 Senior Secured Notes Collateral Agent, the 2026 Senior Secured Notes Trustee, the 2028 Notes Collateral Agent, the Glide Notes Trustee, and the Perpetual Notes Trustee.
52. “Aircraft Equipment Transaction” has the meaning specified in the Solicitation and Voting Procedures.
53. “Aircraft Lease” means an Unexpired Lease relating to the use or operation of an aircraft, aircraft engine, or other aircraft parts.
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54. “Allowed” means, with reference to any Claim or Interest, (i) any Claim or Interest arising on or before the Effective Date that has not been otherwise satisfied or extinguished before the Effective Date (a) as to which a Claim or an Interest was validly asserted during the Chapter 11 Cases and no objection to allowance has been interposed within the time period set forth in the Plan, (b) as to which any objection has been resolved by a Final Order of the Bankruptcy Court to the extent such objection is determined in favor of the respective holder, (c) as to which the liability of the Debtors and the amount thereof are determined by a Final Order of a court of competent jurisdiction other than the Bankruptcy Court and is not Disallowed, or (d) that has been compromised, settled, or otherwise resolved by the Debtors; (ii) any Claim or Interest expressly allowed under the Plan or a Final Order of the Bankruptcy Court; or (iii) any Claim that is listed in the Schedules as liquidated, noncontingent, and undisputed for which (a) no Proof of Claim has been filed or (b) a Proof of Claim has been filed in the same or lesser amount as such Claim is listed in the Schedules; provided, that the Reorganized Debtors (i) in their business judgment, and in consultation with the General Unsecured Claim Observer (to the extent applicable), may deem a Claim or an Interest “Allowed” following the Effective Date without further order of the Bankruptcy Court and (ii) notwithstanding anything to the contrary herein, shall retain all claims and defenses with respect to Allowed Claims or Interests that are Reinstated or otherwise Unimpaired pursuant to the Plan; provided, further, that an Allowed Claim (i) includes a previously Disputed Claim to the extent such Disputed Claim becomes Allowed and (ii) shall be net of any setoff amount that may be asserted by the applicable Debtor against such Claim, which shall be deemed to have been set off in accordance with the provisions of the Plan. “Allow,” “Allowing,” and “Allowance” shall have correlative meanings.
55. “Amended Debentures” means, collectively, the 7a Debentures and the 8a Debentures, each as amended in accordance with the Debenture Banks Stipulation.
56. “Amended Glide Notes” means the Amended Glide Senior Notes and the Amended Glide Subordinated Notes.
57. “Amended Glide Notes Documents” means the documents that will govern the Amended Glide Notes in accordance with the terms of the Lessor Agreements, including (i) the Amended Glide Notes Indenture and (ii) all other financing documents related to the Amended Glide Notes, such as intercreditor agreements, pledges, mortgages, and guarantees.
58. “Amended Glide Notes Indenture” means the Glide Notes Indenture, as amended by that certain supplemental indenture to be entered into on the Effective Date with The Bank of New York Mellon, as trustee, registrar, transfer agent, and paying agent, and TMF Brasil Administração e Gestão De Ativos Ltda., as collateral agent.
59. “Amended Glide Senior Notes” means, in accordance with the Lessor Agreements, the new senior amortizing notes to be issued under the Plan pursuant to the Amended Glide Notes Documents in an aggregate principal amount of $141,662,259.
60. “Amended Glide Subordinated Notes” means, in accordance with the Lessor Agreements, the new subordinated amortizing notes to be issued under the Plan pursuant to the Amended Glide Notes Documents in an aggregate principal amount of $66,035,947.
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61. “Amended Safra Notes” means, collectively, the 2017 FINIMP Note, the 2018 FINIMP Note, the 2020 Bank Credit Note, and the 2022 Bank Credit Note, each as amended pursuant to the Safra Stipulation.
62. “Applicable Premium” has the meaning specified in the 2028 Senior Secured Note Purchase Agreement and the 2028 Senior Secured Exchangeable Note Purchase Agreement, as applicable.
63. “Assumption Dispute” has the meaning specified in Article VI.D.
64. “Avoidance Actions” means any and all actual or potential Claims and Causes of Action to avoid a transfer of property from, or an obligation incurred by, one or more of the Debtors, that arise under (i) chapter 5 of the Bankruptcy Code, including sections 544, 545, 547, 548, 549, 550, 551, 552, and 553, and section 724(a) of the Bankruptcy Code or (ii) similar foreign or state law.
65. “Bankruptcy Code” has the meaning specified in the Introduction.
66. “Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York or any other court having jurisdiction over the Chapter 11 Cases.
67. “Bankruptcy Rules” means (i) the Federal Rules of Bankruptcy Procedure, as amended from time to time and as applicable to the Chapter 11 Cases, promulgated pursuant to 28 U.S.C. § 2075, and (ii) the general, local, and chambers rules of the Bankruptcy Court.
68. “BdoB Letters of Credit” has the meaning specified in the Debenture Banks Order.
69. “Boeing Agreement” has the meaning specified in the Restructuring Term Sheet.
70. “Bradesco Letters of Credit” has the meaning specified in the Debenture Banks Order.
71. “Brazil Business Day” means any day other than a (i) Saturday or Sunday or (ii) day on which commercial banks in São Paulo, State of São Paulo, Brazil are required or authorized by law to remain closed.
72. “BRL Exchange Rate” means the Real/U.S. dollar offered rate for U.S. dollars, expressed as the amount of Reais per one U.S. dollar reported by the Central Bank of Brazil on its website under transaction code PTAX (consulta de câmbio), on any applicable date.
73. “Business Combination” means any merger, acquisition, consolidation, amalgamation or similar strategic business combination transaction, other than (i) any Material Joint Venture, (ii) any joint venture, including any arrangement of limited cooperation on specific routes (such as interlining, frequent flyer programs and lounge access, code sharing, and similar arrangements) and any agreement to expand cooperation between parties to develop joint networks, or (iii) any such transaction solely among a person and its subsidiaries or Affiliates.
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74. “Business Day” means any day other than a (i) Saturday or Sunday, (ii) “legal holiday” (as defined in Bankruptcy Rule 9006(a)), or (iii) day on which commercial banks in New York are required or authorized by law to remain closed.
75. “CAFI” means Capitânia Air Fundo de Investimento Multimercado Crédito Privado Investimento no Exterior.
76. “CAFI General Unsecured Claim” means any General Unsecured Claim against CAFI.
77. “CAFI General Unsecured Claimholder Distribution” means 0% of the General Unsecured Claimholder Distribution.
78. “Cash” means (i) cash and cash equivalents in U.S. dollars or (ii) where non-U.S. currency is specifically referred to, cash and cash equivalents in such non-U.S. currency.
79. “Cash Interest” has the meaning specified in the 2028 Senior Secured Note Purchase Agreement and the 2028 Senior Secured Exchangeable Note Purchase Agreement.
80. “Cause of Action” means any action, claim, cross-claim, third-party claim, cause of action, controversy, dispute, demand, right, action, remedy, lien, indemnity, contribution, guaranty, suit, obligation, liability, loss, debt, fee or expense, damage, interest, judgment, cost, account, defense, remedy, offset, power, privilege, proceeding, license, and franchise of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively (including any alter ego theories), whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity, or pursuant to any other theory of law (including under any state or federal securities law). For the avoidance of doubt, “Cause of Action” includes: (i) any right of setoff or counterclaim or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims; (iii) any claim pursuant to section 362 or chapter 5 of the Bankruptcy Code, including Avoidance Actions; (iv) any claim or defense, including fraud, mistake, duress, usury, recoupment, and any other defenses set forth in section 558 of the Bankruptcy Code; and (v) any Avoidance Action or foreign or state law fraudulent transfer or similar claim.
81. “Challenge Period” has the meaning specified in the DIP Order.
82. “Chapter 11 Cases” means the jointly administered cases of the Debtors under chapter 11 of the Bankruptcy Code.
83. “Claim” means a “claim” as defined in section 101(5) of the Bankruptcy Code against a Debtor.
84. “Claims Bar Date” means: (i) with respect to all Claims other than those specified in sub-clauses (ii) and (iii) of this definition, June 14, 2024 at 11:59 P.M. (prevailing Eastern time); (ii) solely with respect to Claims held by Governmental Units, July 23, 2024 at 11:59 P.M. (prevailing Eastern time); and (iii) solely with respect to Claims arising from the rejection of an
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Executory Contract or Unexpired Lease, the later of (x) June 14, 2024 at 11:59 P.M. (prevailing Eastern time) and (y) the Rejection Damages Deadline.
85. “Class” means a class of Claims or Interests designated in Article III, pursuant to section 1122(a) of the Bankruptcy Code.
86. “Committee” means the official committee of unsecured creditors, as it may be constituted from time to time, appointed on February 9, 2024 by the U.S. Trustee in the Chapter 11 Cases [Docket No. 114] pursuant to section 1102 of the Bankruptcy Code, the composition of which was amended by the U.S. Trustee on February 13, 2024 [Docket No. 134].
87. “Committee Consent Right” means the consent of the Committee but solely with respect to any provision that has a material effect on the economic recoveries or rights of holders of Allowed General Unsecured Claims (whether directly or indirectly).
88. “Confirmation Date” means the date upon which the Confirmation Order is entered.
89. “Confirmation Hearing” means the hearing held by the Bankruptcy Court to consider confirmation of the Plan pursuant to section 1129 of the Bankruptcy Code.
90. “Confirmation Order” means the order of the Bankruptcy Court confirming the Plan pursuant to section 1129 of the Bankruptcy Code.
91. “Consenting Stakeholders” has the meaning specified in the Plan Support Agreement.
92. “Consummation” means the occurrence of the Effective Date.
93. “Cure Claim” means a Claim (unless waived or modified by the applicable counterparty) on account of a Debtor’s monetary defaults under an Executory Contract or Unexpired Lease assumed by such Debtor under 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) of the Bankruptcy Code.
94. “D&O Policy” means any Insurance Contract, including tail insurance policies, for directors’, members’, trustees’, and/or officers’ liability.
95. “Debenture Banks” means, collectively, Banco Santander S.A. (Brasil), Banco do Brasil S.A., and Banco Bradesco S.A.
96. “Debenture Banks Claims” means all Claims held by the Debenture Banks against the Debtors, including the 7a Debentures Claims, the 8a Debentures Claims, and all Claims on account of, arising under, or related to the BdoB Letters of Credit, the Santander Letters of Credit, and the Bradesco Letters of Credit.
97. “Debenture Banks Order” means the Order Approving Stipulation and (I) Authorizing the Debtors to (A) Use Collateral, Including Cash Collateral, and Grant Adequate Protection in Connection with Certain Prepetition Debentures; (B) Amend Terms of Certain
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Prepetition Debentures; (C) Establish Procedures for Extending the Expiration Date of, and Reimbursing the Issuing Banks for Drawn, Existing Prepetition Letters of Credit; and (D) Enter into a New Factoring Agreement; (II) Approving the Consensual Assumption of Certain Prepetition Factoring Agreements, as Amended; (III) Modifying the Automatic Stay; and (IV) Granting Related Relief [Docket No. 844].
98. “Debenture Banks Stipulation” means the stipulation, dated July 9, 2024, between GLAI, GLA, and the Debenture Banks, which is attached as Exhibit A to the Debenture Banks Order.
99. “Debtor” or “Debtors” has the meaning specified in the Introduction.
100. “Definitive Documents” has the meaning specified in the Plan Support Agreement.
101. “DIP Agent” means TMF Group New York, LLC as collateral agent under the DIP Indenture.
102. “DIP Facility” means the superpriority senior secured priming debtor-in-possession financing facility provided to the Debtors pursuant to the DIP Facility Documents.
103. “DIP Facility Claims” means all Claims held by the DIP Agent, the DIP Noteholders, and the DIP Trustee on account of, arising under, or related to the DIP Facility or DIP Facility Documents, including any outstanding principal, accrued and unpaid interest and premiums, fees, reimbursement obligations, and all other amounts that are outstanding obligations under the DIP Facility Documents, including the DIP Fees and Expenses.
104. “DIP Facility Documents” means the DIP Indenture, the DIP Note Purchase Agreement, the DIP Order, and any amendments, modifications, supplements thereto, as well as any related notes, certificates, agreements, security agreements, documents, and instruments (including any amendments, restatements, supplements, or modifications of any of the foregoing) related to or executed in connection with the DIP Indenture, DIP Note Purchase Agreement, and the DIP Order.
105. “DIP Fees and Expenses” has the meaning specified in the DIP Order.
106. “DIP Guarantors” means all Debtors other than CAFI and Sorriso.
107. “DIP Indenture” means that certain indenture, dated as of February 21, 2024, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GFL, as issuer, the DIP Guarantors, the DIP Trustee, and the DIP Agent.
108. “DIP Note Purchase Agreement” means that certain Superpriority Senior Secured Priming Debtor-in-Possession Note Purchase Agreement, dated as of February 21, 2024, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GFL, as issuer, the DIP Guarantors, GLAS Trust Company LLC, as settlement agent, and the initial DIP Noteholders.
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109. “DIP Noteholders” means the holders from time to time of the Notes issued under, and as defined in, the DIP Indenture.
110. “DIP Order” means the Final Order (A) Authorizing the Debtors to Obtain Postpetition Financing, (B), Granting Liens and Providing Claims with Superpriority Administrative Expense Status, (C) Granting Adequate Protection to the Prepetition Secured Parties, (D) Modifying the Automatic Stay, (E) Authorizing the Debtors to Use Cash Collateral and (F) Granting Related Relief [Docket No. 207].
111. “DIP Trustee” means GLAS Trust Company LLC, as trustee, registrar, transfer agent and paying agent under the DIP Indenture.
112. “Disallowed” means any Claim, or any portion thereof, that (i) has been disallowed by Final Order or settlement; (ii) is scheduled at zero or as contingent, disputed, or unliquidated on the Schedules and as to which a Claims Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court, including the Order (I) Establishing Bar Dates for Filing Proofs of Claim, (II) Approving Proof of Claim Forms, Bar Date Notices, and Mailing and Publication Procedures, (III) Implementing Uniform Procedures Regarding 503(b)(9) Claims, and (IV) Providing Certain Supplemental Relief [Docket No. 691]; or (iii) is not scheduled on the Schedules and as to which a Claims Bar Date has been established but no Proof of Claim has been timely filed or deemed timely filed pursuant to either the Bankruptcy Code or any Final Order of the Bankruptcy Court, including the Order (I) Establishing Bar Dates for Filing Proofs of Claim, (II) Approving Proof of Claim Forms, Bar Date Notices, and Mailing and Publication Procedures, (III) Implementing Uniform Procedures Regarding 503(b)(9) Claims, and (IV) Providing Certain Supplemental Relief [Docket No. 691]. “Disallow” and “Disallowance” shall have correlative meanings.
113. “Disbursing Agent” means, as applicable, the Reorganized Debtors or any Person or Entity that the Debtors or Reorganized Debtors select to make or facilitate distributions in accordance with the Plan, including each of the Agents/Trustees, as applicable.
114. “Disclosure Statement” means the disclosure statement for the Plan, as approved by the Bankruptcy Court pursuant to section 1125 of the Bankruptcy Code, together with all exhibits, schedules, supplements, annexes, and attachments to such Disclosure Statement, each as may be modified or supplemented from time to time.
115. “Disputed” means, with respect to a Claim, any Claim that is not yet Allowed or Disallowed.
116. “Disputed Claims Reserve” means the reserve established in accordance with Article VII.K to provide for distributions to holders of Disputed Claims in the event such Disputed Claims become Allowed Claims.
117. “Distribution Date” means any of the Initial Distribution Date and each Interim Distribution Date.
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118. “Distribution Record Date” means, other than with respect to publicly held Securities, the Confirmation Date or such other date prior to the Effective Date that is selected by the Debtors.
119. “DTC” means the Depository Trust Company.
120. “Effective Date” means the date that is a Business Day selected by the Debtor(s) on which (i) no stay of the Confirmation Order is in effect and (ii) all conditions precedent specified in Article X.A have been satisfied or waived in accordance with the Plan.
121. “Eligible Existing GLAI Equity Interest Holders” means all holders of Existing GLAI Equity Interests registered on GLAI’s shareholders’ registry as of no earlier than the date of the shareholders’ meeting of GLAI that approves the relevant capital increase and capitalization of indebtedness contemplated hereby, which record date shall be established at such shareholders’ meeting.
122. “Elliott” has the meaning specified in the DIP Order.
123. “Entity” has the meaning set forth in section 101(15) of the Bankruptcy Code.
124. “Estate” means, with respect to a Debtor, the estate created for such Debtor upon commencement of its Chapter 11 Case pursuant to section 541 of the Bankruptcy Code.
125. “Estates” means, collectively, each Debtor’s Estate.
126. “Exchange Act” has the meaning specified in Article VII.E.
127. “Exchangeable Take-Back Notes” means new exchangeable debt in an aggregate principal amount of $250 million to be issued by the Take-Back Notes Issuers on the Effective Date on the terms set forth herein and such other terms set forth in the Exchangeable Take-Back Notes Documents.
128. “Exchangeable Take-Back Notes Documents” means the documents that will govern the Exchangeable Take-Back Notes, including any financing documents related to the Exchangeable Take-Back Notes and any related term sheets, indentures, note purchase agreements, intercreditor agreements, pledges, mortgages, guarantees, and any similar documents, in each case which shall be in form and substance reasonably acceptable to the Debtors and Abra and subject to the Committee Consent Right.
129. “Exculpated Parties” means, collectively, and in each case in their capacities as such: (i)(a) the Debtors, (b) the Reorganized Debtors, (c) the Committee and its members, (d) the General Unsecured Claim Observer, (e) the Ad Hoc Group of Abra Noteholders and Elliott, (f) the Abra Notes Agents, (g) the DIP Agent and the DIP Trustee, (h) the 2024 Senior Exchangeable Notes Trustee, the 2025 Senior Notes Trustee, and the Perpetual Notes Trustee, and (i) Abra; (ii) with respect to each of the Entities and Persons in clause (i), all of such Entities’ and Persons’ Related Parties, solely to the extent such Related Parties are fiduciaries of the Estates or otherwise to the fullest extent provided for pursuant to section 1125(e) of the Bankruptcy Code; and (iii) each other Consenting Stakeholder, its Affiliates, and each of its and their respective Related Parties;
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provided, that with respect to the Entities and Persons in clause (iii), any exculpations provided under the Plan or the Confirmation Order shall be granted only to the extent provided in section 1125(e) of the Bankruptcy Code.
130. “Executory Contract” means a contract to which one or more Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
131. “Existing GLAI Equity Interests” means existing Interests in GLAI.
132. “Existing Letters of Credit” means all outstanding wholly or partially undrawn prepetition and postpetition letters of credit issued to, or at the request of, any Debtor, in each case as amended, restated, renewed, modified, supplemented, extended, or confirmed from time to time.
133. “Exit Notes” means the new first Lien secured notes in an aggregate principal amount not to exceed the amount required to satisfy all Allowed DIP Facility Claims, to be issued by the Exit Notes Issuer on the Effective Date on the terms set forth herein and such other terms set forth in the Exit Notes Documents.
134. “Exit Notes Agent/Trustee” means [Wilmington Savings Fund Society, FSB,] in its capacity as [collateral agent and trustee, registrar, transfer agent, and paying agent] under the Exit Notes (or such other persons or entities as may be agreed among the parties to the Exit Notes Documents, with the consent of Abra and subject to the Committee Consent Right in accordance with the terms of the Plan Support Agreement).
135. “Exit Notes Documents” means the documents that will govern the Exit Notes, including any financing documents related to the Exit Notes and any related term sheets, indentures, note purchase agreements, intercreditor agreements, pledges, mortgages, guarantees, and any similar documents, in each case which shall be in form and substance acceptable to the Debtors and Abra and subject to the Committee Consent Right.
136. “Exit Notes Issuer” means one or more of Reorganized GFL and Reorganized GEF and/or such other Reorganized Debtor or entity owned directly or indirectly by the Reorganized Debtors and/or New GOL Parent as determined by the Debtors, with the consent of Abra and subject to the Committee Consent Right, in accordance with the terms of the Plan Support Agreement.
137. “Final Basis” means, with respect to the Boeing Agreement, that (i) the definitive documents in respect of such agreement have been executed and delivered by the parties thereto and (ii) all conditions precedent to the effectiveness and operation of such definitive documents have either been satisfied or waived in accordance with the terms thereof.
138. “Final Order” means an order entered by the Bankruptcy Court or other court of competent jurisdiction: (i) that has not been reversed, stayed, modified, amended, or revoked, and as to which (a) any right to appeal or seek leave to appeal, certiorari, review, reargument, stay, or rehearing has been waived or (b) the time to appeal or seek leave to appeal, certiorari, review, reargument, stay, or rehearing has expired and no appeal, motion for leave to appeal, or petition for certiorari, review, reargument, stay, or rehearing is pending or (ii) as to which an appeal has been taken, a motion for leave to appeal, or petition for certiorari, review, reargument, stay, or
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rehearing has been filed and (a) such appeal, motion for leave to appeal or petition for certiorari, review, reargument, stay, or rehearing has been resolved by the highest court to which the order or judgment was appealed or from which leave to appeal, certiorari, review, reargument, stay, or rehearing was sought and (b) the time to appeal (in the event leave is granted) further or seek leave to appeal, certiorari, further review, reargument, stay, or rehearing has expired and no such appeal, motion for leave to appeal, or petition for certiorari, further review, reargument, stay, or rehearing is pending; provided, that the possibility that a request for relief under Rule 60 of the Federal Rules of Civil Procedure or any analogous Bankruptcy Rule or applicable non-bankruptcy law may be filed relating to such order shall not prevent such order from being a Final Order.
139. “GAC” means GAC, Inc.
140. “GAC General Unsecured Claim” means any General Unsecured Claim against GAC.
141. “GAC General Unsecured Claimholder Distribution” means 0.005% of the General Unsecured Claimholder Distribution.
142. “GEF” means Gol Equity Finance.
143. “GEF General Unsecured Claim” means any General Unsecured Claim against GEF.
144. “GEF General Unsecured Claimholder Distribution” means 0% of the General Unsecured Claimholder Distribution.
145. “General Unsecured Claim” means any Claim that is not a Secured Claim, an Intercompany Claim, a Subordinated Claim, a Non-U.S. General Unsecured Claim, or a Claim entitled to priority under the Bankruptcy Code and includes, for the avoidance of doubt, the 2024 Senior Exchangeable Notes Claims, the 2025 Senior Notes Claims, the Perpetual Notes Claims, and any Unsecured Claim that may be asserted pursuant to a Lessor Agreement. For the avoidance of doubt, holders of Allowed (i) General Unsecured Convenience Class Claims shall receive distributions only under Class 10 and not under any sub-Class of Class 9 and (ii) 2026 Senior Secured Notes Claims (in their capacity as such) shall receive distributions only under Class 4 and not under any sub-Class of Class 9.
146. “General Unsecured Claim Observer” has the meaning specified in Article VII.C.
147. “General Unsecured Claimholder Distribution” means (i) the General Unsecured Claimholder Initial Distribution and (ii) any General Unsecured Claimholder Released Escrowed Shares that are released after the Effective Date in accordance with Article V.D.2.
148. “General Unsecured Claimholder Escrowed Shares” means a number of shares of New Equity to be held in an escrow account until the first anniversary of the Effective Date pursuant to the terms and conditions of Article V.D.2.
149. “General Unsecured Claimholder Initial Distribution” means a number of shares of New Equity having a value (based on the Specified Value) equal to:
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i. | if a Boeing Agreement has not been agreed by the parties thereto on a Final Basis (and/or Bankruptcy Court approval has not been obtained in respect of such agreement) on or before the Effective Date, $210 million (and any such additional amounts as agreed by Abra and the Committee); or |
ii. | if a Boeing Agreement is reached by the parties thereto on a Final Basis (and Bankruptcy Court approval has been obtained in respect of such agreement) on or before the Effective Date, $235 million (and any such additional amounts as agreed by Abra and the Committee); and |
iii. | such additional amount of value between $0 and approximately $75 million, as agreed to by Abra and the Committee, based upon an agreement to provide up to an additional $75 million of value in New Equity, which today reflects 50% of the difference between the aggregate amount of value to be distributed under the Plan to the holders of Allowed 2026 Senior Secured Notes Claims and $252,565,388.89; |
in each case subject to dilution as set forth in Article V.D.1; provided, that such value will be reduced by the aggregate value of Cash and New Equity paid in respect of the Smiles General Unsecured Claims; provided, further that the extent to which the aggregate amount of Cash paid in respect of General Unsecured Convenience Class Claims will be applied to reduce the General Unsecured Claimholder Initial Distribution (if any) shall be agreed by the Debtors, Abra, and the Committee.
150. “General Unsecured Claimholder Released Escrowed Shares” means the General Unsecured Claimholder Escrowed Shares to be released to the holders of Allowed General Unsecured Claims and, if applicable, 2026 Senior Secured Notes Claims (or to applicable holders of New Equity) (each as of a record date to be agreed) pursuant to the terms and conditions of Article V.D.2.
151. “General Unsecured Convenience Class Claim” means a General Unsecured Claim (other than a Smiles General Unsecured Claim, 2024 Senior Exchangeable Notes Claim, 2025 Senior Notes Claim, or Perpetual Notes Claim) in an Allowed amount of $200,000 or less.
152. “General Unsecured Convenience Class Claim Fund” means Cash in an amount not to exceed $1,000,000 for purposes of making distributions to holders of Allowed General Unsecured Convenience Class Claims.
153. “GFC” means Gol Finance (Cayman).
154. “GFC General Unsecured Claim” means any General Unsecured Claim against GFC.
155. “GFC General Unsecured Claimholder Distribution” means 2.272% of the General Unsecured Claimholder Distribution.
156. “GFL” means Gol Finance (Luxembourg).
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157. “GFL General Unsecured Claim” means any General Unsecured Claim against GFL.
158. “GFL General Unsecured Claimholder Distribution” means 32.156% of the General Unsecured Claimholder Distribution.
159. “GLA” means GOL Linhas Aéreas S.A.
160. “GLA General Unsecured Claim” means any General Unsecured Claim against GLA.
161. “GLA General Unsecured Claimholder Distribution” means 59.684% of the General Unsecured Claimholder Distribution.
162. “GLAI” has the meaning specified in the Introduction.
163. “GLAI General Unsecured Claim” means any General Unsecured Claim against GLAI.
164. “GLAI General Unsecured Claimholder Distribution” means 5.883% of the General Unsecured Claimholder Distribution.
165. “GLAI Preemptive Rights Offering” means the preemptive rights offering with respect to equity interests in Reorganized GLAI to be made available to Eligible Existing GLAI Equity Interest Holders in accordance with the Transaction Steps and Brazilian law.
166. “GLAI Preemptive Rights Offering Period” means, with respect to the GLAI Preemptive Rights Offering, the period during which Eligible Existing GLAI Equity Interest Holders are entitled to exercise their preemptive rights, in accordance with Brazilian law, which period may commence prior to, on, or after the Effective Date, as set forth in the Transaction Steps.
167. “Glide Notes” means, collectively, the 5.00% Senior Secured Notes due 2026 and 3.00% Subordinated Secured Notes due 2025 issued pursuant to the Glide Notes Documents.
168. “Glide Notes Claims” means the Glide Senior Notes Claims and the Glide Subordinated Notes Claims.
169. “Glide Notes Documents” means the documents that govern the Glide Notes, including the Glide Notes Indenture, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
170. “Glide Notes Indenture” means that certain Indenture dated as of December 30, 2022, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GFL, as issuer, GLAI and GLA, as guarantors, the Glide Notes Trustee, and TMF Brasil Administração e Gestão De Ativos Ltda., as collateral agent under the Glide Notes Indenture.
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171. “Glide Notes Trustee” means Computershare Trust Company, N.A., as successor to The Bank of New York Mellon, in its capacity as trustee, registrar, transfer agent, and paying agent under the Glide Notes Indenture.
172. “Glide Senior Notes Claims” means all Claims on account of, arising under, or related to the 5.00% Senior Secured Notes due 2026 issued pursuant to the Glide Notes Documents.
173. “Glide Subordinated Notes Claims” means all Claims on account of, arising under, or related to the 3.00% Subordinated Secured Notes due 2025 issued pursuant to the Glide Notes Documents.
174. “Governmental Unit” has the meaning set forth in section 101(27) of the Bankruptcy Code.
175. “GTX” means GTX S.A.
176. “GTX General Unsecured Claim” means any General Unsecured Claim against GTX.
177. “GTX General Unsecured Claimholder Distribution” means 0% of the General Unsecured Claimholder Distribution.
178. “Impaired” means, with respect to a Claim, an Interest, or a Class of Claims or Interests, “impaired” within the meaning of such term in section 1124 of the Bankruptcy Code.
179. “Incremental New Money Equity” means New Equity in an aggregate amount that, together with the amount of any Incremental New Money Exchangeable Debt, does not exceed $330 million and on such other terms set forth in the Incremental New Money Equity Documents.
180. “Incremental New Money Equity Documents” means any documents that will govern the Incremental New Money Equity, including any financing documents related to the Incremental New Money Equity and any related term sheets, subscription agreements, investor rights agreements, instruments defining the rights of security holders, and any similar documents, in each case, which shall be in form and substance acceptable to the Debtor and Abra and subject to the Committee Consent Right.
181. “Incremental New Money Exchangeable Debt” means exchangeable debt in an aggregate principal amount that, together with the amount of any Incremental New Money Equity, does not exceed $330 million and on such other terms set forth in the applicable Incremental New Money Exit Debt Documents.
182. “Incremental New Money Exit Debt” means non-convertible, non-exchangeable secured debt in an aggregate principal amount that, together with the amount of any Incremental New Money Equity and/or Incremental New Money Exchangeable Debt, does not exceed $550 million and on such other terms set forth in the applicable Incremental New Money Exit Debt Documents.
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183. “Incremental New Money Exit Debt Documents” means the documents that will govern any Incremental New Money Exchangeable Debt and/or Incremental New Money Exit Debt, including any financing documents related to the Incremental New Money Exchangeable Debt and/or Incremental New Money Exit Debt and any related term sheets, indentures, note purchase agreements, intercreditor agreements, pledges, mortgages, guarantees, and any similar documents, in each case, which shall be in form and substance acceptable to the Debtors and Abra and subject to the Committee Consent Right.
184. “Incremental New Money Exit Financing” means new money exit financing in an aggregate amount of up to $550 million consisting of the issuance of Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt.
185. “Indemnification Obligation” means any existing or future obligation of any Debtor to indemnify current and former directors, officers, members, managers, sponsors, agents, or employees of any of the Debtors who served in such capacity, with respect to or based upon such service or any act or omission taken or not taken in any of such capacities, or for or on behalf of any Debtor, whether pursuant to agreement, letters, the Debtors’ respective memoranda, articles or certificates of incorporation, corporate charters, bylaws, operating agreements, limited liability company agreements, or similar corporate or organizational documents or other applicable contract or law in effect as of the Effective Date.
186. “Indenture Trustee Charging Lien” means any Lien, indemnification, and priority of payment rights in favor of an indenture trustee under the 2026 Senior Secured Notes Documents, the Glide Notes Documents, the 2024 Senior Exchangeable Notes Documents, the 2025 Senior Notes Documents, and the Perpetual Notes Documents, on or with respect to distributions to be made on account of the 2026 Senior Secured Notes Claims, the Glide Notes Claims, the 2024 Senior Exchangeable Notes Claims, the 2025 Senior Notes Claims, and the Perpetual Notes Claims, as applicable.
187. “Indenture Trustee Fees” means the compensation, fees, expenses, disbursements, and indemnity claims of an indenture trustee that are required to be paid under the 2024 Senior Exchangeable Notes Documents, the 2025 Senior Notes Documents, and the Perpetual Notes Documents, including any fees, expenses, and disbursements of attorneys, advisors, or agents retained or utilized by an indenture trustee, whether prior to or after the Petition Date and whether prior to or after the Effective Date.
188. “Initial Distribution Date” means the Effective Date or a date selected by the Reorganized Debtors, in consultation with the General Unsecured Claim Observer (to the extent applicable) and Abra, that is as soon as reasonably practicable thereafter.
189. “Insurance Contracts” means all insurance policies whose term of coverage includes the Effective Date issued to any of the Debtors (or their predecessors) and all agreements, documents, or instruments relating thereto, including but not limited to any agreement with a third party administrator for claims handling. Insurance Contracts shall not include surety bonds, surety guaranties, or surety-related products.
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190. “Insurers” means any Entities or Persons (other than the Debtors) that issued or entered into Insurance Contracts (including any third-party administrator for any Insurance Contracts) and any respective predecessors and/or affiliates of any of the foregoing.
191. “Intercompany Claim” means a Claim against a Debtor held by another Debtor.
192. “Intercompany Interest” means any Interest in a Debtor held (i) by another Debtor or (ii) by a non-Debtor that is a wholly owned direct or indirect subsidiary of a Debtor.
193. “Intercreditor Agreement” has the meaning specified in Article V.C.2.
194. “Interest” means any “equity security” (as such term is defined in section 101(16) of the Bankruptcy Code) or other equity interest in a Debtor, including any share of common or preferred stock, membership interest, partnership unit, or other evidence of ownership of, or a similar interest in, a Debtor, and any option, warrant, or right, contractual or otherwise, to purchase, sell, subscribe, or acquire any such equity security or other equity interest in a Debtor, whether or not transferable, issued or unissued, authorized, or outstanding. For the avoidance of doubt, “Interest” includes American depositary receipts that are linked to other Interests.
195. “Interim Distribution Date” means any date that is after the Initial Distribution Date on which the Reorganized Debtors, in consultation with the General Unsecured Claim Observer (to the extent applicable) and Abra, determine that an interim distribution should be made to holders of Allowed Claims, in light of, among other things, resolutions of Disputed Claims and the administrative costs of such a distribution.
196. “Investment Exchange” shall be defined in the Plan Supplement.
197. “Lessor Agreement” means any agreement or summary of terms approved by the Bankruptcy Court between the Debtors and one or more Aircraft Lease lessors related to the restructuring of any prepetition Aircraft Lease.
198. “Lien” has the meaning set forth in section 101(37) of the Bankruptcy Code.
199. “Management Incentive Plan” means the post-Effective Date management equity incentive plan at New GOL Parent, to be determined and allocated by the New GOL Parent Board.
200. “Material Joint Venture” means a commercial collaboration that is material to each of the participants, as determined in good faith by the Board of Directors of Abra Group Limited; provided that it is expressly understood that arrangements of limited cooperation on specific routes (such as interlining, frequent flyer programs and lounge access, code sharing, and similar arrangements) and agreements to expand cooperation between parties to develop joint networks shall not constitute a Material Joint Venture.
201. “New Boards” means the New GOL Parent Board and New Subsidiary Boards.
202. “New Debt Documents” means, collectively, the Exit Notes Documents, the Take-Back Notes Documents, the Amended Glide Notes Documents, the documents governing
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the Amended Debentures, the documents governing the Amended Safra Notes, and, if applicable, the 2026 Alternative Notes Documents and the Incremental New Money Exit Debt Documents.
203. “New Equity” means equity interests in New GOL Parent to be issued under the Plan on the terms set forth in Article V.C.6, which may include shares of common and preferred equity as determined by the Debtors, Abra, and the Committee, subject to compliance with the laws of Brazil and/or such other applicable jurisdiction, the rules, regulations, or requirements of any applicable stock exchange, and the terms of any New GOL Parent Organizational Documents, including any relevant shareholders’ agreements, if applicable.
204. “New Equity Documents” means documents that will govern the New Equity, including any financing documents related to the New Equity and any related term sheets, subscription agreements, investor rights agreements, instruments defining the rights of security holders, and any similar documents, in each case, which shall be in form and substance acceptable to the Debtor and Abra and subject to the Committee Consent Right.
205. “New GOL Parent” means a new entity to be formed or acquired on or prior to the Effective Date to hold, directly or indirectly through one or more entities, 100% of the equity interests of Reorganized GLAI (excluding the Existing GLAI Equity Interests and any equity issued through the GLAI Preemptive Rights Offering).
206. “New GOL Parent Board” means the initial board of directors of New GOL Parent.
207. “New Organizational Documents” means, collectively, the New GOL Parent Organizational Documents and the New Reorganized Subsidiary Debtor Organizational Documents.
208. “New GOL Parent Organizational Documents” means the new bylaws, certificates of incorporation, certificates of formation, limited liability company agreements, operating agreements, certificates of limited partnership, agreements of limited partnership, shareholder agreements, investor rights agreements, instruments defining the rights of security holders, or such other organizational documents of New GOL Parent included in the Plan Supplement, which shall be in form and substance reasonably acceptable to the Debtors, Abra, and the Committee.
209. “New Money Securities” has the meaning specified in Article VIII.E.
210. “New Reorganized Subsidiary Debtor Organizational Documents” means the new bylaws, certificates of incorporation, certificates of formation, limited liability company agreements, operating agreements, certificates of limited partnership, agreements of limited partnership, shareholder agreements, investor rights agreements, instruments defining the rights of security holders, or such other organizational documents of the Reorganized Debtors included in the Plan Supplement.
211. “New Subsidiary Boards” means the initial boards of directors or managers (as applicable) of the Reorganized Debtors.
212. “Non-Exchangeable Take-Back Notes” means new non-exchangeable debt to be issued by the Take-Back Notes Issuers on the Effective Date, in the aggregate principal amount of
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(x) if the Class of 2026 Senior Secured Claims votes to accept the Plan, $700 million, and (y) if the Class of 2026 Senior Secured Notes votes to reject the Plan, $600 million, in each case on the terms set forth herein and such other terms set forth in the Non-Exchangeable Take-Back Notes Documents.
213. “Non-Exchangeable Take-Back Notes Documents” means the documents that will govern the Non-Exchangeable Take-Back Notes, including any financing documents related to the Non-Exchangeable Take-Back Notes and any related term sheets, indentures, note purchase agreements, intercreditor agreements, pledges, mortgages, guarantees, and any similar documents, in each case which shall be in form and substance reasonably acceptable to the Debtors and Abra and subject to the Committee Consent Right.
214. “Non-U.S. General Unsecured Claim” means any Unsecured Claim (i) arising from or related to a Brazilian Litigation Claim (as such term is used in the Final Order (I) Authorizing the Debtors to Pay Certain Lien Claimants and (II) Granting Related Relief [Docket No. 194]), (ii) held by Brazilian trade vendors or service providers that provide, or will provide, goods or services necessary to the operation of the Reorganized Debtors and over which the Bankruptcy Court does not have personal jurisdiction (in each case as determined by the Debtors or the Reorganized Debtors, as applicable; provided, that the amount of such Claims, in the aggregate, shall be consistent with the Debtors’ five-year business plan (as most recently provided to Abra as of the date of the Plan Support Agreement)), or (iii) with the consent of Abra, which shall not be unreasonably withheld, conditioned, or delayed, and in consultation with the General Unsecured Claim Observer (to the extent applicable), any other Claim held by a person or entity over which the Bankruptcy Court does not have personal jurisdiction, as determined by the Debtors or the Reorganized Debtors, as applicable.
215. “Other Secured Claim” means any Secured Claim other than a Priority Tax Claim (except as set forth in Article II.E), a DIP Facility Claim, a 2028 Notes Claim, a 2026 Senior Secured Notes Secured Claim, a Glide Notes Claim, a Debenture Banks Claim, and a Safra Claim.
216. “Perpetual Notes” means the 8.75% Perpetual Notes issued pursuant to the Perpetual Notes Documents.
217. “Perpetual Notes Claims” means all Claims on account of, arising under, or related to the Perpetual Notes Documents, except any Indenture Trustee Fees.
218. “Perpetual Notes Documents” means the documents that govern the Perpetual Notes, including the Perpetual Notes Indenture, each as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time.
219. “Perpetual Notes Indenture” means that certain Indenture, dated as of April 5, 2006, as may have been amended, restated, amended and restated, supplemented, waived, or otherwise modified from time to time, among GFC, as issuer, GLAI and GLA, as guarantors, and the Perpetual Notes Trustee.
220. “Perpetual Notes Trustee” means, collectively, The Bank of New York Mellon in its capacity as trustee, registrar, transfer agent, and principal paying agent under the Perpetual
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Notes Indenture and The Bank of New York Mellon (Luxembourg), S.A., as Luxembourg paying agent and transfer agent under the Perpetual Notes Indenture.
221. “Person” has the meaning set forth in section 101(41) of the Bankruptcy Code.
222. “Petition Date” means January 25, 2024.
223. “Plan” has the meaning specified in the Introduction.
224. “Plan Supplement” means the compilation of documents (or forms or term sheets thereof), schedules, and exhibits to the Plan, as each may be amended, supplemented, or modified from time to time in accordance with the Plan and the Plan Support Agreement, the Bankruptcy Code, and the Bankruptcy Rules, to be filed with the Bankruptcy Court no later than fourteen (14) days prior to the Voting Deadline or such later date as may be approved by the Bankruptcy Court, which may include, as applicable: (i) the New Organizational Documents; (ii) the Schedule of Assumed Contracts (as amended, supplemented, or modified); (iii) the Schedule of Retained Causes of Action; (iv) a list of the members of the New Boards (to the extent known); (v) any amendments, modifications, or supplements to the Transaction Steps attached hereto as Exhibit 1; (vi) the Exit Notes Documents; (vii) the Take-Back Notes Documents; (viii) the Amended Glide Notes Documents; (ix) the 2026 Alternative Notes Documents (if applicable); (x) the Incremental New Money Exit Debt Documents and Incremental New Money Equity Documents (in each case, if applicable); (xi) the New Equity Documents; (xii) the definitive instruments evidencing the terms of the mandatory redemption or exchange of New Equity issued on account of the General Unsecured Claimholder Distribution and to the holders of 2026 Senior Secured Notes Claims, if applicable, into equity of Abra Group Limited (or any successor) pursuant to Article V.D.3; (xiii) documents evidencing the procedures for the issuance of equity of Reorganized GLAI (as applicable pursuant to Article V.C.6); and (xiv) such other documents as are necessary or advisable to implement the Restructuring Transactions. For the avoidance of doubt, the Debtors shall have the right to amend, supplement, or modify the Plan Supplement (including, for the avoidance of doubt, the Transaction Steps (if included in the Plan Supplement)) through the Effective Date in accordance with the terms of the Plan and the Plan Support Agreement.
225. “Plan Support Agreement” means that certain Plan Support Agreement, dated as of November 5, 2024, including the Restructuring Term Sheet, and any other exhibits, schedules, and annexes thereto, by and among the Debtors, the Committee, Abra, and any other Entity that may become a party thereto, as attached to the Disclosure Statement as Exhibit E, as the same may be amended, amended and restated, supplemented, or otherwise modified from time to time in accordance with its terms.
226. “Pre-Dilution Specified Value” means an amount equal to (i) $950 million, plus (ii) the amount of accrued and unpaid PIK interest, if any, on the 2028 Notes from and after April 30, 2025, to but excluding the Effective Date, plus (iii) the value of the General Unsecured Claimholder Initial Distribution, plus (iv) the value of the General Unsecured Claimholder Escrowed Shares, plus (v) the aggregate amount of Cash paid in respect of the General Unsecured Convenience Class Claims, plus (vi) the aggregate value of Cash and New Equity paid in respect of Smiles General Unsecured Claims, plus (vii) an amount equal to the value of any additional equity provided to General Unsecured Claimholders pursuant to Article I.A.149.iii, plus (viii) the
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aggregate value of New Equity issued to holders of Allowed 2026 Senior Secured Notes Claims (and, in the case of any escrow shares, the applicable holders of New Equity), if applicable.
227. “Preference Actions” means Avoidance Actions arising under section 547 of the Bankruptcy Code.
228. “Prepetition Debtor Abra Notes Pledged Liens” has the meaning specified in the DIP Order.
229. “Priority Claim” means any Priority Non-Tax Claim or Priority Tax Claim.
230. “Priority Non-Tax Claim” means any Claim entitled to priority pursuant to section 507(a) of the Bankruptcy Code, other than an Administrative Expense, DIP Facility Claim, or Priority Tax Claim.
231. “Priority Tax Claim” means any Claim of a Governmental Unit that is entitled to priority pursuant to section 502(i) or 507(a)(8) of the Bankruptcy Code.
232. “Professional” means any Person retained by order of the Bankruptcy Court in connection with these Chapter 11 Cases pursuant to sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code. “Professional” does not include any professional-service Entity that the Debtors are authorized to employ, compensate, and reimburse in the ordinary course of business.
233. “Professional Fees” means the accrued, contingent, and/or unpaid compensation for services rendered (including hourly, transaction, and success fees), and reimbursement of expenses incurred, by Professionals, that: (i) are awardable and allowable pursuant to sections 327, 328, 329, 330, 331, 503(b)(4), and/or 1103 of the Bankruptcy Code or otherwise rendered allowable prior to the Confirmation Date; (ii) have not been denied by the Bankruptcy Court by Final Order; (iii) have not been previously paid (regardless of whether a fee application has been filed for any such amount); and (iv) remain outstanding after applying any retainer that has been provided to such Professional. To the extent that any amount of the foregoing compensation or reimbursement is denied or reduced by Final Order, such amount shall no longer constitute Allowed Professional Fees.
234. “Professional Fees Escrow Account” means the account established on the Effective Date pursuant to Article II.B.2.
235. “Pro Rata” means, for the holder of an Allowed Claim in a particular Class, proportional to the ratio of the amount of such Allowed Claim to the aggregate amount of all Allowed Claims in the same Class or, as applicable and as specifically set forth in the Plan, sub-Classes.
236. “Proof of Claim” means a proof of Claim and/or Interest filed in the Chapter 11 Cases.
237. “Qualified Listing Event” means (i) the admission (including by way of direct listing) of all or any of the Abra Group Limited ordinary shares to trading on any Investment Exchange, (ii) a merger or other business combination transaction by Abra Group Limited with a
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“special purpose acquisition company” (or similar entity without an operating business incorporated, formed or otherwise organized for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization, contribution, consolidation or similar business combination with one or more businesses or entities) whose equity interests have been admitted to trading on any Investment Exchange as a result of which the shareholders (or other relevant equity securities holders) of Abra Group Limited hold, following completion of the relevant transaction, any of the publicly listed equity interests of the “special purpose acquisition company” (or similar entity or surviving entity in respect of such transaction), or (iii) a Business Combination or other reorganization that results in Abra Group Limited ordinary shares being admitted for trading on any Investment Exchange.
238. “Quarterly Fees” has the meaning specified in Article XIII.C.
239. “Reimbursement Agreement” has the meaning specified in the Debenture Banks Order.
240. “Reinstate,” “Reinstated,” or “Reinstatement” means leaving a Claim Unimpaired under the Plan under section 1124(2) of the Bankruptcy Code.
241. “Rejection Damages Deadline” means the deadline by which a Proof of Claim on account of damages resulting from rejection of an Executory Contract or Unexpired Lease must be filed, which shall be thirty (30) days after the date of entry of an order of the Bankruptcy Court authorizing such rejection.
242. “Related Parties” means, with respect to any Entity or Person, in each case in its capacity as such with respect to such Entity or Person, such Entity’s or Person’s current and former directors, managers, officers, investment committee members, special committee members, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds, predecessors, participants, successors, assigns, subsidiaries, Affiliates, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals and advisors and any such Person’s or Entity’s respective heirs, executors, estates, and nominees.
243. “Released Parties” means, collectively, each of the following, in each case in its capacity as such: (i) the Debtors; (ii) the Reorganized Debtors; (iii) the Committee and its members; (iv) the other Consenting Stakeholders; (v) the DIP Noteholders, (vi) the Agents/Trustees; (vii) the Ad Hoc Group of Abra Noteholders and Elliott; and (viii) with respect to each of the foregoing Entities and Persons set forth in clause (i) through (vii), each of such Entities’ and Persons’ Affiliates and its and their respective Related Parties. Notwithstanding the foregoing, (i) any Entity or Person that opts out of the releases set forth in Article IX.E shall not be deemed a Released Party and (ii) any Entity or Person that would otherwise be a Released Party hereunder but is party to one or more Retained Causes of Action shall not be deemed a Released Party with respect to such Retained Causes of Action.
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244. “Releasing Parties” means, collectively, each of the following, in each case in its capacity as such: (i) each of the Released Parties; (ii) all holders of Claims that vote to accept the Plan and do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable ballot; (iii) all holders of Claims or Interests that are Unimpaired under the Plan and do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable notice; (iv) all holders of Claims in Classes that are entitled to vote under the Plan but that (a) vote to reject the Plan or do not vote either to accept or reject the Plan and (b) do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable ballot; and (v) with respect to each of the foregoing Entities and Persons set forth in clauses (ii) through (iv), all of such Entities’ and Persons’ respective Related Parties. For the avoidance of doubt, holders of Claims or Interests in Classes that are deemed to reject the Plan and therefore are not entitled to vote under the Plan are not Releasing Parties in their capacities as holders of such Claims or Interests.
245. “Reorganized” means, as to any Debtor, such Debtor as reorganized pursuant to and under the Plan or any successor thereto on or after the Effective Date.
246. “Reorganized Debtors” means, collectively, the Debtors as reorganized pursuant to and under the Plan or any successor thereto on or after the Effective Date.
247. “Restructuring Term Sheet” has the meaning specified in the Plan Support Agreement.
248. “Restructuring Transactions” has the meaning specified in Article V.B.
249. “Retained Causes of Action” means all Causes of Action held by the Debtors that are not expressly settled or released by the Debtors under the Plan, which shall include any actions specifically enumerated in the Schedule of Retained Causes of Action.
250. “Safra” means, collectively, Banco Safra S.A. and Banco Safra S.A. (Luxembourg Branch).
251. “Safra Claims” means all Claims held by Safra against the Debtors, including all Claims on account of, arising under, or related to the 2017 FINIMP Note, the 2018 FINIMP Note, the 2020 Bank Credit Note, the 2022 Bank Credit Note, and the Safra Trade Payables.
252. “Safra Stipulation” means the Stipulation and Agreed Order Between the Debtors, Banco Safra S.A., and Banco Safra S.A. (Luxembourg Branch) Authorizing Post-Petition Interest Payments to Banco Safra in Exchange for Agreement to Factor Receivables [Docket No. 648].
253. “Safra Trade Payables” means certain unsecured trade payables owed by GLA to Safra in the amount of $15,046.00.
254. “Santander Letters of Credit” has the meaning specified in the Debenture Banks Order.
255. “Schedule of Assumed Contracts” means the schedule of Executory Contracts and Unexpired Leases that shall be assumed by the applicable Debtors as of the Effective Date (or such
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other date as designated in such schedule) filed as part of the Plan Supplement, including the Cure Claim (if any) for each such assumed Executory Contract and Unexpired Lease; provided, however, that any such Executory Contract or Unexpired Lease may be subject to amendment, modification or rejection in accordance with the terms of the Plan.
256. “Schedule of Retained Causes of Action” means the schedule of certain of the Retained Causes of Action, filed as part of the Plan Supplement, which shall be reasonably acceptable to the Committee; provided, that the Reorganized Debtors shall retain and may enforce all rights to commence and pursue, as appropriate, any and all Retained Causes of Action, regardless of whether such Retained Causes of Action are specifically enumerated in the Schedule of Retained Causes of Action.
257. “Schedules” means the schedules of assets and liabilities, statements of financial affairs, lists of holders of Claims and Interests and all amendments or supplements thereto filed by the Debtors with the Bankruptcy Court to the extent such filing is not waived pursuant to an order of the Bankruptcy Court.
258. “SEC” means the United States Securities and Exchange Commission.
259. “Section 1145 Securities” has the meaning specified in Article VIII.E.
260. “Secured Claim” means any Claim that is (i) secured by a Lien on property in which an Estate has an interest, which Lien is valid, perfected, and enforceable pursuant to applicable law or by reason of a Bankruptcy Court order, or (ii) subject to setoff pursuant to section 553 of the Bankruptcy Code, in either case, to the extent of the value of the creditor’s interest in the Estate’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.
261. “Securities Act” means the Securities Act of 1933, 15 U.S.C. §§ 77a–77aa, as amended, together with the rules and regulations promulgated thereunder.
262. “Servicer” means any Person or Entity that has been empowered to act in the capacity of the Disbursing Agent with respect to a particular Class of Claims.
263. “Smiles Argentina” means Smiles Fidelidade Argentina S.A.
264. “Smiles Argentina General Unsecured Claim” means any General Unsecured Claim against Smiles Argentina.
265. “Smiles Fidelidade” means Smiles Fidelidade S.A.
266. “Smiles Fidelidade General Unsecured Claim” means any General Unsecured Claim against Smiles Fidelidade.
267. “Smiles General Unsecured Claims” means, collectively, the Smiles Argentina General Unsecured Claims, the Smiles Fidelidade General Unsecured Claims, the Smiles Viagens General Unsecured Claims, and the Smiles Viajes General Unsecured Claims.
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268. “Smiles General Unsecured Claims Cap” means Cash and/or New Equity in an aggregate amount not to exceed $4 million.
269. “Smiles Viagens” means Smiles Viagens e Turismo S.A.
270. “Smiles Viagens General Unsecured Claim” means any General Unsecured Claim against Smiles Viagens.
271. “Smiles Viajes” means Smiles Viajes y Turismo S.A.
272. “Smiles Viajes General Unsecured Claim” means any General Unsecured Claim against Smiles Viajes.
273. “Solicitation and Voting Procedures” has the meaning specified in the Disclosure Statement.
274. “Sorriso” means Sorriso Fundo de Investimento em Cotas de Fundos de Investimento Multimercado Crédito Privado Investimento no Exterior.
275. “Sorriso General Unsecured Claim” means any General Unsecured Claim against Sorriso.
276. “Sorriso General Unsecured Claimholder Distribution” means 0% of the General Unsecured Claimholder Distribution.
277. “Specified Value” means an amount equal to (i) the Pre-Dilution Specified Value plus (ii) the Incremental New Money Equity, if applicable.
278. “Subordinated Claims” means Claims that are subject to subordination in accordance with sections 510(b)-(c) of the Bankruptcy Code or otherwise.
279. “Take-Back Notes” means, collectively, the Exchangeable Take-Back Notes and Non-Exchangeable Take-Back Notes.
280. “Take-Back Notes Documents” means, collectively, the Exchangeable Take-Back Notes Documents and Non-Exchangeable Take-Back Notes Documents.
281. “Take-Back Notes Issuers” means one or more of Reorganized GFL and Reorganized GEF and/or such other Reorganized Debtors or entities owned directly or indirectly by the Reorganized Debtors and/or New GOL Parent as determined by the Debtors, with the consent of Abra and subject to the Committee Consent Right, in accordance with the terms of the Plan Support Agreement.
282. “Tax Agreement” means that certain settlement agreement entered into by the Debtors, the Brazilian Federal Revenue Service, and the General Counsel for the National Treasury, substantially in the form attached as Exhibit B to the Debtors’ Motion for Entry of an Order Authorizing the Debtors to Enter into a Settlement Agreement with the Brazilian
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Government Parties [Docket No. 1126] and as approved by the Bankruptcy Court on December 18, 2024 [Docket No. 1164].
283. “Transaction Steps” means certain actions or steps to be taken by the Debtors to implement the Restructuring Transactions, which is attached hereto as Exhibit 1, as may be amended, supplemented, or modified from time to time by the Debtors through the Effective Date with the consent of Abra and the Committee.
284. “Underwriter Securities” has the meaning specified in Article VIII.E.
285. “Unexpired Lease” means a lease to which one or more of the Debtors is a party that is subject to assumption or rejection under sections 365 or 1123 of the Bankruptcy Code.
286. “Unimpaired” means, with respect to a Class, Claim, or Interest, that such Class, Claim, or Interest is not Impaired.
287. “Unsecured” means, with respect to a Claim, a Claim that is not a Secured Claim.
288. “U.S. Trustee” means the Office of the United States Trustee for Region 2.
289. “Voting Deadline” means May 12, 2025, or such other date and time as may be set by the Bankruptcy Court.
290. “Voting Record Date” means March 12, 2025.
B. | Rules of Interpretation |
For purposes of the Plan and unless otherwise specified herein: (i) each term, whether stated in the singular or the plural, shall include, in the appropriate context, both the singular and the plural; (ii) each pronoun stated in the masculine, feminine, or neuter gender shall include, in the appropriate context, the masculine, feminine, and the neuter gender; (iii) the words “herein,” “hereof,” and “hereto” refer to the Plan in its entirety rather than to a particular portion of the Plan; (iv) the words “include,” “includes,” and “including” are by way of example and not limitation; (v) all references to articles or Articles are references to the Articles hereof; (vi) all captions and headings are inserted for convenience of reference only and are not intended to be a part of, or to affect the interpretation of, the Plan; (vii) any reference to an Entity as a holder of a Claim or an Interest includes that Entity’s successors and assigns; (viii) any reference to an existing document, schedule, or exhibit, whether or not filed, having been filed, or to be filed, shall mean that document, schedule, or exhibit, as it may thereafter be amended, modified, or supplemented; (ix) any reference to an event occurring on a specified date, including on the Effective Date, shall mean that the event will occur on that date or as soon thereafter as reasonably practicable; (x) any reference 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 the referenced document shall be substantially in that form or substantially on those terms and conditions except as specifically provided herein; (xi) all references to statutes, regulations, orders, rules of courts and the like shall mean as amended from time to time and as applicable to the Chapter 11 Cases; (xii) subject to the provisions of any contract, certificate of incorporation, bylaw, instrument, release, or other agreement or document entered into in connection with the Plan, the rights and obligations arising
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pursuant to the Plan shall be governed by, and construed and enforced in accordance with, the applicable federal law, including the Bankruptcy Code and Bankruptcy Rules; (xiii) the rules of construction set forth in section 102 of the Bankruptcy Code shall apply; and (xiv) 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 assigned to that term in the Bankruptcy Code or the Bankruptcy Rules, as the case may be.
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. If the date on which a transaction may or shall occur pursuant to the Plan is not a Business Day, then such transaction shall instead occur on the next succeeding Business Day.
D. | Governing Law |
Unless federal law (including the Bankruptcy Code and Bankruptcy Rules) is applicable, and unless specifically stated otherwise, the laws of the State of New York, without giving effect to the principles of conflict of laws that would require application of the law of another jurisdiction, shall govern the rights, obligations, construction, and implementation of the Plan and any agreements, documents, instruments, or contracts executed or entered into in connection with the Plan (except as otherwise set forth in those agreements, in which case the governing law of such agreement shall control); provided, however, that corporate or entity governance matters relating to the Debtors or the Reorganized Debtors shall be governed by the laws of the state or country of incorporation or organization of the relevant Debtor or Reorganized Debtor, as applicable.
E. | Reference to Monetary Figures and Exchange Rates |
All references in the Plan to monetary figures, “dollars,” or “$” refer to the currency of the United States of America, unless otherwise expressly provided. Except as otherwise noted herein, with respect to any Claim filed in these Chapter 11 Cases in a currency other that the currency of the United States of America, the amount of such Claim shall be converted to the currency of the United States of America using an exchange rate as of closing on the Petition Date of 1 USD: 4.92 BRL for purposes of determining the value and percentage of any recovery of Cash or equity distributed under the Plan. Notwithstanding the foregoing, for purposes of determining the total amount in BRL of the equity interests to be issued by Reorganized GLAI pursuant to the applicable Transaction Steps and Brazilian law, the dollar amount of the relevant Claims will be converted into BRL using the BRL Exchange Rate as of closing on the Brazil Business Day immediately preceding the Effective Date.
F. | Plan Support Agreement |
Notwithstanding anything herein to the contrary, any and all consent rights of the parties to the Plan Support Agreement as set forth in the Plan Support Agreement with respect to the form and substance of the Plan, any Definitive Documents, all exhibits to the Plan, the Plan Supplement and/or any other agreement or matter contemplated thereby, including any amendments, restatements, supplements, or other modifications to such agreements and documents, and any consents, waivers, or other deviations under or from any such documents, shall be incorporated
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herein by this reference (including to the applicable definitions in Article I.A) and be fully enforceable as if stated in full herein.
Article
II
Administrative Expenses and Other Unclassified Claims
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expenses, DIP Facility Claims, and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in Article III.
A. | Administrative Expenses |
1. | Treatment of Administrative Expenses |
Each holder of an Allowed Administrative Expense (other than Professional Fees), to the extent such Allowed Administrative Expense has not already been paid during the Chapter 11 Cases and without any further action by such holder, shall receive, in full and final satisfaction of its Administrative Expense, Cash equal to the Allowed amount of such Administrative Expense on the Effective Date (or, if payment is not then due, when such payment becomes due in the applicable Reorganized Debtor’s ordinary course of business without further notice to, or order of, the Bankruptcy Court), unless otherwise agreed by the holder of such Administrative Expense and the applicable Debtor or Reorganized Debtor.
2. | Administrative Expense Bar Date |
Unless previously filed or as otherwise governed by an order of the Bankruptcy Court or an agreement with the Debtors, requests for payment of Administrative Expenses (other than Professional Fees) that accrued on or before the Effective Date but remained unpaid as of such date must be filed with the Bankruptcy Court and served on the Debtors or the Reorganized Debtors, as applicable, no later than the Administrative Expense Bar Date or such date specified in an order of the Bankruptcy Court or agreement with the Debtors. Holders of Allowed Administrative Expenses that are required to file and serve a request for payment and that do not timely file and serve such a request shall be forever barred from asserting such Administrative Expenses against the Debtors, the Reorganized Debtors, or their respective property, and such Administrative Expense shall be automatically discharged as of the Effective Date. Objections to requests for payment of Administrative Expenses must be filed with the Bankruptcy Court and served on the Debtors or the Reorganized Debtors, as applicable, and the requesting party no later than the date that is the later of (i) 180 days after the Effective Date and (ii) such later date as may be set by an order of the Bankruptcy Court.
HOLDERS OF ADMINISTRATIVE EXPENSES THAT ARE REQUIRED TO, BUT DO NOT, FILE AND SERVE A REQUEST FOR PAYMENT OF SUCH ADMINISTRATIVE EXPENSES BY THE ADMINISTRATIVE EXPENSE BAR DATE SHALL BE FOREVER BARRED, ESTOPPED, AND ENJOINED FROM ASSERTING SUCH ADMINISTRATIVE EXPENSES AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE ESTATES, OR THE ASSETS OR PROPERTY OF ANY OF THE FOREGOING, AND SUCH ADMINISTRATIVE EXPENSES SHALL BE DISCHARGED AS OF THE EFFECTIVE DATE.
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B. | Professional Fees |
1. | Final Fee Applications |
All final requests for payment of Professional Fees incurred prior to the Effective Date must be filed with the Bankruptcy Court and served on the Reorganized Debtors, the U.S. Trustee, counsel to the Committee, and all other parties that have requested notice in the Chapter 11 Cases by no later than forty-five (45) days after the Effective Date, unless the Reorganized Debtors agree otherwise in writing; provided, that, with respect to any professionals who are engaged by the Debtors after the Confirmation Date and who were not previously retained by order of the Bankruptcy Court pursuant to sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code, the Debtors (i) shall not be subject to sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code and (ii) may, in the ordinary course of business and without any further notice to, or action, order, or approval of, the Bankruptcy Court, pay, without further approval, the reasonable and documented fees and expenses of such professionals. Objections to Professional Fees must be filed with the Bankruptcy Court and served on the Reorganized Debtors and the applicable Professional within thirty (30) days after the filing of the applicable final fee application. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and any prior orders of the Bankruptcy Court in the Chapter 11 Cases, the Allowed amounts of all Professional Fees shall be determined by the Bankruptcy Court and, once approved by the Bankruptcy Court, shall be paid in full in Cash from the Professional Fees Escrow Account as promptly as practicable; provided, however, that if the funds in the Professional Fees Escrow Account are insufficient to pay the full Allowed aggregate amount of the Professional Fees, the Reorganized Debtors shall promptly pay any remaining Allowed amounts from their Cash on hand.
For the avoidance of doubt, the immediately preceding paragraph shall not affect any professional-service Entity that the Debtors are permitted to pay without seeking authority from the Bankruptcy Court in the ordinary course of the Debtors’ business (and in accordance with any relevant prior order of the Bankruptcy Court), which payments may continue notwithstanding entry of the Confirmation Order and the Effective Date.
2. | Professional Fees Escrow Account |
Professionals shall estimate their unpaid Professional Fees incurred in rendering services to the Debtors, their Estates, or the Committee, as applicable, as of the Effective Date and shall deliver such estimate to counsel for the Debtors no later than five (5) Business Days before the anticipated Effective Date; provided, that such estimate shall not be deemed to limit the Allowed Professional Fees of any Professional. If a Professional does not provide an estimate, the Debtors shall estimate the unpaid and unbilled fees and expenses of such Professional for the purposes of funding the Professional Fees Escrow Account.
On the Effective Date, the Reorganized Debtors shall fund the Professional Fees Escrow Account in an amount equal to all Professional Fees incurred but unpaid as of the Effective Date (including, for the avoidance of doubt, any reasonable estimates for unbilled amounts provided prior to the Effective Date). The Professional Fees Escrow Account may be an interest-bearing account. Amounts held in the Professional Fees Escrow Account shall not constitute property of
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the Reorganized Debtors; provided, however, that, in the event there is a remaining balance in the Professional Fees Escrow Account following payment of all Allowed Professional Fees, any such balance shall be promptly returned to, and constitute property of, the Reorganized Debtors.
3. | Post-Effective Date Fees and Expenses |
From and after the Effective Date, the Reorganized Debtors may, in the ordinary course of business and without any further notice to, or action, order, or approval of, the Bankruptcy Court, promptly pay in Cash the reasonable legal, professional, or other fees and expenses related to implementation of the Plan and Consummation incurred by the Reorganized Debtors, or the Committee in accordance with Article XIII.O, on and after the Effective Date. On the Effective Date, any requirement that Professionals comply with sections 327 through 331 and 1103 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 any professional in the ordinary course of business without any further notice to or action, order or approval of the Bankruptcy Court.
C. | DIP Facility Claims |
On the Effective Date, the DIP Facility Claims shall be Allowed in the amount of the aggregate principal amount outstanding on such date (inclusive of any previously capitalized interest and fees) plus the aggregate amount of (i) accrued and unpaid interest to but excluding such date and (ii) accrued and unpaid fees, expenses, and noncontingent indemnification obligations arising and payable under and pursuant to the DIP Indenture as of such date. For the avoidance of doubt, the DIP Facility Claims shall not be subject to any avoidance, reduction, setoff, recoupment, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, objection, or any challenges under applicable law or regulation.
Subject to Article II.D, on the Effective Date, in full and final satisfaction, settlement, release, and discharge of, and in exchange for (if applicable), the Allowed DIP Facility Claims, each holder of an Allowed DIP Facility Claim shall receive either (i) payment in full in Cash or (ii) at the mutual election of such holder and the Debtors, an aggregate principal amount of Exit Notes equal to the amount of such holder’s Allowed DIP Facility Claim.
Upon the satisfaction in full of the Allowed DIP Facility Claims in accordance with the terms of the preceding paragraph, all Liens and security interests granted to secure the DIP Facility Claims shall be automatically terminated and of no further force and effect, without any further notice to, or action, order, or approval of, the Bankruptcy Court or any other Entity. In connection with confirmation of the Plan, unless and until the Allowed DIP Facility Claims are satisfied, (i) the DIP Facility Claims shall not be discharged, satisfied, or released or otherwise affected in whole or in part, and each of the DIP Facility Claims shall remain outstanding, and (ii) the Liens securing the DIP Facility Claims shall not be deemed to have been waived, released, satisfied, subordinated, or discharged.
Notwithstanding anything to the contrary herein, on the Effective Date, the DIP Agent and its sub-agents shall be relieved of all further duties and responsibilities under the DIP Facility
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Documents and shall be deemed to have resigned, pursuant to section 12.03 of the DIP Indenture, as of the Effective Date; provided, that any provisions of the DIP Facility Documents that by their terms survive the termination of the DIP Facility Documents (including any applicable surviving indemnities) shall survive in accordance with the terms of the DIP Facility Documents as obligations of the Reorganized Debtors; provided, further, that the DIP Agent and its sub-agents shall take all steps and/or execute and/or deliver all instruments or documents, in each case reasonably requested by the Reorganized Debtors to effect the release, transfer, or assignment (as applicable) of the Liens granted pursuant to the DIP Documents and/or reflect on the public record the consummation of the payoff, releases, terminations, transfers, and assignments (as applicable) contemplated thereby.
Notwithstanding anything in the Plan or Confirmation Order to the contrary, on the Effective Date, the Challenge Period shall expire for all parties in interest and the Debtors’ stipulations, admissions, agreements, and releases contained in the DIP Order shall be binding upon the Debtors and any successor thereto.
D. | DIP Fees and Expenses |
To the extent not previously paid during the course of the Chapter 11 Cases, the DIP Fees and Expenses incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date in accordance with, and subject to, the terms of the DIP Facility Documents, without (i) any requirement to file a fee application with the Bankruptcy Court, (ii) the need for itemized time detail, and (iii) any requirement for Bankruptcy Court’s review or approval. All DIP Fees and Expenses to be paid on the Effective Date shall be estimated prior to and as of the Effective Date, and such estimates shall be delivered to the Debtors at least five (5) Business Days before the anticipated Effective Date; provided, that such estimates shall not be considered an admission or limitation with respect to such DIP Fees and Expenses. On the Effective Date, final invoices for all DIP Fees and Expenses incurred prior to and as of the Effective Date shall be submitted to the Reorganized Debtors.
E. | Priority Tax Claims |
Except to the extent that an Allowed Priority Tax Claim has not been previously paid in full or the holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in full and final satisfaction of each Priority Tax Claim, each Allowed Priority Tax Claim shall be treated in accordance with the terms of section 1129(a)(9)(C) of the Bankruptcy Code. In the event an Allowed Priority Tax Claim is Allowed as a Secured Claim, it shall be classified and treated as an Allowed Other Secured Claim.
Article
III
Classification and Treatment of Claims and Interests
A. | Classification of Claims and Interests |
Claims and Interests, except for Administrative Expenses, DIP Facility Claims, and Priority Tax Claims, are classified in the Classes set forth in this Article III. A Claim or an Interest is classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest qualifies within the description of that Class and is
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classified in another Class to the extent that any portion of the Claim or Interest qualifies within the description of such other Class. To the extent there are no Allowed Claims or Allowed Interests, as applicable, in a Class, such Class shall be deemed not to exist.
The Plan constitutes a separate chapter 11 plan for each Debtor. Pursuant to section 1122 of the Bankruptcy Code, the classification of Claims and Interests is as follows:
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14 | Existing GLAI Equity Interests | Impaired | Deemed to reject |
15 | Intercompany Interests | Impaired/ Unimpaired |
Deemed to reject/ presumed to accept |
B. | Treatment of Claims and Interests |
1. | Class 1 – Priority Non-Tax Claims |
a. | Classification: Class 1 consists of all Priority Non-Tax Claims. |
b. | Treatment: Except to the extent previously paid or the holder of a Priority Non-Tax Claim agrees to less favorable treatment, each holder of an Allowed Priority Non-Tax Claim shall (i) receive from the applicable Reorganized Debtor, in full and final satisfaction of its Priority Non-Tax Claim, payment, in Cash, equal to the Allowed amount of such Claim, on the later of the Effective Date and the date when its Priority Non-Tax Claim becomes due and payable in the ordinary course or (ii) be otherwise rendered Unimpaired. |
c. | Voting: Class 1 is Unimpaired under the Plan. Holders of Priority Non-Tax Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
2. | Class 2 – Other Secured Claims |
a. | Classification: Class 2 consists of all Other Secured Claims. |
b. | Treatment: Except to the extent previously paid during the Chapter 11 Cases or the holder agrees to less favorable treatment, each holder of an Allowed Other Secured Claim, at the option of the Debtors or Reorganized Debtors, as applicable, shall, subject to applicable law and any applicable Lessor Agreement, (i) receive Cash in an amount equal to the Allowed amount of such Claim on the later of the Effective Date and the date that is ten (10) Business Days after the date such Claim becomes an Allowed Claim; (ii) have its Allowed Other Secured Claim Reinstated on the Effective Date; (iii) receive such other treatment sufficient to render its Allowed Other Secured Claim Unimpaired on the Effective Date; or (iv) on the Effective Date, receive delivery of, or retain, the applicable collateral securing any such Claim up to the secured amount of such Claim pursuant to section 506(a) of the Bankruptcy Code and payment of any interest required under section 506(b) of the Bankruptcy Code in satisfaction of the Allowed amount of such Other Secured Claim. |
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c. | Voting: Class 2 is Unimpaired under the Plan. Holders of Other Secured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
3. | Class 3 – 2028 Notes Claims |
a. | Classification: Class 3 consists of all 2028 Notes Claims. |
b. | Allowance: The 2028 Notes Claims shall be Allowed Secured Claims in the aggregate principal amount of $1,477,538,000, plus accrued and unpaid interest, the premiums (including each Applicable Premium), and all other applicable fees, costs, expenses, and other amounts due under the terms of the 2028 Notes Documents, subject to reduction for payments made by the Debtors. |
c. | Treatment: On the Effective Date, each holder of an Allowed 2028 Notes Claim shall receive, in full and final satisfaction of its Allowed 2028 Notes Claim, its Pro Rata share of: (i) $600 million in aggregate principal amount of Non-Exchangeable Take-Back Notes, (ii) $250 million in aggregate principal amount of Exchangeable Take-Back Notes, (iii) the Abra Equity Distribution, and (iv) Cash in an amount equal to accrued and unpaid Cash Interest to but excluding the Effective Date. In no event shall any holder of a 2028 Notes Claims (in its capacity as such) be entitled to any recovery from the General Unsecured Claimholder Distribution on account of any unsecured or deficiency Claims. |
d. | Voting: Class 3 is Impaired under the Plan. Holders of 2028 Notes Claims are entitled to vote to accept or reject the Plan. |
4. | Class 4 – 2026 Senior Secured Notes Claims |
a. | Classification: Class 4 consists of all 2026 Senior Secured Notes Claims. |
b. | Treatment: On the Effective Date, each holder of an Allowed 2026 Senior Secured Notes Claim will receive, in full and final satisfaction of such Allowed 2026 Senior Secured Notes Claim, (i) if Class 4 votes to accept the Plan, its Pro Rata share of $100,000,000 of Non-Exchangeable Take-Back Notes; and (ii) if Class 4 votes to reject the Plan, its Pro Rata share of (a) the 2026 Alternative Notes and (b) a number of shares of New Equity having a value that would entitle such holder to receive the same recovery (expressed as a percentage of such holder’s Claim) on account of its unsecured deficiency claim that holders of Allowed General Unsecured Claims in the same amounts in each of Class 10(a), 10(b), and 10(c) are entitled to receive. No holder of a 2026 Senior Secured Notes Claim (in its capacity as such) shall be entitled to receive any recovery from the General Unsecured Claimholder Distribution. |
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c. | Voting: Class 4 is Impaired under the Plan. Holders of 2026 Senior Secured Notes Secured Claims are entitled to vote to accept or reject the Plan. |
5. | Class 5 – Glide Notes Claims |
a. | Classification: Class 5 consists of all Glide Notes Claims. |
b. | Allowance: The Glide Senior Notes Claims shall be Allowed in the aggregate principal amount of $141,662,259, and the Glide Subordinated Notes Claims shall be Allowed in the aggregate principal amount of $66,035,947, in each case, plus accrued and unpaid interest to but excluding the Effective Date and all applicable fees, costs, expenses, and other amounts due under the terms of the Glide Notes Documents, subject to reduction for payments made by the Debtors. |
c. | Treatment: Pursuant to the Lessor Agreements, on the Effective Date, in full and final satisfaction of their respective Claims, (i) each holder of an Allowed Glide Senior Notes Claim shall receive its Pro Rata share of the Amended Glide Senior Notes and Cash in an amount equal to accrued and unpaid interest under the Glide Notes Documents in respect of such holder’s 5.00% Senior Secured Notes due 2026, and (ii) each holder of an Allowed Glide Subordinated Notes Claim shall receive its Pro Rata share of the Amended Glide Subordinated Notes and Cash in an amount equal to accrued and unpaid interest under the Glide Notes Documents in respect of such holder’s 3.00% Subordinated Secured Notes due 2025. |
d. | Voting: Class 5 is Impaired under the Plan. Holders of Glide Notes Claims are entitled to vote to accept or reject the Plan. |
6. | Class 6 – Debenture Banks Claims |
a. | Classification: Class 6 consists of all Debenture Banks Claims. |
b. | Allowance: Pursuant to the Debenture Banks Order, the Debenture Banks shall each have an Allowed Secured Claim in accordance with the Debenture Banks Order. |
c. | Treatment: Pursuant to the Debenture Banks Stipulation and Debenture Banks Order, on the Effective Date, in full and final satisfaction of its Allowed Debenture Banks Claim, each holder of an Allowed Debenture Banks Claim shall receive the treatment set forth in the Debenture Banks Stipulation and Debenture Banks Order, and the Amended Debentures shall become binding on, and vest with, the applicable Reorganized Debtors, in each case as agreed to by the Debenture Banks in the Debenture Banks Stipulation and Debenture Banks Order. On the Effective Date, the outstanding BdoB Letters of Credit, Santander Letters of Credit, and Bradesco Letters of Credit, and the Reimbursement Agreement applicable to each of the foregoing, shall be Reinstated and, following the Effective |
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Date, shall continue in full force and effect and continue to be renewed subject to the terms and conditions of the Debenture Banks Stipulation and Debenture Banks Order. Any amounts due and owing to a Debenture Bank as of the Effective Date under any such Reimbursement Agreement shall be paid to the applicable Debenture Bank on the later of the (x) Effective Date and (y) date such amounts are due under the Reimbursement Agreement, and the Debenture Banks shall not be obligated to file a request for payment of any Administrative Expense arising under any Reimbursement Agreement on or before the Administrative Expense Bar Date. For the avoidance of doubt, any BdoB Letters of Credit, Santander Letters of Credit, or Bradesco Letters of Credit that are drawn on or after the Effective Date shall be repaid in the ordinary course of the Reorganized Debtors’ business.
d. | Voting: Class 6 is Impaired under the Plan. Holders of Debenture Banks Claims are entitled to vote to accept or reject the Plan. |
7. | Class 7 – AerCap Secured Note Claims |
a. | Classification: Class 7 consists of the AerCap Secured Note Claims. |
b. | Allowance: Pursuant to the AerCap Settlement Order, the AerCap Term Sheet, and the AerCap Secured Note Order, the AerCap Secured Note Claims shall be Allowed in accordance with, and on the terms set forth in, the AerCap Settlement Order, the AerCap Secured Note Order, and the AerCap Secured Note Documents entered into in connection with the AerCap Secured Note Order. |
c. | Treatment: The Allowed AerCap Secured Note Claims shall be entitled to the treatment set forth in the AerCap Secured Note Order and the AerCap Secured Note Documents, and the obligations, security interests, and guarantees provided for in the AerCap Secured Note Documents shall become binding on, and vest with, the applicable Reorganized Debtors on the Effective Date. |
d. | Voting: Class 7 is Impaired under the Plan. Holders of AerCap Secured Note Claims are entitled to vote to accept or reject the Plan. |
8. | Class 8 – Safra Claims |
a. | Classification: Class 8 consists of all Safra Claims. |
b. | Allowance: Pursuant to the Safra Stipulation, Safra shall have an (i) Allowed Secured Claim in the amount of (A) of $2,344,452.34 on account of 2017 FINIMP Notes, (B) $1,726,696.68 on account of the 2018 FINIMP Notes, (C) $1,396,333.33 on account of the 2020 Bank Credit Note, and (D) $985,054.96 on account of the 2022 Bank Credit Note, and (ii) Allowed Unsecured Claim in the amount of $15,046.00 on account of the Safra Trade Payables. |
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c. | Treatment: Pursuant to the Safra Stipulation, on the Effective Date, in full and final satisfaction of the Allowed Safra Claims, (i) each holder of an Allowed Safra Claim shall receive its Pro Rata share of the Amended Safra Notes and (ii) the Safra Trade Payables shall be Reinstated and paid in the ordinary course of the Reorganized Debtors’ business. |
d. | Voting: Class 8 is Impaired under the Plan. Holders of Safra Claims are entitled to vote to accept or reject the Plan. |
9. | Class 9 – Non-U.S. General Unsecured Claims |
a. | Classification: Class 9 consists of all Non-U.S. General Unsecured Claims. |
b. | Treatment: On the Effective Date, except to the extent that a holder of an Allowed Non-U.S. General Unsecured Claim agrees to less favorable treatment, each Non-U.S. General Unsecured Claim shall continue in effect and, to the extent Allowed, be paid in the ordinary course of the Reorganized Debtors’ business. For the avoidance of doubt, this treatment shall be without prejudice to the rights, claims, and defenses of the Debtors and/or the Reorganized Debtors, as applicable, under all applicable non-bankruptcy law. |
c. | Voting: Class 9 is Unimpaired under the Plan. Holders of Non-U.S. General Unsecured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
10. | Class 10(a) – GLAI General Unsecured Claims |
a. | Classification: Class 10(a) consists of all GLAI General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GLAI General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GLAI General Unsecured Claim, its Pro Rata share of the GLAI General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(a) is Impaired under the Plan. Holders of GLAI General Unsecured Claims are entitled to vote to accept or reject the Plan. |
11. | Class 10(b) – GLA General Unsecured Claims |
a. | Classification: Class 10(b) consists of all GLA General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GLA General Unsecured Claim shall receive, in full and final satisfaction of its |
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Allowed GLA General Unsecured Claim, its Pro Rata share of the GLA General Unsecured Claimholder Distribution.
c. | Voting: Class 10(b) is Impaired under the Plan. Holders of GLA General Unsecured Claims are entitled to vote to accept or reject the Plan. |
12. | Class 10(c) – GFL General Unsecured Claims |
a. | Classification: Class 10(c) consists of all GFL General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GFL General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GFL General Unsecured Claim, its Pro Rata share of the GFL General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(c) is Impaired under the Plan. Holders of GFL General Unsecured Claims are entitled to vote to accept or reject the Plan. |
13. | Class 10(d) – GFC General Unsecured Claims |
a. | Classification: Class 10(d) consists of all GFC General Unsecured Clams. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GFC General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GFC General Unsecured Claim, its Pro Rata share of the GFC General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(d) is Impaired under the Plan. Holders of GFC General Unsecured Claims are entitled to vote to accept or reject the Plan. |
14. | Class 10(e) – GEF General Unsecured Claims |
a. | Classification: Class 10(e) consists of all GEF General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GEF General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GEF General Unsecured Claim, its Pro Rata share of the GEF General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(e) is Impaired under the Plan. Holders of GEF General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
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15. | Class 10(f) – GAC General Unsecured Claims |
a. | Classification: Class 10(f) consists of all GAC General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GAC General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GAC General Unsecured Claim, its Pro Rata share of the GAC General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(f) is Impaired under the Plan. Holders of GAC General Unsecured Claims are entitled to vote to accept or reject the Plan. |
16. | Class 10(g) – GTX General Unsecured Claims |
a. | Classification: Class 10(g) consists of all GTX General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GTX General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GTX General Unsecured Claim, its Pro Rata share of the GTX General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(g) is Impaired under the Plan. Holders of GTX General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
17. | Class 10(h) – Smiles Fidelidade General Unsecured Claims |
a. | Classification: Class 10(h) consists of all Smiles Fidelidade General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Fidelidade General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Fidelidade General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(h) is Impaired under the Plan. Holders of Smiles Fidelidade General Unsecured Claims are entitled to vote to accept or reject the Plan. |
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18. | Class 10(i) – Smiles Viagens General Unsecured Claims |
a. | Classification: Class 10(i) consists of all Smiles Viagens General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Viagens General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Viagens General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(i) is Impaired under the Plan. Holders of Smiles Viagens General Unsecured Claims are entitled to vote to accept or reject the Plan. |
19. | Class 10(j) – Smiles Argentina General Unsecured Claims |
a. | Classification: Class 10(j) consists of all Smiles Argentina General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Argentina General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Argentina General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(j) is Impaired under the Plan. Holders of Smiles Argentina General Unsecured Claims are entitled to vote to accept or reject the Plan. |
20. | Class 10(k) – Smiles Viajes General Unsecured Claims |
a. | Classification: Class 10(k) consists of all Smiles Viajes General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Viajes General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Viajes General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(k) is Impaired under the Plan. Holders of Smiles Viajes General Unsecured Claims are entitled to vote to accept or reject the Plan. |
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21. | Class 10(l) – CAFI General Unsecured Claims |
a. | Classification: Class 10(l) consists of all CAFI General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed CAFI General Unsecured Claim shall receive, in full and final satisfaction of its Allowed CAFI General Unsecured Claim, its Pro Rata share of the CAFI General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(l) is Impaired under the Plan. Holders of CAFI General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
22. | Class 10(m) – Sorriso General Unsecured Claims |
a. | Classification: Class 10(m) consists of all Sorriso General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Sorriso General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Sorriso General Unsecured Claim, its Pro Rata share of the Sorriso General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(m) is Impaired under the Plan. Holders of Sorriso General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
23. | Class 11 – General Unsecured Convenience Class Claims |
a. | Classification: Class 11 consists of all General Unsecured Convenience Class Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed General Unsecured Convenience Class Claim shall receive, in full and final satisfaction of its Allowed General Unsecured Convenience Class Claim, Cash in an amount equal to 15% of the amount of such Allowed General Unsecured Convenience Class Claim; provided, however, if the aggregate amount of distributions to holders of Allowed General Unsecured Convenience Class Claims would otherwise exceed the General Unsecured Convenience Class Claim Fund, holders of such Claims shall receive their Pro Rata share of the General Unsecured Convenience Class Claim Fund. For the avoidance of doubt, holders of Allowed General Unsecured |
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Convenience Class Claims shall receive distributions solely under this Class 11 and not under Class 10.
c. | Voting: Class 11 is Impaired under the Plan. Holders of General Unsecured Convenience Class Claims are entitled to vote to accept or reject the Plan. |
24. | Class 12 – Subordinated Claims |
a. | Classification: Class 12 consists of all Subordinated Claims, if any. |
b. | Treatment: All Subordinated Claims, if any, shall be discharged, cancelled, released, and extinguished as of the Effective Date, and the holders of Subordinated Claims shall not receive any distribution or retain any property on account of such Subordinated Claims. |
c. | Voting: Class 12 is Impaired under the Plan. Holders of Subordinated Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
25. | Class 13 – Intercompany Claims |
a. | Classification: Class 13 consists of all Intercompany Claims. |
b. | Treatment: Without effecting the settlements embodied herein, each Intercompany Claim shall be either Reinstated or released and cancelled, as determined by the Debtors or Reorganized Debtors, as applicable, in consultation with Abra, or as required by Brazilian law. No property will be distributed to the holders of Intercompany Claims. |
c. | Voting: Depending on the treatment accorded, Class 13 is either Unimpaired or Impaired under the Plan. Holders of Intercompany Claims are either conclusively presumed to have accepted or deemed to have rejected the Plan pursuant to section 1126(f) or 1126(g) of the Bankruptcy Code, as applicable, and, in either case, are not entitled to vote to accept or reject the Plan. |
26. | Class 14 – Existing GLAI Equity Interests |
a. | Classification: Class 14 consists of all Existing GLAI Equity Interests. |
b. | Treatment: On the Effective Date, Existing GLAI Equity Interests shall be Reinstated, subject to dilution by the transactions contemplated by the Plan and the Transaction Steps (including any equity interest in Reorganized GLAI that is purchased through the GLAI Preemptive Rights Offering). The Existing GLAI Equity Interests have no value, and retained Existing GLAI Equity Interests will have de minimis value, if any, following the implementation of the Plan and the Transaction Steps. |
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c. | Voting: Class 14 is Impaired under the Plan. Holders of Existing GLAI Equity Interests are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
27. | Class 15 – Intercompany Interests |
a. | Classification: Class 15 consists of all Intercompany Interests. |
b. | Treatment: Intercompany Interests shall be Reinstated solely to the extent necessary to maintain the Reorganized Debtors’ corporate structure. No property will be distributed to the holders of Intercompany Interests. |
c. | Voting: Depending on the treatment accorded, Class 15 is either Unimpaired or Impaired under the Plan. Holders of Intercompany Interests are either conclusively presumed to have accepted or deemed to have rejected the Plan pursuant to section 1126(f) or 1126(g) of the Bankruptcy Code, as applicable, and, in either case, are not entitled to vote to accept or reject the Plan. |
C. | Special Provision Governing Unimpaired Claims |
Except as otherwise specifically provided in the Plan or by Final Order of the Bankruptcy Court, nothing in the Plan shall be deemed to affect, diminish, or impair the Debtors’ or the Reorganized Debtors’ rights and defenses, both legal and equitable, with respect to any Unimpaired Claim, including legal and equitable defenses to setoffs or recoupment against Unimpaired Claims, and, except as otherwise specifically provided in the Plan or by Final Order of the Bankruptcy Court, nothing herein shall be deemed to constitute a waiver or relinquishment of any Claim, Cause of Action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Petition Date against or with respect to any Claim that is Unimpaired by the Plan. Except as otherwise specifically provided in the Plan, the Debtors and the Reorganized Debtors shall have, retain, reserve, and be entitled to assert all such Claims, Causes of Action, rights of setoff, and other legal or equitable defenses that the Debtors had immediately prior to the Petition Date as if the Chapter 11 Cases had not been commenced, and all of the Debtors’ and Reorganized Debtors’ legal and equitable rights with respect to any Claim that is Unimpaired by the Plan may be asserted after the Confirmation Date and the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced.
D. | Subordination of Claims |
Except as expressly provided herein, the Allowance, classification, and treatment of all Claims and Interests and the respective treatments thereof under the Plan take into account and conform to the relative priority and rights of all Claims and Interests and comply with any contractual, legal, or equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise.
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E. | Third-Party Beneficiaries / Derivative Claimants |
Any Claims asserted against the Debtors that are not direct obligations of any of the Debtors but are derivative of other Claims asserted against the Debtors shall not receive any recoveries under the Plan and shall be deemed satisfied by virtue of the treatment of the applicable direct obligation of the Debtors.
F. | Abra Noteholder Claims |
Without affecting any right to Adequate Protection payments under the DIP Order, any Claims asserted against the Debtors by the Abra Notes Agents and any holders of the Abra Notes (in their capacities as such) shall not receive any recovery under the Plan, and all Prepetition Debtor Abra Notes Pledged Liens asserted in connection therewith have been previously released consensually.
G. | Banco Pine and Banco Rendimento Settlements |
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under (i) that certain Bank Credit Note-Loan No. 0651/22 (Cédulas de Crédito Bancário) issued by GLA to Banco Pine S.A. on September 21, 2022 and (ii) the Order Authorizing the Debtors to Enter into a Settlement with Banco Pine S.A. [Docket No. 903]. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under (i) that certain Partnership and Cooperation Agreement, as amended from time to time, between Banco Rendimento S.A. and GLA, pursuant to which Banco Rendimento S.A. agreed to purchase GLA’s trade payables directly from GLA’s suppliers, and (ii) the Order Authorizing the Debtors to Enter into a Settlement with Banco Rendimento S.A. [Docket No. 904]. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
H. | Tax Agreement |
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under the Tax Agreement and all ancillary documents executed by the Debtors related thereto, including any fiduciary lien agreements or other similar security agreements executed by the Debtors. Accordingly, such obligations under all such agreements shall survive and remain unaffected by entry of the Confirmation Order, and, on the Effective Date, shall revest in and be fully enforceable by and against the applicable Reorganized Debtor in accordance with its terms and the applicable order of the Bankruptcy Court.
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I. | Boeing Agreement |
On the Effective Date, if a Boeing Agreement has been agreed by the parties thereto on a Final Basis (and Bankruptcy Court approval has been obtained in respect of such agreement), the Reorganized Debtors shall reaffirm their obligations under such Boeing Agreement. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
Article
IV
Acceptance or Rejection of Plan
A. | Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code |
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of confirmation of the Plan by acceptance thereof by any Impaired Class of Claims. The Debtors shall seek confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests.
B. | Voting Classes |
Holders of Claims as of the Voting Record Date in the following Classes are entitled to vote to accept or reject the Plan: Classes 3, 4, 5, 6, 7, 8, 10(a), 10(b), 10(c), 10(d), 10(f), 10(h), 10(i), 10(j), 10(k), and 11.
The Bankruptcy Code defines “acceptance” of a plan by a Class of (i) Impaired Claims as acceptance by creditors in that class that hold at least two-thirds (⅔) in amount and more than one-half (½) in number of the Claims in such Class that cast ballots to accept or reject the Plan and (ii) Impaired Interests as acceptance by the holders of Interests that hold at least two-thirds (⅔) in amount of the Interests in that Class that cast ballots to accept or reject the Plan.
C. | Presumed Acceptance by Non-Voting Classes |
If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Plan shall be presumed accepted by such Class to the fullest extent permitted by law.
D. | Presumed Acceptance by Unimpaired Classes |
Classes 1, 2, and 9, and, depending on their respective treatment, Classes 13 and 15, are Unimpaired under the Plan. Holders of Claims and Interests, as applicable, in such Classes are deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and are not entitled to vote to accept or reject the Plan.
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E. | Deemed Rejection by Impaired Classes |
Classes 10(e), 10(g), 10(l), 10(m), 12, and 14, and, depending on their respective treatment, Classes 13 and 15 are Impaired under the Plan. Holders of Claims and Interests, as applicable, in such Classes are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and are not entitled to vote to accept or reject the Plan.
F. | Elimination of Vacant Classes |
Any Class that does not have a holder of a Claim or an Interest shall be deemed eliminated from the Plan for all purposes.
G. | Controversy Concerning Impairment |
If a controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
Article
V
Means for Implementation of Plan
A. | General Settlement of Claims and Interests |
The Plan is predicated on a global settlement between the Debtors, the Committee, Abra, and various other stakeholders regarding various issues, including, among others, the settlement of potential Causes of Action, the Plan value, and the allocation of value amongst creditors, and the allocation of value amongst the Debtors’ estates.
Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, on the Effective Date, the provisions of the Plan shall constitute an arms’ length and good faith compromise and settlement of all Claims, Interests, and controversies, which provides substantial value to the Estates, and all distributions made to holders of Allowed Claims and Interests in any Class in accordance with the Plan are intended to be, and shall be, final.
B. | Restructuring Transactions |
Prior to, on, or after the Effective Date, subject to and consistent with the terms of the Plan and Plan Support Agreement (and subject to the applicable consent and approval rights thereunder), the Debtors and the Reorganized Debtors, as applicable, shall be authorized to enter into such transactions and take such other actions as may be necessary or appropriate to effect the transactions described in, contemplated by, or necessary to effectuate, the Plan, which transactions may include one or more mergers, consolidations, dispositions, transfers, assignments, contributions, conversions, liquidations, dissolutions, or other transactions, as may be necessary or appropriate to result in substantially all of the respective assets, properties, rights, liabilities, duties, and obligations of the Debtors vesting in one or more surviving, resulting, or acquiring entities, and the other Transaction Steps (collectively, the “Restructuring Transactions”). Subject to the terms of the Plan, in each case in which the surviving, resulting, or acquiring Entity is a
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successor to a Debtor, such surviving, resulting, or acquiring Entity shall perform the obligations of such Debtor under the Plan, except as provided in any contract, instrument, or other agreement or document effecting a disposition to such surviving, resulting, or acquiring Entity, which may provide that another Debtor will perform such obligations.
In effecting the Restructuring Transactions, the Debtors and Reorganized Debtors, as applicable, shall implement the Transaction Steps and be permitted to: (i) execute and deliver any appropriate agreements or other documents of merger, consolidation, restructuring, disposition, liquidation, dissolution, or other transaction containing terms consistent with the Plan and that satisfy the requirements of applicable non-bankruptcy law, rule, or regulation; (ii) form new Entities and issue equity interests in such newly formed Entities, execute and deliver appropriate documents in connection therewith containing terms that are consistent with the Plan and that satisfy the requirements of applicable non-bankruptcy law, rule, or regulation; (iii) execute and deliver appropriate instruments of transfer, assignment, assumption or delegation of any asset, property, right, liability, duty, or obligation on terms consistent with the Plan and having such other terms to which the applicable Entities may agree and effectuate such transfers, assignments, assumptions, or delegations, including to any new Entities formed in accordance with the Restructuring Transactions; (iv) file appropriate certificates or articles of merger, consolidation, dissolution, or other documents pursuant to applicable non-bankruptcy law, rule, or regulation; and (v) take all other actions that the applicable Entities determine to be necessary or appropriate, including any filings or recordings, or withdrawing previously made filings or recordings, as may be required by applicable non-bankruptcy law, rule, or regulation. All of the Debtors’ agents and all other Persons authorized to make filings or recordings on the Debtors’ behalf are directed to cooperate with and to take direction from the Debtors and the Reorganized Debtors, as applicable, with respect to the foregoing. To the extent known, the actions or steps to be taken by the Debtors to implement the Restructuring Transactions will be set forth in the Transaction Steps. In all cases, such transactions shall be subject to the terms and conditions of the Plan and the Plan Support Agreement and any consents or approvals required under the Plan and the Plan Support Agreement.
The Confirmation Order shall and shall be deemed to, pursuant to sections 1123 and 363 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan, including the Restructuring Transactions.
C. | Sources of Consideration for Plan Distributions |
1. | Cash |
The Reorganized Debtors shall fund distributions under the Plan required to be paid in Cash, if any, with Cash on hand (including Cash from operations and Cash received under the DIP Facility and refinanced pursuant to the Exit Notes) and from the Cash proceeds from the issuance of any Incremental New Money Exit Financing.
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2. | Exit Financing |
a. | Exit Notes |
On the Effective Date, the Exit Notes Issuer shall issue the Exit Notes on the terms herein and such other terms set forth in the Exit Notes Documents. The initial obligors in respect of the Exit Notes will be the Exit Notes Issuer and the applicable guarantors set forth in the Exit Notes Documents.
The Liens on any shared collateral securing the Exit Notes, the Incremental New Money Exit Debt, the Incremental New Money Exchangeable Debt (to the extent issued), the 2026 Alternative Notes (to the extent issued, and solely with respect to the 2026 Alternative Notes Collateral), and/or the Take Back Notes, and the priorities of such Liens shall be set forth in, and subject to, one or more intercreditor agreements consistent with the terms set forth herein and otherwise in form and substance reasonably satisfactory to Abra, the Debtors, and the applicable purchasers and/or holders (or agents) thereof (each, an “Intercreditor Agreement”).
The maturity date for the Exit Notes shall be the date that is five (5) years after the Effective Date. The Exit Notes will accrue interest at a rate of [__]% per annum.
b. | Incremental New Money Exit Financing |
In addition to the Exit Notes, the Debtors may issue Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt on the terms set forth herein and in the applicable Incremental New Money Exit Debt Documents and Incremental New Money Equity Documents, as applicable. Notwithstanding anything to the contrary herein, the aggregate amount of Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt that may be issued is subject to adjustment as agreed by the Debtors and Abra and subject to the Committee Consent Right in accordance with the terms of the Plan Support Agreement.
3. | Take-Back Notes |
a. | Non-Exchangeable Take-Back Notes |
On the Effective Date, the Take-Back Notes Issuers shall issue the Non-Exchangeable Take-Back Notes in the aggregate principal amount of (x) if the Class of 2026 Senior Secured Claims votes to accept the Plan, $700 million, and (y) if the Class of 2026 Senior Secured Notes votes to reject the Plan, $600 million, in each case on the terms set forth herein and such other terms set forth in the Non-Exchangeable Take-Back Notes Documents. The initial obligors in respect of the Non-Exchangeable Take-Back Notes will be the Take-Back Notes Issuers and the applicable guarantors set forth in the Non-Exchangeable Take-Back Notes Documents.
The Non-Exchangeable Take-Back Notes shall be secured by a Lien on the terms set forth in the Non-Exchangeable Take-Back Notes Documents and subject to the terms of the applicable Intercreditor Agreement.
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The maturity date for the Non-Exchangeable Take-Back Notes shall be six (6) months after the maturity date of the Exit Notes. The Non-Exchangeable Take-Back Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable quarterly in Cash; provided, that notwithstanding the foregoing, from and after the second anniversary of the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date. The Non-Exchangeable Take-Back Notes will amortize (or be mandatorily redeemable) quarterly with principal payments amounting to $25 million per annum (or, from and after the date on which the Exchangeable Take-Back Notes are no longer outstanding, $50 million per annum), commencing with the first interest payment date occurring on or after the date that is three (3) months after the Effective Date
b. | Exchangeable Take-Back Notes |
On the Effective Date, the Take-Back Notes Issuers shall issue the Exchangeable Take-Back Notes in the aggregate principal amount of $250 million that will be exchangeable into New Equity on the terms set forth herein and such other terms set forth in the Exchangeable Take-Back Notes Documents. The initial obligors in respect of the Exchangeable Take-Back Notes will be the Take-Back Notes Issuers and the applicable guarantors set forth in the Exchangeable Take-Back Notes Documents.
The Exchangeable Take-Back Notes shall be secured by a Lien on the terms set forth in the Exchangeable Take-Back Notes Documents and subject to the terms of the applicable Intercreditor Agreement.
The maturity date for the Exchangeable Take-Back Notes shall be six (6) months after the maturity date of the Exit Notes. The Exchangeable Take-Back Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable quarterly in Cash; provided, that notwithstanding the foregoing, from and after the second anniversary of the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date.
The Exchangeable Take-Back Notes may be exchanged into a fixed number of shares of New Equity to be specified in the Exchangeable Take-Back Notes Documents (with exchange into common and/or preferred equity to be agreed between Abra and the Debtors) resulting in equity splits between Abra, on the one hand, and recipients of the General Unsecured Claimholder Distribution, on the other, that would have resulted on the Effective Date if the number of shares constituting the General Unsecured Claimholder Distribution had been determined based on Adjusted Specified Value rather than Specified Value, subject to customary anti-dilution protection, if:
(i) a majority of the holders of the Exchangeable Take-Back Notes provide the Reorganized Debtors and the trustee or agent, as applicable, with fifteen (15) days’ written notice of their intention to seek exchange of the Exchangeable Take-Back Notes (or such shorter period as reasonably comports with the applicable notice period following a notice of prepayment or redemption, as applicable, of the Exchangeable Take-Back Notes); or
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(ii) on or after the later of 30 months after the Effective Date and October 31, 2027, (x) the Reorganized Debtors provide the holders of Exchangeable Take-Back Notes with fifteen (15) days’ written notice of their intention to seek exchange of the Exchangeable Take-Back Notes and (y) the value of the New Equity issued in respect of such exchange, measured based upon the then most recent applicable four calendar quarters using a total enterprise value to LTM EBITDAR multiple of 4.25x (with LTM EBITDAR and net debt determined in accordance with Abra’s debt arrangements), is greater than or equal to one-hundred and five (105) percent of the then-outstanding principal amount (for the avoidance of doubt, excluding any previously capitalized interest) under the Exchangeable Take-Back Notes, in each case on and subject to the terms and conditions to be set forth in the Exchangeable Take-Back Notes Documents.
For the avoidance of doubt, all Exchangeable Take-Back Notes must be exchanged at the same time. Any previously capitalized interest on the Exchangeable Take-Back Notes as of, and accrued and unpaid interest on the Exchangeable Take-Back Notes up to but excluding, the date that the Exchangeable Take-Back Notes are exchanged into New Equity, shall be paid in full in Cash by the Reorganized Debtors on such exchange date.
4. 2026 Alternative Notes
If the Class of 2026 Senior Secured Notes Claims votes to reject the Plan, then, on the Effective Date, the 2026 Alternative Notes Issuer shall issue the 2026 Alternative Notes on the terms and conditions set forth herein and in the 2026 Alternative Notes Documents and as otherwise necessary to satisfy 1129(b)(2) of the Bankruptcy Code. The initial obligors in respect of the 2026 Alternative Notes will be the 2026 Alternative Notes Issuer and the applicable guarantors set forth in the 2026 Alternative Notes Documents.
The 2026 Alternative Notes shall be secured by the same collateral securing the 2026 Senior Secured Notes as of the Petition Date (the “2026 Alternative Notes Collateral”) on the terms set forth in the 2026 Alternative Notes Documents and subject to the terms of the applicable Intercreditor Agreement. To the extent the 2026 Alternative Notes are issued, the Liens on the shared Collateral securing the Exit Notes and the 2026 Alternative Notes shall be subject to a pari passu intercreditor agreement on terms substantially consistent with the existing pari passu intercreditor agreement for the prepetition Liens securing the 2026 Senior Secured Notes.
The maturity date for the 2026 Alternative Notes shall be seven and one-half (7.5) years after the Effective Date. The 2026 Alternative Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable semi-annually; provided, that notwithstanding the foregoing, from and after the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date.
5. | Execution of New Debt Documents |
Except as otherwise noted herein, on the Effective Date, the applicable Reorganized Debtors shall be authorized to execute, deliver, and enter into the New Debt Documents, without further (i) notice to or order of the Bankruptcy Court, (ii) vote, consent, authorization, or approval of any Person or Entity, or (iii) action by the holders of Claims or Interests.
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The New Debt Documents shall constitute legal, valid, binding, and authorized joint and several obligations of the applicable Reorganized Debtors, enforceable in accordance with their respective terms, and such obligations shall not be enjoined or subject to discharge, impairment, release, avoidance, recharacterization, or subordination (including equitable subordination) for any purpose whatsoever under applicable law, the Plan, or the Confirmation Order and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. The financial accommodations to be extended pursuant to the New Debt Documents shall be deemed reasonable and having been extended in good faith and for legitimate business purposes.
Notwithstanding anything to the contrary herein, the Exit Notes, Take-Back Notes and/or Incremental New Money Exit Debt may be structured as loans rather than notes as agreed among the respective parties to the Exit Notes Documents, Take-Back Notes Documents, and Incremental New Money Exit Debt Documents, respectively, with the reasonable consent of Abra and subject to the Committee Consent Right.
On the Effective Date, to the fullest extent permitted by applicable law, all of the Liens to be granted or continued in accordance with the New Debt Documents shall (i) be deemed to be approved; (ii) be legal, binding, and enforceable Liens on the property and assets granted under the New Debt Documents in accordance with the terms thereof; (iii) be deemed perfected on the Effective Date or, if necessary, after the fulfillment of any legal formality required by Brazilian law, and have the priorities as set forth in the New Debt Documents, subject only to such Liens as may be permitted under such documents; and (iv) not be subject to avoidance, recharacterization, or subordination (including equitable subordination) for any purpose whatsoever and shall not constitute preferential transfers, fraudulent conveyances or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. For the avoidance of doubt, notwithstanding Article IX.C of the Plan or any other provision in the Plan, the Confirmation Order, or any other document entered into in connection with the Plan, including the New Debt Documents (other than the documents governing the Amended Safra Notes and the Amended Debentures, respectively) and any documents in connection with the Exit Notes, Incremental New Money Exit Debt, Take-Back Notes, and 2026 Alternative Notes, Safra and the Debenture Banks shall retain their respective first-priority liens and security interests (including through any “fiduciary assignment” granted under Brazilian law) in any collateral securing the Amended Safra Notes and Amended Debentures, BdoB Letters of Credit, Santander Letters of Credit, and Bradesco Letters of Credit, respectively, which liens shall be senior to any liens on collateral granted in connection with the Plan, including in connection with the Exit Notes, Incremental New Money Exit Debt, Take-Back Notes, and 2026 Alternative Notes.
The Reorganized Debtors and the secured parties (and their designees and agents) under the New Debt Documents are hereby authorized to make all filings and recordings and to obtain all governmental approvals and consents to create (or continue) and perfect such Liens under the provisions of the applicable state, provincial, federal, or other law (whether domestic or foreign) that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that creation (or continuation) and perfection of the Liens granted under the New Debt Documents shall occur automatically (to the fullest extent permitted by applicable law) by virtue of the entry of the Confirmation Order or, if necessary, after the fulfillment of any legal formality required by Brazilian law (subject to the occurrence of the Effective Date), and any such filings, recordings,
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approvals, and consents shall not be necessary or required), and the Reorganized Debtors and the secured parties (and their designees and agents) under such New Debt Documents shall nevertheless cooperate to make all filings and recordings that otherwise would be necessary under applicable law to give effect to such creation (or continuation) and perfection and to give notice of such Liens to third parties, in each case to the extent required under the New Debt Documents.
6. | New Equity |
On or prior to the Effective Date, there shall be a shareholders’ meeting to take the appropriate and necessary steps at GLAI, in accordance with the Transaction Steps and Brazilian law, to effectuate a capital increase at Reorganized GLAI, to give effect to the (i) capitalization of the 2028 Notes Claims, the General Unsecured Claims, and, if applicable, the 2026 Senior Secured Notes Claims and (ii) corresponding GLAI Preemptive Rights Offering, in accordance with the Transaction Steps. As a result thereof, prior to, on, or after the Effective Date, GLAI shall provide notice, as required under applicable Brazilian law, of Eligible Existing GLAI Equity Interest Holders’ right to participate in the GLAI Preemptive Rights Offering during the GLAI Preemptive Rights Offering Period in accordance with the Transaction Steps and applicable Brazilian law requirements. Any proceeds of the GLAI Preemptive Rights Offering shall be applied in accordance with the Transaction Steps, subject to requirements under Brazilian law.
On the Effective Date, New GOL Parent shall issue the New Equity in accordance with the terms of the Transaction Steps and the Plan without (i) further notice to, or order of, the Bankruptcy Court, (ii) act or action under any applicable law, regulation, order, or rule, or (iii) the vote, consent, authorization, or approval of any Person or Entity. It is currently contemplated that New GOL Parent will be organized under the laws of Luxembourg, as set forth in the Transaction Steps, and that the New Equity will not be traded on any public listing exchange on the Effective Date; provided, that the jurisdiction of New GOL Parent, its capitalization, and whether New Equity is publicly traded is subject to change as agreed among the Debtors, Abra, and the Committee in a manner designed to maximize the liquidity of New Equity and minimize cost. Such terms shall be disclosed in the Plan Supplement, including the New Organizational Documents.
The New Equity shall be distributed through the facilities of DTC, and applicable holders of Allowed Claims entitled to receive a distribution of New Equity under the Plan shall, unless otherwise agreed by the Debtors or Reorganized Debtors, as applicable, with the consent of Abra and the Committee, be required to hold New Equity through the facilities of DTC regardless of whether they held their Claims through the facilities of DTC prior to the Effective Date; provided, however, that, with respect to holders of Claims who are legally or contractually restricted from holding the New Equity through the facilities of DTC, the Debtors or Reorganized Debtors, as applicable, and Abra may, at their mutual election in their respective sole discretion, make accommodations for any such holder (including, without limitation, by selling the New Equity to which any such holder is otherwise entitled on the open market, provided the purchaser thereof holds such New Equity through the facilities of DTC, and distributing Cash to the Claim holder in an amount equal to the proceeds from such sale less any transaction expenses related to such sale).
Transfers of New Equity will require the prior written consent of New GOL Parent if such transfer could cause New GOL Parent or Abra to be required to, or could reasonably be expected to create the risk of New GOL Parent or Abra being required in the reasonably near future to, have
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Exchange Act Section 12(g) registration obligations (in each case as determined in good faith by New GOL Parent or Abra, as applicable) (“12(g) Obligations”). Abra ordinary shares received in exchange for New Equity may also be subject to restrictions on transfer designed to avoid triggering 12(g) Obligations.
The New Equity issued and/or distributed pursuant to the Plan shall be duly authorized, validly issued, and fully paid and non-assessable. Each distribution and issuance of the New Equity under the Plan shall be governed by the terms and conditions set forth in the Plan applicable to such distribution or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and conditions shall bind each Person or Entity receiving such distribution or issuance. The pre-money value of any Incremental New Money Equity shall be set at not less than the Pre-Dilution Specified Value and the terms thereof shall otherwise be satisfactory to the Debtors and Abra.
As a result of the exchange of debt for New Equity and the GLAI Preemptive Rights Offering contemplated under the Plan, Existing GLAI Equity Interests will be significantly diluted. The Debtors expect the resulting equity holdings of Existing GLAI Equity Interest holders to be de minimis.
D. | General Unsecured Claimholder Distribution |
1. | General Unsecured Claimholder Initial Distribution |
The percentage of the New Equity to be held by holders of General Unsecured Claims as a result of the General Unsecured Claimholder Distribution shall be subject to dilution by (i) any Incremental New Money Equity, (ii) any New Equity issued to holders of Allowed 2026 Senior Secured Notes Claims (and any shares held in escrow pursuant to Article V.D.2 on account of such 2026 Senior Secured Notes Claims), if applicable, and (iii) any New Equity issued after the Effective Date, including in connection with the Management Incentive Plan, upon exchange of the Exchangeable Take-Back Notes, and upon exchange of any Incremental New Money Exchangeable Debt.
2. | General Unsecured Claimholder Escrowed Shares |
If a Boeing Agreement has not been agreed by the parties thereto on a Final Basis (and/or Bankruptcy Court approval has not been obtained in respect of such agreement) on or before the Effective Date, the General Unsecured Claimholder Escrowed Shares shall have a value (based on the Specified Value) equal to $25 million. If, on or before the first anniversary of the Effective Date, the Boeing Agreement has been agreed by the parties thereto on a Final Basis, then all $25 million of the General Unsecured Claimholder Escrowed Shares shall be released to the holders of General Unsecured Claims (or to the applicable holders of New Equity) (as of a record date to be agreed). If any General Unsecured Claimholder Escrowed Shares remain in escrow on the first anniversary of the Effective Date, then such General Unsecured Claimholder Escrowed Shares shall not be distributed to the holders of General Unsecured Claims (or to applicable holders of New Equity) and such shares instead shall be returned to the issuer thereof automatically and without need for a further order by the Bankruptcy Court.
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If the Class of 2026 Senior Secured Notes votes to reject the Plan, the holders of Allowed 2026 Senior Secured Notes Claims (or the applicable holders of New Equity) (as of a record date to be agreed) will receive a number of escrow shares in accordance with, and subject to, this Article V.D.2 consistent with their treatment under Article III.4.b.
Holders of Allowed General Unsecured Claims that are entitled to rights to receive the General Unsecured Claimholder Escrowed Shares shall not be permitted to trade their right to receive the General Unsecured Claimholder Escrowed Shares prior to their release. To the extent that a holder is entitled to receive its share of New Equity outside of DTC, such holder shall also receive its right to General Unsecured Claimholder Escrowed Shares outside of DTC, and, in that case, the New Equity and the right to receive General Unsecured Claimholder Escrowed Shares may only be traded together with each other and may not be traded separately. Any such separate trade will be considered void by the Debtors and Reorganized Debtors, as applicable, and will not be registered in the applicable registers.
3. | Mandatory Redemption/Exchange & Offer to Purchase/Exchange |
Upon the earliest to occur of (i) any Qualified Listing Event and (ii) a future bankruptcy filing by New GOL Parent, Reorganized GLAI, or Reorganized GLA, the New Equity issued on account of the General Unsecured Claimholder Distribution and, if applicable, the 2026 Senior Secured Notes Claims shall be (x) in the case of clause (i) above, exchanged for ordinary shares of Abra Group Limited (or any successor) (subject to, if agreed among the Debtors, Abra, and the Committee as set forth in the Plan Supplement, Abra’s right to instead mandatorily redeem such New Equity for cash), and (y) in the case of clause (ii) above, mandatorily redeemed in cash or (at Abra Group Limited’s sole discretion) exchanged for ordinary shares of Abra Group Limited (or any successor). The definitive instruments evidencing the terms of such mandatory redemption or exchange shall specify an exchange ratio, the methodology for determining the redemption price, and other terms to be agreed and shall be filed as part of the Plan Supplement.
In addition, Abra Group Limited (or its successor) shall make an offer to purchase or exchange New Equity issued on account of the General Unsecured Claimholder Distribution and, if applicable, the 2026 Senior Secured Notes Claims for cash or (at Abra Group Limited’s sole discretion) ordinary shares of Abra Group Limited (or any successor) upon the earliest to occur of any of the following events: (i) any Business Combination (other than a Business Combination that is a Qualified Listing Event) between Abra Group Limited (or any successor) and Azul S.A. or (ii) any Material Joint Venture between Abra Group Limited (or any successor) and Azul S.A. or any of their material Affiliates, excluding any joint venture between New GOL Parent or any of its subsidiaries and Azul S.A. and any of its Affiliates. For the avoidance of doubt, the events referenced in the foregoing sentence do not include any Business Combination or joint venture between New GOL Parent and/or any of its subsidiaries and Azul S.A. and/or any of its Affiliates. The definitive instruments evidencing the terms of such mandatory offer to purchase such New Equity or exchange such New Equity for ordinary shares of Abra Group Limited (or any successor) shall specify an exchange ratio, the methodology for determining the cash purchase price, and other terms to be agreed and shall be filed as part of the Plan Supplement.
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E. | Corporate Existence |
Except as otherwise provided in the Plan, each Reorganized Debtor shall continue to exist after the Effective Date as a separate corporation, limited liability company, limited partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, limited partnership, or other form, as the case may be, pursuant to the applicable law of the jurisdiction in which the applicable Debtor is incorporated or formed and pursuant to the respective bylaws, limited liability company agreement, operating agreement, limited partnership agreement, or other formation documents in effect on the Effective Date, except to the extent such formation documents are amended pursuant to the Plan, which amendment shall require no further action or approval (other than any requisite filings required under applicable law).
F. | Vesting of Assets in the Reorganized Debtors |
Except as otherwise provided in the Plan, on the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all property in each Estate, and any property acquired by the Debtors pursuant to the Plan shall vest in the applicable Reorganized Debtors or, if applicable, any Entities formed pursuant to the Restructuring Transactions, free and clear of all Liens, Claims, Interests, charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, the Reorganized Debtors may operate their business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
The Plan shall be conclusively deemed to be adequate notice that Liens, Claims, Interests, charges, or other encumbrances are being extinguished. Any Person having a Lien, Claim, Interest, charge, or other encumbrance against any of the property vested in accordance with the foregoing paragraph shall (i) be conclusively deemed to have consented to the transfer, assignment, and vesting of such property to or in the applicable Reorganized Debtor (or, if applicable, any Entities formed pursuant to the Restructuring Transactions) free and clear of all Liens, Claims, Interests, charges, or other encumbrances by failing to object to the confirmation of the Plan and (ii) provide any written consents as required under applicable law to the extent requested by the Debtors or Reorganized Debtors, as applicable.
G. | Cancellation of Loans, Securities, and Agreements |
Except for the Existing GLAI Equity Interests and the Existing Letters of Credit, and except as otherwise provided in the Plan, on the Effective Date: (i) the DIP Documents, 2028 Notes Documents, 2026 Senior Secured Notes Documents, 2024 Senior Exchangeable Notes Documents, 2025 Senior Notes Documents, Perpetual Notes Documents, and any other certificate, security, share, note, purchase right, option, warrant, or other instrument or document directly or indirectly evidencing or creating any indebtedness or other obligation of, or ownership interest in, a Debtor (except such certificates, securities, shares, notes, purchase rights, options, warrants, or other instruments or documents evidencing a Claim or an Interest that is Reinstated or otherwise retained by the holders thereof pursuant to the Plan), shall, to the fullest extent permitted by applicable law, be deemed cancelled, released, surrendered, extinguished, and discharged without any need for further action or approval of the Bankruptcy Court or any holder thereof or any other
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Person or Entity, and the Reorganized Debtors shall not have any continuing obligations thereunder or in any way related thereto; and (ii) the obligations of the Debtors pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation, or similar documents governing the shares, certificates, notes, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of, or ownership interest in, the Debtors (except such agreements, certificates, notes, or other instruments evidencing a Claim or an Interest that is Reinstated pursuant to the Plan or otherwise retained by the holders thereof pursuant to the Plan) shall be deemed satisfied in full, released, and discharged without any need for further action or approval of the Bankruptcy Court or any holder thereof or any other Person or Entity.
Notwithstanding such cancellation and discharge, the DIP Documents, 2028 Notes Documents, 2026 Senior Secured Notes Documents, Glide Notes Documents, 2024 Senior Exchangeable Notes Documents, 2025 Senior Notes Documents, and Perpetual Notes Documents shall continue in effect solely to the extent necessary to allow (i) the holders of Claims thereunder to receive distributions under the Plan; (ii) the Reorganized Debtors and the applicable Agents/Trustees to take other actions pursuant to the Plan on account of such Claims; (iii) holders of such Claims to retain their respective rights and obligations vis-à-vis other holders of Claims pursuant to such documents; (iv) the applicable Agents/Trustees to enforce their rights and claims under such documents against Persons and Entities other than the Debtors or Reorganized Debtors, including any rights to payment of fees, expenses, indemnification obligations, and any Indenture Trustee Charging Lien; (v) the Agents/Trustees to enforce any obligations owed to them under the Plan; (vi) the Agents/Trustees to appear in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any other court relating to the such documents; provided, that nothing in this Article V.G shall affect the discharge of Claims pursuant to the Plan. The Agents/Trustees shall take all steps and/or execute and/or deliver all instruments or documents, in each case, reasonably requested by the Debtors or Reorganized Debtors, as applicable, to effect the release of the Liens granted pursuant to the DIP Documents, the 2028 Notes Documents, the 2026 Senior Secured Notes Documents, the Glide Notes Documents, the 2024 Senior Exchangeable Notes Documents, the 2025 Senior Notes Documents, and the Perpetual Notes Documents and/or reflect on the public record the consummation of the payoff, releases, and terminations contemplated thereby.
Except for the foregoing, on the Effective Date, the Agents/Trustees shall be automatically and fully discharged and relieved of all further duties and responsibilities related to such documents; provided, that any provisions of such documents that by their terms survive their termination shall survive in accordance with their terms.
All Indenture Trustee Fees incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date (to the extent not previously paid during the course of the Chapter 11 Cases) in accordance with the Plan, without any requirement to file a fee application with the Bankruptcy Court, without the need for itemized time detail, or without any requirement for Bankruptcy Court review or approval. The Debtors shall provide the applicable Agents/Trustees notice of the anticipated Effective Date at least seven (7) calendar days in advance thereof. At least three (3) Business Days before the anticipated Effective Date, summary invoices for all Indenture Trustee Fees incurred, and an estimate of Indenture Trustee Fees to be incurred (including the cost of providing notice of the Effective Date), up to and including the Effective Date shall be submitted to the Debtors; provided, that such estimates shall
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not be considered an admission or limitation with respect to such Indenture Trustee Fees. From and after the Effective Date, the Debtors and Reorganized Debtors (as applicable) shall pay, upon receipt of summary invoices, all reasonable and documented Indenture Trustee Fees solely to the extent incurred in connection with taking any action required by the Indenture Trustee to implement the Plan or requested by the Debtors or Reorganized Debtors, as applicable.
On and after the final distribution on account of the 2026 Senior Secured Notes Claims, the Glide Notes Claims, the 2024 Senior Exchangeable Notes Claims, the 2025 Senior Notes Claims, and the Perpetual Notes Claims, the 2026 Senior Secured Notes, the Glide Notes, the 2024 Senior Exchangeable Notes, the 2025 Senior Notes, and the Perpetual Notes, as applicable, shall be deemed to be null, void, and worthless, and DTC shall take down the relevant positions at the request of the applicable Agent/Trustee (and such Agent/Trustee shall make such request at the request of the Debtors or Reorganized Debtors, as applicable) without any requirement of indemnification or security on the part of the Agent/Trustee, the Debtors, or the Reorganized Debtors (as applicable).
Upon the payment or other satisfaction of an Allowed Other Secured Claim, the holder of such Allowed Other Secured Claim shall deliver to the Reorganized Debtors any collateral or other property of a Debtor held by such holder, together with any termination statements, instruments of satisfaction, or releases of all security interests that may be reasonably requested by the Reorganized Debtors to terminate any related financing statements, mortgages, mechanics’ or other statutory Liens, lis pendens, or similar interests or documents and take all other steps reasonably requested by the Reorganized Debtors that are necessary to cancel and/or extinguish Liens securing such holder’s Allowed Other Secured Claim.
H. | Corporate and Other Entity Action |
On the Effective Date, to the fullest extent permitted by applicable law, all actions contemplated under the Plan (including, for the avoidance of doubt, the documents in the Plan Supplement) shall be deemed authorized and approved in all respects, including: (i) the appointment of the New Boards and any other managers, directors, or officers for the Reorganized Debtors; (ii) the issuance and distribution of the New Equity by New GOL Parent; (iii) the adoption of the New Organizational Documents; (iv) entry into the New Equity Documents; (v) entry into the New Debt Documents; (vii) implementation of the Restructuring Transactions (which may be implemented before, on, or after the Effective Date); and (viii) all other actions contemplated under the Plan (whether to occur before, on, or after the Effective Date).
All matters provided for in the Plan involving the corporate or other Entity structure of the Debtors or the Reorganized Debtors, and any corporate or other Entity action required by the Debtors or Reorganized Debtors in connection with the Plan, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the security holders, managers, or officers of the Debtors or Reorganized Debtors. On or before the Effective Date, the appropriate officers of the Debtors or Reorganized Debtors, as applicable, shall be authorized and directed to issue, execute, and deliver the agreements, documents, securities, and instruments and documents contemplated under the Plan (or necessary or desirable to effectuate the transactions contemplated under the Plan) in the name, and on behalf, of the Reorganized Debtors. The authorizations and
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approvals contemplated by this Article V.G shall be effective notwithstanding any requirements of any otherwise applicable non-bankruptcy law.
I. | New Organizational Documents |
On or prior to the Effective Date, the applicable Reorganized Debtors shall, if so required under applicable non-bankruptcy law, file their respective New Organizational Documents with the applicable Secretaries of State and/or other applicable persons in their respective states or jurisdictions of organization in accordance with the laws, rules, and regulations of such jurisdictions. Pursuant to (and only to the extent required by) section 1123(a)(6) of the Bankruptcy Code, the New GOL Parent Organizational Documents shall prohibit the issuance of non-voting equity securities. After the Effective Date, the Reorganized Debtors may amend and restate their respective New Organizational Documents and other constituent documents as permitted by the laws of their respective states or jurisdictions of organization or formation and their respective New Organizational Documents without further order of the Bankruptcy Court.
J. | Directors and Officers of Reorganized Debtors |
1. | New GOL Parent Board |
On the Effective Date, the New GOL Parent Board shall consist of a maximum of nine (9) directors, at least one of whom shall be independent and shall serve a minimum term of two (2) years (subject to applicable law), and whose identities will, to the extent known, be disclosed in the Plan Supplement. The Committee shall be entitled to appoint, in consultation with Abra, an independent director to the initial New GOL Parent Board. All the other members of the New GOL Parent Board shall be selected by Abra in consultation with the Debtors and the Committee.
Except to the extent that a member of a Debtor’s board of directors or managers, as applicable, continues to serve as a director or manager of the corresponding Reorganized Debtor after the Effective Date, such Persons shall have no continuing obligations to the Reorganized Debtors on or after the Effective Date in their capacities as such, and each such director or manager shall be deemed to have resigned or shall otherwise cease to be a director or manager of the applicable Debtor on the Effective Date. Commencing on the Effective Date, each of the directors or managers, as applicable, of the Reorganized Debtors shall serve pursuant to the terms of the applicable New Organizational Documents and may be replaced or removed in accordance with such documents.
2. | Officers of Reorganized Debtors |
Except as otherwise provided in the Plan Supplement, the officers of the Debtors immediately before the Effective Date shall serve as the initial officers of the respective Reorganized Debtors on and after the Effective Date. After the Effective Date, the selection of officers of the Reorganized Debtors shall be in accordance with the Reorganized Debtors’ respective organizational documents.
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3. | New Subsidiary Boards |
On the Effective Date, the applicable New Subsidiary Boards shall be appointed in accordance with the applicable New Organizational Documents.
K. | Management Incentive Plan |
The New GOL Parent Board shall determine the percentage of New Equity to allocate to the Management Incentive Plan.
L. | Effectuating Documents; Further Transactions |
On and after the Effective Date, the applicable Reorganized Debtors and their respective officers and members of the boards are authorized to and may issue, execute, deliver, file, or record, such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan, and the securities issued pursuant to the Plan in the name, and on behalf, of the applicable Reorganized Debtors, without the need for any approvals, authorization, or consents, except for those expressly required pursuant to the Plan, or the New Organizational Documents.
M. | Section 1146 Exemption |
Pursuant to section 1146 of the Bankruptcy Code, (i) the issuance, transfer, or exchange of any securities, instruments, or documents, (ii) the creation of any Lien, mortgage, deed of trust, or other security interest, (iii) the making or assignment 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, bills of sale, or assignments executed in connection with any of the transactions contemplated by 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 (whether to one or more of the Reorganized Debtors or otherwise), (iv) the grant of collateral under the New Debt Documents, and (v) the issuance, renewal, modification, or securing of indebtedness, and the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including the Confirmation Order, shall not be subject to any document recording tax, stamp tax, conveyance fee, or other similar tax, mortgage tax, 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. Consistent with the foregoing, each recorder of deeds or similar official for any county, city, or Governmental Unit in which any instrument related to the foregoing is to be recorded shall be directed to accept such instrument without requiring the payment of any recording tax, stamp tax, conveyance fee or other similar tax, mortgage tax, 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.
N. | Preservation of Causes of Action |
In accordance with section 1123(b) of the Bankruptcy Code, but subject in all respects to Article IX.D, the Reorganized Debtors shall retain and may enforce, in their discretion and in
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accordance with the best interests of the Reorganized Debtors, all rights to commence and pursue, as appropriate, any and all Retained Causes of Action, whether arising before or after the Petition Date, including any actions specifically enumerated in the Schedule of Retained Causes of Action, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Retained Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date; provided, however, that the Reorganized Debtors waive their rights to assert Preference Actions against holders of General Unsecured Claims (but reserve the right to assert any such Preference Actions solely as counterclaims or defenses to Claims asserted against the Debtors; provided, further, that any such assertion may solely be defensive, without any right to seek or obtain an affirmative recovery on account of any such counterclaim).
No Person or Entity may rely on the absence of a specific reference in the Plan (including, for the avoidance of doubt, the Plan Supplement) or the Disclosure Statement to any Retained Cause of Action against them as an indication that the Debtors or the Reorganized Debtors will not pursue any and all available Causes of Action against them. Unless any Retained Cause of Action is expressly waived, relinquished, exculpated, released, compromised, or settled by the Plan or a Final Order of the Bankruptcy Court, the Reorganized Debtors expressly reserve all available Causes of Action, for later adjudication, and, therefore 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, the confirmation of the Plan or the occurrence of the Effective Date.
Article
VI
Treatment of Executory Contracts and Unexpired Leases
A. | Assumption and Rejection of Executory Contracts and Unexpired Leases |
Except as otherwise provided herein, each Executory Contract and Unexpired Lease shall be deemed rejected, without the need for any further notice to, or action, order, or approval of, the Bankruptcy Court, as of the Effective Date, pursuant to sections 365(a) and 1123 of the Bankruptcy Code, unless such Executory Contract or Unexpired Lease (i) was previously assumed or rejected; (ii) previously expired or terminated pursuant to its own terms; (iii) is the subject of a motion or notice to reject, assume, or assume and assign filed on or before the Confirmation Date; or (iv) is listed on the Schedule of Assumed Contracts. The assumption of Executory Contracts and Unexpired Leases hereunder may include the assignment of such contracts to the Debtors’ Affiliates. Unless previously approved by the Bankruptcy Court, the Confirmation Order will constitute an order approving the above-described rejections, assumptions, and assumptions and assignments, all pursuant to sections 365(a) and 1123 of the Bankruptcy Code, effective on the occurrence of the Effective Date.
The Debtors shall file, as part of the Plan Supplement, the Schedule of Assumed Contracts, which may be amended, supplemented, or otherwise modified through the Effective Date. Any objection to the assumption of an Executory Contract or Unexpired Lease under the Plan (other than those Executory Contracts and Unexpired Leases that were previously assumed by the Debtors or are the subject of a motion or notice to assume or assume and assign filed on or before
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the Confirmation Date) must be filed, served, and actually received by the Debtors no later than seven (7) days prior to the Confirmation Hearing; provided, that, if the Debtors file an amended Schedule of Assumed Contracts prior to the Confirmation Hearing, then, with respect to any lessor or counterparty affected by such amended Schedule of Assumed Contracts, objections to the assumption of the relevant Executory Contract or Unexpired Lease must be filed by the later of (i) ten (10) days from the date the amended Schedule of Assumed Contracts has been filed and served upon the applicable counterparties via electronic mail or overnight courier and (ii) the Confirmation Hearing; provided, further, that if the Debtors file an amended Schedule of Assumed Contracts after the Confirmation Hearing, but prior to the Effective Date, then, with respect to any lessor or counterparty affected by such amended Schedule of Assumed Contracts, objections to the assumption of the relevant Executory Contract or Unexpired Lease must be filed by ten (10) days from the date the amended Schedule of Assumed Contracts is filed and served upon the applicable counterparties via electronic mail or overnight courier; provided, further, that the Debtors may file an amended Schedule of Assumed Contracts after the Effective Date with the consent of the lessors or counterparties affected by such amended Schedule of Assumed Contracts.
To the extent any provision in any Executory Contract or Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan restricts, limits or prevents, or purports to restrict, limit or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), any such anti-assignment provision shall be unenforceable pursuant to section 365(f) of the Bankruptcy Code. To the maximum extent permitted by law, such provision shall be deemed modified or stricken such that the transactions contemplated by the Plan shall not entitle the non-Debtor counterparty to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Confirmation of the Plan and consummation of the transactions contemplated by the Plan shall not constitute a change of control under any Executory Contract or Unexpired Lease assumed by the Debtors on or prior to the Effective Date.
Except as otherwise provided herein or agreed to by the Debtors and the applicable counterparty, each Executory Contract and Unexpired Lease assumed pursuant to this Article VI.A or by any order of the Bankruptcy Court, that has not been assigned to a third party prior to the Effective Date, shall revest in, be fully enforceable by, and constitute binding obligations of the applicable Reorganized Debtor in accordance with its terms (including any amendments entered into after the Petition Date), except as such terms are modified by the provisions of the Plan or any order of the Bankruptcy Court.
B. | Aircraft Leases |
1. Assumption and Rejection of Prepetition Aircraft Leases
With respect to Aircraft Leases entered into before the Petition Date that were not already assumed pursuant to an order of the Bankruptcy Court, that have not previously expired or terminated pursuant to their terms, or that are not subject to a pending motion to assume or pending stipulation providing for assumption filed on or before the Confirmation Date, the Debtors shall assume only those Aircraft Leases that are designated on the Schedule of Assumed Contracts, which may be amended, supplemented, or otherwise modified through the Effective Date; provided, however, that any Aircraft Lease that has not previously been assumed but is subject to
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a Lessor Agreement that has been approved by an order of the Bankruptcy Court shall be assumed, on the later of the Effective Date and the date on which the applicable definitive documentation is executed, and, notwithstanding anything to the contrary herein, subject to the terms of the applicable Bankruptcy Court order or Lessor Agreement, without any further action by the Debtors or the Reorganized Debtors, as applicable.
Any agreements or documents by the Debtors that are ancillary to Aircraft Leases that have been previously assumed or are being assumed under the Plan shall be, and shall be deemed, assumed with the applicable Aircraft Lease. To the extent that certain of the Aircraft Leases identified on the Schedule of Assumed Contracts include finance leases of the Debtors that were amended during the course of the Chapter 11 Cases, the debt associated with such leases shall be provided the treatment agreed between the Debtors and other parties in the applicable governing amendment documents. To the extent that contracts of the Debtors that are subject to Lessor Agreements (in each case including documents that are ancillary to such contracts) are not subject to section 365 of the Bankruptcy Code (including so-called finance leases and guarantees by the Debtors), such contracts shall be deemed assumed to the extent necessary to effectuate terms of the Lessor Agreements, and the debt and obligations associated with such contracts, documents and guarantees shall be provided the treatment agreed between the Debtors and other parties in the applicable Lessor Agreements.
Subject to the terms of any Lessor Agreement, to the extent any provision in any Aircraft Lease to be assumed or assumed and assigned pursuant to the Plan restricts, limits or prevents, or purports to restrict, limit or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), any such anti-assignment provision shall be unenforceable pursuant to section 365(f) of the Bankruptcy Code. Subject to the terms of any Lessor Agreement, to the maximum extent permitted by law, such provision shall be deemed modified or stricken such that the transactions contemplated by the Plan shall not entitle the non-Debtor counterparty to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. As provided in the applicable Aircraft Lease, confirmation of the Plan and consummation of the transactions contemplated by the Plan shall not constitute a change of control under any Aircraft Lease assumed by the Debtors on or prior to the Effective Date.
With respect to Aircraft Leases not assumed pursuant to the terms hereof, such Aircraft Leases shall be rejected and the property subject to such lease shall be deemed abandoned subject to agreement by the parties or order of the Bankruptcy Court providing for alternative treatment of such Aircraft Lease and/or property.
With respect to any property subject to an Aircraft Lease that has been returned or redelivered to the applicable party, such Aircraft Lease shall be deemed rejected as of the date of such return or redelivery, subject to any agreement of the parties or an order of the Bankruptcy Court providing otherwise.
2. | Aircraft Leases Entered into After the Petition Date |
Aircraft Leases entered into after the Petition Date by the Debtors, together with any other agreements or documents by the Debtors that are ancillary to such Aircraft Leases, will be
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reaffirmed and performed by the applicable Debtor or Reorganized Debtor, as the case may be, in the ordinary course of its business or as authorized by the Bankruptcy Court. Accordingly, such Aircraft Leases, agreements, and documents shall survive and remain unaffected by entry of the Confirmation Order, and, on the Effective Date, shall revest in and be fully enforceable by and against the applicable Reorganized Debtor in accordance with its terms, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
C. | Cure of Defaults for Executory Contracts and Unexpired Leases Assumed |
Except as set forth below, Cure Claims shall be satisfied by payment in Cash, on the Effective Date, of the respective amounts set forth on the Schedule of Assumed Contracts or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.
Subject to satisfaction of any applicable Cure Claims and the terms of any applicable Lessor Agreement, assumption of any Executory Contract or Unexpired Lease pursuant to the Plan shall result in the full release and satisfaction of any 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 such Executory Contract or Unexpired Lease at any time before the date that the Debtors assume or assume and assign such Executory Contract or Unexpired Lease. Subject to the terms of any applicable Lessor Agreement, the resolution of any timely objections in accordance with Article VI.D below, and the satisfaction of the any applicable Cure Claims, any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned shall be deemed Disallowed and expunged, without further notice to, or action, order, or approval of, the Bankruptcy Court.
D. | Dispute Resolution |
To the extent there is a dispute with respect to (i) the amount of a Cure Claim, (ii) the ability of the Reorganized Debtors or the applicable assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under an Executory Contract or Unexpired Lease to be assumed, or (iii) any other matter pertaining to assumption or the cure of defaults required by section 365(b)(1) of the Bankruptcy Code (each, an “Assumption Dispute”), the Debtors or Reorganized Debtors, as applicable, may settle any such Assumption Dispute without any further notice to, or action, order, or approval of, the Bankruptcy Court.
Subject to the terms of any applicable Lessor Agreement, in the event that an Assumption Dispute cannot be resolved consensually and a timely objection is filed by a counterparty, such dispute shall be resolved by a Final Order of the Bankruptcy Court (which may be the Confirmation Order). Subject to the terms of any applicable Lessor Agreement, during the pendency of an Assumption Dispute, the applicable counterparty shall continue to perform under the applicable Executory Contract or Unexpired Lease.
To the extent an Assumption Dispute relates solely to the amount of a Cure Claim, the Debtors may assume or assume and assign the applicable Executory Contract or Unexpired Lease prior to the resolution of such Assumption Dispute; provided, that, pending resolution of the
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Assumption Dispute, the Debtors reserve Cash in an amount sufficient to pay the Cure Claim asserted by the counterparty. Subject to the terms of any applicable Lessor Agreement, to the extent that the Assumption Dispute is resolved unfavorably to the Debtors, the Debtors may reject the applicable Executory Contract or Unexpired Lease after such resolution.
For the avoidance of doubt, if the Debtors are unable to resolve an Assumption Dispute relating solely to the amount of a Cure Claim prior to the Confirmation Hearing, such Assumption Dispute may be scheduled to be heard by the Bankruptcy Court after the Confirmation Hearing; provided, that the Reorganized Debtors may settle any such dispute after the Effective Date without any further notice to any party or any action, order, or approval of the Bankruptcy Court.
E. | Rejection Damages Claims |
Any counterparty to an Executory Contract or Unexpired Lease that is rejected by the Debtors pursuant to the Plan must file and serve a Proof of Claim on the applicable Debtor that is party to the Executory Contract or Unexpired Lease to be rejected no later than thirty (30) days after the later of (i) the Confirmation Date or (ii) the effective date of rejection of such Executory Contract or Unexpired Lease. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed within such time shall be Disallowed, forever barred from assertion, and shall not be enforceable against the Debtors or the Reorganized Debtors, as applicable, or any property thereof, without the need for any objection by the Debtors or the Reorganized Debtors or further notice to, or action, order, or approval of, the Bankruptcy Court or any other Entity.
Claims arising from the rejection of the Executory Contracts or Unexpired Leases shall be classified as General Unsecured Claims and subject to the provisions of Article VI.D and applicable provisions of the Bankruptcy Code and Bankruptcy Rules.
F. | Insurance Policies & Indemnification Obligations |
Notwithstanding anything to the contrary in the Confirmation Order, the Plan (including, for the avoidance of doubt, the Plan Supplement), the Plan Support Agreement, the New Debt Documents, the Incremental New Money Equity Documents, the New Equity Documents, any other document related to any of the foregoing, or any other order of the Bankruptcy Court (including any 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):
(i) each of the Insurance Contracts, including all D&O Policies, shall be deemed to have been assumed all Insurance Contracts, such that the applicable Reorganized Debtors shall become and remain liable in full for all of their and the applicable Debtors’ obligations under the Insurance Contracts, regardless of whether such obligations arise on, before, or after the Effective Date, without the requirement or need for any Insurer to file a Proof of Claim or a request for payment of an Administrative Expense; provided, that the Reorganized Debtors shall not indemnify their respective officers, directors, equity holders, agents, or employees for any claims or Causes of Action arising out of or relating to any act or omission that constitutes a criminal act, intentional fraud, gross negligence, or willful misconduct;
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(ii) nothing shall alter, modify, amend, waive, release, discharge, prejudice, or impair in any respect (a) the terms and conditions of any Insurance Contract, (b) any rights or obligations of the Debtors or the Reorganized Debtors, as applicable, or Insurers thereunder, whether arising before or after the Effective Date, or (c) the duty, if any, of Insurers to pay claims covered by the Insurance Contracts or the right to seek payment or reimbursement from the Debtors or the Reorganized Debtors, as applicable, or to draw on any collateral or security therefor; and
(iii) the automatic stay of section 362(a) of the Bankruptcy Code and the injunctions set forth in Article IX.G, if and to the extent applicable, shall be deemed lifted without further order of the Bankruptcy Court, solely to permit: (a) claimants with valid workers’ compensation claims or direct action claims against an Insurer under applicable non-bankruptcy law to proceed with their claims; and (b) the Insurers to administer, handle, defend, settle, and/or pay, in the ordinary course of business and without further order of this Bankruptcy Court, (1) workers’ compensation claims, (2) claims where a claimant asserts a direct claim against any Insurer under applicable non-bankruptcy law, or an order has been entered by the Bankruptcy Court granting a claimant relief from the automatic stay or the injunctions set forth in Article IX.G to proceed with its claim, and (3) all costs in relation to each of the foregoing.
In addition, after the Effective Date, all current and former officers, directors, agents, or employees who served in such capacity at any time before the Effective Date shall be entitled to the full benefits of any D&O Policy for the full term of such policy regardless of whether such officers, directors, agents, and/or employees remain in such positions after the Effective Date, in each case, solely to the extent set forth in such D&O Policies and subject to any terms and conditions thereof. In addition, after the Effective Date, the Reorganized Debtors shall not terminate or otherwise reduce the coverage under any D&O Policy in effect as of the Petition Date; provided, that, for the avoidance of doubt, any Insurance Contract, including tail insurance policies, for directors’, members’, trustees’, and officers’ liability to be purchased or maintained by the Reorganized Debtors after the Effective Date shall be subject to the ordinary-course corporate governance of the Reorganized Debtors.
Notwithstanding anything in the Plan, any Indemnification Obligation to indemnify current and former officers, directors, members, managers, agents, sponsors, or employees with respect to all present and future actions, suits, and proceedings against the Debtors or such officers, directors, members, managers, agents, or employees based upon any act or omission for or on behalf of the Debtors shall (i) remain in full force and effect, (ii) not be discharged, impaired, or otherwise affected in any way, including by the Plan (including, for the avoidance of doubt, the Plan Supplement) or the Confirmation Order, (iii) not be limited, reduced, or terminated after the Effective Date, and (iv) survive unimpaired and unaffected irrespective of whether such Indemnification Obligation is owed for an act or event occurring before, on, or after the Petition Date; provided, that the Reorganized Debtors shall not indemnify officers, directors, members, or managers, as applicable, of the Debtors for any claims or Causes of Action that are not indemnified by such Indemnification Obligation. All such obligations shall be deemed and treated as Executory Contracts to be assumed by the Debtors under the Plan and shall continue as obligations of the Reorganized Debtors, and, if necessary to effectuate such assumption under local law, New GOL Parent shall contractually assume such obligations. Any claim based on the Debtors’ obligations under the Plan shall not be a Disputed Claim or subject to any objection, in either case, by reason of section 502(e)(1)(B) of the Bankruptcy Code.
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G. | Modifications, Amendments, Supplements, Restatements, or Other Agreements |
Unless otherwise provided in the Plan, each Executory Contract and Unexpired Lease that is assumed and, if applicable, assigned to the Reorganized Debtors, shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously terminated or is otherwise not in effect.
Modifications, amendments, supplements, and restatements to prepetition Executory Contracts or Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of such Executory Contracts or Unexpired Leases, or the validity, priority, or amount of any Claim that may arise in connection therewith, unless expressly noted therein.
H. | Reservation of Rights |
Nothing contained in the Plan shall constitute an admission by the Debtors that any Executory Contract or Unexpired Lease is, in fact, an Executory Contract or Unexpired Lease or that any Debtor or the Reorganized Debtor has any liability thereunder.
I. | Contracts and Leases (other than Aircraft Leases) Entered into After the Petition Date |
Contracts and leases entered into after the Petition Date by any Debtor will be performed by the applicable Debtor or Reorganized Debtor, as the case may be, 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 order of the Bankruptcy Court.
J. | Compensation and Benefits Plans |
All employment, confidentiality, and non-competition agreements, collective bargaining agreements, offer letters (including any severance set forth therein), bonus, gainshare and incentive programs, additional pay required by Brazilian and other local law, vacation pay, holiday pay, 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, and other 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 implementation of the Restructuring Transactions) are deemed to be, and shall be treated as, Executory Contracts under the Plan and, on the Effective Date, shall be deemed assumed (or, in the event that GLAI is party to such agreements or arrangements, assumed and assigned to New GOL Parent) pursuant to sections 365 and 1123 of the Bankruptcy Code (in each case, as amended prior to or on the Effective Date).
Article VII
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Procedures for resolving
contingent, unliquidated, and Disputed Claims
A. | Allowance of Claims and Interests |
Except as expressly provided in the Plan or in any order entered in the Chapter 11 Cases before the Effective Date (including the Confirmation Order), no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed pursuant to the Plan or a Final Order (including the Confirmation Order) Allowing such Claim. On and after the Effective Date, each of the Reorganized Debtors shall have, and retain any and all rights and defenses the corresponding Debtor had, with respect to any Claim immediately before the Effective Date.
B. | Claims Administration Responsibilities |
Except as otherwise expressly provided in the Plan and notwithstanding any requirements that may be imposed pursuant to Bankruptcy Rule 9019, after the Effective Date, the Reorganized Debtors shall have the authority (i) to file, withdraw, or litigate to judgment objections to Claims or Interests; (ii) to settle or compromise any Disputed Claim without any further notice to, or action, order, or approval of, the Bankruptcy Court; and (iii) to administer and adjust the Claims register to reflect any such settlements or compromises without any further notice to, or action, order, or approval of, the Bankruptcy Court. For the avoidance of doubt, except as otherwise provided herein or by an order of the Bankruptcy Court, from and after the Effective Date, the Reorganized Debtors shall have and retain any and all rights and defenses the Debtors had immediately prior to the Effective Date with respect to any Disputed Claim, including the Retained Causes of Action.
C. | General Unsecured Claim Observer |
The Committee may appoint, as of the Effective Date, a Person or Entity with duties limited in all respects as set forth herein to consult with the Reorganized Debtors with respect to the Allowance of any General Unsecured Claims in excess of $5 million (the “General Unsecured Claim Observer”); provided, that the General Unsecured Claim Observer shall have standing to appear before the Bankruptcy Court with respect to matters arising out of or related to reconciliation, Allowance, and settlement of any General Unsecured Claims, as well as any objections thereto.
The General Unsecured Claim Observer may employ, without further order of the Bankruptcy Court, professionals to assist in carrying out the duties described in this Article VII.C, and the reasonable and documented costs of the General Unsecured Claim Observer, including reasonable and documented external professionals’ fees and expenses, shall be reimbursed by the Reorganized Debtors in the ordinary course of business in an aggregate amount not to exceed $250,000 as soon as reasonably practicable after invoiced. In addition, subject to the fee cap in the preceding sentence, the General Unsecured Claim Observer may review and respond to inquiries from holders of Claims regarding distributions and implementation of the Plan and consult with the Reorganized Debtors with respect to the selection of the Distribution Dates.
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The General Unsecured Claim Observer will be selected by a majority of the members of the Committee in accordance with the Committee’s by-laws and will be identified prior to the Confirmation Hearing. The General Unsecured Claim Observer’s role is to represent the interests of all holders of General Unsecured Claims. The General Unsecured Claim Observer will work with the Reorganized Debtors to ensure that Claims are reconciled, and distributions are made, in a fair and equitable manner. The General Unsecured Claim Observer minimizes the risk that the Reorganized Debtors reconcile General Unsecured Claims in a way that leads to Claims being Allowed at too high of an amount (which would otherwise harm all holders of General Unsecured Claims). The Debtors will be free to reconcile claims below $5,000,000 without oversight by the General Unsecured Claim Observer because the costs of such oversight would outweigh the benefits to all holders of General Unsecured Claims, whose claims in the aggregate are in excess of $1,000,000,000. Any Distribution Date selected in consultation with the General Unsecured Claim Observer will apply to all holders of General Unsecured Claims regardless of the size of any such holder’s Claim.
Upon the death, resignation, or removal of the General Unsecured Claim Observer, the Reorganized Debtors shall appoint a successor General Unsecured Claim Observer with approval of the Bankruptcy Court. Upon the resolution of all Disputed General Unsecured Claims, the General Unsecured Claim Observer shall be released and discharged of and from further authority, duties, responsibilities, and obligations relating to and arising from and in connection with the Chapter 11 Cases.
D. | Estimation of Claims |
Before or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may at any time request the Bankruptcy Court to estimate any Claim that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim, including during the litigation of any objection to any Claim or during the appeal relating to such objection. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim, the estimated amount shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim for all purposes under the Plan. If the estimated amount constitutes a maximum limitation of the amount of such Claim, the Debtors or the Reorganized Debtors, as applicable, may elect to pursue any supplemental proceedings to object to the ultimate Allowance of such Claim. 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 be entitled to seek reconsideration of such estimation unless such holder has filed a motion requesting the right to seek such reconsideration on or before twenty-one (21) days after the date on which such Claim is estimated. All of the aforementioned objection, estimation, and resolution procedures are cumulative and not exclusive of one another.
E. | Adjustment to Claims Register Without Objection |
Any duplicate Claim or any Claim that has been paid or otherwise satisfied, or any Claim that has been amended or superseded, may be adjusted or expunged on the Claims register by the Debtors or Reorganized Debtors, as applicable, upon stipulation between the parties without an
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objection to such Claim having to be filed and without any further notice or action, order, or approval of the Bankruptcy Court.
F. | Time to File Objections to Claims |
The Debtors and Reorganized Debtors, as applicable, shall be entitled to object to Claims. After the Effective Date, except as expressly provided herein to the contrary, the Reorganized Debtors shall have and retain any and all rights and defenses that the Debtors had with regard to any Claim, except with respect to any Claim that is Allowed. Any objections to Proofs of Claim shall be served and filed on or before the later of (i) 180 days after the Effective Date, and (ii) such date as may be fixed by the Bankruptcy Court, after notice and a hearing, upon a motion by the Reorganized Debtors filed before the date that is 180 days after the Effective Date. Any Claims for which the Debtors do not timely file an objection to Proof of Claim pursuant to this section shall be Allowed. The expiration of such period shall not limit or affect the Debtors’ rights to dispute Claims asserted in the ordinary course of business other than through a Proof of Claim.
G. | Disallowance of Claims |
Any Claims held by a Person or Entity from whom property is recoverable under sections 542, 543, 550, or 553 of the Bankruptcy Code or that is a transferee of a transfer avoidable under sections 522(f), 522(h), 544, 545, 547, 548, or 549 of the Bankruptcy Code, shall be deemed Disallowed pursuant to section 502(d) of the Bankruptcy Code, and holders of such Claims shall not receive any distributions on account of such Claims until such time as the applicable Cause of Action against that Person or Entity has been settled or a Bankruptcy Court order with respect thereto has been entered, and, if such Cause of Action has been resolved in favor of the applicable Debtor, all sums due from that Person or Entity have been turned over or paid to the Debtors or the Reorganized Debtors, as applicable. All Claims filed on account of an indemnification obligation to a director, officer, or employee shall be deemed satisfied and may be expunged from the Claims register as of the Effective Date to the extent such indemnification obligation is assumed (or honored or reaffirmed, as the case may be) pursuant to the Plan, without any further notice to, or action, order, or approval of, the Bankruptcy Court.
H. | Amendments to Claims |
On and after the Effective Date, a Claim may not be amended without the prior authorization of the Reorganized Debtors or order of the Bankruptcy Court.
I. | No Distributions Pending Allowance |
If an objection, motion to estimate, or other challenge to a Claim is filed, or if the time to object to a Claim has not elapsed and the Claim has not been Allowed by the Plan or by Final Order, then no distribution shall be made on account of such Claim unless and until (and only to the extent that) such Claim becomes an Allowed Claim.
J. | Distributions After Allowance |
As soon as reasonably practicable after the date that the order or judgment of a court of competent jurisdiction Allowing any Disputed Claim becomes a Final Order, the Reorganized
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Debtors shall provide to the holder of such Claim the distribution (if any) to which such holder is entitled under the Plan as of the Effective Date, without any interest, dividends, or accruals to be paid on account of such Claim unless required under applicable non-bankruptcy law.
K. | Disputed Claims Reserve |
The Disputed Claims Reserve shall be established and funded on or about the Effective Date; provided, that the Disputed Claims Reserve shall be funded with any General Unsecured Claimholder Released Escrowed Shares allocable to any Disputed Claims at the time of any release of such General Unsecured Claimholder Released Escrowed Shares. Any property that would be distributable in respect of any Disputed General Unsecured Claim had such Disputed General Unsecured Claim been Allowed on the Effective Date, together with all earnings thereon (net of any taxes imposed thereon or otherwise payable by the Disputed Claims Reserve), as applicable, shall be deposited in the Disputed Claims Reserve. The amount of, or the amount of property constituting, the Disputed Claims Reserve shall be determined prior to the Confirmation Hearing, based on the Debtors’ good faith estimates or an order of the Bankruptcy Court estimating such Disputed Claims.
The Disputed Claims Reserve shall be responsible for payment, out of the assets of the Disputed Claims Reserve, of any taxes imposed on the Disputed Claims Reserve or its assets. In the event, and to the extent, any Cash in the Disputed Claims Reserve is insufficient to pay the portion of any such taxes attributable to the taxable income arising from the assets of such reserve (including any income that may arise upon the distribution of the assets in such reserve), assets of the Disputed Claims Reserve may be sold to pay such taxes.
To the extent that a Disputed General Unsecured Claim becomes an Allowed Claim after the Initial Distribution Date, the Disbursing Agent shall distribute to the holder thereof out of the Disputed Claims Reserve any property to which such holder is entitled hereunder (net of any allocable taxes imposed thereon or otherwise incurred or payable by the Disputed Claims Reserve, including in connection with such distribution) in accordance with Article VIII.A.
The Disbursing Agent may request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for all returns filed for or on behalf of the Disputed Claims Reserve for all taxable periods through the date on which final distributions are made.
In the event the assets of the Disputed Claims Reserve are insufficient to satisfy all the Disputed General Unsecured Claims that have become Allowed, such Allowed General Unsecured Claims shall be satisfied Pro Rata from any remaining assets. After all assets in the Disputed Claims Reserve have been distributed, no further distributions shall be made in respect of Disputed General Unsecured Claims. At such time as all Disputed General Unsecured Claims have been resolved, any remaining assets in the Disputed Claims Reserve shall be distributed Pro Rata to all holders of Allowed General Unsecured Claims.
On or before the Effective Date, in accordance with the terms of the Transaction Steps, a number of shares of New Equity equal to the General Unsecured Claimholder Distribution will be authorized and issued. On, or as soon as reasonably practicable after, the Effective Date, the Debtors or the Reorganized Debtors, as applicable, will determine the number of shares of New
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Equity that can be distributed to holders of Allowed General Unsecured Claims, while reserving a sufficient number of shares of New Equity (the “Reserved Shares”) to provide an equal percentage of recovery to holders of Disputed General Unsecured Claims should such Disputed General Unsecured Claims be Allowed in full. The Reserved Shares will be held in the Disputed Claims Reserve. Holders of Allowed General Unsecured Claims on the Effective Date, or if such claim is Allowed thereafter, will have the right to receive shares of New Equity that are deposited in the Disputed Claim Reserve but ultimately not distributed to holders of Disputed Claims that are ultimately Disallowed. At the time of the General Unsecured Claimholder Initial Distribution, or at each such later date as a Disputed General Unsecured Claims becomes an Allowed General Unsecured Claim and a distribution is paid thereon, New GOL Parent will keep a register of distributions and obtain an escrow CUSIP which corresponds to the holder’s right to receive a pro rata portion of the Reserved Shares that are not distributed to Disputed Claims that are ultimately Disallowed. Holders of Allowed General Unsecured Claims who hold their Allowed General Unsecured Claims through DTC will receive their escrow CUSIP through DTC at the time their distribution of New Equity is issued. All holders of Allowed General Unsecured Claims who hold their Allowed General Unsecured Claims outside of DTC will be tracked on a separate register maintained by New GOL Parent. The escrow CUSIP number and any interest related thereto will be non-transferable whether it is held in DTC or separately on the register maintained by New GOL Parent. Upon resolution of all Disputed General Unsecured Claims, the remaining Reserved Shares (if any) will be released and distributed Pro Rata to the holders of Allowed General Unsecured Claims with the escrow CUSIP number through DTC (to the extent that the escrow CUSIP is held in DTC) or to New GOL Parent’s register. A similar mechanism will be utilized for any General Unsecured Claimholder Released Escrowed Shares held in escrow and released therefrom pursuant to Article V.D.2 of the Plan.
L. | Claims Resolution Procedures Cumulative |
All of the objection, estimation, and resolution procedures with respect to Disputed Claims are cumulative and not exclusive of one another. Claims may be, with the consent of the holders of the Claims, estimated and subsequently compromised, settled, withdrawn, or resolved in accordance with the Plan without further notice or Bankruptcy Court approval.
Article
VIII
Provisions Governing Distributions
A. | Timing and Calculation of Amounts to Be Distributed |
Unless otherwise provided in the Plan or paid pursuant to a prior Bankruptcy Court order, and subject to any reserves or holdbacks established pursuant to the Plan, on the applicable Distribution Date or as soon as reasonably practicable thereafter, each holder of an Allowed Claim shall receive the distributions that the Plan provides for Allowed Claims in the applicable Class as of such date. 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.
If and to the extent there are Disputed Claims as of the applicable Distribution Date, distributions on account of such Disputed Claims (which will only be made if and when they
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become Allowed Claims) shall be made pursuant to the provisions set forth in the Plan on or as soon as reasonably practicable after the next Distribution Date that is after the Allowance of each such Claim. No interest shall be paid on any Disputed Claim that becomes an Allowed Claim after the Initial Distribution Date.
For the avoidance of doubt, the Reorganized Debtors shall retain the ability to pay Claims pursuant to a prior Bankruptcy Court order after the Effective Date. The Debtors and Reorganized Debtors shall be entitled to withhold distributions on any Claim that they intend to pay pursuant to such an order.
B. | Disbursing Agent |
Unless otherwise provided in the Plan, all distributions under the Plan shall be made by the Disbursing Agent on the applicable Distribution Date. The Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Bankruptcy Court.
C. | Rights and Powers of Disbursing Agent |
1. | Powers of the Disbursing Agent |
Without further order of the Bankruptcy Court, the Disbursing Agent shall be empowered to: (i) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under the Plan; (ii) make all distributions contemplated hereby; (iii) employ professionals and incur reasonable fees and expenses to represent it with respect to its responsibilities; and (iv) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions hereof.
2. | Incurred Expenses |
Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and documented expenses incurred by the Disbursing Agent on or after the Effective Date (including taxes and reasonable attorney fees and expenses) in connection with making distributions shall be paid in Cash by the Reorganized Debtors.
D. | Delivery of Distributions and Undeliverable or Unclaimed Distributions |
1. | Delivery of Distributions in General |
Except as otherwise provided in the Plan or Bankruptcy Court order, the Disbursing Agent shall make distributions to holders of Allowed Claims as of the Distribution Record Date at the address for each such holder as indicated on the applicable Proofs of Claim (or, if no Proof of Claim has been filed, the Debtors’ records as of the date of any such distribution); provided, however, that the manner of such distributions shall be determined at the reasonable discretion of the Disbursing Agent. For the avoidance of doubt, the Distribution Record Date shall not apply to holders of public Securities.
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2. | Delivery of Distributions on 2028 Notes Claims |
Except as otherwise reasonably requested by holders of Allowed 2028 Notes Claims, all distributions to holders of Allowed 2028 Notes Claims shall be deemed completed when made to such holders.
3. | Delivery of Distributions on 2026 Senior Secured Notes Claims |
Except as otherwise reasonably requested by the 2026 Senior Secured Notes Trustee, all distributions to holders of Allowed 2026 Senior Secured Notes Claims shall be deemed completed when made to the 2026 Senior Secured Notes Trustee. The 2026 Senior Secured Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2026 Senior Secured Notes Claims. As soon as practicable following the Effective Date, the 2026 Senior Secured Notes Trustee shall arrange to deliver such distributions to or on behalf of its holders in accordance with the terms of the applicable 2026 Senior Secured Notes Documents and the Plan.
Notwithstanding anything in the Plan to the contrary, the 2026 Senior Secured Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2026 Senior Secured Notes Trustee in accordance with the Plan, nor shall the 2026 Senior Secured Notes Trustee have any obligation to make any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC. The 2026 Senior Secured Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
4. | Delivery of Distributions on 2025 Senior Notes |
Except as otherwise reasonably requested by the 2025 Senior Notes Trustee, all distributions to holders of Allowed 2025 Senior Notes Claims shall be deemed completed when made to the 2025 Senior Notes Trustee. The 2025 Senior Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2025 Senior Notes Claims. As soon as practicable following the Effective Date, the 2025 Senior Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed 2025 Senior Notes Claims in accordance with the terms of the applicable 2025 Senior Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the 2025 Senior Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the 2025 Senior Notes Trustee may (but is not required to) establish its own record date for distributions to holders of Allowed 2025 Senior Notes Claims. DTC shall be considered a single holder of all 2025 Senior Notes Claims for purposes of distributions hereunder.
Notwithstanding anything in the Plan to the contrary, the 2025 Senior Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2025 Senior Notes Trustee in accordance with the Plan, nor shall the 2025 Senior Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such
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distributions (subject to the applicable Indenture Trustee Charging Lien). The 2025 Senior Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
5. | Delivery of Distributions on 2024 Senior Exchangeable Notes |
Except as otherwise reasonably requested by the 2024 Senior Exchangeable Notes Trustee, all distributions to holders of Allowed 2024 Senior Exchangeable Notes Claims shall be deemed completed when made to the 2024 Senior Exchangeable Notes Trustee. The 2024 Senior Exchangeable Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2024 Senior Exchangeable Notes Claims. As soon as practicable following the Effective Date, the 2024 Senior Exchangeable Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed 2024 Senior Exchangeable Notes Claims in accordance with the terms of the applicable 2024 Senior Exchangeable Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the 2024 Senior Exchangeable Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the 2024 Senior Exchangeable Notes Trustee may (but is not required to) establish its own record date for distributions to holders of Allowed 2024 Senior Exchangeable Notes Claims. DTC shall be considered a single holder of all 2024 Senior Exchangeable Notes Claims for purposes of distributions hereunder.
Notwithstanding anything in the Plan to the contrary, the 2024 Senior Exchangeable Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2024 Senior Exchangeable Notes Trustee in accordance with the Plan, nor shall the 2024 Senior Exchangeable Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions (subject to the applicable Indenture Trustee Charging Lien). The 2024 Senior Exchangeable Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
6. | Delivery of Distributions on Perpetual Notes |
Except as otherwise reasonably requested by the Perpetual Notes Trustee, all distributions to holders of Allowed Perpetual Notes Claims shall be deemed completed when made to the Perpetual Notes Trustee. The Perpetual Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed Perpetual Notes Claims. As soon as practicable following the Effective Date, the Perpetual Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed Perpetual Notes Claims in accordance with the terms of the applicable Perpetual Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the Perpetual Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the Perpetual Notes Trustee may (but is not required to) establish its own record date
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for distributions to holders of Allowed Perpetual Notes Claims. DTC shall be considered a single holder of all Perpetual Notes Claims for purposes of distributions hereunder.
Notwithstanding anything in the Plan to the contrary, the Perpetual Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the Perpetual Notes Trustee in accordance with the Plan, nor shall the Perpetual Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions (subject to the applicable Indenture Trustee Charging Lien). The Perpetual Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
7. | Delivery of Distributions on Glide Notes |
Except as otherwise reasonably requested by the Glide Notes Trustee, all distributions to holders of Allowed Glide Notes Claims shall be deemed completed when made to the Glide Notes Trustee. The Glide Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed Glide Notes Claims. As soon as practicable following the Effective Date, the Glide Notes Trustee shall arrange to deliver such distributions to or on behalf of its holders in accordance with the terms of the applicable Glide Notes Documents and the Plan.
Notwithstanding anything in the Plan to the contrary, the Glide Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the Glide Notes Trustee in accordance with the Plan, nor shall the Glide Notes Trustee have any obligation to make any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC. The Glide Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
8. | Minimum Distributions |
No (i) fractional shares of New Equity or (ii) Cash payments of less than $50 shall be distributed to any holder of an Allowed Claim on account of such Allowed Claim. When any distribution pursuant to the Plan would otherwise result in the issuance of a number of shares of New Equity that is not a whole number, the actual distribution of such New Equity shall be rounded as follows: (i) fractions of greater than one-half (½) shares of New Equity shall be rounded to the next higher whole number and (ii) fractions of one-half (½) or less of New Equity shall be rounded to the next lower whole number with no further payment therefor. The total number of authorized shares of New Equity to be distributed to the holders of Allowed Claims may be adjusted as necessary to account for the foregoing rounding.
9. | Undeliverable Distributions and Unclaimed Property |
In the event that any distribution to any holder is returned as undeliverable, no distribution to such holder shall be made unless and until the Disbursing Agent has determined the then-current address of such holder, at which time such distribution shall be made to such holder without interest; provided, that any distribution that remains undeliverable for one year from the date on which such distribution was attempted to be made shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code. After such date, all unclaimed property shall revert to the
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Reorganized Debtors automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial, or state escheat, abandonment, or unclaimed property laws to the contrary), and the claim of any holder to such property shall be discharged and forever barred.
E. | Exemption from Securities Laws |
No registration statement will be filed under the Securities Act, or pursuant to any state, local, or other applicable securities laws, with respect to the offer and distribution of securities under the Plan. The offer, issuance, and distribution under the Plan of (i) the New Equity other than any (x) Incremental New Money Equity and (y) New Equity issued upon exchange of the Incremental New Money Exchangeable Debt and (ii) to the extent the 2026 Alternative Notes, Exchangeable Take-Back Notes, Non-Exchangeable Take-Back Notes, Amended Glide Notes, or Amended Safra Notes are issued in the form of notes or other securities under the Plan (collectively, the “Section 1145 Securities”) shall be exempt, without further act or actions by any Person or Entity, from registration under the Securities Act and any state, local, or other applicable securities laws to the fullest extent permitted by section 1145 of the Bankruptcy Code, subject to certain exceptions, including those described below.
Section 1145 of the Bankruptcy Code generally exempts from registration under the Securities Act and state and local securities laws the offer or sale under a chapter 11 plan of a security of the debtor, of an affiliate participating in a joint plan with the debtor, or of a successor to the debtor under a plan, if such securities are offered or sold in exchange for a claim against, or an interest in, the debtor or such affiliate, or principally in such exchange and partly for cash. Section 1145 of the Bankruptcy Code also exempts from registration the offer of a security through any right to subscribe sold in the manner provided in the prior sentence, and the sale of a security upon the exercise of such right.
In reliance upon this exemption, the Section 1145 Securities will be exempt from the registration requirements of the Securities Act and state and local securities laws. Subject to the restrictions on transfer, if any, and other applicable provisions set forth in the New Organizational Documents, the Section 1145 Securities will, upon initial issuance under the Plan, be freely tradable and transferable by any initial recipient thereof that (i) is not an “affiliate” of the Debtors as defined in Rule 144(a)(1) under the Securities Act, (ii) has not been such an “affiliate” within ninety (90) days of such transfer, and (iii) is not an Entity that is an “underwriter” as that term is defined in section 1145(b) of the Bankruptcy Code, and may be resold without registration under the Securities Act or other federal securities laws pursuant to the exemption provided by section 4(a)(1) of the Securities Act. In addition, subject to the restrictions on transfer, if any, and other applicable provisions set forth in the New Organizational Documents, such Section 1145 Securities generally may be resold without registration under state securities laws pursuant to various exemptions provided by the respective laws of the several states. Notwithstanding anything to the contrary set forth herein, the Debtors, Abra and the Committee agree that the terms of the Section 1145 Securities and the New Organizational Documents shall contain restrictions on transfer and such other terms and conditions as are necessary to ensure that none of the Section 1145 Securities are required by Section 12 of the Exchange Act to be registered thereunder at the Effective Time or thereafter.
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Section 1145(b)(1) of the Bankruptcy Code defines an “underwriter” as one who, except with respect to “ordinary trading transactions” of an entity that is not an “issuer”: (i) 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 an interest; (ii) offers to sell securities offered or sold under a plan for the holders of such securities; (iii) offers to buy securities offered or sold under a plan from the holders of such securities, if such offer to buy is (a) with a view to distribution of such securities and (b) 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 (iv) is an “issuer” of the securities within the meaning of section 2(a)(11) of the Securities Act. In addition, a person who receives a fee in exchange for purchasing an issuer’s securities could also be considered an underwriter within the meaning of section 2(a)(11) of the Securities Act.
The definition of an “issuer” for purposes of whether a person is an underwriter under section 1145(b)(1)(D) of the Bankruptcy Code, by reference to section 2(a)(11) of the Securities Act, includes as “statutory underwriters” all Persons who, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with, an issuer of securities (i.e., “affiliates”). The reference to “issuer,” as used in the definition of “underwriter” contained in section 2(a)(11) of the Securities Act, is intended to cover “controlling persons” of the issuer of the securities.
“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. The legislative history of section 1145 of the Bankruptcy Code suggests that a creditor who owns ten percent (10%) or more of a class of voting securities of a reorganized debtor may be presumed to be a “controlling person” and, therefore, an underwriter.
Notwithstanding the foregoing, control person underwriters may be able to sell securities without registration pursuant to the resale limitations of Rule 144 of the Securities Act, as described below.
Whether or not any particular Person would be deemed to be an underwriter with respect to the Section 1145 Securities or other security to be issued pursuant to the Plan and the Confirmation Order would depend upon various facts and circumstances applicable to that Person. Accordingly, the Debtors express no view as to whether any particular Person receiving the Section 1145 Securities or other securities under the Plan and the Confirmation Order would be an underwriter with respect to such Section 1145 Securities or other securities, whether such Person may freely resell such securities or the circumstances under which they may resell such securities. Parties who believe they may be statutory underwriters as defined in section 1145 of the Bankruptcy Code are advised to consult with their own legal advisors as to the availability of the exemption provided by Rule 144.
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.
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The offer, sale, issuance, and distribution under the Plan of any category of securities that would constitute Section 1145 Securities but are issued to a Person or Entity that is an “underwriter” with respect to such securities, as that term is defined in section 1145(b) of the Bankruptcy Code (the “Underwriter Securities”), shall be exempt from registration under the Securities Act and any other applicable securities laws in reliance on the exemption from registration set forth in section 4(a)(2) under the Securities Act and/or Regulation D promulgated thereunder or, solely to the extent such exemptions are not available, other available exemptions from registration under the Securities Act or equivalent state law registration exemptions. In addition, the offer, sale, issuance and distribution under the Plan of the Exit Notes, any Incremental New Money Exit Financing, and New Equity issued upon exchange of any Incremental New Money Exchangeable Debt, in each case to the extent issued in the form of notes or other securities under the Plan (the “New Money Securities”), will be issued without registration under the Securities Act in reliance upon the exemption set forth in section 4(a)(2) of the Securities Act, Regulation S or Regulation D promulgated thereunder, and similar registration exemptions applicable outside of the United States. The Underwriter Securities and the New Money Securities are collectively referred to herein as the “4(a)(2) Securities.”
The 4(a)(2) Securities will be considered “restricted securities,” will bear customary legends and transfer restrictions, and may not be transferred except pursuant to an effective registration statement or under an available exemption from the registration requirements of the Securities Act.
Rule 144 provides a limited safe harbor for the public resale of restricted securities, such as the 4(a)(2) Securities, if certain conditions are met. Generally, Rule 144 would permit the public sale of securities received by such Person if, at the time of the sale, certain current public information regarding the issuer is available, and only if such Person also complies with the volume, manner of sale, and notice requirements of Rule 144. If the issuer is not subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), adequate current public information as specified under Rule 144 is available if certain company information is made publicly available, as specified in section (c)(2) of Rule 144.
These conditions vary depending on whether the holder of the restricted securities is an “affiliate” of the issuer. Rule 144 defines an affiliate of the issuer as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer.”
A non-affiliate of an issuer that is not subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and who has not been an affiliate of the issuer during the ninety days preceding such sale may resell restricted securities after a one-year holding period whether or not there is current public information regarding the issuer.
An affiliate of an issuer that is not subject to the reporting requirements of section 13 or 15(d) of the Exchange Act may resell restricted securities after the one-year holding period if at the time of the sale certain current public information regarding the issuer is available. An affiliate must also comply with the volume, manner of sale, and notice requirements of Rule 144. First, the rule limits the number of restricted securities (plus any unrestricted securities) sold for the
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account of an affiliate (and related persons) in any three-month period to the greater of 1% of the outstanding securities of the same class being sold or, if the class is listed on a stock exchange, the average weekly reported volume of trading in such securities during the four weeks preceding the filing of a notice of proposed sale on Form 144 or if no notice is required, the date of receipt of the order to execute the transaction by the broker or the date of execution of the transaction directly with a market maker. Second, the manner of sale requirement provides that the restricted securities must be sold in a broker’s transaction, directly with a market maker or in a riskless principal transaction (as defined in Rule 144). Third, if the amount of securities sold under Rule 144 in any three month period exceeds 5,000 shares or has an aggregate sale price greater than $50,000, an affiliate must file or cause to be filed with the SEC three copies of a notice of proposed sale on Form 144, and provide a copy to any exchange on which the securities are traded.
The Debtors believe that the Rule 144 exemption will not be available with respect to any 4(a)(2) Securities (whether held by non-affiliates or affiliates) until at least one year after the Effective Date. Accordingly, unless transferred pursuant to an effective registration statement or another available exemption from the registration requirements of the Securities Act, such holders of 4(a)(2) Securities will be required to hold their 4(a)(2) Securities for at least one year and, thereafter, to sell them only in accordance with the applicable requirements of Rule 144, pursuant to the an effective registration statement or pursuant to another available exemption from the registration requirements of applicable securities laws.
While GLAI is currently a public reporting company under section 12(g) of the Exchange Act, it is currently contemplated, and accordingly holders of Claims should assume, that Reorganized GLAI will not be subject to the reporting requirements of section 13 or 15(d) of the Exchange Act; however, there may be a period after emergence from chapter 11 during which Reorganized GLAI is subject to the reporting requirements of section 13 or 15(d). As described above, if Reorganized GLAI is not subject to the reporting requirements of section 13 or 15(d) after emergence, the holding period will be one year. However, such holding period will decrease from one year to six months if Reorganized GLAI is subject to the reporting requirements of section 13 or 15(d) after emergence from chapter 11.
F. | Compliance with Tax and Antitrust Requirements |
In connection with the Plan, to the extent applicable, the Reorganized Debtors and the Disbursing Agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Any amounts withheld pursuant to the preceding sentence shall be deemed to have been distributed to and received by the applicable recipient for all purposes of the Plan. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the Disbursing Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including withholding distributions pending receipt of information necessary to facilitate such distributions or establishing any other mechanisms they believe are reasonable and appropriate. The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances. Notwithstanding the above, each holder of an Allowed Claim or Allowed Interest that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for
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the satisfaction and payment of any tax obligations imposed on such holder by any Governmental Unit, including income, withholding, and other tax obligations, on account of such distribution. The Disbursing Agent has the right, but not the obligation, to not make a distribution until such holder has made arrangements satisfactory to any issuing or disbursing party for payment of any such tax obligations. The Reorganized Debtors may require, as a condition to making a distribution, that the holder of an Allowed Claim complete and return a Form W-8 or W-9 or a similar form applicable to such holder.
The Debtors, Reorganized Debtors, and the Disbursing Agent are authorized to take all actions necessary or appropriate to ensure that any distribution under the Plan complies with, and would not violate, applicable Brazilian law, including any relevant antitrust laws. In order to comply with applicable law, the Debtors, the Reorganized Debtors, and the Disbursing Agent may, prior to making any distribution of New Equity under the Plan to any claimant holding Allowed Claims in excess of $500 million, require that such claimant provide the Debtors, Reorganized Debtors, or Disbursing Agent, as applicable, with additional disclosures reasonably necessary for the Debtors or Reorganized Debtors, as applicable, to comply with applicable law. Failure to provide any such requested information may result in the holdback of any distribution pending receipt of such information. To the extent that failure to disclose any required information, including failure to make any required representation as set forth in the Transaction Steps, results in violation of any applicable law, such claimant may have their distribution forfeited or, if the claimant has already received a distribution, be held directly liable for violation of such laws as well as be held liable for any damages incurred by the Reorganized Debtors, including any fines and/or penalties imposed on the Reorganized Debtors.
G. | No Postpetition Interest on Claims and Interests |
Unless otherwise specifically provided for in the Plan, the Confirmation Order, or other Bankruptcy Court order, postpetition interest shall not accrue or be paid on any Claims, and no holder of a Claim shall be entitled to interest on such Claim accruing on or after the Petition Date.
H. | Setoffs and Recoupment |
Except for Claims that are expressly Allowed hereunder or pursuant to a Final Order, the Debtors and the Reorganized Debtors may, but shall not be required to, set off against any Claim (for purposes of determining the Allowed amount of such Claim on which distribution shall be made), any claims of any nature whatsoever that the applicable Debtors or the Reorganized Debtors may have against the holder of such Claim; provided, that neither the failure to do so nor the allowance of any Claim hereunder shall constitute a waiver or release by the Debtors or the Reorganized Debtors of any such claim the Debtors or the Reorganized Debtors may have against the holder of such Claim.
I. | Claims Paid or Payable by Third Parties |
1. | Claims Paid by Third Parties |
A Claim shall be Disallowed without an objection having to be filed and without any further notice to, or action, order, or approval of, the Bankruptcy Court, to the extent and in the amount that the holder of such Claim receives payment (before or after the Effective Date) on
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account of such Claim from a party that is not a Debtor or Reorganized Debtor; provided, however, if such holder is required to repay all or any portion of a Claim (either by contract or by order of a court of competent jurisdiction) to the party that is not a Debtor or Reorganized Debtor, and such holder in fact repays all or a portion of the Claim to such third party, the repaid amount of such Claim shall remain subject to the applicable treatment set forth in the Plan and subject to the respective rights and defenses of the Debtors or Reorganized Debtors, as applicable, and the holder of such Claim. To the extent a holder of a Claim receives a distribution on account of such Claim under the Plan and receives payment from a party that is not a Debtor or a Reorganized Debtor on account of such Claim, such holder shall, within ten (10) days of receipt thereof, repay or return the applicable portion of the distribution to the applicable Debtor or Reorganized Debtor, to the extent the holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan. The failure of such holder to timely repay or return such distribution shall result in the holder owing the applicable Reorganized Debtor annualized interest at the federal judgment rate, as in effect as of the Petition Date, on such amount owed for each day after the 10-day grace period specified above until such amount is repaid.
2. | Claims Payable by Third Parties |
To the extent that one or more of the Debtors’ Insurers, in its role as an insurer (but not in any role as the issuer of surety bonds or similar instruments or as a guarantor of payment), agree to satisfy in full or in part a Claim (if and to the extent adjudicated by a court of competent jurisdiction or otherwise settled), then, immediately upon such Insurers’ payment thereof, the applicable portion of such Claim may be expunged without an objection having to be filed and without any further notice to, or action, order, or approval of, the Bankruptcy Court; provided, however, if such holder is required to repay all or any portion of a Claim (either by contract or by order of a court of competent jurisdiction) to the Insurer, and such holder in fact repays all or a portion of the Claim to such Insurer, the repaid amount of such Claim shall remain subject to the applicable treatment set forth in the Plan and subject to the respective rights and defenses of the Debtors or Reorganized Debtors, as applicable, and the holder of such Claim.
3. | Applicability of Insurance Contracts |
Except as otherwise provided in the Plan, distributions to holders of Claims covered by Insurance Contracts shall be in accordance with the provisions of any applicable Insurance Contract. Except as otherwise expressly set forth in the Plan, nothing herein shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity, including any holders of Claims, may hold against any other Entity under any Insurance Contract, including against Insurers or any insured, nor shall anything contained herein constitute or be deemed a waiver by such Insurers of any rights or defenses, including coverage defenses, held by such Insurers.
J. | Allocation Between Principal and Accrued Interest |
Except as otherwise provided in the Plan, the aggregate consideration paid to the holders of Allowed Claims shall be treated pursuant to the Plan as allocated first to the principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest, if any, accrued through the Effective Date.
Article IX
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Settlement, Release, Injunction, and Related Provisions
A. | Compromise and Settlement |
The Confirmation Order will constitute the Bankruptcy Court’s finding and determination that all compromises and settlements reflected in the Plan are (i) fair, equitable, and reasonable, and (ii) in the best interests of the Debtors, their Estates, and their creditors. The Confirmation Order shall authorize and approve the compromises, settlements, and releases of all contractual, legal, and equitable rights and Causes of Action that are satisfied, compromised, and settled pursuant hereto except as specified on the Schedule of Retained Causes of Action. Notwithstanding anything herein to the contrary, nothing in the Plan shall compromise or settle any (i) Causes of Action that the Debtors or Reorganized Debtors, as applicable, may have against any Person or Entity that is not a Released Party, (ii) Causes of Action that are preserved pursuant to Article V.N, (iii) Causes of Action included on the Schedule of Retained Causes of Action, or (iv) Unimpaired Claims or Interests.
The allowance, classification, and treatment of Allowed Claims of any Released Party take into account any Causes of Action, whether under the Bankruptcy Code or under applicable non-bankruptcy law, that the Debtors may have against such Released Party as of the Effective Date, and all such Causes of Action are settled, compromised, and released as set forth in the Plan except as specified on the Schedule of Retained Causes of Action.
In accordance with the provisions of the Plan, and pursuant to Bankruptcy Rule 9019, without any further notice to, or action, order, or approval of, the Bankruptcy Court, after the Effective Date, the applicable Reorganized Debtors may, in their sole and absolute discretion, compromise and settle (i) Claims (including Causes of Action) not previously Allowed (if any) and (ii) claims (including Causes of Action) against other Persons or Entities.
B. | Discharge of Claims and Termination of Interests |
Except as otherwise provided in the Plan, effective as of the Effective Date: (i) the rights afforded in the Plan and the treatment of all Claims and Interests shall be in exchange for and in complete satisfaction, discharge, and release of such Claims and Interests, including any interest accrued on Claims from and after the Petition Date; (ii) the Plan shall bind all holders of Claims and Interests, notwithstanding whether any such holder failed to vote to accept or reject the Plan or voted to reject the Plan; and (iii) all Persons and Entities shall be precluded from asserting against the Debtors, the Estates, the Reorganized Debtors, the successors and assigns of the foregoing, and their respective assets and properties any Claims or Interests based upon any documents, instruments, or any act or omission, transaction, or other activity of any kind or nature that occurred before the Effective Date.
C. | Release of Liens |
Except as otherwise expressly provided in the Plan or in any contract, instrument, release, or other agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens,
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pledges, and any other security interests with respect to any property of the Estates, subject to the consummation of the applicable distributions contemplated in the Plan, shall be released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors. The Agents/Trustees shall be directed to release any mortgages, deeds of trust, Liens, pledges, or other security interests they hold and to take such actions as may be requested by the Reorganized Debtors to evidence the release of such mortgages, deeds of trust, Liens, pledges, or other security interests, including the execution, delivery, and filing or recording of any documents or instruments that may be required to effectuate the foregoing, in each case, at the Reorganized Debtors’ sole cost and expense. On and after the Effective Date, the Reorganized Debtors (and any of their agents, attorneys, or designees) shall be authorized to execute and file on behalf of the applicable creditors Form UCC-3 termination statements, intellectual property assignments, mortgage or deed of trust releases, or such other forms or release documents in any jurisdiction as may be necessary or appropriate to evidence such releases and implement the provisions of this Article IX.C.
D. | Release by the Debtors |
Notwithstanding anything in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, to the maximum extent permitted by applicable law, the Debtors, the Reorganized Debtors, and the Estates (in each case on behalf of themselves and their respective successors, assigns, and representatives) are deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released, waived, and discharged each Released Party from, and covenanted not to sue on account of, any and all claims, interests, obligations (contractual or otherwise), rights, suits, damages, Causes of Action (including Avoidance Actions), remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, fixed or contingent, matured or unmatured, disputed or undisputed, liquidated or unliquidated, existing or hereafter arising, in law, equity, or otherwise, that the Debtors, the Reorganized Debtors, or the Estates (and in each case their respective successors, assigns, and representatives) would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest, including any derivative claims or Causes of Action assertable on behalf of any Debtor, based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the Chapter 11 Cases, the DIP Facility, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security or other debt instrument of the Debtors or Reorganized Debtors, the assumption, rejection, or amendment of any Executory Contract or Unexpired Lease, the subject matter of, or the transactions or events giving rise to, any Claim or Interest dealt with in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of (i) the DIP Facility Documents, (ii) the Plan Support Agreement, (iii) the Disclosure Statement, (iv) the Plan (including, for the avoidance of doubt, the Plan Supplement), (v) the Transaction Steps, (vi) the Restructuring Transactions, (vii) the New Debt Documents, (viii) the Incremental New Money Equity Documents, (ix) the New Equity Documents, or (x) any related agreements, instruments, or other documents, in each case, in connection with or relating to any act or
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omission, transaction, event, or other occurrence taking place on or before the Effective Date, other than claims unknown to the Debtors as of the Effective Date arising out of or relating to any act or omission of a Released Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, intentional fraud, or gross negligence. Notwithstanding anything to the contrary in the foregoing, the release granted in this Article IX.D does not release any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the release described in this Article IX.D and shall constitute the Bankruptcy Court’s finding that such release (i) is an essential means of implementing the Plan; (ii) is an integral and non-severable element of the Plan and the transactions incorporated herein; (iii) confers substantial benefits on the Estates; (iv) is given in exchange for good and valuable consideration provided by the Released Parties; (v) constitutes a good-faith settlement and compromise of the claims and Causes of Action released by this Article IX.D; (vi) is in the best interests of the Debtors, their Estates, and all holders of Claims and Interests; (vii) is fair, equitable, and reasonable; and (viii) is given after due notice and opportunity for hearing. The release described in this Article IX.D shall, on the Effective Date, have the effect of res judicata to the fullest extent permissible under applicable laws of Brazil and any other jurisdiction in which the Debtors operate.
E. | Releases by Holders of Claims or Interests |
Notwithstanding anything in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, to the maximum extent permitted by applicable law, each Releasing Party shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released, waived, and discharged the Released Parties from, and covenanted not to sue on account of, any and all claims, interests, obligations (contractual or otherwise), rights, suits, damages, Causes of Action (including Avoidance Actions), remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, fixed or contingent, matured or unmatured, disputed or undisputed, liquidated or unliquidated, existing or hereafter arising, in law, equity, or otherwise, that such Releasing Party would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest, including any derivative claims or Causes of Action assertable on behalf of any Releasing Party, based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the Chapter 11 Cases, the DIP Facility, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security or other debt instrument of the Debtors or Reorganized Debtors, the assumption, rejection, or amendment of any Executory Contract or Unexpired Lease, the subject matter of, or the transactions or events giving rise to, any Claim or Interest dealt with in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of (i) the
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DIP Facility Documents, (ii) the Plan Support Agreement, (iii) the Disclosure Statement, (iv) the Plan (including, for the avoidance of doubt, the Plan Supplement), (v) the Transaction Steps, (vi) the Restructuring Transactions, (vii) the New Debt Documents, (viii) the Incremental New Money Equity Documents, (ix) the New Equity Documents, or (x) any related agreements, instruments, or other documents, in each case, in connection with or relating to any act or omission, transaction, event, or other occurrence taking place on or before the Effective Date, other than claims unknown to such Releasing Party as of the Effective Date arising out of or relating to any act or omission of a Released Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, intentional fraud, or gross negligence. Notwithstanding anything to the contrary in the foregoing, the releases granted in this Article IX.E do not release any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the releases described in this Article IX.E and shall constitute the Bankruptcy Court’s finding that such releases (i) are an essential means of implementing the Plan; (ii) are an integral and non-severable element of the Plan and the transactions incorporated herein; (iii) confer substantial benefits on the Estates; (iv) are in exchange for good and valuable consideration provided by the Released Parties; (v) constitute a good-faith settlement and compromise of the claims and Causes of Action released by this Article IX.E; (vi) are in the best interests of the Debtors, their Estates, and all holders of Claims and Interests; (vii) are fair, equitable, and reasonable; (viii) are given after due notice and opportunity for hearing; and (ix) are a bar to any of the Releasing Parties asserting any claim or Cause of Action released by this Article IX.E. The releases described in this Article IX.E shall on the Effective Date, have the effect of res judicata to the fullest extent permissible under applicable laws of Brazil and any other jurisdiction in which the Debtors operate.
Pursuant to section IV.B of the Solicitation and Voting Procedures, claimants that have submitted a proof of claim with respect to a particular Aircraft Equipment Transaction that are not receiving ballots in accordance with Annex 1 of the Solicitation and Voting Procedures shall be deemed to have given or not given the releases in this Article IX.E in connection with their non-voting Claims to the same extent and in accordance with whether the voting claimant for such Aircraft Equipment Transaction grants or does not grant such releases.
F. | Exculpation |
Without affecting or limiting the releases set forth in Article IX.D and Article IX.E, and notwithstanding anything herein to the contrary effective as of the Effective Date, to the fullest extent permitted by law, no Exculpated Party shall have or incur, and each Exculpated Party shall be exculpated from, any Claim, claim or Cause of Action in connection with or arising out of the administration of the Chapter 11 Cases, the negotiation and pursuit of the DIP Facility Documents, the Plan Support Agreement, the Disclosure Statement, the solicitation of votes on, or confirmation of, the Plan, the New Debt Documents,
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the Incremental New Money Equity Documents, the New Equity Documents, any settlement or compromise reflected in the Plan, the Transaction Steps, the Restructuring Transactions, and the Plan (including, for the avoidance of doubt, the Plan Supplement), the funding of the Plan, the occurrence of the Effective Date, the administration and implementation of the Plan or the property to be distributed under the Plan, the issuance or distribution of securities under or in connection with the Plan, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security of the Debtors or the Reorganized Debtors under or in connection with the Plan, or the transactions in furtherance of any of the foregoing, in each case, other than claims or liabilities arising out of or relating to any act or omission of an Exculpated Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, fraud, or gross negligence; provided, that, notwithstanding anything to the contrary in the foregoing, the exculpation set forth above does not apply to any (i) liability that cannot be exculpated pursuant to Rule 1.8(h) of the New York Rules of Professional Conduct (22 N.Y.C.P.R. § 1200), and (ii) cause of action, liability or claim arising out of or relating to any police, regulatory, criminal, or other enforcement action by a governmental agency. The Exculpated Parties have, and upon implementation of the Plan, shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes on, and distribution of consideration under, 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 distributions made pursuant to the Plan. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations, and any applicable laws, rules, or regulations protecting the Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth above does not exculpate any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents, or any assumed Executory Contract or Unexpired Lease.
G. | Injunction |
UPON ENTRY OF THE CONFIRMATION ORDER, ALL HOLDERS OF CLAIMS AND INTERESTS AND OTHER PARTIES IN INTEREST, ALONG WITH THEIR RESPECTIVE PRESENT OR FORMER EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, AFFILIATES, AND RELATED PARTIES SHALL BE ENJOINED FROM TAKING ANY ACTIONS TO INTERFERE WITH THE IMPLEMENTATION OR CONSUMMATION OF THE PLAN IN RELATION TO ANY CLAIM EXTINGUISHED, DISCHARGED, OR RELEASED PURSUANT TO THE PLAN.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES THAT HAVE HELD, HOLD, OR MAY HOLD CLAIMS AGAINST OR INTERESTS IN THE DEBTORS AND OTHER PARTIES IN INTEREST, ALONG WITH THEIR RESPECTIVE PRESENT OR FORMER EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, AFFILIATES, AND RELATED PARTIES ARE PERMANENTLY ENJOINED, FROM AND AFTER THE EFFECTIVE DATE, FROM TAKING ANY OF THE FOLLOWING ACTIONS AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE RELEASED PARTIES, OR
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THE EXCULPATED PARTIES (TO THE EXTENT OF THE EXCULPATION PROVIDED PURSUANT TO Article IX.F WITH RESPECT TO THE EXCULPATED PARTIES): (I) COMMENCING OR CONTINUING ANY ACTION OR PROCEEDING OF ANY KIND ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS OR ANY OTHER CLAIMS OR INTERESTS RELEASED OR SETTLED PURSUANT TO THE PLAN; (II) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; (III) CREATING, PERFECTING, OR ENFORCING ANY LIEN OR OTHER ENCUMBRANCE OF ANY KIND AGAINST SUCH ENTITIES OR THE PROPERTY OF SUCH ENTITIES OR THEIR ESTATES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; AND (IV) ASSERTING THE RIGHT OF SETOFF, SUBROGATION, OR RECOUPMENT AGAINST ANY OBLIGATION DUE FROM SUCH ENTITIES OR AGAINST THE PROPERTY OF SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS NOTWITHSTANDING AN INDICATION IN A DOCUMENT FILED WITH THE BANKRUPTCY COURT THAT SUCH ENTITY ASSERTS, HAS, OR INTENDS TO PRESERVE ANY SUCH RIGHT.
BY ACCEPTING DISTRIBUTIONS UNDER THE PLAN, EACH HOLDER OF A CLAIM OR INTEREST EXTINGUISHED, DISCHARGED, OR RELEASED PURSUANT TO THE PLAN SHALL BE DEEMED TO HAVE AFFIRMATIVELY AND SPECIFICALLY CONSENTED TO BE BOUND BY THE PLAN, INCLUDING THE INJUNCTIONS SET FORTH IN THIS Article IX.G.
THE INJUNCTIONS IN THIS Article IX.G SHALL INURE TO THE BENEFIT OF THE DEBTORS, ANY SUCCESSORS OF THE DEBTORS, THE REORGANIZED DEBTORS, THE RELEASED PARTIES, AND THE EXCULPATED PARTIES AND THEIR RESPECTIVE PROPERTY AND INTERESTS IN PROPERTY.
H. | Additional Provisions Regarding SEC |
Notwithstanding any language to the contrary in the Disclosure Statement, the Plan, or the Confirmation Order, no provision shall (i) preclude the SEC from enforcing its police or regulatory powers or (ii) enjoin, limit, impair or delay the SEC from commencing or continuing any claims, causes of action, proceedings or investigations against any non-Debtor Person or Entity in any forum.
Article
X
Conditions to Effective Date
A. | Conditions to Effective Date |
The following are conditions to the Effective Date, each of which must be satisfied or, if applicable, waived in accordance with Article X.B:
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1. the Plan Support Agreement shall remain in full force and effect and shall not have been terminated (and no termination notice has been validly delivered by any party thereto);
2. the DIP Order shall remain in full force and effect;
3. the Plan (and all supplements thereto) and all other Definitive Documents, and all of the schedules, documents, and exhibits contained therein, and the transactions to be implemented thereby, are consistent with the rights set forth in Sections 3.02 and 11(c) of the Plan Support Agreement, and such documents shall have been filed in a manner consistent with such Sections in the Plan Support Agreement;
4. all conditions precedent to the effectiveness of the documents governing the Exit Notes, any Incremental New Money Exit Financing, the Non-Exchangeable Take-Back Notes, the Exchangeable Take-Back Notes, and any 2026 Alternative Notes, consistent with the rights set forth in Sections 3.02 and 11(c) of the Plan Support Agreement, shall have been satisfied or duly waived;
5. the Bankruptcy Court shall have entered the Confirmation Order in form and substance consistent with the rights set forth in Sections 3.02 and 11(c) of the Plan Support Agreement, and such order shall not have been reversed, stayed, or vacated;
6. all authorizations, consents, regulatory approvals, rulings, or documents required by applicable law to implement and effectuate the Plan, including any approvals required in connection with the transfer, change of control, or assignment of permits and licenses held by the applicable Debtor, unless such permits or licenses are abandoned, shall have been obtained from any appropriate regulatory agencies and not subject to any appeal;
7. the Debtors shall have obtained all governmental and regulatory approvals, consents, authorizations, rulings, or other documents that are legally required for the consummation of the Restructuring, the foregoing shall not be subject to unfulfilled conditions and shall be in full force and effect, and all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (as amended) or applicable review periods under non-U.S. antitrust law shall have expired;
8. except as otherwise expressly provided herein, (i) all documents to be executed, delivered, assumed, or performed upon or in connection with Consummation shall have been (x) executed, delivered, assumed, or performed, as the case may be, and (y) to the extent required, filed with the applicable Governmental Units in accordance with applicable law, and (ii) any conditions contained in such documents (other than Consummation or notice of Consummation) shall have been satisfied or waived in accordance therewith, including all documents included in the Plan Supplement;
9. contemporaneously with the Effective Date, all fees and expenses of the Consenting Stakeholders incurred in connection with the Restructuring Transactions (as defined herein and in the Plan Support Agreement) or as a result of the Chapter 11 Cases shall have been paid in full or reimbursed in accordance with the terms of the DIP Order or the Confirmation Order, as applicable;
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10. contemporaneously with the Effective Date, all accrued and unpaid interest in respect of the 2028 Notes Claims shall have been paid in full in Cash;
11. contemporaneously with the Effective Date, all accrued and unpaid Indenture Trustee Fees shall have been paid in full in Cash;
12. there shall not be in effect any order, opinion, ruling, or other decision entered by any court or a Governmental Unit under U.S. or other applicable law staying, restraining, enjoining, prohibiting, or otherwise making illegal the implementation of any of the transactions contemplated by the Plan, the Restructuring Transactions (as defined herein and in the Plan Support Agreement), the transactions contemplated by the Plan Support Agreement, or any of the Definitive Documents contemplated by the Plan Support Agreement;
13. all conditions precedent to the issuance of the New Equity shall have occurred;
14. to the extent that the Debtors, in their sole discretion, seek recognition of the Plan in Brazil, the Plan shall have been granted recognition or its equivalent status in Brazil; provided, however, that if the Debtors seek such recognition or equivalent status, any failure or delay in obtaining such recognition or equivalent status shall not be a condition precedent to the extent the recognition of the Plan in Brazil is not necessary for the Restructuring Transactions in Brazil by the Effective Date; and
15. each of the Professional Fees Escrow Account and the Disputed Claims Reserve shall have been established and funded in accordance with, and in the amounts required by, the Plan.
B. | Waiver of Conditions |
The conditions to the Effective Date set forth in Article X.A (except the condition set forth in Article X.A.11) may be waived by the Debtors, with the consent of (i) Abra and (ii) to the extent the waiver impacts the right of holders of General Unsecured Claims or is required by the Plan Support Agreement, the Committee, without notice to, leave of, or order of, the Bankruptcy Court. If any such condition precedent is waived pursuant to this section and the Effective Date occurs, each party agreeing to waive such condition precedent shall be estopped from withdrawing such waiver after the Effective Date or otherwise challenging the occurrence of the Effective Date on the basis that such condition was not satisfied, the waiver of such condition precedent shall benefit from the “equitable mootness” doctrine, and the occurrence of the Effective Date shall foreclose any ability to challenge the Plan in any Court. If the Plan is confirmed for fewer than all of the Debtors, the Debtors may, with the reasonable consent of Abra and the Committee, proceed with implementing the Plan and the occurrence of the Effective Date with respect to those Debtors for which the Plan is confirmed and, in such circumstances, only the conditions applicable to the Debtor or Debtors for which the Plan is confirmed must be satisfied or waived for the Effective Date to occur with respect to such Debtor or Debtors.
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Article XI
Modification, Revocation or
Withdrawal of Plan
A. | Modification and Amendments |
Subject to the rights of Abra and the Committee in the Plan Support Agreement, the Debtors shall have the right to modify the Plan, whether such modification is material or immaterial, and seek confirmation of the Plan consistent with the requirements of the Bankruptcy Code. After entry of the Confirmation Order, the Debtors or Reorganized Debtors, as applicable, may, upon order of the Bankruptcy Court, amend or modify the Plan in accordance with section 1127(b) of the Bankruptcy Code, remedy any defect or omission, reconcile any inconsistency in the Plan (including, for the avoidance of doubt, with respect to Article VI.A and the schedules referenced therein) in such manner as may be necessary to carry out the purpose and intent of the Plan consistent with the terms of the Restructuring Transactions, or withdraw or revoke the Plan, in each case subject to the rights of Abra and the Committee in the Plan Support Agreement.
B. | Effect of Confirmation on Modifications |
Entry of the Confirmation Order shall mean that all modifications or amendments to the Plan effected after the solicitation of votes thereon are approved pursuant to section 1127(a) of the Bankruptcy Code and do not require additional disclosure or re-solicitation under Bankruptcy Rule 3019; provided, that any such modifications or amendments to the Plan shall be in form and substance reasonably acceptable to Abra and the Committee.
C. | Revocation or Withdrawal of Plan |
Subject to the rights of Abra and the Committee in the Plan Support Agreement, the Debtors reserve the right to revoke or withdraw the Plan with respect to any or all of the Debtors prior to the Confirmation Date and to file other chapter 11 plans. If the Debtors revoke or withdraw the Plan or confirmation of the Plan does not occur, then: (i) the Plan shall be null and void in all respects; (ii) any settlement or compromise memorialized in the Plan (including the fixing or limiting to an amount certain of any Claim or Class of Claims), the assumption of Executory Contracts or Unexpired Leases under the Plan, and any document or agreement executed pursuant to the Plan, shall be deemed null and void; and (iii) nothing contained in the Plan shall: (a) constitute a waiver or release of any Claim or Interest; (b) prejudice in any manner the rights of any Debtor or any other Person or Entity; or (c) constitute an admission, acknowledgement, offer, or undertaking of any sort by any Debtor or any other Person or Entity.
Article
XII
Retention of Jurisdiction
Notwithstanding the entry of the Confirmation Order and the occurrence of the Effective Date, on and after the Effective Date, the Bankruptcy Court shall retain jurisdiction over all matters arising out of, or related to, the Chapter 11 Cases and the Plan pursuant to sections 105(a) and 1142 of the Bankruptcy Code, including jurisdiction to:
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1. allow, disallow, determine, liquidate, classify, estimate, or establish the priority, secured or unsecured status, or amount of any Claim or Interest, including (i) the resolution of any request for payment of any Administrative Expense and (ii) the resolution of any objection relating to the foregoing;
2. decide and resolve all matters related to the granting and denying, in whole or in part, of any applications for Allowance of compensation or reimbursement of expenses to Professionals;
3. resolve any matters related to: (i) the assumption, assumption and assignment, or rejection of any Executory Contract or Unexpired Lease and to hear, determine, and, if necessary, liquidate, any Claims arising therefrom, including Claims for rejection damages or Cure Claims; (ii) any contractual obligation under any Executory Contract or Unexpired Lease that is assumed or assumed and assigned; and (iii) any dispute regarding whether a contract or lease is or was executory or expired;
4. ensure that distributions to the holders of Allowed Claims are accomplished pursuant to the provisions of the Plan;
5. adjudicate, decide, or resolve any motions, adversary proceedings, contested matters, and applications pending in the Chapter 11 Cases on the Effective Date;
6. adjudicate, decide, or resolve any and all matters related to sections 1141, 1145, and 1146 of the Bankruptcy Code;
7. enter and implement such orders as may be necessary or appropriate to execute, implement, or consummate the provisions of the Plan and all contracts, instruments, releases, indentures, and other agreements or documents created in connection with the Plan;
8. enter and enforce any order for the sale or transfer of property pursuant to sections 363, 1123, or 1146(a) of the Bankruptcy Code;
9. resolve any cases, controversies, suits, disputes, or Causes of Action that may arise in connection with the Consummation, interpretation, or enforcement of the Plan or any Person’s or Entity’s obligations under or in connection with the Plan;
10. issue injunctions, enter and implement other orders, or take such other actions as may be necessary or appropriate to restrain interference by any Person or Entity with Consummation or enforcement of the Plan and ensure compliance with the Plan;
11. resolve any cases, controversies, suits, disputes, or Causes of Action with respect to the releases, exculpation, injunctions, and other provisions contained in Article IX, and enter such orders as may be necessary or appropriate to implement or enforce such releases, injunctions, exculpation, and other provisions;
12. resolve any controversies, suits, disputes, or Causes of Action with respect to the repayment or return of distributions and the recovery of additional amounts owed by holders of Claims not timely repaid pursuant to Article VIII.I.1;
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13. enter and implement such orders as are necessary or appropriate if the Confirmation Order is for any reason modified, stayed, reversed, revoked, or vacated;
14. determine any other matters that may arise in connection with, or relate to, the Plan, the Disclosure Statement, the Confirmation Order, or any contract, instrument, release, indenture, or other agreement or document created in connection with the Plan or the Disclosure Statement;
15. adjudicate any and all disputes arising from or relating to distributions under the Plan;
16. consider any modifications of the Plan to cure any defect or omission or to reconcile any inconsistency in any prior order, including the Confirmation Order;
17. hear and determine disputes arising in connection with the interpretation, implementation, or enforcement of the Plan or the Confirmation Order, including disputes arising under agreements, documents, or instruments executed in connection with the Plan;
18. hear and determine matters concerning state, local, and federal taxes and fees in accordance with sections 346, 505, and 1146 of the Bankruptcy Code;
19. hear and determine all disputes involving the existence, nature, scope, and enforcement of any exculpations, discharges, injunctions, and releases granted in the Plan, including under Article IX, regardless of whether such dispute occurred before or after the Effective Date;
20. recover all assets of the Debtors and property of the Estates, wherever located;
21. resolve any disputes concerning whether a Person or an Entity had sufficient notice of the Chapter 11 Cases, the Disclosure Statement, any solicitation conducted in connection with the Chapter 11 Cases, any bar date established in the Chapter 11 Cases, or any deadline for responding or objecting to the amount of a Cure Claim, in each case, for the purpose of determining whether a Claim or an Interest is discharged hereunder or for any other purpose;
22. hear and determine any rights, claims, or Causes of Action held by, or accruing to, any Debtor pursuant to the Bankruptcy Code or pursuant to any statute or legal theory, including those set forth on the Schedule of Retained Causes of Action;
23. enforce all orders previously entered by the Bankruptcy Court;
24. enter an order or final decree closing the Chapter 11 Cases; and
25. hear any other matter as to which the Bankruptcy Court has jurisdiction;
provided, however, that documents contained in the Plan Supplement shall be governed in accordance with applicable jurisdictional, forum selection, or dispute resolution clauses in such documents.
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Article XIII
Miscellaneous Provisions
A. | Immediate Binding Effect |
Subject to Article X.A and notwithstanding Bankruptcy Rules 3020(e), 6004(h), or 7062 or otherwise, upon Consummation, the terms of the Plan shall be immediately effective, enforceable, and binding upon the Debtors, the Reorganized Debtors, all holders of Claims and Interests (irrespective of whether the holders of such Claims or Interests have accepted the Plan), all Persons and Entities that are party, or subject, to the settlements, compromises, releases, discharges, and injunctions described in the Plan, each Person or Entity acquiring property under the Plan, and all of the Debtors’ counterparties to Executory Contracts, Unexpired Leases, and any other prepetition agreements.
B. | Additional Documents |
On or before the Effective Date, the Debtors may enter into any such agreements and other documents as may be necessary or appropriate to effectuate and further evidence the terms and conditions of the Plan. The Debtors or the Reorganized Debtors, as applicable, all holders of Claims or Interests receiving distributions under the Plan, and all other parties in interest may, 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.
C. | Statutory Fees and Quarterly Reports |
All fees due and payable pursuant to section 1930 of Title 28 of the U.S. Code (the “Quarterly Fees”) prior to the Effective Date shall be paid by the applicable Debtors on the Effective Date. Each Debtor and each Reorganized Debtor shall remain obligated to pay all Quarterly Fees payable to the U.S. Trustee until the earliest of the particular Debtor’s Chapter 11 Case being closed, dismissed, or converted to a case under chapter 7 of the Bankruptcy Code. Notwithstanding the foregoing, nothing herein shall prohibit the Reorganized Debtors (or the Disbursing Agent on behalf of the Reorganized Debtors) from paying any Quarterly Fees.
After the Effective Date, the Reorganized Debtors shall be jointly and severally liable to pay any and all Quarterly Fees when due and payable. The Debtors shall file all quarterly reports due prior to the Effective Date when they become due, in a form reasonably acceptable to the U.S. Trustee. After the Effective Date, the applicable Reorganized Debtors shall file the quarterly reports when they become due, in a form reasonably acceptable to the U.S. Trustee.
D. | Reservation of Rights |
Except as expressly set forth in the Plan, the Plan shall have no force or effect unless the Bankruptcy Court enters the Confirmation Order, and the Confirmation Order shall have no force or effect as to a Debtor if the Effective Date does not occur as to such Debtor. None of the filing of the Plan, any statement or provision contained in the Plan, or the taking of any action by any Debtor with respect to the Plan, the Disclosure Statement, or the Plan Supplement shall be or shall be deemed to be an admission or waiver of any rights of any Debtor with respect to any Claims or Interests before Consummation.
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E. | Successors and Assigns |
The rights, benefits, and obligations of any Person or Entity named or referred to in the Plan shall be binding on, and shall inure to the benefit of any heir, executor, administrator, successor or assign, affiliate, officer, director, agent, representative, attorney, beneficiaries, or guardian, if any, of each such Person or Entity.
F. | Notices |
Any pleading, notice, or other document required by the Plan to be served on or delivered to the Debtors or the Committee shall be served on:
If to the Debtors, to:
GOL Linhas Aéreas Inteligentes
S.A.
Praça Comandante Linneu Gomes, S/N, Portaria 3
Jardim Aeroporto 04626-020 São Paulo, São Paulo, Federative Republic of Brazil
Attention: Joseph W. Bliley
Email: jwbliley@voegol.com.br
with copies to (which shall not constitute notice):
Milbank LLP
55 Hudson Yards
New York, NY 10001
Attention: Evan R. Fleck, Esq.
Lauren C. Doyle, Esq.
Bryan V. Uelk, Esq.
Email: efleck@milbank.com
ldoyle@milbank.com
buelk@milbank.com
-and-
Milbank LLP
2029 Century Park East, 33rd Floor
Los Angeles, CA 90067
Attention: Gregory A. Bray, Esq.
Email: gbray@milbank.com
-and-
Milbank LLP
1850 K St. NW, Suite 1100
Washington, DC 2006
Attention: Andrew M. Leblanc, Esq.
Erin E. Dexter, Esq.
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Email: aleblanc@milbank.com
edexter@milbank.com
If to the Committee:
Willkie Farr & Gallagher
LLP
787 Seventh Avenue
New York, NY 10019
Attention: Brett Miller, Esq.
Todd Goren, Esq.
Craig A. Damast, Esq.
James H. Burbage, Esq.
Email: bmiller@willkie.com
tgoren@willkie.com
cdamast@willkie.com
jburbage@willkie.com
G. | Notice of Entry of Confirmation Order |
In the notice to be sent to creditors by the Debtors following entry of the Confirmation Order informing creditors that the Bankruptcy Court has confirmed the Plan and providing such other information as required by the Confirmation Order, the Debtors shall notify all Persons and Entities that, in order to continue to receive documents after the Effective Date pursuant to Bankruptcy Rule 2002, such Person or Entity (excluding the U.S. Trustee) must file a renewed request to receive documents pursuant to Bankruptcy Rule 2002. After service of such notice and the occurrence of the Effective Date, the Reorganized Debtors shall be authorized to limit the list of Persons and Entities receiving documents pursuant to Bankruptcy Rule 2002 to the Reorganized Debtors, the U.S. Trustee, and those Persons and Entities who have filed such renewed requests.
H. | 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 on the Confirmation Date pursuant to sections 105 or 362 of the Bankruptcy Code or any order of the Bankruptcy Court (excluding any injunctions or stays contained in the Plan or the Confirmation Order) shall remain in full force and effect until the Effective Date. For the avoidance of doubt, (i) upon the Effective Date, the automatic stay pursuant to section 362 of the Bankruptcy Code of any litigation proceedings against or involving the Debtors shall terminate and (ii) all injunctions or stays contained in the Plan or the Confirmation Order shall remain in full force and effect in accordance with their terms.
I. | Entire Agreement |
Except as otherwise indicated, the Plan (including the Plan Supplement) supersedes all previous and contemporaneous negotiations, promises, covenants, agreements, understandings, and representations, all of which have become merged and integrated into the Plan.
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J. | Exhibits |
All exhibits, schedules, supplements, and appendices to the Plan (including any documents to be executed, delivered, assumed, or performed in connection with the occurrence of the Effective Date) are incorporated into and are a part of the Plan as if set forth in full in the Plan. To the extent any exhibit or document is inconsistent with the terms of the Plan, unless stated otherwise herein or ordered by the Bankruptcy Court, the Plan shall control.
K. | Non-Severability of Plan Provisions |
Before Confirmation, if any term or provision of the Plan is held by the Bankruptcy Court to be invalid, void, or unenforceable, the Bankruptcy Court 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 enforceable as so altered or interpreted. Notwithstanding any such alteration or interpretation, the remainder of the terms and provisions of the Plan shall remain in full force and effect and shall in no way be affected, impaired, or invalidated. Confirmation shall constitute a judicial determination that each term and provision of the Plan, as it may have been altered or interpreted in accordance with the foregoing, is: (i) valid and enforceable pursuant to its terms; (ii) integral to the Plan and may not be deleted or modified without consent of the Debtors; and (iii) non-severable and mutually dependent.
L. | Votes Solicited in Good Faith |
Upon entry of the Confirmation Order, the Debtors shall be deemed to have solicited votes on the Plan in good faith and in compliance with the Bankruptcy Code. Upon entry of the Confirmation Order, pursuant to section 1125(e) of the Bankruptcy Code, the Debtors and their respective affiliates, agents, representatives, members, principals, shareholders, officers, directors, employees, advisors, and attorneys shall be deemed to have participated in good faith and in compliance with the Bankruptcy Code in the offer, issuance, sale, and purchase of securities offered and sold under the Plan, and, therefore, none of the Reorganized Debtors or such Persons or Entities shall have any liability for the violation of any law, rule, or regulation governing the solicitation of votes on the Plan or the offer, issuance, sale, or purchase of the securities offered and sold under the Plan.
M. | Document Retention |
On and after the Effective Date, the Reorganized Debtors may maintain documents in accordance with the Debtors’ current document retention policy, as it may be altered, amended, modified, or supplemented by the Reorganized Debtors.
N. | Conflicts |
In the event of a conflict between the Plan and the Disclosure Statement, the terms of the Plan shall control in all respects. In the event of a conflict between the Plan and any document in the Plan Supplement, the terms of the relevant document in the Plan Supplement shall control (unless stated otherwise in such Plan Supplement document or in the Confirmation Order); provided, that, in the event any such conflict is a material conflict of the type that would require
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the Debtors to re-solicit the votes on the Plan under section 1127 of the Bankruptcy Code, the Plan shall control solely with respect to such provision giving rise to such material conflict. In the event of a conflict between the Confirmation Order and the Plan or Plan Supplement, the Confirmation Order shall control. In the event of a conflict between the description or summary of any Definitive Document (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents) set forth herein and such Definitive Document, the terms of the relevant Definitive Document shall control in all respects.
O. | Dissolution of Committee |
On the Effective Date, the Committee (and any other statutory committees that may have been appointed in the Chapter 11 Cases) shall be deemed to have been dissolved, and the members thereof, and their respective officers, employees, counsel, advisors and agents, shall be released and discharged of and from all further authority, duties, responsibilities, and obligations related to, arising from, and in connection with the Chapter 11 Cases, except with respect to any continuing confidentiality obligations, prosecuting requests for Allowance of compensation and reimbursement of expenses incurred prior to the Effective Date, appointment of the General Unsecured Claim Observer, and, in the event that the Bankruptcy Court’s entry of the Confirmation Order is appealed, participating in such appeal. Subject to Article VII.C, from and after the Effective Date, the Reorganized Debtors shall continue to pay, when due and payable in the ordinary course of business, the reasonable and documented fees and expenses of the Committee’s professionals solely to the extent arising out of or related to the foregoing without further order of the Bankruptcy Court.
[Remainder of page intentionally left blank]
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Dated: March 20, 2025
GOL Linhas Aéreas Inteligentes S.A., on behalf
of itself and its Debtor affiliates
By: | /s/ Joseph W. Bliley |
Name: Joseph W. Bliley
Title: Chief Restructuring Officer
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Exhibit 1
Transaction Steps
These Transaction Steps, as defined in the Second Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors (as may be amended from time to time, the “Plan”),[2] set forth certain actions or steps that the Debtors anticipate may be necessary or appropriate to implement the Restructuring Transactions. These Transaction Steps are not intended to be the sole or exclusive actions or steps that may or shall be taken by the Debtors, the Reorganized Debtors, or other parties in connection with the implementation of the Restructuring Transactions, and nothing herein shall limit the Debtors’ or the Reorganized Debtors’ ability to take these or such other actions or steps as they determine to be necessary or appropriate to implement the Restructuring Transactions in accordance with the terms of the Plan. These Transaction Steps may be amended, supplemented, or modified from time to time by the Debtors through the Effective Date with the consent of Abra and the Committee.
Prior to the Effective Date
Step | 1 Abra Global Finance (“AGF”), holder of the 2028 Senior Secured Exchangeable Notes issued by Gol Equity Finance (“GEF”), will be deemed (without need for any notice, filing, consent, or other action) to have assigned $941 million of such notes to Abra Group Limited (“AGL”), in exchange for a new credit held by AGF against AGL. |
Step | 2 Subject to the occurrence of the Effective Date, GLAI will agree to assume, as main obligor (assunção de dívida), all claims that will be equitized under the Plan (collectively, the “Subject Claims”) in exchange for intercompany receivables against the original obligors of the Subject Claims (GLA, GFC, GFL, GEF, GAC, Smiles Fidelidade, Smiles Viagens, Smiles Argentina, and Smiles Viajes) (the “Debt Assumption”). |
Step | 3 The Board of Directors of GLAI will call a shareholders’ meeting of GLAI (the “GLAI Shareholders’ Meeting”)[3] in accordance with applicable law to approve: |
[2] | Capitalized terms used but not otherwise defined herein have the meanings given to them in the Plan. |
[3] | In connection with calling the GLAI Shareholders’ Meeting, GLAI shall disclose on the websites of GLAI, the Brazilian Securities Commission (Comissão de Valores Mobiliários – CVM), and the Brazilian Stock Exchange (B3 S.A. – Brasil, Bolsa, Balcão or “B3”) (i) the calling notice (edital de convocação), with the description of the agenda of the GLAI Shareholders’ Meeting, and (ii) management’s proposal with respect to such agenda. The calling notice shall also be published in the “Valor Econômico” newspaper. |
a. | a capital increase at Reorganized GLAI to give effect to the capitalization of the Subject Claims[4]; |
b. | the issuance of shares by Reorganized GLAI to Gol Intermediate Co. and the Reorganized GLAI shareholders, if any, who exercise their preemptive rights during the Preemptive Rights Offering Period (as defined below) (the “Reorganized GLAI Share Issuance”)[5]; |
c. | the price per share to be used in the Reorganized GLAI Share Issuance (the “Issue Price”), taking into account two appraisal reports that will be prepared prior to the GLAI Shareholders’ Meeting; and |
d. | any other matter required to implement the transactions contemplated by these Transaction Steps and/or the Plan, including the reverse split of shares of Reorganized GLAI to be implemented after the Effective Date on terms determined by AGL and the Reorganized Debtors.[6] |
Step | 4 If, upon receipt of shares of New Equity on the Effective Date (or as soon as reasonably practicable thereafter) or as otherwise set forth in the Plan, any holder of a Subject Claim (other than AGL, New GOL Parent, and Gol Intermediate Co. (each as defined below)) will directly or indirectly hold (or is expected by the Debtors to directly or indirectly hold) 5% or more of the shares of New GOL Parent, Gol Intermediate Co. or Reorganized GLAI, such holder, prior to receiving shares of New Equity under the Plan, shall be required to represent to the Debtors and Abra that (i) such holder’s Economic Group[7] has not had BRL 75 million in gross revenues in Brazil (including export sales |
[4] | For purposes of determining the final amount in BRL of the capital increase, the dollar amount of the Subject Claims will be converted into BRL using the BRL Exchange Rate as of closing on the Brazil Business Day immediately preceding the Effective Date. The number of shares to be issued will be determined based on such BRL amount and will be ratified in a meeting of the Board of Directors of Reorganized GLAI to be held on the Effective Date (or as soon as reasonably practicable thereafter) pursuant to Step 13. |
[5] | The shares to be issued by Reorganized GLAI may include common and preferred shares. |
[6] | Under the B3 regulations, the share price of a Brazilian-listed company must be at least BRL 1.00. As a result of the capitalization of the Subject Claims, it is anticipated that Reorganized GLAI’s share price will fall below this threshold. Consequently, the reverse split of shares of Reorganized GLAI is intended to restore the share price to higher value in compliance with the B3 regulations. |
[7] | For purposes of this paragraph, “Economic Group” means in respect of a holder of a Subject Claim: (i) the holder of a Subject Claim; (ii) any person or entity who directly or indirectly holds control or an equity interest equal to or higher than 20% in the holder of a Subject Claim; and (iii) all companies in which the holder of the Subject Claim or the persons or entities that fall within item (ii) above, directly or indirectly, hold control or an equity interest equal to or higher than 20%. In case the holder of a Subject Claim or any of the entities that fall within item (ii) above is a fund, “Economic Group” will also mean (a) any quotaholders that holds directly or indirectly 50% of the quotas of such fund, (b) any quotaholders that directly or indirectly is currently linked to a quotaholders’ agreement and (c) all companies in which any of the quotaholders listed in items (a) or (b), directly or indirectly, holds control or an equity interest equal to or higher than 20%. |
2 |
to Brazil) in the last fiscal year and (ii) if such holder’s Economic Group has had BRL 75 million in gross revenues in Brazil (including export sales to Brazil) in the last fiscal year, that its Economic Group does not directly or indirectly hold control of and/or hold 20% or more of the equity interests (voting or non-voting) of a Competing Business.[8]
a. | Any holder of a Subject Claim that is unable to make such representation (such holder, a “Specific Holder”) will inform the Debtors and Abra in writing as soon as such holder becomes aware that they are unable to make such representation. |
Step | 5 No earlier than thirty (30) days after Step 3, the GLAI Shareholders’ Meeting will be held, and AGL and Abra Mobi LLP and Abra Kingsland LLP (each, an “Abra LLP” and, together, the “Abra LLPs”), holders of the common shares of GLAI, will approve the matters described in Step 3. |
Step | 6 A shareholders’ meeting of GLA (the “GLA Shareholders’ Meeting”) will be called to approve a capital increase at Reorganized GLA by means of a capitalization or capital contribution, as applicable, by Reorganized GLAI as described in Step 12. |
On the Effective Date (or as soon as reasonably practicable thereafter)
Step | 7 The Debt Assumption will become effective and, as a result, Reorganized GLAI will be the main obligor of the Subject Claims and will have receivables against the original obligors of the Subject Claims equal to the total amount of each such obligor’s respective obligations. |
Step | 8 AGL will acquire (or will have acquired) an entity formed under the laws of Luxembourg (or such other jurisdiction as may be agreed by the Debtors, Abra, and the Committee in accordance with the Plan Support Agreement) (“New GOL Parent”). New GOL Parent will acquire or incorporate (or will have acquired or incorporated) an entity organized under the laws of Brazil (“Gol Intermediate Co.”). |
[8] | For purposes of this paragraph, “Competing Business” means companies that (i) compete with Reorganized GLAI and its subsidiaries in Brazil or abroad in air cargo or passenger transportation; (ii) compete with Reorganized GLAI and its subsidiaries in Brazil in loyalty programs, aircraft chartering or tourism/travel intermediation (i.e., travel agencies); and (iii) are vertically related (i.e., clients or suppliers) to the sector or markets mentioned in items (i) and (ii) above. |
3 |
Step | 9 Holders of the Subject Claims will contribute their respective Subject Claims to New GOL Parent and receive, in full and final satisfaction of such claims, shares of New Equity issued by New GOL Parent on the terms set forth in the Plan. |
a. | If any Specific Holder’s indirect acquisition of shares of Reorganized GLAI would require approval from Brazilian antitrust authorities pursuant to applicable laws of Brazil (“Antitrust Approval”),[9] the shares of New Equity that such Specific Holder is entitled to receive will remain in escrow with New GOL Parent, on behalf of such Specific Holder, until the Antitrust Approval is obtained. While such shares are held in escrow, the Specific Holder will not be entitled to any voting rights in connection with such shares, and any economic rights attributed to those shares will also be held in escrow to be paid to the Specific Holder together with the delivery of those escrowed shares once Antitrust Approval is obtained. |
Step | 10 New GOL Parent will contribute the Subject Claims to Gol Intermediate Co. in exchange for shares of Gol Intermediate Co. The contribution to Gol Intermediate Co. will be registered with the BCB as a direct foreign investment in Gol Intermediate Co. |
Step | 11 Gol Intermediate Co. will capitalize the Subject Claims in Reorganized GLAI, in exchange for shares of Reorganized GLAI. |
a. | As a result, Existing GLAI Equity Interests will be significantly diluted, and Gol Intermediate Co. will be the majority shareholder of Reorganized GLAI. |
Step | 12 Reorganized GLA assumes, as main obligor (assunção de dívida), the obligation to pay all intercompany receivables held by Reorganized GLAI against the other original obligors of the Subject Claims, and Reorganized GLAI capitalizes, in Reorganized GLA, the intercompany receivables against Reorganized GLA (including the intercompany receivables against the other original obligors) in exchange for shares of Reorganized GLA by means of the capital increase approved at the GLA Shareholders’ Meeting. |
a. | As a result, Reorganized GLAI’s intercompany receivable against Reorganized GLA will be extinguished, and Reorganized GLA will have intercompany receivables against the other original obligors of the Subject Claims. |
b. | In addition, Reorganized GLA will receive funds in satisfaction of the intercompany receivables against the other original obligors of the Subject Claims, |
[9] | Any Specific Holder shall cooperate with Reorganized GLAI to submit all required documents and information to apply for the Antitrust Approval. |
4 |
contribute such receivables to each of the respective original obligor, and/or remain as creditor of those receivables against the respective original obligor, as applicable.
Step | 13 A meeting of the Board of Directors of Reorganized GLAI will be held to (i) ratify the number of shares to be issued by Reorganized GLAI in the GLAI Share Issuance; (ii) approve the issuance of a certificate confirming the conditions precedent to the Effective Date have been satisfied or waived in accordance with the Plan; and (iii) confirm that the modifications to the Bylaws of Reorganized GLAI in connection with matters described in Step 3 become effective. |
After the Occurrence of the Actions and Transactions Contemplated by Steps 7-13
Step | 14 As a result of the cancellation of the 2028 Notes Claims, the exclusive voting rights of each Abra LLP, including the right to direct the voting of the Reorganized GLAI common shares held by each Abra LLP, will automatically transfer to AGL. AGL will then assume sole responsibility for managing and controlling the Abra LLPs, holding the exclusive voting rights in each Abra LLP and indirectly in Reorganized GLAI (through Reorganized GLAI shares held by the Abra LLPs). |
a. | After the cancelation of the 2028 Notes, each Abra LLP will transfer their shares in Reorganized GLAI to AGL. |
b. | The Abra LLPs will be liquidated after they transfer their shares in Reorganized GLAI to AGL. |
Step | 15 No earlier than one day after the Effective Date, Reorganized GLAI will disclose to its shareholders that the GLAI Preemptive Rights Offering has commenced. Shareholders will have at least thirty (30) days to exercise their preemptive rights (the “Preemptive Rights Offering Period”). |
a. | If any shareholder exercises their preemptive rights, Reorganized GLAI will transfer the proceeds therefrom to Gol Intermediate Co., and the number of shares of Reorganized GLAI that Gol Intermediate Co. would otherwise receive will be reduced by the same number of shares subscribed by those shareholders exercising their preemptive rights. |
b. | Any proceeds received by Gol Intermediate Co. as a result of the exercise of such preemptive rights may be further transferred, lent to or contributed to Reorganized GLAI after the expiration of the Preemptive Rights Offering Period in a manner to be determined by Gol Intermediate Co. |
Step | 16 Gol Intermediate Co. will (i) subscribe for the shares corresponding to the preemptive rights transferred to it by AGL and the Abra LLPs, by means of the execution of a subscription bulletin (boletim de subscrição); and (ii) take custody of the corresponding shares issued through the Reorganized GLAI Share Issuance, subject to the timing and operational procedures of Reorganized GLAI’s bookkeeping agent. |
5 |
Step | 17 The Preemptive Rights Offering Period will end. |
Step | 18 Reorganized GLAI will release a notice to its shareholders informing them of the end of the Preemptive Rights Offering Period and issuance of shares (through the Reorganized GLAI Share Issuance) to Gol Intermediate Co. and any shareholder of Reorganized GLAI that timely exercised their preemptive rights and paid the corresponding Issue Price. |
Step | 19 Shareholders of Reorganized GLAI who exercised their preemptive rights will take custody of the subscribed for shares. |
Step | 20 Gol Intermediate Co. will subscribe and take custody of the additional shares issued to it through the Reorganized GLAI Share Issuance (i.e., any shares that were not subscribed by Reorganized GLAI shareholders exercising their preemptive rights). |
Step | 21 Subject to any approval by Brazilian antitrust authorities that may be needed pursuant to applicable laws of Brazil, one or more investors, if any, purchases Incremental New Money Equity or shares of Gol Intermediate Co., through an equity capital contribution.[10] If any third-party investor purchases such shares, the funds may be further contributed by New GOL Parent into Gol Intermediate Co. (if applicable) and further invested by Gol Intermediate Co. in Reorganized GLAI in a manner to be determined by New GOL Parent. |
Step | 22 The reverse split of Reorganized GLAI shares approved at the GLAI Shareholders Meeting, as described in Step 3 above, will become effective. |
Step | 23 To the extent necessary according to Step 9, Reorganized GLAI and the other relevant parties will request Antitrust Approval. Upon obtaining Antitrust Approval, if necessary, the applicable Specific Holders will receive the shares of New Equity and other amounts held in escrow pursuant to Step 9. |
[10] | The final investment structure by strategic investors, including whether it will involve the subscription of shares or another mechanism, may change and will be determined together with the relevant strategic investor, if any. |
6 |
Exhibit T3E.2 - Disclosure Statement for Second Modified Third Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors, dated as of March 20, 2025
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x | ||
: | ||
In re: | : | Chapter 11 |
: | ||
GOL Linhas Aéreas Inteligentes S.A., | : | Case No. 24-10118 (MG) |
et al.,[1] | : | |
: | ||
Debtors. | : | (Jointly Administered) |
: | ||
-----------------------------------------------------------------x |
Disclosure Statement
for SECOND modified third
AMENDED Joint Chapter 11 Plan oF REORGANIZATION OF
GOL Linhas Aéreas Inteligentes S.A. aNd Its Affiliated Debtors
[1] | The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, are: GOL Linhas Aéreas Inteligentes S.A. (N/A); GOL Linhas Aéreas S.A. (0124); GTX S.A. (N/A); GAC, Inc. (N/A); GOL Finance (Luxembourg) (N/A); GOL Finance (Cayman) (N/A); Smiles Fidelidade S.A. (N/A); Smiles Viagens e Turismo S.A. (N/A); Smiles Fidelidade Argentina S.A. (N/A); Smiles Viajes y Turismo S.A. (N/A); Capitânia Air Fundo de Investimento Multimercado Crédito Privado Investimento no Exterior (N/A); Sorriso Fundo de Investimento em Cotas de Fundos de Investimento Multimercado Crédito Privado Investimento no Exterior (N/A); and GOL Equity Finance (N/A). The Debtors’ service address is Praça Comandante Linneu Gomes, S/N, Portaria 3, Jardim Aeroporto, 04626-020 São Paulo, São Paulo, Federative Republic of Brazil. |
Disclosure
Statement
Dated March 20, 2025
for the Solicitation
of Votes on the Second Modified
Third Amended Joint Chapter 11 Plan of Reorganization
of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors
This solicitation of votes is being conducted to obtain sufficient votes for confirmation of the second modified third amended chapter 11 plan of GOL Linhas Aéreas Inteligentes S.A. and its affiliated debtors in the above-captioned chapter 11 cases. The proposed second modified third amended chapter 11 plan (the “Plan”) is attached as Exhibit A to this Disclosure Statement. The deadline to vote to accept or reject the Plan is 4:00 p.m. (prevailing Eastern time) on May 12, 2025, unless extended by the Debtors. For your vote to be counted, your ballot must be actually received by the solicitation agent before such time as described herein. The record date for determining which holders of Claims may vote on the Plan is March 12, 2025 (the “Voting Record Date”). |
Recommendation: Vote to Accept Each of the Debtors, through their respective corporate governance processes, have approved the transactions contemplated by the Plan. The Debtors believe the Plan is in the best interests of all stakeholders and recommend that all eligible holders vote to accept the Plan. Please note that the Official Committee of Unsecured Creditors recommends that all unsecured creditors vote to accept the Plan. A copy of the Committee’s letter to that effect is attached to this Disclosure Statement as Exhibit F (the “Committee Recommendation Letter”). |
IMPORTANT NOTICES
A HEARING TO CONSIDER CONFIRMATION OF THE PLAN (THE “CONFIRMATION HEARING”) WILL BE HELD BEFORE THE HONORABLE MARTIN GLENN, CHIEF UNITED STATES BANKRUPTCY JUDGE, AT THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ONE BOWLING GREEN, COURTROOM 523, NEW YORK, NY 10004 ON MAY 20, 2025 AT 10:00 A.M. (PREVAILING EASTERN TIME), OR AS SOON AS REASONABLY PRACTICABLE THEREAFTER, DEPENDING ON THE BANKRUPTCY COURT’S AVAILABILITY.
PLEASE READ THIS DISCLOSURE STATEMENT, INCLUDING THE PLAN, IN ITS ENTIRETY. A COPY OF THE PLAN IS ANNEXED HERETO AS EXHIBIT A. THIS DISCLOSURE STATEMENT SUMMARIZES THE TERMS OF THE PLAN, BUT SUCH SUMMARY IS QUALIFIED IN ITS ENTIRETY BY THE ACTUAL PROVISIONS OF THE PLAN. ACCORDINGLY, IF THERE ARE ANY INCONSISTENCIES BETWEEN THE PLAN AND THIS DISCLOSURE STATEMENT, THE TERMS OF THE PLAN SHALL CONTROL.
HOLDERS OF CLAIMS AND INTERESTS SHOULD NOT CONSTRUE THE CONTENTS OF THIS DISCLOSURE STATEMENT AS PROVIDING ANY LEGAL, BUSINESS, FINANCIAL, OR TAX ADVICE, AND SHOULD CONSULT WITH THEIR OWN ADVISERS BEFORE CASTING A VOTE ON THE PLAN.
THE DEBTORS AND THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS SUPPORT THE PLAN AND URGE ALL PARTIES TO VOTE IN FAVOR OF THE PLAN.
THE SECURITIES TO BE ISSUED PURSUANT TO THE PLAN ON OR AFTER THE EFFECTIVE DATE WILL NOT HAVE BEEN THE SUBJECT OF A REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) UNDER THE SECURITIES ACT OF 1933 (AS AMENDED, THE “SECURITIES ACT”), OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE UNDER THE APPLICABLE STATE SECURITIES LAW OR SIMILAR PUBLIC GOVERNMENTAL OR REGULATORY AUTHORITY IN ANY JURISDICTION. THE ISSUANCE AND DISTRIBUTION OF NEW EQUITY PURSUANT TO THE PLAN WILL BE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND ANY OTHER APPLICABLE SECURITIES LAWS PURSUANT TO SECTION 1145 OF TITLE 11 OF THE U.S. CODE, 11 U.S.C. §§ 101–1532 (AS AMENDED, THE “BANKRUPTCY CODE”) OR, TO THE EXTENT NOT AVAILABLE, PURSUANT TO THE EXEMPTION FROM REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT PROVIDED BY SECTION 4(A)(2) OF THE SECURITIES ACT, INCLUDING POTENTIALLY PURSUANT TO THE SAFE HARBOR PROVIDED BY REGULATION D PROMULGATED UNDER THE SECURITIES ACT AND OTHER APPLICABLE EXEMPTIONS FROM REGISTRATION (AND IN EACH CASE, ON EQUIVALENT STATE LAW REGISTRATION EXEMPTIONS). SUBJECT TO THE APPLICABLE PROVISIONS OF THE NEW ORGANIZATIONAL DOCUMENTS, THESE SECURITIES MAY BE RESOLD WITHOUT REGISTRATION (I) UNDER THE SECURITIES ACT OR OTHER U.S. FEDERAL SECURITIES LAWS PURSUANT TO THE EXEMPTION PROVIDED BY SECTION 4(A)(1) OF THE SECURITIES ACT, UNLESS THE HOLDER IS AN “UNDERWRITER” WITH RESPECT TO SUCH SECURITIES, AS THAT TERM IS DEFINED IN SECTION 1145(B) OF THE BANKRUPTCY CODE, AND (II) UNDER STATE SECURITIES LAWS PURSUANT TO VARIOUS EXEMPTIONS PROVIDED BY THE LAWS OF THE RESPECTIVE U.S. STATES. NEITHER THIS DISCLOSURE STATEMENT NOR ANY OTHER FILINGS WITH THE BANKRUPTCY COURT CONSTITUTE AN OFFER TO SELL SECURITIES (OR A SOLICITATION OF AN OFFER TO ACQUIRE SECURITIES)
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IN ANY STATE OR JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED.
NEITHER THIS DISCLOSURE STATEMENT NOR THE SECURITIES TO BE ISSUED PURSUANT TO THE PLAN HAVE BEEN APPROVED OR DISAPPROVED BY THE SEC OR BY ANY STATE SECURITIES COMMISSION, NON-U.S. SECURITIES REGULATOR, SECURITIES EXCHANGE, OR SIMILAR PUBLIC, GOVERNMENTAL, OR REGULATORY AUTHORITY. NEITHER THE SEC NOR ANY OTHER AUTHORITY HAS PASSED UPON THE ACCURACY OR ADEQUACY OF THIS DISCLOSURE STATEMENT OR UPON THE MERITS OF THE PLAN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
CERTAIN STATEMENTS AND INFORMATION CONTAINED IN THIS DISCLOSURE STATEMENT, INCLUDING STATEMENTS INCORPORATED BY REFERENCE, FINANCIAL PROJECTIONS, AND OTHER FORWARD-LOOKING STATEMENTS, CONSTITUTE “FORWARD-LOOKING STATEMENTS” WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995 AND ARE BASED ON ESTIMATES AND ASSUMPTIONS. SUCH STATEMENTS CONSIST OF ANY STATEMENT OTHER THAN A RECITATION OF HISTORICAL FACT AND CAN BE IDENTIFIED BY THE USE OF FORWARD-LOOKING TERMINOLOGY, SUCH AS “MAY,” “EXPECT,” “ANTICIPATE,” “ESTIMATE,” “CONTINUE,” OR THE NEGATIVES OF SUCH TERMINOLOGY, AS WELL AS ANY SIMILAR OR COMPARABLE LANGUAGE. FORWARD-LOOKING STATEMENTS IN THIS DISCLOSURE STATEMENT, INCLUDING ANY FINANCIAL PROJECTIONS, ARE SUBJECT TO ASSUMPTIONS, RISKS, AND UNCERTAINTIES, MANY OF WHICH ARE BEYOND THE CONTROL OF THE DEBTORS. IMPORTANT ASSUMPTIONS AND OTHER FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE, BUT ARE NOT LIMITED TO, THOSE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK FACTORS.” ALL FORWARD-LOOKING STATEMENTS ARE AS OF THE DATE MADE, ARE BASED ON THE DEBTORS’ BELIEFS, INTENTIONS, AND EXPECTATIONS AS OF SUCH DATE, AND ARE NOT GUARANTEES OF FUTURE PERFORMANCE, AND THE TIMING AND AMOUNT OF ACTUAL DISTRIBUTIONS TO HOLDERS OF ALLOWED CLAIMS AND INTERESTS, AMONG OTHER THINGS, MAY BE AFFECTED BY MANY FACTORS THAT CANNOT BE PREDICTED. ACTUAL RESULTS OR DEVELOPMENTS MAY DIFFER MATERIALLY FROM THE EXPECTATIONS EXPRESSED OR IMPLIED IN THE FORWARD-LOOKING STATEMENTS, AND THE DEBTORS AND THE DEBTORS AS REORGANIZED UNDERTAKE NO DUTY TO UPDATE ANY SUCH STATEMENTS. THE DEBTORS AND REORGANIZED DEBTORS DO NOT INTEND TO UPDATE OR OTHERWISE REVISE ANY FORWARD-LOOKING STATEMENTS, INCLUDING ANY PROJECTIONS CONTAINED IN THIS DISCLOSURE STATEMENT, TO REFLECT EVENTS OR CIRCUMSTANCES EXISTING OR ARISING AFTER THE DATE OF THIS DISCLOSURE STATEMENT OR TO REFLECT THE OCCURRENCE OF UNANTICIPATED EVENTS OR OTHERWISE, UNLESS INSTRUCTED TO DO SO BY THE BANKRUPTCY COURT.
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NO INDEPENDENT AUDITOR OR ACCOUNTANT HAS REVIEWED OR APPROVED THE FINANCIAL PROJECTIONS OR THE LIQUIDATION ANALYSIS CONTAINED IN, OR ATTACHED TO, THIS DISCLOSURE STATEMENT.
THE DEBTORS HAVE NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR ADVICE, OR TO MAKE ANY REPRESENTATION, IN CONNECTION WITH THE PLAN OR THE DISCLOSURE STATEMENT.
THE STATEMENTS CONTAINED IN THE DISCLOSURE STATEMENT ARE MADE AS OF THE DATE OF THE DISCLOSURE STATEMENT UNLESS OTHERWISE SPECIFIED. THE ENGLISH TEXT IS THE AUTHORITATIVE TEXT OF THIS DISCLOSURE STATEMENT. ALL EXHIBITS TO THIS DISCLOSURE STATEMENT ARE INCORPORATED INTO AND MADE A PART OF THIS DISCLOSURE STATEMENT AS IF SET FORTH IN FULL HEREIN.
THIS DISCLOSURE STATEMENT IS PROVIDED SOLELY TO ASSIST HOLDERS OF CLAIMS AND INTERESTS TO DETERMINE WHETHER TO VOTE TO ACCEPT OR REJECT THE PLAN (WHERE APPLICABLE) AND WHETHER TO OBJECT TO CONFIRMATION OF THE PLAN. NOTHING IN THE DISCLOSURE STATEMENT MAY BE USED BY ANY PERSON FOR ANY OTHER PURPOSE.
RELEASES
THE PLAN PROVIDES THAT THE FOLLOWING HOLDERS OF CLAIMS AND INTERESTS (AND THEIR RELATED PARTIES) SHALL BE DEEMED TO HAVE GRANTED THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE IX.E OF THE PLAN: ALL HOLDERS OF CLAIMS OR INTERESTS (I) IN CLASSES THAT ARE EITHER (A) ENTITLED TO VOTE ON THE PLAN (CLASSES 3, 4, 5, 6, 7, 8, 10(A), 10(B), 10(C), 10(D), 10(F), 10(H), 10(I), 10(J), 10(K), AND 11) OR (B) UNIMPAIRED AND DEEMED TO ACCEPT THE PLAN (CLASSES 1, 2, 9, AND, POTENTIALLY, 13 AND 15) AND (II) WHO DO NOT TIMELY ELECT TO OPT OUT OF THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE IX.E OF THE PLAN BY FOLLOWING THE INSTRUCTIONS ON THE APPLICABLE BALLOT OR NOTICE. FOR THE AVOIDANCE OF DOUBT, HOLDERS OF CLAIMS OR INTERESTS IN CLASSES THAT ARE IMPAIRED AND DEEMED TO REJECT THE PLAN (CLASSES 10(E), 10(G), 10(L), 10(M), 12, 14, AND, POTENTIALLY, 13 AND 15) WILL NOT BE BOUND BY THE THIRD-PARTY RELEASE CONTAINED IN ARTICLE IX.E OF THE PLAN.
FOR MORE INFORMATION ABOUT SUCH RELEASES AND HOW TO OPT OUT THEREOF, PLEASE REFER TO SECTIONS VI.H, VII.C, AND VIII.E OF THIS DISCLOSURE STATEMENT.
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Table of contents
Page
SECTION I. Introduction and overview of the plan | 1 |
A. | The Adequacy of Disclosure | 1 |
B. | Overview of Proposed Restructuring | 2 |
C. | Summary of Classification and Estimated Recoveries of Claims and Interests Under the Plan | 5 |
D. | Voting on the Plan and Opting Out of the Third-Party Release | 7 |
E. | Inquiries | 9 |
F. | Additional Information | 9 |
SECTION II. Overview of the Debtors’ Operations | 10 |
A. | Business Overview | 10 |
1. | General Overview | 10 |
2. | Overview of Operations | 10 |
3. | Employees | 11 |
4. | Route Network | 11 |
5. | Passenger Revenue | 12 |
6. | Smiles | 12 |
7. | Cargo | 13 |
8. | Competition | 13 |
9. | Strengths Going Forward | 14 |
B. | Intercompany Transactions | 15 |
C. | Corporate and Capital Structure | 15 |
1. | Corporate Structure | 15 |
2. | Capital Structure | 16 |
SECTION III. Key Events Leading to the Chapter 11 Cases | 22 |
A. | Boeing 737 MAX 8 Grounding | 22 |
B. | COVID-19 Pandemic | 22 |
C. | Interest Rate and Credit Environment | 23 |
D. | Glide Notes | 23 |
E. | Abra Transaction | 23 |
F. | Prepetition Outreach | 24 |
SECTION IV. Overview of the Chapter 11 Cases | 25 |
A. | Commencement of Chapter 11 Cases and First Day Motions | 25 |
B. | Procedural Motions | 26 |
C. | Retention of Chapter 11 Professionals | 26 |
D. | Restructuring Committee Formation and Commencement of Its Investigation | 27 |
E. | Approval of DIP Facility and Use of Certain Cash Collateral | 31 |
F. | Appointment of Creditors’ Committee | 33 |
i |
G. | Fleet Restructuring | 33 |
H. | Exclusivity | 35 |
I. | Schedules and Claims Bar Dates | 35 |
J. | LATAM Dispute | 35 |
K. | Settlements with Certain Banks | 36 |
L. | Business Plan | 37 |
M. | Brazilian Tax Settlement Agreement | 37 |
N. | Abra and Azul Memorandum of Understanding | 38 |
O. | Diligence Sought by Certain Noteholders | 39 |
SECTION V. Plan support agreement and SETTLEMENT | 41 |
A. | Restructuring Negotiations, Committee Investigation into Prepetition Transactions, and Execution of the Plan Support Agreement | 41 |
B. | Value of New Equity | 44 |
C. | Value of 2026 Senior Secured Notes Claims | 45 |
D. | Allocation of Value Among Classes 10(a)–(m) – General Unsecured Claims | 46 |
SECTION VI. Summary of THE Plan | 47 |
A. | Administrative Expenses and Other Unclassified Claims | 47 |
1. | Administrative Expenses | 47 |
2. | Professional Fees | 48 |
3. | DIP Facility Claims | 49 |
4. | DIP Fees and Expenses | 50 |
5. | Priority Tax Claims | 50 |
B. | Classification and Treatment of Claims and Interests | 51 |
1. | Classification of Claims and Interests | 51 |
2. | Treatment of Claims and Interests | 51 |
3. | Special Provision Governing Unimpaired Claims | 62 |
4. | Subordination of Claims | 63 |
5. | Third-Party Beneficiaries / Derivative Claimants | 63 |
6. | Abra Noteholder Claims | 63 |
7. | Banco Pine and Banco Rendimento Settlements | 63 |
8. | Tax Agreement | 63 |
9. | Boeing Agreement | 64 |
C. | Acceptance or Rejection of Plan | 64 |
1. | Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code | 64 |
2. | Voting Classes | 64 |
3. | Presumed Acceptance by Non-Voting Classes | 64 |
4. | Presumed Acceptance by Unimpaired Classes | 64 |
5. | Deemed Rejection by Impaired Classes | 65 |
6. | Elimination of Vacant Classes | 65 |
7. | Controversy Concerning Impairment | 65 |
D. | Means for Implementation of Plan | 65 |
ii |
1. | General Settlement of Claims and Interests | 65 |
2. | Restructuring Transactions | 65 |
3. | Sources of Consideration for Plan Distributions | 66 |
4. | General Unsecured Claimholder Distribution | 72 |
5. | Corporate Existence | 74 |
6. | Vesting of Assets in the Reorganized Debtors | 74 |
7. | Cancellation of Loans, Securities, and Agreements | 74 |
8. | Corporate and Other Entity Action | 76 |
9. | New Organizational Documents | 77 |
10. | Directors and Officers of Reorganized Debtors | 77 |
11. | Effectuating Documents; Further Transactions | 78 |
12. | Section 1146 Exemption | 78 |
13. | Preservation of Causes of Action | 79 |
E. | Treatment of Executory Contracts and Unexpired Leases | 79 |
1. | Assumption and Rejection of Executory Contracts and Unexpired Leases | 79 |
2. | Aircraft Leases | 80 |
3. | Cure of Defaults for Executory Contracts and Unexpired Leases Assumed | 82 |
4. | Dispute Resolution | 82 |
5. | Rejection Damages Claims | 83 |
6. | Insurance Policies & Indemnification Obligations | 83 |
7. | Modifications, Amendments, Supplements, Restatements, or Other Agreements | 85 |
8. | Reservation of Rights | 85 |
9. | Contracts and Leases (other than Aircraft Leases) Entered into After Petition Date | 85 |
10. | Compensation and Benefits Plans | 85 |
F. | Procedures for Resolving Contingent, Unliquidated, and Disputed Claims | 86 |
1. | Allowance of Claims and Interests | 86 |
2. | Claims Administration Responsibilities | 86 |
3. | General Unsecured Claim Observer | 86 |
4. | Estimation of Claims | 87 |
5. | Adjustment to Claims Register Without Objection | 88 |
6. | Time to File Objections to Claims | 88 |
7. | Disallowance of Claims | 88 |
8. | Amendments to Claims | 88 |
9. | No Distributions Pending Allowance | 88 |
10. | Distributions After Allowance | 89 |
11. | Disputed Claims Reserve | 89 |
12. | Claims Resolution Procedures Cumulative | 90 |
G. | Provisions Governing Distributions | 90 |
1. | Timing and Calculation of Amounts to Be Distributed | 90 |
2. | Disbursing Agent | 91 |
3. | Rights and Powers of Disbursing Agent | 91 |
iii |
4. | Delivery of Distributions and Undeliverable or Unclaimed Distributions | 91 |
5. | Exemption from Securities Laws | 95 |
6. | Compliance with Tax and Antitrust Requirements | 95 |
7. | No Postpetition Interest on Claims and Interests | 96 |
8. | Setoffs and Recoupment | 96 |
9. | Claims Paid or Payable by Third Parties | 96 |
10. | Allocation Between Principal and Accrued Interest | 97 |
H. | Settlement, Release, Injunction, and Related Provisions | 97 |
1. | Compromise and Settlement | 97 |
2. | Discharge of Claims and Termination of Interests | 98 |
3. | Release of Liens | 98 |
4. | Release by the Debtors | 98 |
5. | Releases by Holders of Claims or Interests | 100 |
6. | Exculpation | 101 |
7. | Injunction | 102 |
8. | Additional Provisions Regarding SEC | 103 |
SECTION VII. Solicitation and Voting Procedures | 103 |
A. | Parties Entitled to Vote | 103 |
B. | Distribution of Notices to Holders of Claims and Interests in Non-Voting Classes and Holders of Disputed Claims | 105 |
C. | Voting and Third-Party Release Opt-Out Procedures | 107 |
1. | Beneficial Holders | 108 |
2. | Nominees | 109 |
3. | Tabulation of Votes | 111 |
4. | Fiduciaries and Other Representatives | 111 |
D. | Multiple Claims Within Class | 112 |
E. | Agreements upon Furnishing Ballots | 112 |
F. | Withdrawal or Change of Votes on Plan | 112 |
G. | Waivers of Defects, Irregularities, etc. | 112 |
H. | Requirement to File a Proof of Claim | 113 |
I. | Further Information; Additional Copies | 113 |
SECTION VIII. Confirmation of the Plan | 113 |
A. | Confirmation Hearing | 113 |
B. | Objections to Confirmation | 113 |
C. | Requirements for Confirmation of Plan – Consensual Confirmation | 115 |
1. | Feasibility | 115 |
2. | Best Interests Test | 116 |
D. | Requirements for Confirmation of Plan – Non-Consensual Confirmation | 116 |
1. | Unfair Discrimination | 117 |
2. | Fair and Equitable | 117 |
E. | Summary of Release, Injunction, and Exculpation Provisions | 118 |
1. | Debtor Release | 119 |
iv |
2. | Third-Party Release | 120 |
3. | Exculpation | 123 |
4. | Injunction | 124 |
SECTION IX. Risk Factors | 125 |
A. | Bankruptcy Law Considerations | 125 |
B. | Risks Associated with the Debtors’ Business and Industry | 128 |
C. | Other Risks Related to Operations | 133 |
D. | Risks Relating to Brazil | 135 |
E. | Risks Related to Existing GLAI Equity Interests | 138 |
F. | Risks Related to Ownership of New Equity | 138 |
G. | Risks Related to Exit Notes, Incremental New Money Exit Financing, and Other Debt Obligations | 142 |
H. | Risks Affecting the Value of Plan Distributions | 144 |
I. | Other Risks | 145 |
SECTION X. Transfer Restrictions and Consequences Under Federal Securities Laws | 146 |
A. | 1145 Securities | 146 |
B. | Section 4(a)(2) Securities | 148 |
SECTION XI. Certain Tax Consequences of Plan | 151 |
A. | U.S. Holders of Addressed Claims | 153 |
B. | Consequences of Owning and Disposing of New Debt and New Equity | 156 |
1. | Ownership of the New Debt | 156 |
2. | Sale or Other Taxable Disposition of the New Debt | 159 |
3. | Exchange of Exchangeable Take-Back Notes | 160 |
4. | Distributions on New Equity | 161 |
5. | Sale, Exchange, or Other Taxable Disposition of New Equity | 162 |
6. | Possible Treatment of New GOL Parent as a Passive Foreign Investment Company | 162 |
C. | Accrued Interest | 163 |
D. | Market Discount | 164 |
E. | Information Reporting and Backup Withholding | 164 |
F. | Importance of Obtaining Professional Tax Assistance | 165 |
SECTION XII. CERTAIN brazilian TAX CONSIDERATIONS | 165 |
A. | Brazilian Tax Consequences of the Consideration | 166 |
1. | Non-Resident Holders | 166 |
2. | Resident Holder | 167 |
B. | Consequences of Owning or Disposing the New Debt and the New Equity | 168 |
1. | Ownership of the New Debt | 168 |
2. | Sale, Exchange, or Disposition of the New Debt | 169 |
3. | Ownership of the New Equity | 170 |
v |
4. | Sale, Exchange, or Other Disposition of New Equity | 170 |
5. | Discussion on Favorable Tax Jurisdiction | 171 |
C. | Other Brazilian Tax Considerations | 172 |
D. | Stamp, Transfer, or Similar Taxes | 172 |
E. | Importance of Obtaining Professional Tax Assistance | 173 |
SECTION XIII. CERTAIN LUXEMBOURG INCOME TAX CONSIDERATIONS | 173 |
A. | Certain Luxembourg Tax Consequences for Debtors of the Addressed Claims and the New Debt | 174 |
B. | Certain Luxembourg Tax Consequences for Holders of Addressed Claims, the New Debt, and the New Equity | 175 |
1. | Certain Luxembourg Tax Consequences for Holders in Relation with Exchange of Addressed Claim | 175 |
2. | Certain Luxembourg Tax Consequences for Holders in Relation with the Conversion of the Exchangeable Take-Back Notes into New Equity | 175 |
3. | Withholding Tax | 175 |
4. | Taxes on Income and Capital Gains | 176 |
5. | Net Wealth Tax | 179 |
6. | Other Taxes and Duties | 179 |
7. | Importance of Obtaining Professional Tax Assistance | 179 |
SECTION XIV. Alternatives to Confirmation and Consummation of Plan | 180 |
A. | Liquidation Under Chapter 7 or Chapter 11 of Bankruptcy Code | 180 |
B. | Alternative Chapter 11 Plans | 181 |
C. | Sale Under Section 363 of the Bankruptcy Code | 181 |
D. | Dismissal and Local Liquidation or Dissolution | 181 |
SECTION XV. Conclusion and Recommendation | 182 |
Exhibit A: Plan
Exhibit B: Organizational and Capital Structure Chart
Exhibit C: Liquidation Analysis
Exhibit D: Financial Projections
Exhibit E: Plan Support Agreement
Exhibit F: Committee Recommendation Letter
vi |
SECTION I.
Introduction and overview of the plan
GOL Linhas Aéreas Inteligentes S.A. (“GLAI”) and its affiliated debtors and debtors in possession (collectively, and together with GLAI, the “Debtors” or the “Company”) submit this disclosure statement (as may be amended from time to time, the “Disclosure Statement”) in connection with the solicitation of votes (the “Solicitation”) on the Second Modified Third Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and Its Affiliated Debtors, dated March 20, 2025, which is attached hereto as Exhibit A (the “Plan”).[2]
The primary purpose of this Disclosure Statement is to enable the Debtors’ creditors that are entitled to vote on the Plan to make an informed decision on whether to vote to accept or reject the Plan. This Disclosure Statement summarizes the Plan, certain documents related to the Plan, relevant statutory provisions, and events that occurred in the Debtors’ chapter 11 cases (the “Chapter 11 Cases”).
A. | The Adequacy of Disclosure |
Section 1125 of the Bankruptcy Code requires that, before soliciting votes on a proposed chapter 11 plan, the plan proponent must prepare a written disclosure statement containing information of a kind, and in sufficient detail, to enable a hypothetical reasonable investor to make an informed judgment regarding acceptance or rejection of the plan.
The Disclosure Statement complies with section 1125 of the Bankruptcy Code as it includes, without limitation, information about:
· | the Debtors’ organizational structure, business operations, prepetition indebtedness, and assets and liabilities (Section II hereof); |
· | the events leading to the filing of these cases (Section III hereof); |
· | the commencement of these chapter 11 cases and their objectives and the major events that have occurred during the Chapter 11 Cases (Section IV hereof); |
· | the Plan Support Agreement and the Plan Settlement (Section V hereof); |
· | the classification and treatment of Claims and Interests under the Plan, including identification of the Claims entitled to vote on the Plan, and the projected recoveries under the Plan (Section VI.B. hereof); |
· | the means for implementation of the Plan (Section VI.D. hereof); |
[2] | Capitalized terms used in the Disclosure Statement, but not defined herein, have the meanings ascribed to them in the Plan. To the extent there are any inconsistencies between the Disclosure Statement and the Plan, the Plan governs. |
· | the exculpations, releases and injunctions contained in the Plan (Sections VI.H and VIII.E hereof); |
· | the solicitation and voting procedures for the Plan, including instructions on how to opt out of the Third-Party Release (Section VII hereof); |
· | the statutory requirements for confirming the Plan (Section VIII hereof); |
· | certain risk factors that holders of Claims should consider before voting on the Plan (Section IX hereof); |
· | certain restrictions and consequences under federal securities laws (Section X hereof); |
· | certain tax consequences of the Plan (Sections XI-XIII hereof); and |
· | alternatives to confirmation and consummation of the Plan (Section XIV hereof). |
On March 20, 2025, the Bankruptcy Court entered the order [Docket No. 1388] (the “Disclosure Statement Order”) approving this Disclosure Statement as containing “adequate information,” i.e., information of a kind and in sufficient detail to enable a hypothetical reasonable investor to make an informed judgment about the Plan.
B. | Overview of Proposed Restructuring |
The Debtors commenced these Chapter 11 Cases to accomplish a comprehensive restructuring of their balance sheet and operations following years of financial and operational difficulties following the COVID-19 pandemic and grounding of Boeing 737-8 MAX aircraft—which comprise a significant portion of the Debtors’ fleet. The Debtors believe that the post-emergence enterprise will have the ability to withstand the challenges and volatility of the airline industry and to succeed as a leading carrier in Latin America.
The Plan is the result of extensive good faith negotiations among the Debtors, led by the restructuring committee of GLAI’s board of directors (the “Restructuring Committee”), and the Debtors’ key economic stakeholder groups. The Plan is supported by, among others, the Committee and Abra (the Debtors’ largest prepetition secured lender and equity holder).
The Plan implements the operational restructuring that the Company has been undergoing over the course of the last year while benefitting from the tools of chapter 11 and provides for a comprehensive restructuring of the Company’s balance sheet and significant investment of new capital in the Company’s business. The transactions contemplated in the Plan will strengthen the Company by substantially reducing its debt, increasing its cash flow, and enhancing operations for future growth. More specifically:
· | the Company will significantly deleverage its balance sheet by converting into equity, or otherwise extinguishing, approximately $1.7 billion of prepetition funded debt and up to $850 million of other obligations; |
2 |
· | Abra, the Debtors’ largest secured creditor and GLAI’s majority prepetition economic interest holder, has agreed to equitize a significant portion of its claims in exchange for approximately $950-$1,050 million in New Equity, which amounts to approximately 76-81% of the New Equity as of the Effective Date. In addition, Abra will receive $850 million of take-back debt, of which $250 million will be mandatorily exchangeable into New Equity on or after the 30-month anniversary of the Effective Date conditioned on the Debtors having achieved certain valuation metrics, which would result in Abra holding approximately $1.2-$1.3 billion in New Equity, or approximately 80-84% of the New Equity (prior to any mandatory exchange and/or redemption which may occur). The percentage of Abra’s New Equity holdings is subject to dilution by any Incremental New Money Equity issued and varies based upon timing of emergence due to on-going accrual of adequate protection payments of in-kind interest, as well as an agreement to provide up to an additional approximately $75 million of value in New Equity to holders of General Unsecured Claims, which today reflects 50% of the difference between the aggregate amount of value to be distributed under the Plan to the holders of Allowed 2026 Senior Secured Notes Claims and $252,565,388.89; |
· | the Debtors intend to raise up to $1.9 billion of new capital in the form of (i) the Exit Notes to repay the DIP Facility and (ii) Incremental New Money Exit Financing to provide incremental liquidity to support the Reorganized Debtors’ business strategy following their emergence from chapter 11; |
· | certain other secured obligations will be exchanged for take-back debt; |
· | the Debtors will assume their restructured Aircraft Leases in accordance with the Lessor Agreements that have already been negotiated and agreed; and |
· | unsecured creditors will receive New Equity valued at up to approximately $235 million (and possibly more, depending upon the resolution of certain issues). |
As noted herein, the Plan is the result of extensive, good faith negotiations among the Debtors, the Committee, and Abra. Before engaging in Plan negotiations, the Committee conducted an extensive, months long investigation into the Debtors’ prepetition transactions, including Abra’s private debt investment in the Company which closed in March 2023 (the “Abra Transaction”), discussed further below. As part of that investigation, the Committee provided various parties in interest, including the Debtors and Abra, with a list of claims, which the Committee believed could be asserted in connection with the Abra Transaction, among other potential claims and causes of action. See Stipulation and Agreed Order Between the Debtors, the Official Committee of Unsecured Creditors, the Prepetition Agents, the DIP Lenders, and Abra Group Limited Extending the Challenge Period [Docket No. 596] (the “Initial Challenge Period Stipulation”). Thereafter, the Debtors, the Committee, and Abra engaged in months of extensive, productive negotiations, which ultimately culminated in an agreement on the terms of the Plan.
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Accordingly, the Plan represents a settlement of many complex legal issues, the litigation of which would have significantly lengthened the Debtors’ Chapter 11 Cases, depleted their assets, and risked the Debtors’ ability to consummate a successful restructuring. Among the many complex issues that the parties analyzed and agreed to settle pursuant to the Plan is how intercompany claims will be treated under the Plan, and the resulting proper allocation of value to be received by general unsecured creditors among the Debtors’ estates. Ultimately, the parties agreed on an allocation of the General Unsecured Claimholder Distribution among the Debtors’ estates in a manner that they believe reasonably resolves these issues and treats all unsecured creditors fairly and equitably.
The New Equity issued in accordance with the Plan will be issued at New GOL Parent, a new entity to be formed or acquired on or prior to the Effective Date to hold, directly or indirectly through one or more entities, 100% of the equity interests in Reorganized GLAI (excluding the Existing GLAI Equity Interests and any equity issued through the GLAI Preemptive Rights Offering). It is currently contemplated that New Equity will not be traded on any public listing exchange on the Effective Date, and New GOL Parent is contemplated to be structured as a company organized under the laws of Luxembourg, with a subsidiary intermediate holding company organized under the laws of Brazil, for tax and other corporate reasons. Among other potential benefits, this structure may enable future sales of shares of New GOL Parent to be exempted from capital gains taxes in certain jurisdictions, may allow claims to be capitalized into Reorganized GLAI without creating certain tax implications, and may facilitate potential future dividend payments by Reorganized GLAI. For the avoidance of doubt, the jurisdiction of organization of New GOL Parent, its capitalization, and whether New Equity is publicly traded is subject to change as agreed among the Debtors, Abra, and the Committee in a manner designed to maximize the liquidity of New Equity and minimize cost, and such terms will be disclosed in the Plan Supplement. The New Equity issued as part of the General Unsecured Claimholder Distribution and, if applicable, to holders of the 2026 Senior Secured Notes Claims shall be mandatorily redeemed or exchanged in accordance with Article V.D.3 of the Plan.
The New Equity will be held through DTC. Transfers of the New Equity outside of DTC will be subject to restrictions on transfers to the extent such transfer would subject the Reorganized Debtors or Abra to the registration and reporting requirements of the Securities Act and the Securities Exchange Act. The Debtors will make certain public disclosures regarding the New Equity through quarterly and annual financial statements and implement other procedures intended to provide liquidity for the New Equity on terms to be agreed among the Debtors, Abra, and the Committee. At least once following the Effective Date, at a time to be set forth in the Plan Supplement and subject to applicable law, New GOL Parent will send a notice to its shareholders inquiring whether certain shareholders desire to purchase or dispose any of their equity interests of New GOL Parent, and the desired terms for such transactions. To the extent that any shareholders offer to buy shares at a price that exceeds the price that any shareholders offer to sell their shares, New GOL Parent will facilitate a possible transaction, thereby allowing such shareholders to transact with one another, subject to certain procedures and conditions. The Reorganized Debtors can provide no assurances that this notice and facilitation process will result in any purchases or sales of equity interests as that will depend on many factors outside the control of the Reorganized Debtors, including market conditions.
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In developing the Plan, the Debtors conducted a careful review of their existing business operations and compared their projected value as an ongoing business enterprise with their projected value in a liquidation scenario, as well as the estimated recoveries for the holders of Allowed Claims and Interests in each of these scenarios. The Debtors concluded that the potential recoveries for the holders of Allowed Claims and Interests would be maximized by the Reorganized Debtors’ continued operation as a going concern through the implementation of the Plan. The Debtors believe their business and assets have significant value that would not be realized in a liquidation. Moreover, the Debtors believe that any alternative to the Plan, such as an asset sale or attempts by another party to file an alternative plan, could result in significant delay, execution risk, and additional costs, including litigation costs, ultimately lowering the recoveries for the holders of Allowed Claims and Interests. Accordingly, it is the Debtors’ opinion that confirmation and implementation of the Plan is in the best interests of the Debtors’ estates and all stakeholders.
THE DEBTORS AND THE COMMITTEE RECOMMEND THAT, TO THE EXTENT THEY ARE ENTITLED TO VOTE, CREDITORS VOTE TO ACCEPT THE PLAN.
C. | Summary of Classification and Estimated Recoveries of Claims and Interests Under the Plan |
The following table summarizes the classification of Allowed Claims and Interests and the estimated recoveries of their holders under the Plan. Although every reasonable effort was made to be accurate, the projections of recoveries are only estimates. The final amounts of Allowed Claims and Interests may vary from the estimates in this Disclosure Statement, including as a result of, among other things, the liquidation of unliquidated amounts, the resolution of Disputed Claims at amounts higher than estimated by the Debtors, and Claims asserted on account of alleged damages arising from the rejection of any Executory Contract or Unexpired Lease. As a result of the foregoing and other uncertainties inherent in estimating Claims and recovery on Interests, the estimated recoveries contained in this Disclosure Statement may vary from the actual recoveries realized. In addition, the ability of holders of Allowed Claims and Interests to receive distributions under the Plan depends upon, among other things, the ability of the Debtors to obtain confirmation of the Plan and to meet the conditions to its effectiveness. For additional explanation regarding the terms of the Plan and the treatment of Allowed Claims and Interests thereunder, please refer to the discussion in Section VI, entitled “Summary of the Plan,” as well as the Plan itself, which is attached to this Disclosure Statement as Exhibit A. The below table is qualified in its entirety by reference to the full text of the Plan.
Class | Claims or Interests | Status | Voting Rights | Estimated Recovery[3] |
1 | Priority Non-Tax Claims | Unimpaired | Presumed to accept | 100% |
2 | Other Secured Claims | Unimpaired | Presumed to accept | 100% |
3 | 2028 Notes Claims | Impaired | Entitled to vote | 65% |
[3] | The estimated recoveries for Classes 10(a)–(m) are based on an assumed distribution of $235 million of value, which may be less or more depending on the resolution of certain contingencies set forth in the Plan. |
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Class | Claims or Interests | Status | Voting Rights | Estimated Recovery[3] |
4 | 2026 Senior Secured Notes Claims | Impaired | Entitled to vote | 40% |
5 | Glide Notes Claims | Impaired | Entitled to vote | 100% |
6 | Debenture Banks Claims | Impaired | Entitled to vote | 100% |
7 | AerCap Secured Note Claims | Impaired | Entitled to vote | 100% |
8 | Safra Claims | Impaired | Entitled to vote | 100% |
9 | Non-U.S. General Unsecured Claims | Unimpaired | Presumed to accept | 100% |
10(a) | GLAI General Unsecured Claims | Impaired | Entitled to vote | 0.9% - 1.1% |
10(b) | GLA General Unsecured Claims | Impaired | Entitled to vote | 8.1% - 11.0% |
10(c) | GFL General Unsecured Claims | Impaired | Entitled to vote | 18.9% - 21.0% |
10(d) | GFC General Unsecured Claims | Impaired | Entitled to vote | 3.4% - 3.8% |
10(e) | GEF General Unsecured Claims | Impaired | Deemed to reject | 0% |
10(f) | GAC General Unsecured Claims | Impaired | Entitled to vote | 3.6% - 6.3% |
10(g) | GTX General Unsecured Claims | Impaired | Deemed to reject | 0% |
10(h) | Smiles Fidelidade General Unsecured Claims | Impaired | Entitled to vote | 100% |
10(i) | Smiles Viagens General Unsecured Claims | Impaired | Entitled to vote | 100% |
10(j) | Smiles Argentina General Unsecured Claims | Impaired | Entitled to vote | 100% |
10(k) | Smiles Viajes General Unsecured Claims | Impaired | Entitled to vote | 100% |
10(l) | CAFI General Unsecured Claims | Impaired | Deemed to reject | 0% |
10(m) | Sorriso General Unsecured Claims | Impaired | Deemed to reject | 0% |
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Class | Claims or Interests | Status | Voting Rights | Estimated Recovery[3] |
11 | General Unsecured Convenience Class Claims | Impaired | Entitled to vote | 15% |
12 | Subordinated Claims | Impaired | Deemed to reject | 0% |
13 | Intercompany Claims | Impaired/ Unimpaired |
Deemed to reject/ presumed to accept |
N/A |
14 | Existing GLAI Equity Interests | Impaired | Deemed to reject | N/A |
15 | Intercompany Interests | Impaired/ Unimpaired |
Deemed to reject/ presumed to accept |
N/A |
D. | Voting on the Plan and Opting Out of the Third-Party Release |
Under the Bankruptcy Code, only holders of Claims and Interests that are “Impaired” and that receive or retain any property under the Plan are entitled to vote to accept or reject the Plan. Holders of Claims and Interests that are not Impaired under the Plan are conclusively presumed to accept the Plan in accordance with section 1126(f) of the Bankruptcy Code and are not entitled to vote on the Plan. Additionally, holders of Claims and Interests that are Impaired under the Plan and will neither receive nor retain any property under the Plan are conclusively presumed to reject the Plan in accordance with section 1126(g) of the Bankruptcy Code and are not entitled to vote on the Plan.
Accordingly, only holders of Claims in Classes 3, 4, 5, 6, 7, 8, 10(a), 10(b), 10(c), 10(d), 10(f), 10(h), 10(i), 10(j), 10(k), and 11 (the “Voting Classes”) are entitled to vote on the Plan. In accordance with the Disclosure Statement Order, the solicitation package of materials (the “Solicitation Package”) distributed to all holders of Claims in the Voting Classes contains the following:
· | a cover letter; |
· | the notice of the Confirmation Hearing; |
· | the approved Disclosure Statement (and all exhibits thereto, including the Plan); |
· | the Disclosure Statement Order (excluding exhibits other than the Solicitation and Voting Procedures attached as Exhibit 1); |
· | a ballot (each a “Ballot”) (and, where appropriate, a Master Ballot (as defined in Section VII.C.1)), instructions on how to complete the Ballot (or Master Ballot) (including how to opt out of the Third-Party Release), and a pre-paid, pre-addressed return envelope (where applicable); and |
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· | such other materials as the Bankruptcy Court may direct to include in the Solicitation Package. |
The Debtors are not soliciting votes from holders of Claims and Interests in Classes 1, 2, 9, 10(e), 10(g), 10(l), 10(m), 12, 13, 14, and 15 (the “Non-Voting Classes”). As such, holders of Claims or Interests in the Non-Voting Classes will not be receiving the Solicitation Package. Instead, holders of Claims or Interests in certain Non-Voting Classes will receive the appropriate form of notice of non-voting status (each, a “Notice of Non-Voting Status”), which will include a release opt-out form (the “Release Opt-Out Form”) attached as an exhibit to the Notice of Non-Voting Status, as described in Section VII.
The Plan provides, among other things, that absent an election to opt out on your Ballot or Release Opt-Out Form, the following holders of Claims and Interests (and their Related Parties (as defined below)) will release certain non-Debtors from certain claims and causes of action (the “Third-Party Release”):
· | all holders of Claims entitled to vote on the Plan who (i) either vote to accept the Plan, vote to reject the Plan, or do not vote to accept or reject the Plan, and (ii) do not elect to opt out of granting the Third-Party Release by checking the box on the applicable Ballot; and |
· | all holders of Claims or Interests (i) that are Unimpaired under the Plan and (ii) who do not elect to opt out of granting the Third-Party Release by checking the box on the Release Opt-Out Form attached to the applicable Notice of Non-Voting Status. |
Holders of Claims or Interests in Non-Voting Classes that are Impaired and deemed to reject the Plan will not be bound by the Third-Party Release in their capacity as holders of such Claims or Interests and, as such, do not need to opt out of such release.
For your vote and/or election to opt out of the Third-Party Release to be counted, the applicable Ballot or Release Opt-Out Form reflecting your vote and/or opt-out election must be properly executed in accordance with the instructions set forth on the applicable Ballot or Release Opt-Out Form and must be actually received by the Solicitation Agent (as defined below) by no later than 4:00 p.m. (prevailing Eastern time) on May 12, 2025 (the “Voting Deadline”).
Ballots and Release Opt-Out Forms may be delivered to the Solicitation Agent either (i) by first class mail, overnight carrier, or personal delivery to GOL Ballot Processing Center, c/o Kroll Restructuring Administration LLC, 850 3rd Avenue, Suite 412, Brooklyn, NY 11232, or (ii) via the online balloting portal at: https://cases.ra.kroll.com/GOL (the “E-Ballot Portal”); provided that Master Ballots and “pre-validated” Beneficial Holder Ballots (both as defined below) may be submitted only via hard copy submission as set forth above in (i) or electronic mail to GOLBallots@ra.kroll.com (with “GOL Ballot Submission” in the subject line).
Delivery of a Ballot (other than Master Ballots or “pre-validated” Beneficial Ballots) or Release Opt-Out Form to the Solicitation Agent by electronic mail, facsimile, or other means of electronic submission (except as set forth above) will not be valid.
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The Debtors encourage all holders of Claims and Interests entitled to vote on the Plan and/or opt out of the Third-Party Release to use the Solicitation Agent’s E-Ballot Portal to submit their Ballots and Release Opt-Out Forms, as applicable. If you elect to deliver your vote and/or opt-out election by mail, it is recommended that you use an air courier with a guaranteed next day delivery or registered mail, properly insured, with return receipt requested. In all cases, sufficient time should be allowed to ensure timely delivery.
For additional information regarding the procedures and instructions for voting on the Plan and opting out of the Third-Party Release, please refer to Section VII, entitled “Solicitation and Voting Procedures” as well as the Solicitation and Voting Procedures attached to the Disclosure Statement Order as Exhibit 1 (the “Solicitation and Voting Procedures”).
E. | Inquiries |
If you have questions about your Solicitation Package or Notice of Non-Voting Status, as applicable, or if you are a holder of a Claim in a Voting Class and you did not receive a Ballot, received a damaged Ballot, or lost your Ballot, please contact Kroll Restructuring Administration LLC (“Kroll” or the “Solicitation Agent”) by phone at 844.553.2247 (U.S./Canada) (toll free) or +1.646.777.2315 (International) or by e-mail to GOLInfo@ra.kroll.com (with “GOL Solicitation Inquiry” in the subject line).
Additional copies of this Disclosure Statement, the Plan, and documents in the Plan Supplement (when filed) are available upon written request made to the Solicitation Agent at the following address:
GOL Linhas Aéreas Inteligentes S.A. Ballot Processing Center
c/o Kroll Restructuring Administration LLC
850 Third Avenue, Suite 412
Brooklyn, NY 11232
Copies of this Disclosure Statement, the Plan, and the Plan Supplement (when filed) are also available on the Solicitation Agent’s website, https://cases.ra.kroll.com/GOL.
Please do not direct inquiries to the Bankruptcy Court.
F. | Additional Information |
The Company currently files foreign private issuer reports with, and furnishes other information to, the SEC. Copies of any document filed with the SEC may be obtained by visiting the SEC website at http://www.sec.gov and performing a search for “GOL” under the “Company Filings” link.
Additionally, the Company also files financial reports with, and furnishes other information to, the Comissão de Valores Mobiliários (the “CVM”). Copies of any document filed with the CVM may be obtained by visiting the CVM website at https://www.gov.br/cvm/pt-br/assuntos/regulados/consultas-por-participante/companhias and performing a search for “GOL
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LINHAS AEREAS INTELIGENTES SA” on the tab “Informações Periódicas e Eventuais Enviadas à CVM.”
SECTION
II.
Overview of the Debtors’ Operations
A. | Business Overview |
1. | General Overview |
The Company was founded in 2000 and commenced operations in 2001, when its founder, Constantino de Oliveira Junior, pioneered the low-cost carrier concept in Brazil, seeking to bring competitively priced air travel options to Brazilians. For more than two decades, the Company has successfully done just that.
The Company has been a critical supporter for the growth of air travel in Brazil. Between 2001 and 2019, Brazil’s domestic passenger market grew 3.2 times, from 30.8 million passengers in 2001 to 95.3 million in 2019. In 2023, there were over 83 million domestic passengers. Today, Brazil is the fifth largest worldwide domestic air travel market.
The Company is one of Brazil’s three largest domestic airlines by market share, one of the leading low-cost carriers in South America, and one of the largest low-cost carriers globally. As of November 2024, the Company serves over sixty domestic destinations and thirteen destinations in nine countries outside of Brazil. In addition to its own route network, the Company maintains agreements with other airlines to offer their passengers more choices when traveling to international destinations. The Company operates a frequent flyer program under the “Smiles” brand and provides air freight services under the “GOLLOG” brand.
2. | Overview of Operations |
The Company primarily offers domestic scheduled flights, targeting both corporate and leisure travelers. It maintains a strong presence in urban premium markets, including São Paulo, Rio de Janeiro, and Brasilia. The Company also serves select international markets and maintains relationships with other airlines to provide more choices to their passengers. In addition, the Company generates revenue through the Smiles loyalty program and the GOLLOG cargo and courier transportation operations.
On the next page is a map of the Debtors’ flight routes as of December 2024:
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3. | Employees |
As of November 2024, the Company had approximately 14,768 employees.
The Company’s employees have the right under local law to join a labor union and to collective bargaining. The Brazilian employees are represented by eleven unions. A national aviators’ union represents Brazil’s pilots and flight attendants, and other regional aviation unions represent ground employees. Approximately one-third of the Company’s employees are members of unions; although, the unions in Brazil protect the rights of all employees within the applicable sector, regardless of whether the employees are members of a union. In Brazil, negotiations regarding cost-of-living wages and salary increases are conducted annually between the workers’ unions and a national association of airline companies. There is no salary differential or seniority pay escalation among the Company’s pilots. Work conditions and maximum work hours are regulated by government legislation and are not the subject of labor negotiations. Since the commencement of the Company’s operations, there has not been a single work stoppage initiated by its employees. The Company is committed to complying with all collective bargaining agreements with their employees and related unions.
4. | Route Network |
As of January 2025, the Company’s network comprises over sixty-four domestic destinations in Brazil and sixteen international destinations in Argentina, Aruba, Bolivia, Colombia, Costa Rica, the Dominican Republic, Mexico, Paraguay, Suriname, the United States, and Uruguay. The Company’s domestic network is focused on the large urban markets of São
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Paulo, Rio de Janeiro, Brasilia, and Salvador. The Company offers approximately 650 flights per day.
In São Paulo, the Company operates out of the city’s two main airports, Congonhas–Deputado Freitas Nobre Airport and Guarulhos–Governor André Franco Montoro International Airport, and offers approximately 200 daily departures from these airports. In Rio de Janeiro, the Company offers flights from both Galeão–Antonio Carlos Jobim International Airport and Santos Dumont Airport, totaling approximately eighty-five daily departures from these airports. From Brasilia and Salvador, the Company offers approximately fifty-five and forty daily departures, respectively.
The Company’s domestic network offers significant connectivity between Brazilian regions, high frequencies at preferred airports, and a strong presence in the highest demand markets. Unlike many other low-cost carriers, the Company offers a combination of hub-and-spoke and point-to-point flights. This combination allows the Company to quickly respond to changes in customer preferences and to achieve high aircraft utilization and load factors.
Internationally, the Company’s network offers approximately twenty daily roundtrips. The Company serves five airports and four cities in Argentina, two cities in the United States, and one city each in Aruba, Colombia, Costa Rica, Uruguay, Bolivia, Paraguay, the Dominican Republic, Mexico, and Suriname. The international cities served constitute a mix of popular business destinations (e.g., Buenos Aires) and leisure destinations (e.g., Orlando). In total, the Company maintains over thirty international routes. The Company plans to further expand its international operations by taking advantage of the partnership with Avianca and by utilizing the extended range capabilities of the 737 MAX-8 aircraft.
In addition to the Company’s own network, as of November 2024, the Company had seventeen codeshare agreements with Aerolíneas Argentinas, AeroMéxico, Air Canada, Air Europa, Air France, American Airlines, Avianca, Azul, Copa Airlines, Emirates, Ethiopian Airlines, KLM, Royal Air Maroc, South African Airways, TAAG, TAP, and Turkish Airlines; fifteen frequent flyer agreements; and forty-seven interline and electronic ticketing agreements. The Company is currently in discussions with a select group of international carriers with respect to expanding its codeshare relationships as an integral part of its go-forward plans.
5. | Passenger Revenue |
Passenger revenue is primarily derived from ticket sales, including revenue from redemption of miles under the Smiles loyalty program. Ancillary revenue contributing to passenger revenue includes additional charges billed to passengers, such as revenue from on-board sales, ticket change fees, excess baggage charges, on-board Wi-Fi, and various other services.
The Company’s passenger revenue represented above 89% of its total revenue in each of 2021, 2022, and 2023.
6. | Smiles |
Smiles, the Company’s loyalty program with over 23.9 million members as of November 2024, provides significant revenue for the Company. Smiles provides incentives for customers to
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book air travel, boosting ticket sales and the number of repeat customers. Smiles award tickets are responsible for approximately 20% of total passenger bookings.
The Smiles program allows members to accumulate miles through (i) flights with the Company and its international airline partners; (ii) using credit cards issued by any of the significant Brazilian commercial banks, including through co-branded cards from Banco Bradesco S.A., Banco do Brasil S.A., and Banco Santander S.A.; (iii) purchases at a broad network of retail partners, including Localiza (the largest car rental agency in Brazil), global hotel chain Accor Hotels, and popular hotel booking site Rocketmiles, among others; (iv) direct purchases of miles to book travel; and (v) purchases of miles and benefits through Clube Smiles. The Company is Smiles’ primary redemption partner, but members may also redeem miles for products and services from other commercial partners.
7. | Cargo |
The Company operates Brazil’s largest cargo airline, GOLLOG, which generates revenue using cargo space on regularly scheduled passenger aircraft and dedicated cargo fleet. With approximately 36% market share leading the cargo industry in 2023, as measured by domestic carried weight, the Company’s cargo revenues almost doubled in 2023 as compared to 2022 and increased by approximately 30% in 2024 as compared to 2023, representing approximately 7% of its gross revenue so far in 2024. The Company’s cargo business has grown at higher rates than its passenger travel business, largely because it has an excellent and diversified base of clients in the business-to-business segment and e-commerce markets and are well-positioned to support this market’s expected growth. The Company is committed to delivering quality logistic solutions and expect the cargo business will be an increasingly important contributor to their financial performance.
Additionally, in the second half of 2022, the Company began cargo fleet operations under a ten-year commercial agreement with Mercado Livre, one of the largest companies in Latin America, which operates marketplaces for e-commerce and online auctions. The agreement is ACMI-based (“Aircraft, Crew, Maintenance & Insurance”), with rates based on “power-by-the-hour,” ensuring a minimum of 150 block hours per aircraft. The rates include all fixed costs, such as ACMI, selling, general, and administrative expenses, maintenance expenses, operations expenses, and systems expenses, with a profitable margin. The agreement also includes a pass-through with an administrative fee to cover fuel, handling, and airport fees. These cargo operations, which are part of the ongoing investment to serve the needs of the growing Brazilian e-commerce market, will rely on a dedicated freighter fleet of Boeing 737-800 BCF, the first of which the Company received and began operating in 2022. The Company plans to further expand this fleet.
8. | Competition |
The Company faces intense competition on all operating routes from existing scheduled airlines, charter airlines, and potential new participants in the market. Competition from other airlines has a greater impact on the Company when compared to competitors because the Company has a greater proportion of flights connecting Brazil’s busiest airports, where competition is more intense. In contrast, some of the Company’s competitors have a greater proportion of flights
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connecting less busy airports, where there is little or no competition. The Brazilian airline industry also faces competition from ground transportation alternatives, such as interstate buses.
In the past, existing and potential competitors have undercut the Company’s fares and increased capacity on their routes in an effort to increase their market share of business traffic. In addition, low-cost carrier business models have been gaining increasing momentum in the Latin American aviation market in recent years. The recent successes of other low-cost carriers—including Wingo in Colombia, Azul in Brazil, Viva Aerobus and Volaris in Mexico, and Sky Airline and JetSMART in Chile—continue to penetrate the Company’s home market. Significant and lasting downward pressure on fares—including pressure from the Brazilian government to lower air fares—could compel the Company to continue to further adapt its business model to evolving passenger preferences.
9. | Strengths Going Forward |
The Company is well-positioned to succeed going forward, building on the core strengths of its existing business, including its leadership position in the Brazilian domestic market, its strong brand and partnerships, its prominent position at key hubs in São Paulo, Rio de Janeiro, and Brasilia, and the strength of the Smiles program, to emerge from these Chapter 11 Cases as an elite competitor in the South American airline marketplace for years to come.
The Company’s fleet renewal program will provide it with a fleet that is more fuel efficient, requires less capital-intensive maintenance for the initial years of operation, provides higher operational reliability, and offers additional cost savings. The Company already has an attractive cost structure, with per-flight costs below those of its domestic competitors. By increasing both the operationally available fleet and the seat capacity thereon, the Company will be able to achieve even greater scaling of its fixed costs. As of today, the Company generates operating margins near the top of its industry; the long-term elements of the Company’s model support this performance and remain in place despite the negative financial pressures.
Significantly, the Company’s network includes valuable positions in slot-controlled airports preferred by corporate and high-yield leisure travelers, which will continue to provide the Company with a significant competitive advantage. For example, Congonhas Airport in São Paulo and Santos Dumont Airport in Rio de Janeiro are close to the cities’ business centers and are the preferred airports for travelers between these two urban centers. Neither airport is likely to add many slot positions into which other airlines could expand, which enhances the strategic value of the Company’s existing airport slot portfolio.
The Company is also positioned to benefit from the increased demand for international travel. The 737 MAX exhibits increased range capabilities over its older 737NG fleet, thereby enabling the Company to offer more international destinations while maintaining the efficiencies of an all-737 fleet. Furthermore, the Company has historically maintained valuable strategic commercial relationships with Avianca and U.S. and European carriers, and the Company’s go-forward strategy is to broaden and strengthen those types of commercial relationships.
Smiles and GOLLOG will continue to play a key role in generating revenue. Smiles continues to raise brand awareness and value and establish customer loyalty. Through its
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partnerships with Brazilian financial institutions, travel companies, and retailers, the Smiles loyalty network includes over 22 million customers who create above average per customer revenues for the Company. Additionally, the long-term partnership with Mercado Livre will allow the GOLLOG cargo business to benefit from the fast-expanding Latin American e-commerce market and to diversify its revenue sources.
Finally, the Company’s experienced and innovative management team has been bringing low-cost travel to Brazilians for twenty-three years and is committed to serving the Company’s customers into the future. The management team has backgrounds in finance, banking, aircraft and fleet operations, supply chain management, financial planning, and Brazilian regulatory and legal matters. The Company’s management team is well-regarded throughout the industry for maintaining strong profit margins, adopting new technologies early, and producing impressive rankings in customer service. This management team brought the airline through the pandemic with limited direct support from the government and has been active in finding creative solutions with the airline’s many stakeholders and partners.
B. | Intercompany Transactions |
As described more fully in the Debtors’ motion to continue to use their cash management system, factor receivables, and engage in intercompany transactions [Docket No. 190], the Debtors engage in business transactions in the ordinary course of business with other Debtors for disbursements related to day-to-day operations, which result in intercompany receivables and payables. For example, the Debtors’ capital raising entities historically make loans or contributions to the Debtors’ main operating entity, GLA, and to the Debtors’ aircraft acquisition entity, GAC, as well as engage in intercompany transactions amongst themselves. In the case of GFL and GEF, each a special purpose vehicle without material assets or business operations independent of the Company, these entities were also vehicles for carrying out the debt issuances and intercompany transfers used to implement the Abra Transaction. The Debtors track all intercompany transfers in their accounting system, and all intercompany transactions are reflected in the Debtors’ Schedules, including the Amended Schedules and SOFAs. For purposes of the settlement incorporated in the Plan and the distributions to holders of Allowed General Unsecured Claims, it is assumed that all Intercompany Claims are valid, and value is allocated in accordance therewith.
C. | Corporate and Capital Structure |
1. | Corporate Structure |
GLAI is a holding company that directly or indirectly owns shares of nine subsidiaries. Four of GLAI’s subsidiaries are incorporated in Brazil: Debtors GLA, Smiles Viagens e Turismo S.A., Smiles Fidelidade S.A., and GTX S.A. Five other subsidiaries are incorporated elsewhere: Debtors GFC (Cayman Islands), GAC, Inc. (Cayman Islands), GFL (Luxembourg), Smiles
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Fidelidade Argentina S.A. (Argentina), and Smiles Viajes y Turismo S.A (Argentina). Debtor GEF is owned by Stichting Holding GOL Equity Finance, a Dutch foundation.[4]
GLAI’s operating subsidiary is GLA, which conducts the Company’s air transportation business.[5] GFC, GAC, Inc., and GFL facilitate cross-border general financing and aircraft financing transactions; Smiles Fidelidade S.A. and Smiles Fidelidade Argentina S.A. serve the Smiles business, the Company’s loyalty program; Smiles Viagens e Turismo S.A. and Smiles Viajes y Turismo S.A. are travel agencies; and GTX S.A. is a holding company (with currently no equity holdings). GEF is a special purpose vehicle and the issuer of certain of the Company’s convertible bonds. GLAI is the direct and indirect parent company of the entire corporate enterprise except for GEF.
GLAI is a Brazilian corporation (sociedade por ações) and a public reporting company under section 12(g) of the Securities Exchange Act of 1934 (the “Exchange Act”). GLAI’s preferred shares are traded under the symbol “GOLL4” on B3 S.A. (Brasil, Bolsa, Balcão, the São Paulo Stock Exchange). GLAI has also issued American Depository Receipts (“ADRs”) through The Bank of New York Mellon, as depositary bank, which represent preferred shares and are traded under the symbol “GOL” on the New York Stock Exchange.[6] The ADRs commenced trading on the NYSE on June 24, 2004. As of November 2024, GLAI had 2,863,682,500 shares of common stock outstanding and 338,594,338 shares of preferred stock outstanding (including preferred shares represented by ADRs and 2,109 preferred shares held by GLAI as treasury shares).
Abra Group Limited, a company formed by an agreement between the controlling shareholder of the Company and the principal shareholders of Avianca Group International Limited (“Avianca”), has an approximately 53% economic interest in GLAI. In March 2023, Abra concurrently closed a private placement with Abra investors and a private debt investment in the Company (i.e., the Abra Transaction), discussed further below.
2. | Capital Structure |
As of the Petition Date, on a consolidated basis, the Company’s balance sheet reflected assets and liabilities of approximately $3.4 billion and $8.1 billion, respectively, with negative stockholders’ equity of approximately $4.7 billion.
[4] | Stichting Holding GOL Equity Finance does not have capital divided in shares and does not have any owners. |
[5] | GLA is the sole quotaholder of two Brazilian investment funds: Debtors Capitânia Air Fundo de Investimento Multimercado Crédito Privado Investimento no Exterior, which carries out hedging activities, and Sorriso Fundo de Investimento em Cotas de Fundos de Investimento Multimercado Crédito Privado Investimento no Exterior, a cash management vehicle. |
[6] | Each ADR represents two preferred shares with no par value. GLAI’s preferred shares are generally non-voting shares; under certain limited circumstances provided for under GLAI’s bylaws, however, holders of GLAI’s preferred shares may be entitled to vote. GLAI’s preferred shares also have certain dividend rights, a liquidation preference, and other protections. |
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As of the Petition Date, on a consolidated basis, the Company had approximately $4.1 billion of outstanding funded indebtedness and lease obligations,[7] of which approximately $2.2 billion was secured by a substantial portion of the Debtors’ assets, including (i) certain trademarks and other intellectual property, (ii) aircraft engines and spare parts, and (iii) certain credit card receivables from the sale of airfare and receivables from the loyalty program mileage points. An overview of the Debtors’ indebtedness follows:
i. | Secured Debt |
a. | 2028 Notes |
On March 2, 2023, GFL issued to Abra an aggregate principal amount of $896,664,000 of senior secured notes maturing in 2028 that accrue interest at the rate of 18.00%, consisting of 4.50% cash interest and 13.50% PIK interest. The 2028 Senior Secured Notes are secured by, among other things, and subject to the terms of the 2028 Senior Secured Notes Documents, a fiduciary assignment[8] of certain intellectual property and other assets related to the Smiles loyalty program, all shares of Smiles Fidelidade S.A., and, on a pari passu basis, all collateral securing the 2026 Senior Secured Notes (as described below). From March 2023 to September 2023, the principal amount of 2028 Senior Secured Notes was increased by cash disbursements from Abra to the Company and accrued interest for a total of $1,292,879,000 of the 2028 Senior Secured Notes effectively issued. In September 2023, as contemplated and permitted by the terms of the 2028 Senior Secured Notes Documents, GFL redeemed $1,180,442,000 in principal amount of the 2028 Senior Secured Notes from Abra, and Abra concurrently purchased the same principal amount of 2028 Senior Secured Exchangeable Notes from GEF. The 2028 Senior Secured Exchangeable Notes carry substantially identical interest and security terms as the 2028 Senior Secured Notes and are exchangeable into preferred shares of GLAI subject to certain conditions. All 2028 Senior Secured Notes and 2028 Senior Secured Exchangeable Notes are held by Abra Group Limited and Abra Global Finance. As of the Petition Date, the aggregate outstanding principal amount of 2028 Senior Secured Notes and 2028 Senior Secured Exchangeable Notes was $270 million and $1.207 billion, respectively.
b. | 2026 Senior Secured Notes |
On December 23, 2020, GFL issued $200 million in aggregate principal amount of 8.00% senior secured notes maturing June 30, 2026. On May 11, 2021, and September 28, 2021, GFL issued $300 million and $150 million in aggregate principal amount of additional 2026 Senior Secured Notes, respectively. The 2026 Senior Secured Notes are secured by a fiduciary assignment of certain spare parts and the intellectual property of the Company. Certain 2026 Senior Secured Notes were tendered in connection with the Abra Transaction. As of the Petition Date, the aggregate outstanding principal amount of the 2026 Senior Secured Notes was $251.17 million.
[7] | The Debtors’ remaining liabilities include obligations owed to suppliers, labor obligations, taxes and fees, obligations under the Smiles loyalty program, and certain obligations under derivatives, among others. |
[8] | A fiduciary assignment is a type of secured interest in collateral under Brazilian law. |
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c. | Glide Notes |
On December 30, 2022, GFL issued $125,699,947.99 in aggregate principal amount of 5.00% senior secured amortizing notes due 2026 and $70,077,902.47 in aggregate principal amount of 3.00% subordinated secured amortizing notes due 2025. The Glide Notes were issued in exchange for the full release of certain aircraft lease payment obligations under deferral agreements and certain other obligations owing to the participating aircraft lessors.
The Glide Notes due 2026 amortize in ten equal quarterly installments ending on June 30, 2026; the Glide Notes due 2025 amortize in nine equal quarterly installments ending on June 30, 2025. The Glide Notes due 2025 are contractually subordinated to the Glide Notes due 2026. The Glide Notes are secured by a fiduciary assignment of receivables under a partnership agreement for sale of mileage points under the Smiles loyalty program and proceeds of the receivables deposited in a segregated account.
On January 27, 2023, and July 19, 2023, GFL issued additional Glide Notes due 2026 in aggregate principal amounts of $6,992,575.20 and $8,969,737.96, respectively. On April 20, 2023, and June 7, 2023, GFL issued additional Glide Notes due 2025 in aggregate principal amounts of $19,976,057.79 and $9,000,000.00, respectively. As of the Petition Date, the aggregate principal amount of Glide Notes due 2026 and Glide Notes due 2025 outstanding was $141.66 million and $66.04 million, respectively.
d. | Debentures |
On October 28, 2018, April 16, 2020, and October 1, 2020, GLA issued, in three series, the 7a Debentures[9] in the aggregate principal amount, as of the Petition Date, of approximately R$411,125,967.60 (equivalent to US$83,562,188.54).[10] The 7a Debentures are held by Banco do Brasil S.A. and Banco Bradesco S.A. On October 27, 2021, GLA issued the 8a Debentures (together with the 7a Debentures, the “Debentures”) in the aggregate principal amount, as of the Petition Date, of approximately R$445,340,923.24 (equivalent to US$90,516,447.81). The 8a Debentures are held by Banco Santander S.A. (Brasil) and Banco do Brasil S.A.
During the third quarter of 2023, the terms of repayment and security of the Debentures were amended with the consent of the applicable Debenture Banks. The Debentures accrue interest at the rate of variation of the Brazilian interbank deposit certificate (the CDI rate) plus 5.00% and are secured by a fiduciary assignment of certain Visa®-branded credit and debit card receivables. The Debentures amortize in monthly installments ending on June 27, 2026. As of the Petition Date, the aggregate amount outstanding under the 7a Debentures and the 8a Debentures (including accrued interest) was R$411,385,431.67 (equivalent to US$83,614,925.14) and R$445,621,980.57 (equivalent to US$90,573,573.29), respectively.
As detailed below, on August 2, 2024, the Bankruptcy Court entered an order [Docket No. 844] approving an agreement between GLAI, GLA, and the Debenture Banks amending the
[9] | The first through sixth issuances of debentures are no longer outstanding. |
[10] | The amounts in BRL set forth in this “Debentures” Section have been converted into USD at the rate of R$4.92 to US$1.00, which was the USD selling rate as reported by the Brazilian Central Bank as of the Petition Date. |
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terms of the Debentures. Among other things, the Debtors agreed to amend the Debentures to provide for during the Chapter 11 Cases (i) payment of contractual interest at the CDI+5.25% (amended from 5.0% prepetition), (ii) an amortization payment of 10% of the outstanding balance amortizing from entry of the Debenture Banks Order, with the remaining 90% to amortize in equal monthly installments through December 2027 (as extended from June 2026), and (iii) a structuring fee of 1.0% of the outstanding balance of the Debentures. Subject to confirmation of a Plan, the Debtors agreed to provide the same treatment to the holders of the Debenture Claims on account of the Debentures under the Plan. In exchange, the Debenture Banks agreed to (i) provide for the factoring of receivables, including Visa Receivables (as defined in the Debenture Banks Order), up to a committed credit line of R$1.87 billion in receivables, subject to certain conditions, (ii) renew expiring standby letters of credit, and (iii) support a chapter 11 plan containing the terms set forth in the Debenture Banks Order.
e. | Safra Secured Claims |
From time to time, the Company issues credit lines with private banks using import spare parts and aeronautical equipment, or import financing (the “FINIMPs”). As of the Petition Date, GLA had approximately $4.1 million in FINIMPs held by Banco Safra S.A. (Luxembourg Branch) outstanding.
In August 2022, GLA issued a secured bank credit note (Cédulas de Crédito Bancário) to Banco Safra S.A. in the principal amount of approximately $14 million. The 2022 Bank Credit Note accrues interest at the CDI rate plus 4.70%, amortizes in monthly installments ending on February 29, 2024, and is secured by a fiduciary assignment of American Express credit and debit card receivables. As of the Petition Date, the Debtors had approximately $985,000 outstanding under the 2022 Bank Credit Note.
As detailed below, the Debtors and Banco Safra S.A. and Banco Safra S.A. (Luxembourg Branch) (collectively, “Safra”) entered into a stipulation, as entered by the Bankruptcy Court on May 29, 2024 [Docket No. 648], regarding, among other things, adequate protection of Safra’s secured claims in exchange for agreements to factor certain credit and debit card receivables and amendments to the secured notes held by Safra to reflect the terms of the Safra Stipulation.
f. | Pine Secured Claims |
In September 2022, GLA issued a secured bank credit note (Cédulas de Crédito Bancário) to Banco Pine S.A. (“Pine”) in the principal amount of approximately $8 million (the “Pine Credit Note”). The Pine Credit Note accrues interest at 18.53%, amortizes in monthly installments ending on September 20, 2024, and is secured by a bank deposit certificate. As of the Petition Date, the Debtors had $3.6 million outstanding under the Pine Credit Note.
As detailed below, the Debtors and Pine entered into a settlement agreement, as authorized by the Bankruptcy Court on August 26, 2024 [Docket No. 928], to, among other things, amend or enter into new agreements to evidence an obligation of approximately $2,199,963 in favor of Pine, which will be amortized over four years beginning in September 2024. The Debtors also agreed to make monthly interest payments to Pine on this amount at an annual interest rate of 15.8%. Pine agreed to provide the Debtors with a new credit line of approximately $3,046,798 to allow the
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Debtors to enter into derivative financial instruments related to currency or oil and its subproducts. Pine also agreed to dismiss the collection action it commenced against the Debtors in Brazil and not undertake any judicial or extrajudicial measures to collect any prepetition amounts from the Debtors.
g. | Rendimento Secured Claims |
In September 2018, GLA entered into a Partnership and Cooperation Agreement (the “Partnership Agreement”) with Banco Rendimento S.A. (“Rendimento”), pursuant to which Rendimento agreed to purchase up to approximately $6.1 million of GLA’s trade payables directly from GLA’s suppliers. Pursuant to the Partnership Agreement, as of the Petition Date, Rendimento had purchased approximately three receivables from Vibra Energia S.A., each in the amount of approximately $2 million. To secure approximately 50% of the first approximately $4 million of payables purchased by Rendimento, GLA granted Rendimento a fiduciary assignment of approximately $2 million of receivables related to short-term investment securities held by GLA at Rendimento.
As detailed below, on August 29, 2024, the Bankruptcy Court entered an order [Docket No. 904] approving a settlement agreement between the Debtors and Rendimento. Pursuant to the settlement agreement, the Debtors and Rendimento agreed to amend their existing agreements or enter into new agreements to evidence an obligation in favor of Rendimento in the amount of approximately $4,054,518. The Debtors agreed to make monthly principal payments to Rendimento of less than $100,000 over four years, with the first installment due on the later of August 23, 2024, or three (3) days after the execution of definitive documentation. The Debtors also agreed to make interest payments to Rendimento on this amount at an annual interest rate of 13.7%. Rendimento agreed to refrain from undertaking judicial or extrajudicial measures to collect on any prepetition amounts from the Debtors or Reorganized Debtors.
ii. Unsecured Debt
a. | 2024 Senior Exchangeable Notes |
On March 26, 2019, GEF issued $300 million in aggregate principal amount of 3.75% unsecured 2024 senior exchangeable notes due July 15, 2024. On April 17, 2019, and July 22, 2019, GEF issued an additional $45 million and $80 million, respectively, in aggregate principal amount of 2024 Senior Exchangeable Notes. The 2024 Senior Exchangeable Notes are exchangeable into preferred shares of GLAI subject to certain conditions. Certain 2024 Senior Exchangeable Notes were tendered in connection with the Abra Transaction. As a result, as of the Petition Date, the aggregate principal of the 2024 Senior Exchangeable Notes outstanding was $42.5 million.
b. | 2025 Senior Notes |
On December 11, 2017, GFL issued $500 million in aggregate principal amount of 7.00% unsecured 2025 Senior Notes due January 31, 2025. On February 2, 2018, GFL issued an additional $150 million in aggregate principal amount of 2025 Senior Notes. Certain 2025 Senior Notes were tendered in connection with the Abra Transaction. As of the Petition Date, the aggregate principal of the 2025 Senior Notes outstanding was $354.1 million.
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c. | Perpetual Notes |
On April 5, 2006, GFC issued $200 million in aggregate principal amount of 8.75% unsecured Perpetual Notes. Certain Perpetual Notes were tendered in connection with the Abra Transaction. As of the Petition Date, the aggregate principal of the Perpetual Notes outstanding was $140.2 million.
d. | Safra Unsecured Claims |
In October 2020, GLA issued an unsecured bank credit note (Cédulas de Crédito Bancário) to Safra in the principal amount of approximately $2 million. The 2020 Bank Credit Note accrues interest at the CDI rate plus 4.907% and amortizes in monthly installments ending on October 23, 2025. As of the Petition Date, approximately $1.396 million was outstanding under the 2020 Bank Credit Note. Additionally, GLA owes certain unsecured trade payables to Safra in the amount of $15,046.00.
e. | Air France-KLM Unsecured Credit Facility |
On November 2023, GLA obtained a $25 million credit facility with Air France-KLM (the “AF-KLM Credit Facility”). The AF-KLM Credit Facility carries no interest. As of the Petition Date, approximately $20.2 million of the AF-KLM Credit Facility was outstanding, which has since been paid off pursuant to the Final Order (i) Authorizing the Debtors to (a) Assume Certain Critical Airline Agreements, (b) Honor Prepetition Obligations Related Thereto, and (c) Enter into New Critical Airline Agreements; (ii) Modifying the Automatic Stay; and (iii) Granting Related Relief [Docket No. 195].
f. | Trade Payables |
As of the Petition Date, the Debtors had approximately $185.4 million of unsecured trade payables outstanding.
g. | Aircraft and Engine Leases |
As of the Petition Date, the Debtors operated 141 aircraft under lease agreements, pursuant to which they are required to make monthly lease payments and meet certain other obligations (which may include maintenance, servicing, and insurance expenses) and comply with specified return conditions of the leased aircraft. As of the Petition Date, the Debtors had sixty-four spare engines under lease agreements, pursuant to which they are required, subject to certain exceptions, to make lease rental payments and to bear the maintenance expenses and comply with the return conditions of each engine. As of the Petition Date, the Debtors’ lease obligations aggregated approximately $1.92 billion, with approximately $353.6 million payable over the twelve months following the Petition Date.
From time to time, the Company enters into letters of credit with lessors in support of their lease obligations. As of the Petition Date, these letters of credit totaled $84.7 million, of which $27.4 million were cash collateralized.
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h. | Other Unsecured Debt |
The Debtors also have obligations arising from or related to certain litigation claims asserted by Brazilian plaintiffs and governmental authorities (as described in the Debtors’ Motion for Entry of Interim and Final Orders (i) Authorizing Them to Pay Certain Lien Claimants and (ii) Granting Related Relief [Docket No. 20]).
SECTION
III.
Key Events Leading to the Chapter 11 Cases
The Company’s business is profitable and operationally successful; the Company is able to make current lease payments, and revenues generated from flights are generally in excess of the costs incurred to operate those flights. But increased costs and reduced availability of financing reduced the Company’s ability to service legacy liabilities and to make required investments, resulting in a substantial liquidity need that ongoing operations and other sources of liquidity were insufficient to satisfy. Further, the Company viewed the foreseeable operating outlook as favorable, but was unable to make the appropriate growth investments to support the long-term prospects of the business. The Debtors filed the Chapter 11 Cases to enable them to, among other things, restructure their balance sheet, allow them to reduce their outstanding obligations and raise new capital for future growth, while ensuring continued service to customers by maintaining their operating fleet, route network, and employee census.
A. | Boeing 737 MAX 8 Grounding |
Although the most significant economic impact on the Company’s liquidity issues leading up to these Chapter 11 Cases was the long-term effects of the COVID-19 pandemic in 2020 discussed below, certain unfavorable events occurred even before then. The most notable of these was the temporary grounding of Boeing 737 MAX 8 aircraft in 2019. The Company employs a single narrow-body fleet of Boeing 737s to provide maximum operational flexibility and efficiency. In 2018, the Company took delivery of their first seven Boeing 737 MAX 8 aircraft. In 2019, however, this model was temporarily grounded by more than fifty regulators worldwide, preventing the Company from deploying their newest aircraft and forcing them to increasingly rely on older aircraft to meet their operational needs. This led to increased near-term maintenance and servicing on the older aircraft, creating greater demands on cash and affecting planned capacity, and prevented the Company from realizing certain expected efficiencies and financial opportunities anticipated in connection with the newer aircraft.
In late 2020, the 737 MAX 8 model was cleared to return to service, and by the end of 2022, the Company had a total of thirty-six new 737 MAX 8 aircraft. These newer aircraft have increased the Company’s operational efficiency and enabled it to return and retire some of the older aircraft. Between the 737 MAX 8 grounding and supply-chain issues caused by the COVID-19 pandemic, the Company’s sole source of new aircraft, Boeing, has had significant delays in the delivery of new aircraft, which has further postponed the planned modernization of the Company’s fleet.
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B. | COVID-19 Pandemic |
The global COVID-19 pandemic, beginning in 2020, severely affected the Company’s business. At the worst point during the pandemic, the Company operated fewer than fifty daily flights, representing a 90% decline from pre-pandemic levels—which resulted in significant negative operating cashflow. In addition to this liquidity shortfall, the Company lost access to lines of credit and was forced to temporarily pause certain scheduled heavy maintenance, primarily on engines. Because the government of Brazil, unlike certain other countries, did not provide direct monetary support to airlines, the Company did not have access to any direct financial assistance from the government. As a result, the Company used all of its available liquidity sources to maintain operations, as well as pre-pandemic fleet and employee base sizes.
Notwithstanding the precipitous decline in demand and financial constraints, during the pandemic, the Company was able to obtain agreements with key constituencies that enabled it to weather the crisis. For example, the Company reached agreements with all labor unions to reduce salaries and with government agencies, taxation agencies, and certain lessors to defer certain cash payments. While this allowed the Company to continue operating and serving its customers, the deferred obligations continued to accrue, and many remain outstanding today. These deferred outstanding obligations include those related to suppliers, air traffic control fees, airport usage, and taxes, among others.
C. | Interest Rate and Credit Environment |
The Company’s significant indebtedness is denominated in Brazilian reals and U.S. dollars, meaning that the Company is sensitive to the interest rate environment in both Brazil and the United States. In early 2023, interest rates in Brazil climbed, with the reference rate reaching 13.65% before gradually starting to decrease to 11.65% in late 2023. In the United States, interest rates have also climbed in recent years, peaking at 5.40% in September 2023 from less than 0.1% two years prior. Additionally, in 2023, the availability and pricing of credit also deteriorated: in early 2023, the Brazilian domestic credit markets severely contracted after a large retailer group, Lojas Americanas, filed for local bankruptcy proceedings in Brazil. This filing created a significant reduction in local credit availability in Brazil. As a result, the Company was unable to roll over and refinance certain local credit lines, while refinancings were effected at much interest higher rates, which negatively impacted the Company’s liquidity and cost of debt.
As a result, although the Company remained operationally profitable, its deferred accrued obligations related to maintenance, fees and taxes, and certain funded debt created a substantial near-term liquidity shortage that operations alone were unable to meet. The Company engaged in a series of transactions in late 2022 and 2023 to address these issues, the most significant of which are discussed briefly below.
D. | Glide Notes |
While the Company’s operations enabled them to make current lease payments, significant lease arrears and deferrals accumulated during the pandemic. To address this gap, at the end of 2022, the Company reached an agreement with a subset of their lessors to exchange certain deferred lease-related obligations for senior amortizing notes in the same amount (the Glide Notes),
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which was approximately $220 million. This enabled the Company to obtain a grace period and then amortize the deferred lease obligations over a period of approximately three years.
E. | Abra Transaction |
In 2023, the Company entered into a significant new business combination with Abra. Abra is an airline group that partners the Company and Avianca, a Colombia-based international airline. The Company and Avianca are complementary airlines, both in operational models and in destinations served. Having recognized this, the companies entered into a strategic partnership and business venture. Abra now provides a platform through which the Company and Avianca can realize commercial and operational synergies and gain a competitive edge in the global airline market. Abra also opens the door to other potential opportunities and combinations with other industry players.
In March 2023, the Abra Transaction closed. Abra Global Finance issued the Abra Notes to international bond investors (principally to members of an ad hoc group of GEF, GFL, and GFC bondholders). In exchange for these bonds, the investors provided cash and tendered their holdings of 2024 Senior Exchangeable Notes, 2025 Senior Notes, 2026 Senior Secured Notes, and Perpetual Notes at substantial discounts, which notes were tendered to the Company in exchange for the Company’s private placement of the 2028 Senior Secured Notes with Abra. Approximately $1.2 billion of the 2028 Senior Secured Notes, issued by GFL, were subsequently redeemed by GFL at Abra’s election. Abra then purchased an equivalent amount of 2028 Senior Secured Exchangeable Notes issued by GEF (which carried substantially identical interest and security terms as the 2028 Senior Secured Notes). GEF used the proceeds it received from its issuance of the 2028 Senior Secured Exchangeable Notes to purchase the GLAI warrants. The Abra Transaction enabled the Company to retire nearly $1.1 billion in near-term obligations at an average price of seventy-one cents on the dollar and provided the Company with approximately $400 million in much-needed liquidity, in exchange for which the Company took on approximately $1.458 billion in new debt at a net higher interest rate, secured by substantially more collateral as compared to the Company’s retired secured debt.
In October 2024, Abra and certain holders of the Abra Notes entered into a transaction to refinance certain of the Abra Notes. As a result of that refinancing transaction, the holders of the Abra Notes consensually released the Prepetition Debtor Abra Notes Pledged Liens (as defined in the DIP Order).
F. | Prepetition Outreach |
Following the closing of the Abra Transaction in March 2023, the Company continued to work toward consensual liability adjustments with all stakeholders. The Company’s key goals included modifying aircraft and engine leases with existing lessors, addressing maintenance capex requirements, extending short-term liabilities, and working with local government and banks to defer and/or reduce liabilities. The Company’s advisors and management aimed to address the Company’s liquidity issues through a comprehensive approach that focused on keeping key stakeholders at the table while exploring options for securing additional capital.
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In the fall of 2023, the Company initially sought additional capital in an out-of-court restructuring process in the amount of $600 million, but this was later upsized in early December 2023 to $950 million due to near-term headwinds related to the Company’s liquidity outlook and a reduced number of operating aircraft. The Company’s advisors reached out to over twenty lenders from various financial institutions (i.e., private equity firms, hedge funds, and airline focused funds) to solicit interest in providing this capital to the Company.
In January 2024, it became increasingly likely that the Company would require the breathing room provided by a chapter 11 process to effectuate its reorganization, including an immediate infusion of liquidity through debtor-in-possession (“DIP”) financing. Accordingly, the Company and its advisors initiated a dual process, requesting proposals for both an out-of-court capital raise and DIP financing. Due to the short timeframe in which the funds were needed, the solicitation efforts focused on the parties best able to move quickly and to deliver the amount required.
During this time, the Company also focused on lessor outreach. The Debtors’ advisors contacted each of the Company’s twenty-seven lessors (seventeen aircraft-only lessors, three lessors of both aircraft and engines, six engine-only lessors, and one legacy lessor), making presentations and proposals regarding go-forward lease modifications. Although these efforts resulted in several successful agreements and deferral arrangements, they were unable to address the entirety of the Company’s accrued obligations prior to commencing these Chapter 11 Cases due to the inability to obtain $950 million of new capital financing.
While the Company’s prepetition efforts enabled them to address certain immediate liquidity needs, the Company nonetheless had to commence the Chapter 11 Cases given the substantial amount of deferred obligations coming due and the required capital investments needed to restructure their obligations that could be satisfied by operational revenues alone.
SECTION
IV.
Overview of the Chapter 11 Cases
A. | Commencement of Chapter 11 Cases and First Day Motions |
On January 25, 2024, each of the Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. The Debtors continue to operate their business as debtors-in-possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
On the Petition Date, the Debtors filed multiple motions seeking various relief from the Bankruptcy Court to facilitate a smooth transition into chapter 11 and minimize any disruptions to their operations (the “First Day Motions”). The Bankruptcy Court granted substantially all of the relief requested in the First Day Motions on a final basis and entered various orders authorizing the Debtors to, among other things:
· | obtain DIP financing [Docket No. 207]; |
· | continue to use their cash management system, factor receivables, and engage in intercompany transactions [Docket No. 190]; |
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· | continue paying employee wages and benefits [Docket No. 198]; |
· | pay certain prepetition taxes and fees [Docket No. 171]; |
· | continue insurance and surety bond programs [Docket No. 174]; |
· | continue performing under, and entering into new, derivative contracts [Docket No. 191]; |
· | pay certain lien and Brazilian litigation claimants [Docket No. 195]; |
· | pay prepetition claims of non-U.S. vendors [Docket No. 192]; |
· | maintain various existing customer programs [Docket No. 173]; |
· | honor obligations related to critical airline agreements [Docket No. 195]; and |
· | prohibit utility providers from altering services [Docket No. 69]. |
B. | Procedural Motions |
The Debtors also filed various motions regarding procedural issues that are common to chapter 11 cases of similar size and complexity as the Chapter 11 Cases. The Bankruptcy Court granted substantially all of the relief requested in such motions, authorizing the Debtors to, among other things:
· | enforce the protections of the worldwide automatic stay [Docket No. 31]; |
· | jointly administer the Debtors’ estates [Docket No. 58]; |
· | file a consolidated creditor matrix and list of 30 largest unsecured creditors and modify the requirement to file a list of equity security holders [Docket No. 65]; |
· | implement certain notice and case management procedures [Docket No. 175]; |
· | establish procedures for interim compensation and reimbursement of expenses of retained professionals [Docket No. 231]; and |
· | employ and pay legal professionals in the ordinary course of business [Docket No. 254]. |
C. | Retention of Chapter 11 Professionals |
The Debtors obtained authority from the Bankruptcy Court to retain various professionals to assist them in administering the Chapter 11 Cases, including, without limitation:
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· | Milbank LLP, as lead bankruptcy counsel [Docket No. 292]; |
· | Hughes Hubbard & Reed LLP, as co-counsel [Docket No. 252]; |
· | Quinn Emanuel Urquhart & Sullivan, LLP, as special litigation counsel [Docket No. 249]; |
· | Seabury International Corporate Finance LLC and Seabury Securities LLC, as restructuring advisor, investment banker, and financial advisor [Docket Nos. 250, 996, 1274]; |
· | AlixPartners International, Inc. and AlixPartners, LLP, as financial advisor [Docket No. 251]; and |
· | Kroll, as claims and noticing agent and administrative advisor [Docket Nos. 66, 291]. |
Each of the professionals’ engagement letters and related filings, can be found at https://cases.ra.kroll.com/GOL/.
D. | Restructuring Committee Formation and Commencement of Its Investigation |
In January 2024, prior to the commencement of these Chapter 11 Cases, GLAI’s board of directors constituted the Restructuring Committee and appointed three members—Paul Stewart Aronzon, Timothy Robert Coleman, and Marcela de Paiva Bonfim Teixeira—all of whom are independent directors of GLAI’s board. Mr. Aronzon and Mr. Coleman collectively have more than 80 years of restructuring experience, and Ms. Teixeira has more than 22 years of business experience. The Restructuring Committee was appointed to serve as an advisory committee to GLAI’s board of directors, endowed with the powers and authority to evaluate, review, oversee negotiations, and provide recommendations to GLAI’s board regarding any matters arising from, or related to, the Chapter 11 Cases. At substantially the same time that the Restructuring Committee was appointed, Joseph Wilfred Bliley IV was appointed as the Debtors’ Chief Restructuring Officer.
Soon after its appointment, the Restructuring Committee commenced an investigation into certain prepetition financing and other transactions that had been effectuated by the Debtors in the years leading up to the Petition Date to determine whether there were any potential causes of action in connection therewith that would inform the Restructuring Committee’s views on potential litigation, plan formation, distribution of value, and settlements, if any.
At the direction of the Restructuring Committee, Hughes Hubbard & Reed LLP (“Hughes Hubbard”), led the investigation. The Hughes Hubbard team included attorneys highly experienced in restructuring and investigation matters, and included, among others, the co-chairs of Hughes Hubbard’s investigations practice group, one of whom is a former senior Department of Justice official, as well as the co-chair of Hughes Hubbard’s corporate reorganization department. The investigation team brought decades of collective experience to the investigation.
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Hughes Hubbard investigated the events leading up to and causes of the bankruptcy filing, the Debtors’ business dealings with Abra, including but not limited to the 2023 Abra structured financing that gave rise to the 2028 Senior Secured Notes and the 2028 Senior Secured Exchangeable Notes, payments to insiders, and material financings including the 2024 Senior Exchangeable Notes, the 2025 Senior Notes and the 2026 Senior Secured Notes, the Glide Notes, the Perpetual Notes, and other material business transactions since 2020. With assistance from AlixPartners, LLP (who worked at the direction of Hughes Hubbard), the Restructuring Committee also analyzed the Debtors’ financial condition during the relevant investigation time period.
On behalf of the Restructuring Committee, Hughes Hubbard performed a comprehensive and detailed review of certain potential estate claims, including assessing the strength of possible defenses thereto. As part of the Restructuring Committee investigation, Hughes Hubbard reviewed over 290,000 documents and communications, conducted twenty-six (26) interviews of current and former employees and directors of multiple Debtors, professionals and certain third-parties, and spent over 8,500 hours conducting an in-depth legal analysis of the viability of potential estate claims and defenses thereto. The Restructuring Committee typically met with Hughes Hubbard on a weekly basis and received regular updates regarding the status of the investigation and its findings.
As part of the Restructuring Committee’s investigation, Hughes Hubbard considered a wide range of potential claims against the parties involved in the transactions it investigated (including but not limited to the Debtors, Abra and the Abra Noteholders, and their respective representatives). These included claims for, among other things, breach of contract; breach of the covenant of good faith and fair dealing; conduct-based claims such as breach of fiduciary duty, willful misconduct, gross negligence, fraud, and equitable subordination; claims for aiding and abetting such conduct-based claims; and avoidance claims pursuant to chapter 5 of the Bankruptcy Code such as preference, intentional fraudulent transfer, and constructive fraudulent transfer. Hughes Hubbard also analyzed the amount and legal basis for Abra’s claims for a make-whole premium in connection with the Abra Transaction (the “Make-Whole”), original issue discount and postpetition interest, as well as its assertion of a secured claim. In considering these various claims and potential defenses thereto, Hughes Hubbard thoroughly analyzed the facts, including applicable documents and communications, as well as applicable statutory and case law. Hughes Hubbard performed a detailed analysis of the Abra Transaction as a whole, and similarly considered the other transactions it investigated as a whole.
In or around March 2024, the Committee initiated its own investigation regarding the Abra Transaction. The Committee made discovery requests to the Debtors. Hughes Hubbard responded to the Committee’s information requests, met with the Committee’s advisors, and reviewed and analyzed the claims that the Committee informally asserted regarding the Abra Transaction, as well as potential defenses to such claims.
In July 2024, the Committee presented the Debtors with a list of potential claims relating to the Abra Transaction. With respect to the Abra Transaction, the Committee identified potential preference and fraudulent transfer claims, as well as potential claims for equitable subordination, and raised potential challenges to the portions of the GOL 2028 Notes’ claims relating to make-whole premiums, original issue discount, and postpetition interest. The Committee also
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raised potential challenges to the validity and priority of the liens attached to certain of the collateral securing the 2026 Senior Secured Notes, the GOL 2028 Notes, and the Abra Notes. The Committee’s investigation is described further in a separate section of this Disclosure Statement.
Together with its own investigation, Hughes Hubbard analyzed the Committee’s claims and potential defenses to such claims, both in connection with the Restructuring Committee investigation and in connection with plan settlement negotiations with the Debtors, the Committee and Abra.
With respect to potential preference and fraudulent transfer claims, the Restructuring Committee considered, among other things, the potential applicability of the Bankruptcy Code section 546(e) safe harbor defense, the extraterritoriality defense, and defenses of substantially contemporaneous exchange, new value, reasonably equivalent value, good faith, intent, and the three financial condition tests, as well as the ability to meet the specific elements of the various potential claims. The Restructuring Committee investigation found that, taken together, enough of these defenses had merit to present significant challenges to successfully prosecuting such claims.
With respect to contract-based claims, Hughes Hubbard considered the terms of the relevant agreements, contract negotiations, and related communications. With respect to such contract-based claims, the Restructuring Committee investigation did not find any viable claims for breach of contract or breach of the covenant of good faith and fair dealing, but potentially viable arguments to object to Abra’s claims for original issue discount and the Make-Whole (but not claims for postpetition interest). Abra’s claims for the Make-Whole implicated certain conflicting case law decisions, which left the potential outcome of any litigation uncertain.
With respect to conduct-based claims, Hughes Hubbard considered, among other things, the actual intent of relevant parties and corporate law principles on fiduciary duties. With respect to such conduct-based claims, the Restructuring Committee investigation found no evidence that the Debtors, Abra, the Abra Noteholders, or their respective employees, directors, and representatives, in their capacities as such, engaged in fraud or willful misconduct, breached any fiduciary duties, or acted with an intent to hinder, delay, or defraud creditors in connection with the Abra Transaction or otherwise. Moreover, the Restructuring Committee investigation found that any conduct-based claims and avoidance claims would be unlikely to succeed on the merits, taking into account all facts and circumstances, as well as potential defenses to any such claims. Importantly, the investigation found that the Abra Transaction was pursued for legitimate business purposes and provided much needed capital to the Debtors that, absent the Abra Transaction, may not have been available from other financing sources. Due to certain extraneous events, as further described in the Declaration of Joseph W. Bliley in Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings [Docket No. 11], the new money from the Abra Transaction wound up not being sufficient to stave off a bankruptcy filing.
The Restructuring Committee also considered the various potential risks that existed to the ultimate recovery of any of the claims it investigated. Abra and the Abra Noteholders would likely vigorously defend themselves. If successful, these defenses would have rendered the claims being settled worthless and thus greatly impact the litigation’s chances of success, after
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expending substantial time and money pursuing the claims. However, while they may not ultimately be meritorious or successful, assertion of the claims investigated by the Restructuring Committee described above could potentially force the Debtors to incur substantial time and costs to litigate them. These factors provided strong support for entry into the Plan Settlement.
The Restructuring Committee also considered the possible distributions to be paid to creditors should the Plan Settlement be approved. Given the magnitude of the secured claims being resolved pursuant to the Plan Settlement, it is possible that there could have been no distributable value to general unsecured creditors absent entry into the Plan Settlement. Instead, pursuant to the Plan Settlement, general unsecured creditors would realize over $200 million in distributable equity value. In light of the many litigation risks associated with the claims being settled, the Restructuring Committee believes that the Plan Settlement provides a substantial benefit to the Debtors’ stakeholders.
Traditional factors analyzed in connection with requests to approve settlements pursuant to Bankruptcy Rule 9019[11] supported settling claims relating to the Abra Transaction with the Committee and Abra.
- | The Plan Settlement followed the Restructuring Committee’s extremely detailed investigation, and arm’s length negotiations between the Debtors/Restructuring Committee, Abra, and the Committee. |
- | As part of its investigation, the Restructuring Committee conducted an extensive analysis of the Abra Transaction as a whole and from a variety of different legal theories and defenses described further above. |
- | As a result of the Restructuring Committee investigation, it became readily apparent that the Abra Transaction was a highly complex transaction, and that any litigation relating to the Abra Transaction would be expensive, time-consuming, and complex with an uncertain outcome. |
- | Certain case law relating to transactions like the Abra Transaction is relatively new and developing, with few reported decisions, and the outcome of any such litigation is thus uncertain. |
[11] | The Second Circuit outlined the test for consideration of settlements under the Bankruptcy Rules in Motorola, Inc. v. Official Comm. of Unsecured Creditors (In re Iridium Operating LLC), 478 F.3d 452, 462 (2d Cir. 2007). The factors to be considered are interrelated and require the Bankruptcy Court to evaluate: (1) the balance between the litigation’s possibility of success and the settlement’s future benefits; (2) the likelihood of complex and protracted litigation, “with its attendant expense, inconvenience, and delay,” including the difficulty in collecting on the judgment; (3) “the paramount interests of the creditors,” including each affected class’s relative benefits “and the degree to which creditors either do not object to or affirmatively support the proposed settlement;” (4) whether other parties in interest support the settlement; (5) the “competency and experience of counsel” supporting, and “[t]he experience and knowledge of the bankruptcy court judge” reviewing, the settlement; (6) “the nature and breadth of releases to be obtained by officers and directors;” and (7) “the extent to which the settlement is the product of arm’s length bargaining.” Id. (internal citations omitted). |
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- | Certain defenses to the claims investigated by the Restructuring Committee described above, such as, for example but not limited to, such as extraterritoriality and section 546(e) of the Bankruptcy Code safe harbor, could present dispositive defenses at an early stage of any litigation. And as stated above, the investigation made clear that the claims investigated by the Restructuring Committee described above would likely have a low likelihood of success on the merits. If completely successful, these defenses would render any claims worthless, after incurring significant time and expense litigating them. |
- | The Abra Transaction involved numerous sophisticated parties and investors, with highly experienced advisors, as did the Plan Settlement. The parties in both settings were represented by extremely experienced, well-respected attorneys, financial advisors, and investment bankers. |
- | The Debtors and their stakeholders are receiving a large benefit from the Plan Settlement. Namely, fully secured creditor Abra is agreeing to equitize much of its non-DIP Facility debt totaling over $1.4 billion, and has agreed to reinstate certain other secured debt, and provide over $200 million of equity value to general unsecured creditors. |
- | Since Abra holds the fulcrum security in these Chapter 11 Cases, the Debtors would be faced with significant hurdles and delays in confirming a plan of reorganization absent agreement from Abra to a consensual settlement and its continuing support post-emergence, which is critical to the Debtors’ ability to successfully emerge from bankruptcy and continue operations. |
- | Other than the parties who have filed objections to the Disclosure Statement, no other creditors have objected to the Plan Settlement at this time. |
- | The Plan Settlement was negotiated in good faith and at arm’s length among the aforementioned highly sophisticated parties and advisors. In addition to Abra and the Debtors, these negotiations also included the Restructuring Committee, the Committee, and their respective professionals. The Committee is comprised of members representing a broad cross-section of the Debtors’ unsecured creditor body, including representatives of lessors, trade creditors, unsecured notes (through the indenture trustee), and employee unions. |
This investigation and the conclusions of the Restructuring Committee provided the support needed for the Restructuring Committee to formulate the proposed Plan and engage in negotiations among the Debtors, Abra, and the Committee that ultimately resulted in the Plan Support Agreement.
E. | Approval of DIP Facility and Use of Certain Cash Collateral |
The DIP Facility was initially proposed to be approximately $950 million in new financing and was approved on an interim basis on January 29, 2024 [Docket No. 59]. Upon entry of the interim order, the Debtors accessed $350 million of the DIP Facility in the form of term loans to subsequently be refinanced by the issuance of notes under the DIP Note Purchase Agreement. The Debtors had access to up to another $150 million of loans upon entry of a final order approving
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the DIP Facility, and additional notes could be issued in one additional issuance, subject to the satisfaction of certain conditions. The DIP Facility was to be secured by liens on all of the assets of the Debtors (subject to certain carveouts) including: (i) a first-priority priming lien on all assets pledged to secure the Debtors’ obligations under the 2028 Senior Secured Notes, the 2028 Senior Secured Exchangeable Notes, and the 2026 Senior Secured Notes; (ii) a first-priority lien on all the Debtors’ unencumbered assets; (iii) a first-priority lien on any and all property and proceeds recovered from avoidance actions; and (iv) a second-priority lien on all the Debtors’ assets subject to valid perfected liens in existence as of the Petition Date other than the liens securing the 2028 Senior Secured Notes, the 2028 Senior Secured Exchangeable Notes, and the 2026 Senior Secured Notes. Outstanding amounts under the DIP Facility bear interest at the rate equal to 30-day SOFR (subject to a 3.50% per annum SOFR floor, but without any credit spread adjustment), plus 10.50% per annum.
After entry of the interim order, the ad hoc group of 2026 Senior Secured Notes holders (the “2026 Senior Secured Notes Ad Hoc Group”), among other parties, filed an objection to the final approval of the DIP Motion arguing that priming was not permitted under the 2026 Senior Secured Notes and that the Debtors were required to provide adequate protection to the holders of these notes [Docket No. 139]. Following good faith negotiations, the Debtors reached a settlement with the 2026 Senior Secured Notes Ad Hoc Group and consensually resolved all other formal and informal objections to the final approval of the DIP Facility. To resolve the dispute with the 2026 Senior Secured Notes Ad Hoc Group, the DIP Facility was modified as follows: (i) the DIP Facility was upsized to a total principal amount of $1 billion, with up to $50 million to be made available to certain members of the 2026 Senior Secured Notes Ad Hoc Group or their designees (without receiving commitment or backstop fees); (ii) the DIP liens were to prime the liens securing the 2026 Senior Secured Notes; (iii) as adequate protection, to the extent of any diminution in value, the holders of the 2026 Senior Secured Notes received a junior lien on the collateral securing the 2028 Senior Secured Notes and 2028 Senior Secured Exchangeable Notes; and (iv) the 2026 Senior Secured Notes Ad Hoc Group received a one-time payment of $800,000 to reimburse their professional fees and expenses.
On February 28, 2024, the Bankruptcy Court entered an order approving the DIP Facility, incorporating the settlement with the 2026 Senior Secured Notes Ad Hoc Group, on a final basis [Docket No. 207]. The DIP Facility provided the Debtors with approximately $1 billion in new liquidity and ensured the Debtors’ ability to pay operating expenses, finance the Chapter 11 Cases and, ultimately, restructure their debts, right-size their operations, and successfully reorganize.
The DIP Facility was initially set to mature on January 29, 2025, subject to the Debtors’ election to extend the maturity date up to two times by up to three months for each extension with the payment of an extension fee. The Debtors elected to make an initial extension of the maturity date and the related milestones, with payment of a $19 million maturity extension fee, payable in kind, extending the maturity date to April 29, 2025.
In early 2025, at the request of the Debtors, the DIP lenders agreed to provide the Debtors with the right to extend certain of the milestones and the maturity date under the DIP Facility by an additional forty (40) days with no extension fee. The Debtors made such election, and the DIP Facility is currently set to mature on June 8, 2025. The Debtors retained their right to elect to
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further extend the maturity date to no later than July 29, 2025, subject to payment of a $17,500,000 extension fee, payable in kind.
As noted, the DIP Facility requires compliance with certain milestones, including (as extended) the following: (i) the Bankruptcy Court must enter an order approving the Disclosure Statement acceptable to the Required Holders (as defined in the DIP Indenture) by April 7, 2025; (ii) the Bankruptcy Court must enter a confirmation order by May 26, 2025; and (iii) the Acceptable Plan (as defined in the DIP Indenture) must become effective no later than the then-existing Scheduled Maturity Date (as defined in the DIP Indenture).
In addition to the liquidity provided by the DIP Facility and access to cash collateral of the holders of the 2028 Notes and 2026 Senior Secured Notes, the Debtors reached an agreement for consensual use of certain cash collateral pledged to the holders of the Glide Notes, which was approved by the Bankruptcy Court on March 18, 2024 [Docket No. 289]. As discussed below, the Debtors also reached an agreement for consensual use of the cash collateral securing the Debentures.
F. | Appointment of Creditors’ Committee |
On February 9, 2024, the U.S. Trustee appointed the Committee, pursuant to section 1102 of the Bankruptcy Code, to represent the interests of unsecured creditors [Docket No. 114]. On February 13, 2024, the U.S. Trustee filed a notice amending the composition of the Committee from six to seven members [Docket No. 134]. The members of the Committee are: (i) SMBC Aviation Capital Limited; (ii) WWTAI AirOpCo II DAC; (iii) Genesis Aircraft Services Limited; (iv) Honeywell International; (v) Inframerica Concessionaria do Aeroporto de Brasilia S.A.; (vi) Sindicato Nacional dos Aeronautas; and (vii) The Bank of New York Mellon.
The Committee retained the following advisors: (i) Willkie Farr & Gallagher LLP (“Willkie Farr”), as counsel; (ii) Alvarez & Marsal North America, LLC (“A&M”), as financial advisor; (iii) Alton Aviation Consultancy LLC (“Alton”), as special aviation advisor; (iv) Jefferies LLC (“Jefferies”) as investment banker; and (v) Stocche, Forbes, Filizzola, Clapis e Cursino de Moura Sociedade de Advogados, CNPJ N° 17.073.496/0001-26 (“Stocche Forbes”) as Brazilian counsel. The Bankruptcy Court entered orders authorizing the Committee’s retention of these professionals [Docket Nos. 468 (Willkie Farr), 470 (A&M), 469 (Alton), 471 (Jefferies), 467 (Stocche Forbes)].
As set forth in the Committee Recommendation Letter, the Committee supports the Plan and recommends that unsecured creditors vote to accept the Plan.
G. | Fleet Restructuring |
As of the Petition Date, the Debtors’ fleet consisted of 141 leased aircraft and sixty-four engines. The Debtors and their advisors have engaged in a comprehensive restructuring of their aircraft and engine lease obligations, reaching Court-approved Lessor Agreements with substantially all of their aircraft and engine lessors (the “Lessors”) with respect to prepetition leases. The Lessor Agreements reduced the Debtors’ obligations under their aircraft and engine leases by $700 million, including by mitigating end-of-lease obligations, addressing prepetition arrears, deferrals, and rent obligations. Additionally, the Debtors sourced $375 million of new
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capital from the Lessors to aid in addressing engine-related maintenance and financing new deliveries via sale and leaseback (“SLB”) financings, among other things.
The Lessor Agreements, among other things, amended the terms of the leases with respect to rent payments, end-of-lease obligations, and/or return conditions and included provisions regarding maintenance contributions, engine financing, and/or parameters of the general unsecured and administrative claims that the Lessors could assert against the Debtors. The Debtors also agreed to assume certain aircraft and engine leases, as amended pursuant to the Lessor Agreements, upon the Effective Date. Additionally, stipulations entered into in connection with the Lessor Agreements resolved any issues related to the Cape Town Convention on International Interests in Mobile Equipment and the Protocol on Matters Specific to Aircraft Equipment without the need to resort to costly, time-consuming litigation. Furthermore, certain Lessors are holders of the Glide Notes, and, pursuant to the Lessor Agreements, have agreed to the treatment of the Glide Notes provided in the Plan. Certain of the Lessor Agreements also restrict the Lessors’ ability to assign their claims relating to the Lessor Agreements; provided, that such Lessors may convey a participation in such Lessor’s rights to receive any distributions on account of such claims under the Plan so long as such conveyance is not effective until after the Voting Deadline has passed.
The Debtors also added new aircraft and engines to their fleet during the Chapter 11 Cases. At the outset of the Chapter 11 Cases, the Debtors obtained the Bankruptcy Court’s approval of the assumption of certain SLB arrangements with AerCap Ireland Limited (“AerCap”) [Docket No. 210], which allowed the Debtors to assume two aircraft leases and expedite delivery of one aircraft not already in the Debtors’ fleet. This led to an increase in revenue for the Debtors’ estates by approximately $3.5 million per month. Additionally, the Debtors successfully obtained the Bankruptcy Court’s approval of (i) SLB agreements with Engine Lease Finance Corporation (“ELFC”) related to a new LEAP engine [Docket No. 631], (ii) SLB agreements with AerCap related to four Boeing 737-8MAX aircraft [Docket No. 740], (iii) SLB agreements with Avolon Aerospace Leasing Limited related to one CFM56-7B engine [Docket No. 842], (iv) a lease agreement with ELFC related to one LEAP-1B spare engine [Docket No. 963], (v) a lease agreement with FTAI Aviation Limited with respect to one CFM56-7B26 engine [Docket No. 1019], (vi) a lease agreement with BBAM Aviation Services Limited related to one Boeing 737-800BCF aircraft [Docket No. 1015], (vii) lease agreements with AerCap with respect to two used CFM56-7B26 spare engines [Docket No. 1059], (viii) a lease amendment to extend a lease with AerCap for a Boeing 737-700 aircraft [Docket No. 1089], (ix) SLB agreements with SKY Aero Management Limited with respect to three Boeing 737 MAX8 aircraft [Docket No. 1152], (x) a lease amendment to extend a lease with Merx Aviation Servicing Limited for a Boeing 737-800 aircraft [Docket No. 1172], (xi) SLB agreements with BBAM Aviation Services Limited with respect to up to five Boeing 737-8MAX aircraft [Docket No. 1271], and (xii) SLB agreements with High Ridge Aviation Limited with respect to up to three Boeing 737-8MAX aircraft [Docket No. 1272]. The Debtors continue to negotiate agreements for additional SLB arrangements and aircraft and engine leases.
The Debtors have rejected certain agreements with respect to aircraft and engine equipment that did not provide value to the Debtors’ estates, including rejections of agreements with respect to (i) two excess engines [Docket No. 209], (ii) one excess aircraft and one excess engine [Docket No. 476], (iii) three excess aircraft (including a settlement agreement related to the three aircraft, and a common terms agreement with respect to one of such aircraft) [Docket No. 958], and (iv) two
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excess aircraft [Docket No. 969]. The Debtors also assumed and assigned agreements related to two engines [Docket No. 906].
H. | Exclusivity |
Under section 1121(b) of the Bankruptcy Code, a debtor in possession has the exclusive right to file a chapter 11 plan for the first 120 days of its chapter 11 case (the “Exclusive Plan Period”). Under section 1121(c)(3) of the Bankruptcy Code, if a debtor files a plan within the Exclusive Plan Period, it has 180 days after commencing the chapter 11 case to obtain acceptances of such plan (the “Exclusive Solicitation Period” and, together with the Exclusive Plan Period, the “Exclusive Periods”). The Bankruptcy Court may, pursuant to section 1121(d) of the Bankruptcy Code, extend the Exclusive Periods for cause.
On June 3, 2024, the Bankruptcy Court entered an order [Docket No. 679] granting the Debtors’ motion to extend the Exclusive Plan Period to October 21, 2024, and the Exclusive Solicitation Period to December 20, 2024. On November 7, 2024, the Bankruptcy Court entered an order [Docket No. 1045] granting the Debtors’ second motion to extend the Exclusive Plan Period to March 20, 2025, and the Exclusive Solicitation Period to May 19, 2025.
I. | Schedules and Claims Bar Dates |
On March 25 and 26, 2024, the Debtors filed their statements of financial affairs (the “SOFAs”) and schedules of assets and liabilities (the “Schedules”) [Docket Nos. 349–374] listing known and potential claims against them. On April 22 and 23, 2024, certain Debtors filed amended SOFAs and Schedules [Docket Nos. 511–523], and on February 3, 2025, certain Debtors filed further amended Schedules [Docket Nos. 1264–1265] (collectively, the “Amended Schedules and SOFAs”).
On April 9, 2024, the Bankruptcy Court entered the Order (i) Establishing Bar Dates for Filing Proofs of Claim; (ii) Approving Proof of Claim Forms, Bar Date Notices, and Mailing and Publication Procedures; (iii) Implementing Procedures Regarding 503(B)(9) Claims and Administrative Claims; and (iv) Granting Related Relief [Docket No. 447] (the “Claims Bar Date Order”) establishing the following Claims Bar Dates: (i) June 14, 2024 as the deadline for all creditors other than governmental units to file Proofs of Claim and (ii) July 23, 2024 as the deadline for the governmental units to file Proofs of Claim. On June 6, 2024, the Bankruptcy Court entered an order [Docket No. 691] amending the Claims Bar Date Order to exclude the following parties from the obligation to comply with the Claims Bar Dates: (i) certain Brazilian customers, current and former employees, and governmental authorities who brought claims or levied fines through administrative or litigation proceedings against the Debtors in Brazil and (ii) the Debtors’ directors and officers.
The Debtors provided notice of the Claims Bar Dates, including publication notices in the United States, via the national edition of the Wall Street Journal, and in Brazil, via Folha de São Paulo.
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J. | LATAM Dispute |
At the outset of these Chapter 11 Cases, the Debtors obtained Court authorization to conduct discovery pursuant to Federal Rule of Bankruptcy Procedure 2004 related to certain postpetition actions of LATAM Airlines Group S.A. and TAM Linhas Aéreas S.A. (together with their affiliates, collectively, “LATAM”) [Docket No. 120]. The Debtors and their advisors reviewed documents produced, conducted depositions of LATAM personnel, and analyzed potential claims. Following this investigation, the Debtors determined not to pursue claims related to LATAM’s conduct.
K. | Settlements with Certain Banks |
On May 29, 2024, the Bankruptcy Court approved the Safra Stipulation between the Debtors and Safra regarding, among other things, adequate protection of Safra’s secured claims in exchange for agreements to factor receivables [Docket No. 648].
On August 2, 2024, the Bankruptcy Court entered the Debenture Banks Order [Docket No. 844] approving the terms of the Debenture Banks Stipulation among GLA, GLAI, and the Debenture Banks. The Debenture Banks Stipulation contemplates, among other things, the consensual use of the Debenture Banks’ cash collateral, amendments to existing Factoring Agreements with each of Banco Santander S.A. and Banco do Brasil S.A. and entry into a new Factoring Agreement with Banco Bradesco S.A., and the renewal of certain standby letters of credit issued by the Debenture Banks that secure the Debtors’ obligations under their lease arrangements. The Debenture Banks Stipulation also contemplates amending the Debentures to, among other things, provide for an amended amortization schedule and interest rate.
On August 26, 2024, the Bankruptcy Court entered an order authorizing the Debtors to enter into a settlement agreement with Pine related to the Pine Credit Note [Docket No. 928]. Pine had initiated an action in a Brazilian court in violation of the automatic stay for nonpayment of approximately $2.2 million related to the Pine Credit Note. After negotiations with Pine, the Debtors agreed to, among other things, amend their existing agreements with Pine or enter into new ones to evidence an obligation in favor of Pine of approximately $2,199,963, which was to be amortized over four years beginning in September 2024. The Debtors also agreed to make monthly interest payments to Pine on this amount at an annual interest rate of 15.8%. Pine agreed to provide the Debtors with a new credit line of approximately $3,046,798 to allow the Debtors to enter into derivative financial instruments related to currency or oil and its subproducts. Pine also agreed to dismiss the collection action it had commenced against the Debtors in Brazil and to not undertake any judicial or extrajudicial measures to collect any prepetition amounts from the Debtors.
On August 29, 2024, the Bankruptcy Court entered an order authorizing the Debtors to enter into a settlement agreement with Rendimento related to a partnership and cooperation agreement regarding the factoring of the Debtors’ trade payables [Docket No. 904]. Rendimento had requested payment from the Debtors on account of one such receivable, began exercising remedies, and threatened litigation, all in violation of the automatic stay. The Debtors successfully negotiated with Rendimento to amend their existing agreements with Rendimento or enter into new ones to evidence an obligation in favor of Rendimento in the amount of approximately $4,054,518. The Debtors agreed to make monthly principal payments to Rendimento of less than
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$100,000 over four years, with the first installment due on the later of August 23, 2024, or three (3) days after the execution of definitive documentation. The Debtors also agreed to make interest payments to Rendimento on this amount at an annual interest rate of 13.7%. Rendimento agreed to refrain from undertaking judicial or extrajudicial measures to collect on any prepetition amounts from the Debtors or Reorganized Debtors.
L. | Business Plan |
In formulating the Plan, the Debtors’ management and advisors, under the direction of the Restructuring Committee, prepared a long-term business plan (the “Business Plan”), which was developed over many months of analysis and consideration and has provided a platform for the Debtors to seek new capital and ensure the Plan is feasible and value-maximizing. This Business Plan was essential to the development of the Plan, and its formulation required the concerted efforts of the Debtors’ management and restructuring advisors and approval of GLAI’s board. The Business Plan forms the basis of the Financial Projections (as defined herein), which are attached to this Disclosure Statement as Exhibit D.
The Business Plan incorporates the financial benefits from the Tax Agreement and additional financial benefits that the Debtors or Reorganized Debtors, as applicable, would enjoy if the Boeing Agreement is consummated. The Business Plan also includes details on the Debtors’ continuing efforts to improve operational and financial performance. The Business Plan targets a return to pre-pandemic levels of domestic capacity by 2026. The Business Plan also demonstrates the Debtors’ commitment towards expanding their network, both domestically and internationally, while maximizing profits over the long term. In order to support its planned expansion, the Business Plan projects the growth of the Debtors’ fleet to 167 aircraft by year-end 2029 while investing in its existing fleet in the near-term. After its development, the Business Plan has been amended from time to time to reflect, among other things, market conditions, operational setbacks, including aircraft delivery delays and historic floods, and other reasonably foreseeable factors that may affect the Debtors’ operating performance and liquidity needs.
M. | Brazilian Tax Settlement Agreement |
In April 2023, the Debtors commenced negotiations with the Brazilian Federal Revenue Service and the General Counsel for the National Treasury (collectively, the “Government Parties”) regarding the Debtors’ eligibility for a government support program that would reduce the Debtors’ tax and other obligations owed to the Government Parties, in the alleged amount of up to $1.1 billion (the “Government Liability”). The Government Liability included approximately $185 million on account of social security taxes, approximately $700 million on account of other federal taxes, and approximately $117 million of outstanding navigation fees owed to the Brazilian Department of Air Space Control (Departamento de Controle do Espaço Aéreo, or “DECEA”). The Government Liability arose from, among other things, (i) certain amounts claimed by the Government Parties to be due that remained under dispute in judicial and administrative proceedings in Brazil, (ii) approximately $360 million that accrued and was deferred since the start of the COVID-19 pandemic and which the Debtors were unable to pay due to financial difficulties resulting from the pandemic, and (iii) certain amounts that were due and owing as a result of the reversal of a judicial decision related to certain taxes.
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As detailed below, on December 18, 2024, the Bankruptcy Court entered an order [Docket No. 1164] (the “Tax Settlement Agreement Order”) authorizing the Debtors to enter into the settlement agreement between the Debtors and the Government Parties. Pursuant to the settlement agreement, the Debtors and the Government Parties agreed to reduce the Government Liability by approximately $750 million, resulting in an outstanding amount owed to the Government Parties of approximately $250 million (the “Settlement Amount”), which reflects both a discount on the Government Liability and the application of certain tax losses. The Settlement Amount will be paid pursuant to installment payment plans of (i) sixty consecutive monthly payments for the social security taxes and (ii) 120 consecutive monthly payments for all other federal taxes and fees owed to DECEA. In addition, the settlement agreement generated approximately $184 million of liquidity for the Debtors through 2029, including approximately $150 million in liquidity in the first twenty-four months. Further, the Debtors agreed to pledge certain collateral to secure the obligations under the settlement agreement on a “second lien” basis and only in case an event of default occurs. The pledged collateral consists of (i) certain airport slots recorded on the Debtors’ balance sheet as having value of approximately $188 million, which represents approximately 20% of the overall value of the Debtors’ airport slots, (ii) all of the receivables from a ticket sales contract with the Ministry of Management and Innovation in Public Services, (iii) all of the receivables from the ticket sales contract with CVC Brasil Operadora E Agência De Viagens S.A., and (iv) all of the receivables derived from the use of the Debtors’ media spaces.
The Debtors obtained the consent of the Required Holders’ (as defined in the DIP Indenture) to the granting of the second priority security interests under the settlement agreement, subject to the Debtors’ compliance with the terms of the Tax Settlement Agreement Order, including the “Pre-Execution Requirements” set forth on Schedule A to, and as defined in, the Tax Settlement Agreement Order. On or about December 26, 2024, the Debtors completed all conditions precedent set forth in the Pre-Execution Requirements and thereafter executed the settlement agreement with the Government Parties.
N. | Abra and Azul Memorandum of Understanding |
As described in the Notice of Filing of January 15, 2025, “Material Facts” [Docket No. 1228] (the “Press Release”), on January 15, 2025, Abra Group Limited (“AGL”) and Azul S.A. (“Azul”) signed a non-binding Memorandum of Understanding (the “Non-Binding MOU”) with the intent to explore the feasibility of a business combination involving the Reorganized Debtors and Azul. The Debtors are not a party to the Non-Binding MOU. As set forth in the Non-Binding MOU, a transaction, if any, would be subject to and occur following the confirmation and consummation of the Plan, the completion of due diligence and the negotiation of definitive documentation, as well as other closing conditions and approvals set forth in the Non-Binding MOU and others that may be negotiated in connection with a potential transaction. According to the Non-Binding MOU, AGL and Azul have agreed that any transaction will not result in an increase in the GOL net leverage, pursuant to the definitions therein. The Debtors have been advised by Abra that the Non-Binding MOU remains at an initial stage of negotiation and the timing of a transaction with Azul, if any, remains uncertain.
The Debtors are focused on emergence from chapter 11 on the terms set forth in the Plan as a stand-alone company and Abra has committed to support the standalone exit from chapter 11 consistent with the terms of the Plan Support Agreement and the Plan.
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As part of the settlement embodied in the Plan, the Committee negotiated for certain protections (described in Article V.D.3 of the Plan) in the event that AGL (or any successor) were to enter into transactions with Azul that could be viewed as benefitting Abra disproportionately relative to the holders of Allowed General Unsecured Claims entitled to New Equity under the Plan. If New GOL Parent, New Gol Intermediate Co., or the Reorganized Debtors were to enter into a transaction with Azul in the future, the positive and/or negative implications of any such transaction to New Equity holders (in their capacities as such) are expected to inure to the benefit of all New Equity holders proportionately and subject to the terms of the New GOL Parent Organizational Documents. As set forth in the Plan, any Business Combination or joint venture between New GOL Parent or any of its subsidiaries and Azul and any of its Affiliates is not an event described in Article V.D.3 of the Plan, because, as described in the preceding sentence, the protections are intended in the event that a transaction is consummated with AGL (or any successor) or any its Affiliates and not New GOL Parent, New Gol Intermediate Co., or the Reorganized Debtors.
O. | Diligence Sought by Certain Noteholders |
Beginning in April of 2024, Whitebox Advisors LLC (“Whitebox”), a holder of the majority of the outstanding 2024 Senior Exchangeable Notes, sought informal diligence from the Debtors regarding the Abra Transaction’s[12] effect on GEF, the issuer of the 2024 Senior Exchangeable Notes and the 2028 Senior Secured Exchangeable Notes, as well as regarding GEF’s purchase of warrants in GLAI. According to Whitebox, they sought this diligence in order to better understand the purported settlement embodied in the Plan, including with respect to the adequacy and reasonableness of the investigation of, and value ascribed to, any claims that Whitebox and/or GEF may be able to assert arising from the Abra Transaction and/or GEF’s purchase of warrants in GLAI. According to Whitebox, they believe that, through the Abra Transaction, the Debtors’ and GEF’s existing largely-unsecured debt was exchanged for substantially more expensive secured debt. In addition, Whitebox asserts that GEF used the entirety of the proceeds it received from its issuance of new debt in the Abra Transaction to purchase warrants in GLAI (for Abra’s benefit only), which warrants became worthless upon GLAI’s filing for chapter 11. Indeed, in Whitebox’s view, through the Abra Transaction, the 2024 Senior Exchangeable Notes (which accrued interest at a rate of 3.75% and were unsecured), 2025 Senior Notes (which accrued interest at a rate of 7% and were unsecured), 2026 Senior Secured Notes (which accrued interest at a rate of 8% and are secured by certain spare parts and intellectual property), and Perpetual Notes (which accrued interest at a rate of 8.75% and were unsecured) were tendered to the Company in exchange for the Company’s private placement with Abra of the 2028 Senior Secured Notes (which accrued interest at a rate of 18% plus an original issue discount of fifteen points and are secured by certain intellectual property and other assets related to the Smiles loyalty program, all shares of Smiles Fidelidade S.A. and, on a pari passu basis, all collateral securing the 2026 Senior Secured Notes). Whitebox further contends that approximately $1.2 billion of the 2028 Senior Secured Notes, issued by GFL, were subsequently redeemed by GFL at Abra’s election, that Abra then received an equivalent amount of 2028 Senior Secured Exchangeable Notes, issued by GEF (which carried substantially identical interest and security terms as the 2028 Senior Secured Notes), and that GEF received the proceeds of this multi-step transaction in cash.
[12] | The Company’s characterization of the Abra Transaction is set forth in Section III.E. |
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Whitebox disagrees with the Debtors’ contention that in October 2023, GLAI announced the issuance of additional warrants at a subscription price set in accordance with an independent fairness opinion to comport with the requirements of issuing exchangeable debt under Brazilian law. Rather, Whitebox contends that the approximately 1.8 billion GLAI warrants were issued solely for Abra’s benefit, in order to ensure the availability of preferred shares of GLAI in the event that Abra elected to exercise its rights to exchange its newly acquired approximately $1.2 billion of 2028 Senior Secured Exchangeable Notes for additional GLAI equity. In Whitebox’s view, the subscription price of the GLAI warrants was based on a fairness report obtained by GLAI, the issuer of the warrants, and believes that GEF, the purchaser of the warrants, did not obtain its own valuation. Moreover, Whitebox contends that the fairness opinion obtained by GLAI used a backward-looking valuation date earlier in the summer of 2023, which also corresponded to a historic high for GLAI’s stock price, and that GEF subsequently used the entirety of the approximately $1.2 billion of cash proceeds it received from its issuance of the 2028 Senior Secured Exchangeable Notes to purchase approximately $1.2 billion of the GLAI warrants (for Abra’s benefit only) months before GLAI filed for chapter 11.
On February 25, 2025, because Whitebox did not believe that the Debtors had provided sufficient information to address Whitebox’s concerns through the informal diligence process, Whitebox served formal discovery requests on both the Debtors and Abra. Whitebox contends that it or GEF may be able to assert claims against other Debtor entities, their directors, GEF’s directors, Abra, and Abra’s directors arising from GEF’s issuance of the 2028 Senior Secured Exchangeable Notes, as well as from GEF’s subsequent purchase of warrants in GLAI, and that the value of those claims is not adequately accounted for in the purported settlement embodied in the Plan. In particular, Whitebox has alleged that the price of the warrants in GLAI that GEF purchased was set too high (and, in Whitebox’s view, potentially intentionally) so as to result in GEF’s transfer of all of the economic value it otherwise would have received from the issuance of the 2028 Senior Secured Exchangeable Notes. Whitebox further contends that, if the price had been lower, GEF would have held assets (whether in cash or in the form of a receivable from another Debtor) sufficient to materially increase recoveries for creditors of GEF. Whitebox asserts that parties may have claims against GEF’s directors for breach of fiduciary duties by approving the Abra Transaction and the purchase of warrants in GLAI without sufficient information, diligence, and/or analysis, and that valuable claims (including claims under applicable foreign law) exist against GEF’s directors at that time. Whitebox further contends that valuable claims exist against other entities and individuals (including in particular Abra, GLAI, and their respective boards of directors) that were involved in inducing and/or aiding and abetting these breaches of fiduciary duty, as well as against Abra for its apparent control of GEF’s actions in participating in the Abra Transaction and purchasing the over-priced GLAI warrants. Whitebox does not believe that the Debtors’ or the Committee’s investigations adequately considered the viability of GEF specific claims, and does not believe that the Debtors have established a sufficient basis to release those claims as contemplated by the Plan. As a result, Whitebox contends that either (a) all of such claims could and should be asserted or (b) the purported settlement embodied in the Plan should be adjusted to account for the value of such claims (which are currently valued at $0), and that, irrespective of whether (a) or (b) is pursued, the value of such claims or settlement should for to the benefit of GEF’s creditors.
The Debtors strongly disagree with Whitebox’s allegations and characterization of the Abra Transaction. First, the deadline for Whitebox to bring claims against Abra and certain other
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parties relating to the Abra Transaction has passed, and Whitebox did not bring any timely challenges or seek standing to pursue any claims. Second, even if Whitebox were able to pursue claims against Abra or any other party in connection with the Abra Transaction, the Debtors do not believe any of these purported claims would entitle Whitebox to a greater recovery than it will receive under the Plan. Finally, the Debtors do not believe that Whitebox would be able to establish standing. Among other responses and defenses, it is unlikely that GEF would have had any material assets with which to satisfy its creditors regardless of whether the Abra Transaction occurred.
The Abra Transaction also resulted in certain changes to intercompany balances among various entities within the Company, including between GEF and GFL. In connection with the Abra Transaction, over $350 million in 2024 Senior Exchangeable Notes, issued by GEF, were tendered in exchange for certain 2028 Senior Secured Notes issued by GFL. This exchange created a $350 million obligation from GEF to GFL, which reduced a previously outstanding intercompany balance of approximately $260 million owed by GFL to GEF (arising from GEF’s transfer of the proceeds of the 2024 Senior Exchangeable Notes to GFL) to approximately $90 million. Certain previous intercompany obligations from GEF to GFL also remained in place, including an approximately $33 million obligation arising from GFL’s payment of GEF’s operational costs and certain fees and commissions related to the issuance of the 2024 Senior Exchangeable Notes. GEF, a special purpose vehicle with no independent operations or revenue, also borrowed funds from GFL in order to pay interest on both the 2024 Senior Exchangeable Notes and the 2028 Senior Secured Exchangeable Notes, thereby increasing its intercompany obligation to GFL. The balance of GEF’s obligation to GFL now stands at approximately $192 million, as reflected in the Amended Schedules and SOFAs. Whitebox contends that any obligations owed by GEF to GFL could have been satisfied had GEF retained a portion of the approximately $1.2 billion it received for its issuance of the 2028 Senior Secured Exchangeable Notes, rather than using the entirety of such proceeds to purchase warrants in GLAI. Whitebox has sought both informal and formal discovery regarding the intercompany balances and reserves all its rights to challenge such accounting. The Debtors again disagree with these assertions. Among many other reasons, in the Debtors’ view, Whitebox’s position is that it should both be able to enjoy the benefits of, yet unwind certain parts of, the Abra Transaction.
SECTION
V.
Plan support agreement and SETTLEMENT
A. | Restructuring Negotiations, Committee Investigation into Prepetition Transactions, and Execution of the Plan Support Agreement |
Pursuant to the DIP Order, the Committee had until May 13, 2024, to timely file an adversary proceeding or contested matter asserting a Challenge (as defined in the DIP Order). Accordingly, the Committee undertook an investigation into possible claims and causes of action that could form the basis for a Challenge. In an effort to avoid litigation while the Committee continued its investigation, the Debtors, Abra, the Committee, and several other key stakeholders agreed to extend the Committee’s Challenge Period (as defined in the DIP Order) to July 12, 2024, as permitted by the DIP Order, subject to an automatic further extension to October 11, 2024 if the Committee delivered a list of claims, objections, defenses, and Challenges to the Debtors, Abra,
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and several other key stakeholders [Docket No. 596] (the Initial Challenge Period Stipulation).[13] On July 12, 2024, the Committee delivered its List of Claims (as defined in the Initial Challenge Period Stipulation) listing potential claims against various parties in interest, thereby automatically extending the Challenge Period to October 11, 2024.[14]
The Committee’s investigation and List of Claims focused primarily on the Abra Transaction. In order to evaluate potential causes of action that could form the basis for a Challenge, the Committee and its professionals took several steps. First, the Committee’s professionals issued no less than eleven formal document requests to advisors for the Debtors and Abra. These document requests related to a number of issues, including governance, the Debtors’ efforts to find an alternative transaction, financial projections, collateral packages, and non-privileged communications. In response, the Debtors and Abra produced approximately 22,000 documents to the Committee, comprising at least 121,000 pages. Second, outside of document production, the Committee’s professionals performed extensive background research on the Debtors, Abra, the key individuals and legal entities involved in the Abra Transaction, and the structural components of the Abra Transaction. Third, the Committee’s professionals spent numerous hours engaged in informal dialogue with the Debtors, Abra, and their respective advisors to obtain background and contextual information about the Abra Transaction. Fourth, the Committee’s professionals spent significant time and resources analyzing jurisdictional issues, conducting legal research on potential claims, and assessing various defendants’ potential affirmative defenses. Fifth, the Committee’s professionals evaluated the Debtors’ capital structure assuming a successful prosecution of the Committee’s potential claims, including successfully unwinding the Abra Transaction. Throughout the investigation, the Committee’s professionals regularly discussed the results of its analysis with the Committee.
The List of Claims identified numerous potential claims against various parties in interest, including Abra, holders of the Abra Notes (the “Abra Noteholders”), and holders of the 2028 Notes, as follows:
· | The 2028 Notes make-whole claims may be subject to disallowance under New York state law and the Bankruptcy Code; |
· | The 2028 Notes claims may be partially reduced on account of original issue discount; |
· | Certain aspects of the Abra Transaction may be subject to avoidance as actual and/or constructive fraudulent transfers under sections 544 and 548(a)(1) of the Bankruptcy Code |
[13] | Following April 9, 2024, the Committee became the only party in interest that may assert a Challenge, including any Challenge relating to the Abra Transaction. See DIP Order ¶ 25(b). |
[14] | As discussions progressed in the fall of 2024, the parties extended the Challenge Period again to January 11, 2025 [Docket No. 1021]. The Challenge Period was then extended again to February 11, 2025 [Docket No. 1223]. Thereafter, the relevant parties agreed to further extend the Challenge Period, solely with respect to the Committee and solely with respect to the claims included in the List of Claims other than those pertaining to the 2026 Senior Secured Notes, to the earlier of (i) the Effective Date and (ii) twenty-one (21) calendar days following the earliest of (x) the termination of the Plan Support Agreement (other than as a result of the occurrence of the Effective Date), (y) the Debtors’ withdrawal of the Plan, and (z) the Bankruptcy Court’s entry of an order denying confirmation of the Plan [Docket No. 1276]. |
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(e.g., the 2028 Notes claims, liens granted in connection with the 2028 Notes, guarantees issued in connection with the 2028 Notes, and the “drop down” of the Smiles collateral);
· | Certain aspects of the Abra Transaction may be subject to avoidance as preferential transfers under section 547 of the Bankruptcy Code; |
· | Abra’s secured claims may be subject to equitable subordination; |
· | The Debtors’ entry into the 2028 Senior Secured Exchangeable Note Purchase Agreement and the 2028 Senior Secured Note Purchase Agreement may be deemed unconscionable and therefore unenforceable; |
· | Various potential claims relating to the Abra Noteholders’ asserted claims against the estates (e.g., equitable subordination, avoidance of claims and liens under applicable bankruptcy and non-bankruptcy law); and |
· | Post-petition interest paid on the 2028 Notes may be disgorged or recharacterized.[15] |
Following delivery of the List of Claims, the Debtors, Abra, and the Committee began discussions on the framework for a consensual chapter 11 plan that would substantially deleverage the Debtors’ balance sheet, provide a meaningful recovery to unsecured creditors, and resolve all potential estate claims and causes of action that the Committee might otherwise have sought standing to pursue. These negotiations took place over the span of several months and were led, on the Debtors’ part, by the Restructuring Committee, to ensure rigorous and impartial assessment. The parties exchanged numerous proposals and engaged in multiple days’-long, in-person meetings among advisors to the Debtors, the Committee, and Abra, as well as in-person meetings among members of the Restructuring Committee and Abra principals.
Throughout its negotiations with the Debtors and Abra, the Committee evaluated whether general unsecured creditors would be better off negotiating a consensual resolution or prosecuting the potential claims identified in the List of Claims. These settlement negotiations culminated in the formulation of the Restructuring Term Sheet attached to the Plan Support Agreement among the Debtors, Abra, and the Committee, which was executed on November 5, 2024.[16]
The Committee’s decision to settle the potential claims identified in the List of Claims was based, in part, on numerous key considerations.
· | First, many of the potential claims that could have been asserted by the Committee were subject to potential affirmative defenses, including section 546(e) of the Bankruptcy Code, |
[15] | While the List of Claims prepared by the Committee did not include any breach of fiduciary duty or related claims, the Committee did consider such claims and other estate Causes of Action and believed that settlement of all such claims as part of the Plan settlement was reasonable for the reasons set forth below. |
[16] | In December 2024, after executing the Plan Support Agreement, the parties thereto agreed to extend the Milestones set forth in sections 4.01(b)-(e) of the Plan Support Agreement by thirty (30) calendar days, calculated in accordance with Bankruptcy Rule 9006(a). |
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and whether such claims can be applied extraterritorially given the largely international nature of the Abra Transaction.
· | Second, the Committee determined that a litigation strategy could materially undermine the Debtors’ ability to successfully reorganize. Prosecuting the potential claims identified in the List of Claims would have subjected the Debtors’ estates to extremely costly litigation, the resolution of which would take months (if not years). At a minimum, any such litigation would have likely reduced the Debtors’ reorganization value, thereby limiting the upside of any litigation and making any recovery even more uncertain. At worst, the Committee was well aware that litigating the potential claims identified in the List of Claims could have significantly increased the likelihood of a liquidation. |
· | Third, because the successful prosecution of the Committee’s potential avoidance claims would have still left Abra with over $1.2 billion of secured and unsecured claims, the Committee would have had to successfully argue that all of Abra’s claims should be equitably subordinated in order to prevent Abra from receiving a significant majority of the value to be distributed to the Debtors’ creditors. The Committee determined that achieving this result would be challenging for numerous reasons, including the high standard for establishing equitable subordination. |
· | Fourth, in light of the points above, in the event the Committee was not successful in prosecuting its claims, Abra would have likely been entitled to 100% of the reorganization value of the Debtors. |
Among other commitments, the Plan Support Agreement obligates Abra and the Committee to support a chapter 11 plan on the terms set forth in the Restructuring Term Sheet. Such terms, which are embodied in the Plan, will allow the Debtors to extinguish approximately $1.7 billion of prepetition funded debt and approximately $850 million of other obligations. The Restructuring Term Sheet reflects a comprehensive settlement whereby Abra has agreed to substantially equitize its claims for New Equity with an approximate value of $950 million and to accept take-back debt totaling $850 million in exchange for a total asserted claim of approximately $2.8 billion. The parties to the Plan Support Agreement also agreed that holders of General Unsecured Claims will receive New Equity valued at up to approximately $235 million and possibly more, based upon an agreement to provide up to an additional approximately $75 million of value in New Equity, which today reflects 50% of the difference between the aggregate amount of value to be distributed under the Plan to the holders of Allowed 2026 Senior Secured Notes Claims and $252,565,388.89. For further discussion of the allocation of value among holders of General Unsecured Claims, see Section V.D herein. This significant deleveraging will allow the Debtors to raise up to approximately $1.9 billion of new capital, setting them on a path for sustained success following their emergence from chapter 11.
B. | Value of New Equity |
For purposes of the terms of the Plan Support Agreement and the distributions to be made under the Plan, the New Equity has an assumed value of approximately $1.2 to $1.4 billion. The value of the New Equity reflects an agreed settlement value negotiated as part of the Plan Support Agreement between the Debtors, Abra, and the Committee. The value of the New Equity is an
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important feature of the settlement and compromise contained in the Plan. Among other things, the assumed agreed value of the New Equity forms the basis for the agreement by Abra to receive an approximately 65 cent recovery on account of the Allowed 2028 Notes Claims, with a significant portion of its distribution being in the form of New Equity. Absent Abra’s agreement, the Debtors believe that they would likely be unable to raise sufficient capital to fully satisfy their secured prepetition funded debt obligations or otherwise have the liquidity to support, among other things, the required go-forward debt and lease obligations. Abra’s agreement to equitize a portion of the Allowed 2028 Notes Claims facilitates the ability of the Debtors to raise new capital, which will be used to satisfy the Debtors’ existing obligations and to provide fresh capital. Absent such a concession, the Debtors may have no other option than to liquidate. In addition, the assumed agreed value of the New Equity forms the basis of the amount of New Equity to be distributed to the holders of General Unsecured Claims in settlement of the Claims and Causes of Action that the Committee threatened to pursue as part of the Plan negotiation.
The Debtors, Abra, and the Committee negotiated the value of the New Equity with the advice of their respective financial advisors, all of which believed such value would prove to fall within a supportable range of equity values for the Reorganized Debtors at emergence.
The 2026 Senior Secured Notes Ad Hoc Group asserts, among other things, that the appraised value of all collateral securing the Debtors’ secured debt, including the DIP Facility, exceeds the value of all secured claims. See The GOL 2026 Senior Secured Notes Ad Hoc Group’s Preliminary Objection to Disclosure Statement for the Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and its Affiliated Debtors [Docket No. 1302] (the “2026 Ad Hoc Group Objection”) at ¶¶ 20, 3. The Debtors do not believe that the value of all collateral securing the Debtors’ secured debt exceeds the value of all secured claims, including the DIP Facility. The Debtors believe the value of the New Equity as set forth in the Plan and described herein is within an appropriate and a supportable range and will support the settlement value at Plan confirmation.
C. | Value of 2026 Senior Secured Notes Claims |
The Plan Support Agreement assumes two alternative treatments for holders of the 2026 Senior Secured Notes Claims (Class 4): (i) if Class 4 votes to accept the Plan, such holders will receive $100,000,000 of Non-Exchangeable Take-Back Notes; and (ii) if Class 4 votes to reject the Plan, such holders will receive a number of shares of New Equity, as well as $33.6 million in aggregate principal amount of 2026 Alternative Notes. Based on the equity value agreed to as part of the comprehensive settlement in the Plan Support Agreement embodied in the Plan, the value the Debtors have ascribed to the secured portion of the 2026 Senior Secured Notes Claims is approximately $33.6 million.
The 2026 Senior Secured Notes Ad Hoc Group disputes that the value of the secured portion of the 2026 Senior Secured Notes Claims is approximately $33.6 million. The Debtors obtained that certain (i) Valuation of: Gol Linhas Aéreas Inteligentes S.A. Brand Intellectual Property, dated November 5, 2024, with a total of R$7,190,800,000[17]; (ii) Full Appraisal of: Component Inventory Consisting of 123,292 (29,413 Unique) Spare Part Line Items, dated
[17] | The USD value based on the exchange rate on the day of the appraisal is $1,251,357,372. |
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November 7, 2024, providing for a Pre-Audit Market Value of $178,893,217 and Post-Audit Market Value of $176,242,947; and (iii) Valuation of: Smiles Loyalty Program, Including all Intellectual Property, dated November 5, 2024, providing a total of R$22,208,000,000[18]. The position of the 2026 Senior Secured Notes Ad Hoc Group is that the 2026 Senior Secured Notes Claims are fully secured and that the proposed Plan treatment of the 2026 Senior Secured Notes Claims does not reflect and cannot be reconciled with the appraised value of the collateral that secures the 2026 Senior Secured Notes. See The GOL 2026 Senior Secured Notes Ad Hoc Group’s Preliminary Objection to Disclosure Statement for the Amended Joint Chapter 11 Plan of Reorganization of GOL Linhas Aéreas Inteligentes S.A. and its Affiliated Debtors [Docket No. 1302] at ¶ 20.
The Debtors disagree with the 2026 Senior Secured Notes Ad Hoc Group’s assertions and, in consultation with their advisors, believe that this amount reflects the appropriate valuation methodology to be applied under the circumstances, taking into account certain appraisals of the assets that serve as 2026 Senior Secured Notes collateral, the projected total enterprise value of the Debtors at emergence, and the methodologies to be employed under section 506(a) of the Bankruptcy Code.
D. | Allocation of Value Among Classes 10(a)–(m) – General Unsecured Claims |
The recoveries for holders of General Unsecured Claims for each Debtor entity were a product of the settlement and compromise agreed to in the Plan Support Agreement and the Plan. Given the nature of the global settlement among the Committee, Abra, and the Debtors, it was agreed that the settlement value for holders of General Unsecured Claims would principally be allocated to GLA, the Debtors’ main operating subsidiary and the entity from which the value allocated to Abra on account of the Allowed 2028 Secured Claims is located. In addition, each of the Debtors funded debt holders and the vast majority of the Debtors’ unsecured creditors have Claims (whether primary or guarantee) at GLA, and there is de minimis value (if any) at the other Debtor entities other than intercompany claims. The allocation of the settlement value also takes into consideration intercompany claims against GLA with the same validity as all other claims at GLA. Accordingly, any settlement value allocated to a Debtor other than GLA by virtue of an intercompany claim, will be distributed to the holders of Allowed Claims at that Debtor entity in accordance with the terms of the Plan.
As part of the allocation process, the Committee and Debtors considered whether any creditors of particular Debtors were uniquely harmed by the Abra Transaction such that there should be an additional allocation to any particular Debtor entity. Ultimately, the Committee and the Debtors concluded in the exercise of their fiduciary duties to all creditors that no estate suffered outsized harm such that it should get a recovery outside the Plan beyond whatever allocation was dictated by the allocation model described above. Notably, if GEF were entitled to any recovery outside of the Plan settlement, the holders of Allowed 2028 Notes Claims would be entitled to nearly the entirety of any such recovery based on the amount of their Claims.
[18] | The USD value based on the exchange rate on the day of the appraisal is $ $3,890,816,076. |
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SECTION
VI.
Summary of THE Plan
This section of the Disclosure Statement summarizes the Plan, a copy of which is annexed hereto as Exhibit A. This summary is qualified in its entirety by reference to the provisions of the full Plan, which is attached hereto as Exhibit A.
If the Debtors determine, in their business judgment and in the exercise of their fiduciary duties, to proceed to Confirmation under a different structure than currently contained in the Plan, then the Debtors will amend the Plan accordingly, and, pursuant to Bankruptcy Rule 3019, the Debtors may proceed to Confirmation under such a modified Plan without resoliciting votes on the Plan so long as the modified Plan does not adversely change the treatment of the Claim or Interest of any holder thereof.
A. | Administrative Expenses and Other Unclassified Claims |
In accordance with section 1123(a)(1) of the Bankruptcy Code, Administrative Expenses, DIP Facility Claims, and Priority Tax Claims have not been classified and, thus, are excluded from the Classes of Claims and Interests set forth in Article III of the Plan.
1. | Administrative Expenses |
i. | Treatment of Administrative Expenses |
Each holder of an Allowed Administrative Expense (other than Professional Fees), to the extent such Allowed Administrative Expense has not already been paid during the Chapter 11 Cases and without any further action by such holder, shall receive, in full and final satisfaction of its Administrative Expense, Cash equal to the Allowed amount of such Administrative Expense on the Effective Date (or, if payment is not then due, when such payment becomes due in the applicable Reorganized Debtor’s ordinary course of business without further notice to, or order of, the Bankruptcy Court), unless otherwise agreed by the holder of such Administrative Expense and the applicable Debtor or Reorganized Debtor.
ii. | Administrative Expense Bar Date |
Unless previously filed or as otherwise governed by an order of the Bankruptcy Court or an agreement with the Debtors, requests for payment of Administrative Expenses (other than Professional Fees) that accrued on or before the Effective Date but remained unpaid as of such date must be filed with the Bankruptcy Court and served on the Debtors or the Reorganized Debtors, as applicable, no later than the Administrative Expense Bar Date or such date specified in an order of the Bankruptcy Court or agreement with the Debtors. Holders of Allowed Administrative Expenses that are required to file and serve a request for payment and that do not timely file and serve such a request shall be forever barred from asserting such Administrative Expenses against the Debtors, the Reorganized Debtors, or their respective property, and such Administrative Expense shall be automatically discharged as of the Effective Date. Objections to requests for payment of Administrative Expenses must be filed with the Bankruptcy Court and served on the Debtors or the Reorganized Debtors, as applicable, and the requesting party no later
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than the date that is the later of (i) 180 days after the Effective Date and (ii) such later date as may be set by an order of the Bankruptcy Court.
HOLDERS OF ADMINISTRATIVE EXPENSES THAT ARE REQUIRED TO, BUT DO NOT, FILE AND SERVE A REQUEST FOR PAYMENT OF SUCH ADMINISTRATIVE EXPENSES BY THE ADMINISTRATIVE EXPENSE BAR DATE SHALL BE FOREVER BARRED, ESTOPPED, AND ENJOINED FROM ASSERTING SUCH ADMINISTRATIVE EXPENSES AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE ESTATES, OR THE ASSETS OR PROPERTY OF ANY OF THE FOREGOING, AND SUCH ADMINISTRATIVE EXPENSES SHALL BE DISCHARGED AS OF THE EFFECTIVE DATE.
2. | Professional Fees |
i. | Final Fee Applications |
All final requests for payment of Professional Fees incurred prior to the Effective Date must be filed with the Bankruptcy Court and served on the Reorganized Debtors, the U.S. Trustee, counsel to the Committee, and all other parties that have requested notice in the Chapter 11 Cases by no later than forty-five (45) days after the Effective Date, unless the Reorganized Debtors agree otherwise in writing; provided, that, with respect to any professionals who are engaged by the Debtors after the Confirmation Date and who were not previously retained by order of the Bankruptcy Court pursuant to sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code, the Debtors (i) shall not be subject to sections 327, 328, 330, 331, 503(b), or 1103 of the Bankruptcy Code and (ii) may, in the ordinary course of business and without any further notice to, or action, order, or approval of, the Bankruptcy Court, pay, without further approval, the reasonable and documented fees and expenses of such professionals. Objections to Professional Fees must be filed with the Bankruptcy Court and served on the Reorganized Debtors and the applicable Professional within thirty (30) days after the filing of the applicable final fee application. After notice and a hearing in accordance with the procedures established by the Bankruptcy Code and any prior orders of the Bankruptcy Court in the Chapter 11 Cases, the Allowed amounts of all Professional Fees shall be determined by the Bankruptcy Court and, once approved by the Bankruptcy Court, shall be paid in full in Cash from the Professional Fees Escrow Account as promptly as practicable; provided, however, that if the funds in the Professional Fees Escrow Account are insufficient to pay the full Allowed aggregate amount of the Professional Fees, the Reorganized Debtors shall promptly pay any remaining Allowed amounts from their Cash on hand.
For the avoidance of doubt, the immediately preceding paragraph shall not affect any professional-service Entity that the Debtors are permitted to pay without seeking authority from the Bankruptcy Court in the ordinary course of the Debtors’ business (and in accordance with any relevant prior order of the Bankruptcy Court), which payments may continue notwithstanding entry of the Confirmation Order and the Effective Date.
ii. | Professional Fees Escrow Account |
Professionals shall estimate their unpaid Professional Fees incurred in rendering services to the Debtors, their Estates, or the Committee as applicable, as of the Effective Date and shall deliver such estimate to counsel for the Debtors no later than five (5) Business Days before the
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anticipated Effective Date; provided, that such estimate shall not be deemed to limit the Allowed Professional Fees of any Professional. If a Professional does not provide an estimate, the Debtors shall estimate the unpaid and unbilled fees and expenses of such Professional for the purposes of funding the Professional Fees Escrow Account.
On the Effective Date, the Reorganized Debtors shall fund the Professional Fees Escrow Account in an amount equal to all Professional Fees incurred but unpaid as of the Effective Date (including, for the avoidance of doubt, any reasonable estimates for unbilled amounts provided prior to the Effective Date). The Professional Fees Escrow Account may be an interest-bearing account. Amounts held in the Professional Fees Escrow Account shall not constitute property of the Reorganized Debtors; provided, however, that, in the event there is a remaining balance in the Professional Fees Escrow Account following payment of all Allowed Professional Fees, any such balance shall be promptly returned to, and constitute property of, the Reorganized Debtors.
iii. | Post-Effective Date Fees and Expenses |
From and after the Effective Date, the Reorganized Debtors may, in the ordinary course of business and without any further notice to, or action, order, or approval of, the Bankruptcy Court, promptly pay in Cash the reasonable legal, professional, or other fees and expenses related to implementation of the Plan and Consummation incurred by the Reorganized Debtors, or the Committee in accordance with Article XIII.O of the Plan, on and after the Effective Date. On the Effective Date, any requirement that Professionals comply with sections 327 through 331 and 1103 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 any professional in the ordinary course of business without any further notice to, or action, order or approval of, the Bankruptcy Court.
3. | DIP Facility Claims |
On the Effective Date, the DIP Facility Claims shall be Allowed in the amount of the aggregate principal amount outstanding on such date (inclusive of any previously capitalized interest and fees) plus the aggregate amount of (i) accrued and unpaid interest to but excluding such date and (ii) accrued and unpaid fees, expenses, and noncontingent indemnification obligations arising and payable under and pursuant to the DIP Indenture as of such date. For the avoidance of doubt, the DIP Facility Claims shall not be subject to any avoidance, reduction, setoff, recoupment, recharacterization, subordination (equitable or contractual or otherwise), counter-claim, defense, disallowance, impairment, objection, or any challenges under applicable law or regulation.
Subject to Article II.D of the Plan, on the Effective Date, in full and final satisfaction, settlement, release, and discharge of, and in exchange for (if applicable), the Allowed DIP Facility Claims, each holder of an Allowed DIP Facility Claim shall receive either (i) payment in full in Cash or (ii) at the mutual election of such holder and the Debtors, an aggregate principal amount of Exit Notes equal to the amount of such holder’s Allowed DIP Facility Claim.
Upon the satisfaction in full of the Allowed DIP Facility Claims in accordance with the terms of the preceding paragraph, all Liens and security interests granted to secure the DIP Facility
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Claims shall be automatically terminated and of no further force and effect, without any further notice to, or action, order, or approval of, the Bankruptcy Court or any other Entity. In connection with confirmation of the Plan, unless and until the Allowed DIP Facility Claims are satisfied, (i) the DIP Facility Claims shall not be discharged, satisfied or released or otherwise affected in whole or in part, and each of the DIP Facility Claims shall remain outstanding, and (ii) the Liens securing the DIP Facility Claims shall not be deemed to have been waived, released, satisfied, subordinated or discharged.
Notwithstanding anything to the contrary in the Plan, on the Effective Date, the DIP Agent and its sub-agents shall be relieved of all further duties and responsibilities under the DIP Facility Documents and shall be deemed to have resigned, pursuant to section 12.03 of the DIP Indenture, as of the Effective Date; provided, that any provisions of the DIP Facility Documents that by their terms survive the termination of the DIP Facility Documents (including any applicable surviving indemnities) shall survive in accordance with the terms of the DIP Facility Documents as obligations of the Reorganized Debtors; provided, further, that the DIP Agent and its sub-agents shall take all steps and/or execute and/or deliver all instruments or documents, in each case reasonably requested by the Reorganized Debtors to effect the release, transfer, or assignment (as applicable) of the Liens granted pursuant to the DIP Documents and/or reflect on the public record the consummation of the payoff, releases, terminations, transfers, and assignments (as applicable) contemplated thereby.
Notwithstanding anything in the Plan or Confirmation Order to the contrary, on the Effective Date, the Challenge Period shall expire for all parties in interest and the Debtors’ stipulations, admissions, agreements, and releases contained in the DIP Order shall be binding upon the Debtors and any successor thereto.
4. | DIP Fees and Expenses |
To the extent not previously paid during the course of the Chapter 11 Cases, the DIP Fees and Expenses incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date in accordance with, and subject to, the terms of the DIP Facility Documents, without (i) any requirement to file a fee application with the Bankruptcy Court, (ii) the need for itemized time detail, and (iii) any requirement for Bankruptcy Court’s review or approval. All DIP Fees and Expenses to be paid on the Effective Date shall be estimated prior to and as of the Effective Date, and such estimates shall be delivered to the Debtors at least five (5) Business Days before the anticipated Effective Date; provided, that such estimates shall not be considered an admission or limitation with respect to such DIP Fees and Expenses. On the Effective Date, final invoices for all DIP Fees and Expenses incurred prior to and as of the Effective Date shall be submitted to the Reorganized Debtors.
5. | Priority Tax Claims |
Except to the extent that an Allowed Priority Tax Claim has not been previously paid in full or the holder of an Allowed Priority Tax Claim agrees to a less favorable treatment, in full and final satisfaction of each Priority Tax Claim, each Allowed Priority Tax Claim shall be treated in accordance with the terms of section 1129(a)(9)(C) of the Bankruptcy Code. In the event an
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Allowed Priority Tax Claim is Allowed as a Secured Claim, it shall be classified and treated as an Allowed Other Secured Claim.
B. | Classification and Treatment of Claims and Interests |
1. | Classification of Claims and Interests |
Claims and Interests, except for Administrative Expenses, DIP Facility Claims, and Priority Tax Claims, are classified in the Classes set forth in Article III of the Plan. A Claim or an Interest is classified in a particular Class for the purpose of receiving distributions pursuant to the Plan only to the extent that such Claim or Interest qualifies within the description of that Class and is classified in another Class to the extent that any portion of the Claim or Interest qualifies within the description of such other Class. To the extent there are no Allowed Claims or Allowed Interests, as applicable, in a Class, such Class shall be deemed not to exist.
The Plan constitutes a separate chapter 11 plan for each Debtor.
2. | Treatment of Claims and Interests |
i. | Class 1 – Priority Non-Tax Claims |
a. | Classification: Class 1 consists of all Priority Non-Tax Claims. |
b. | Treatment: Except to the extent previously paid or the holder of a Priority Non-Tax Claim agrees to less favorable treatment, each holder of an Allowed Priority Non-Tax Claim shall (i) receive from the applicable Reorganized Debtor, in full and final satisfaction of its Priority Non-Tax Claim, payment, in Cash, equal to the Allowed amount of such Claim, on the later of the Effective Date and the date when its Priority Non Tax Claim becomes due and payable in the ordinary course or (ii) be otherwise rendered Unimpaired. |
c. | Voting: Class 1 is Unimpaired under the Plan. Holders of Priority Non-Tax Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
ii. | Class 2 – Other Secured Claims |
a. | Classification: Class 2 consists of all Other Secured Claims. |
b. | Treatment: Except to the extent previously paid during the Chapter 11 Cases or the holder agrees to less favorable treatment, each holder of an Allowed Other Secured Claim, at the option of the Debtors or Reorganized Debtors, as applicable, shall, subject to applicable law and any applicable Lessor Agreement, (i) receive Cash in an amount equal to the Allowed amount of such Claim on the later of the Effective Date and the date that is ten (10) Business |
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Days after the date such Claim becomes an Allowed Claim; (ii) have its Allowed Other Secured Claim Reinstated on the Effective Date; (iii) receive such other treatment sufficient to render its Allowed Other Secured Claim Unimpaired on the Effective Date; or (iv) on the Effective Date, receive delivery of, or retain, the applicable collateral securing any such Claim up to the secured amount of such Claim pursuant to section 506(a) of the Bankruptcy Code and payment of any interest required under section 506(b) of the Bankruptcy Code in satisfaction of the Allowed amount of such Other Secured Claim.
c. | Voting: Class 2 is Unimpaired under the Plan. Holders of Other Secured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
iii. | Class 3 – 2028 Notes Claims |
a. | Classification: Class 3 consists of all 2028 Notes Claims. |
b. | Allowance: The 2028 Notes Claims shall be Allowed Secured Claims in the aggregate principal amount of $1,477,538,000, plus accrued and unpaid interest, the premiums (including each Applicable Premium), and all other applicable fees, costs, expenses, and other amounts due under the terms of the 2028 Notes Documents, subject to reduction for payments made by the Debtors. |
c. | Treatment: On the Effective Date, each holder of an Allowed 2028 Notes Claim shall receive, in full and final satisfaction of its Allowed 2028 Notes Claim, its Pro Rata share of: (i) $600 million in aggregate principal amount of Non-Exchangeable Take-Back Notes, (ii) $250 million in aggregate principal amount of Exchangeable Take-Back Notes, (iii) the Abra Equity Distribution, and (iv) Cash in an amount equal to accrued and unpaid Cash Interest to but excluding the Effective Date. In no event shall any holder of a 2028 Notes Claims (in its capacity as such) be entitled to any recovery from the General Unsecured Claimholder Distribution on account of any unsecured or deficiency Claims. |
d. | Voting: Class 3 is Impaired under the Plan. Holders of 2028 Notes Claims are entitled to vote to accept or reject the Plan. |
iv. | Class 4 – 2026 Senior Secured Notes Claims |
a. | Classification: Class 4 consists of all 2026 Senior Secured Notes Claims. |
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b. | Treatment: On the Effective Date, each holder of an Allowed 2026 Senior Secured Notes Claim will receive, in full and final satisfaction of such Allowed 2026 Senior Secured Notes Claim, (i) if Class 4 votes to accept the Plan, its Pro Rata share of $100,000,000 of Non-Exchangeable Take-Back Notes; and (ii) if Class 4 votes to reject the Plan, its Pro Rata share of (a) the 2026 Alternative Notes and (b) a number of shares of New Equity having a value that would entitle such holder to receive the same recovery (expressed as a percentage of such holder’s Claim) on account of its unsecured deficiency claim that holders of Allowed General Unsecured Claims in the same amounts in each of Class 10(a), 10(b), and 10(c) are entitled to receive. No holder of a 2026 Senior Secured Notes Claim (in its capacity as such) shall be entitled to receive any recovery from the General Unsecured Claimholder Distribution. |
c. | Voting: Class 4 is Impaired under the Plan. Holders of 2026 Senior Secured Notes Secured Claims are entitled to vote to accept or reject the Plan. |
v. | Class 5 – Glide Notes Claims |
a. | Classification: Class 5 consists of all Glide Notes Claims. |
b. | Allowance: The Glide Senior Notes Claims shall be Allowed in the aggregate principal amount of $141,662,259, and the Glide Subordinated Notes Claims shall be Allowed in the aggregate principal amount of $66,035,947, in each case, plus accrued and unpaid interest to but excluding the Effective Date and all applicable fees, costs, expenses, and other amounts due under the terms of the Glide Notes Documents, subject to reduction for payments made by the Debtors. |
c. | Treatment: Pursuant to the Lessor Agreements, on the Effective Date, in full and final satisfaction of their respective Claims, (i) each holder of an Allowed Glide Senior Notes Claim shall receive its Pro Rata share of the Amended Glide Senior Notes and Cash in an amount equal to accrued and unpaid interest under the Glide Notes Documents in respect of such holder’s 5.00% Senior Secured Notes due 2026, and (ii) each holder of an Allowed Glide Subordinated Notes Claim shall receive its Pro Rata share of the Amended Glide Subordinated Notes and Cash in an amount equal to accrued and unpaid interest under the Glide Notes Documents in respect of such holder’s 3.00% Subordinated Secured Notes due 2025. |
d. | Voting: Class 5 is Impaired under the Plan. Holders of Glide Notes Claims are entitled to vote to accept or reject the Plan. |
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vi. | Class 6 – Debenture Banks Claims |
a. | Classification: Class 6 consists of all Debenture Banks Claims. |
b. | Allowance: Pursuant to the Debenture Banks Order, the Debenture Banks shall each have an Allowed Secured Claim in accordance with the Debenture Banks Order. |
c. | Treatment: Pursuant to the Debenture Banks Stipulation and Debenture Banks Order, on the Effective Date, in full and final satisfaction of its Allowed Debenture Banks Claim, each holder of an Allowed Debenture Banks Claim shall receive the treatment set forth in the Debenture Banks Stipulation and Debenture Banks Order, and the Amended Debentures shall become binding on, and vest with, the applicable Reorganized Debtors, in each case as agreed to by the Debenture Banks in the Debenture Banks Stipulation and Debenture Banks Order. On the Effective Date, the outstanding BdoB Letters of Credit, Santander Letters of Credit, and Bradesco Letters of Credit, and the Reimbursement Agreement applicable to each of the foregoing, shall be Reinstated and, following the Effective Date, shall continue in full force and effect and continue to be renewed subject to the terms and conditions of the Debenture Banks Stipulation and Debenture Banks Order. Any amounts due and owing to a Debenture Bank as of the Effective Date under any such Reimbursement Agreement shall be paid to the applicable Debenture Bank on the later of the (x) Effective Date and (y) date such amounts are due under the Reimbursement Agreement, and the Debenture Banks shall not be obligated to file a request for payment of any Administrative Expense arising under any Reimbursement Agreement on or before the Administrative Expense Bar Date. For the avoidance of doubt, any BdoB Letters of Credit, Santander Letters of Credit, or Bradesco Letters of Credit that are drawn on or after the Effective Date shall be repaid in the ordinary course of the Reorganized Debtors’ business. |
d. | Voting: Class 6 is Impaired under the Plan. Holders of Debenture Banks Claims are entitled to vote to accept or reject the Plan. |
vii. | Class 7 – AerCap Secured Note Claims |
a. | Classification: Class 7 consists of the AerCap Secured Note Claims. |
b. | Allowance: Pursuant to the AerCap Settlement Order, the AerCap Term Sheet, and the AerCap Secured Note Order, the AerCap Secured Note Claims shall be Allowed in accordance with, and on the terms set forth in, the AerCap Settlement Order, the AerCap |
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Secured Note Order, and the AerCap Secured Note Documents entered into in connection with the AerCap Secured Note Order.
c. | Treatment: The Allowed AerCap Secured Note Claims shall be entitled to the treatment set forth in the AerCap Secured Note Order and the AerCap Secured Note Documents, and the obligations, security interests, and guarantees provided for in the AerCap Secured Note Documents shall become binding on, and vest with, the applicable Reorganized Debtors on the Effective Date. |
d. | Voting: Class 7 is Impaired under the Plan. Holders of AerCap Secured Note Claims are entitled to vote to accept or reject the Plan. |
viii. | Class 8 – Safra Claims |
a. | Classification: Class 8 consists of all Safra Claims. |
b. | Allowance: Pursuant to the Safra Stipulation, Safra shall have an (i) Allowed Secured Claim in the amount of (A) of $2,344,452.34 on account of 2017 FINIMP Notes, (B) $1,726,696.68 on account of the 2018 FINIMP Notes, (C) $1,396,333.33 on account of the 2020 Bank Credit Note, and (D) $985,054.96 on account of the 2022 Bank Credit Note, and (ii) Allowed Unsecured Claim in the amount of $15,046.00 on account of the Safra Trade Payables. |
c. | Treatment: Pursuant to the Safra Stipulation, on the Effective Date, in full and final satisfaction of the Allowed Safra Claims, (i) each holder of an Allowed Safra Claim shall receive its Pro Rata share of the Amended Safra Notes and (ii) the Safra Trade Payables shall be Reinstated and paid in the ordinary course of the Reorganized Debtors’ business. |
d. | Voting: Class 8 is Impaired under the Plan. Holders of Safra Claims are entitled to vote to accept or reject the Plan. |
ix. | Class 9 – Non-U.S. General Unsecured Claims |
a. | Classification: Class 9 consists of all Non-U.S. General Unsecured Claims. |
b. | Treatment: On the Effective Date, except to the extent that a holder of an Allowed Non-U.S. General Unsecured Claim agrees to less favorable treatment, each Non-U.S. General Unsecured Claim shall continue in effect and, to the extent Allowed, be paid in the ordinary course of the Reorganized Debtors’ business. For the avoidance of doubt, this treatment shall be without prejudice to the rights, claims, and defenses of the Debtors and/or the Reorganized Debtors, as applicable, under all applicable non-bankruptcy law. |
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c. | Voting: Class 9 is Unimpaired under the Plan. Holders of Non-U.S. General Unsecured Claims are conclusively presumed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
x. | Class 10(a) – GLAI General Unsecured Claims |
a. | Classification: Class 10(a) consists of all GLAI General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GLAI General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GLAI General Unsecured Claim, its Pro Rata share of the GLAI General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(a) is Impaired under the Plan. Holders of GLAI General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xi. | Class 10(b) – GLA General Unsecured Claims |
a. | Classification: Class 10(b) consists of all GLA General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GLA General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GLA General Unsecured Claim, its Pro Rata share of the GLA General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(b) is Impaired under the Plan. Holders of GLA General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xii. | Class 10(c) – GFL General Unsecured Claims |
a. | Classification: Class 10(c) consists of all GFL General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GFL General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GFL General Unsecured Claim, its |
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Pro Rata share of the GFL General Unsecured Claimholder Distribution.
c. | Voting: Class 10(c) is Impaired under the Plan. Holders of GFL General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xiii. | Class 10(d) – GFC General Unsecured Claims |
a. | Classification: Class 10(d) consists of all GFC General Unsecured Clams. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GFC General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GFC General Unsecured Claim, its Pro Rata share of the GFC General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(d) is Impaired under the Plan. Holders of GFC General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xiv. | Class 10(e) – GEF General Unsecured Claims |
a. | Classification: Class 10(e) consists of all GEF General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GEF General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GEF General Unsecured Claim, its Pro Rata share of the GEF General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(e) is Impaired under the Plan. Holders of GEF General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xv. | Class 10(f) – GAC General Unsecured Claims |
a. | Classification: Class 10(f) consists of all GAC General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GAC General Unsecured Claim shall receive, in full and |
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final satisfaction of its Allowed GAC General Unsecured Claim, its Pro Rata share of the GAC General Unsecured Claimholder Distribution.
c. | Voting: Class 10(f) is Impaired under the Plan. Holders of GAC General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xvi. | Class 10(g) – GTX General Unsecured Claims |
a. | Classification: Class 10(g) consists of all GTX General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed GTX General Unsecured Claim shall receive, in full and final satisfaction of its Allowed GTX General Unsecured Claim, its Pro Rata share of the GTX General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(g) is Impaired under the Plan. Holders of GTX General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xvii. | Class 10(h) – Smiles Fidelidade General Unsecured Claims |
a. | Classification: Class 10(h) consists of all Smiles Fidelidade General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Fidelidade General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Fidelidade General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(h) is Impaired under the Plan. Holders of Smiles Fidelidade General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xviii. | Class 10(i) – Smiles Viagens General Unsecured Claims |
a. | Classification: Class 10(i) consists of all Smiles Viagens General Unsecured Claims. |
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b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Viagens General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Viagens General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(i) is Impaired under the Plan. Holders of Smiles Viagens General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xix. | Class 10(j) – Smiles Argentina General Unsecured Claims |
a. | Classification: Class 10(j) consists of all Smiles Argentina General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Argentina General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Argentina General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(j) is Impaired under the Plan. Holders of Smiles Argentina General Unsecured Claims are entitled to vote to accept or reject the Plan. |
xx. | Class 10(k) – Smiles Viajes General Unsecured Claims |
a. | Classification: Class 10(k) consists of all Smiles Viajes General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Smiles Viajes General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Smiles Viajes General Unsecured Claim, subject to the Smiles General Unsecured Claims Cap, payment in an amount equal to the Allowed amount of such Claim, either in Cash or in New Equity at the Debtors’ election, in consultation with Abra and the Committee. |
c. | Voting: Class 10(k) is Impaired under the Plan. Holders of Smiles Viajes General Unsecured Claims are entitled to vote to accept or reject the Plan. |
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xxi. | Class 10(l) – CAFI General Unsecured Claims |
a. | Classification: Class 10(l) consists of all CAFI General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed CAFI General Unsecured Claim shall receive, in full and final satisfaction of its Allowed CAFI General Unsecured Claim, its Pro Rata share of the CAFI General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(l) is Impaired under the Plan. Holders of CAFI General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xxii. | Class 10(m) – Sorriso General Unsecured Claims |
a. | Classification: Class 10(m) consists of all Sorriso General Unsecured Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed Sorriso General Unsecured Claim shall receive, in full and final satisfaction of its Allowed Sorriso General Unsecured Claim, its Pro Rata share of the Sorriso General Unsecured Claimholder Distribution. |
c. | Voting: Class 10(m) is Impaired under the Plan. Holders of Sorriso General Unsecured Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xxiii. | Class 11 – General Unsecured Convenience Class Claims |
a. | Classification: Class 11 consists of all General Unsecured Convenience Class Claims. |
b. | Treatment: Except to the extent previously paid or the holder agrees to less favorable treatment, on the Effective Date, each holder of an Allowed General Unsecured Convenience Class Claim shall receive, in full and final satisfaction of its Allowed General Unsecured Convenience Class Claim, Cash in an amount equal to 15% of the amount of such Allowed General Unsecured Convenience Class Claim; provided, however, if the aggregate amount of distributions to holders of Allowed General Unsecured Convenience Class Claims would otherwise exceed the General |
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Unsecured Convenience Class Claim Fund, holders of such Claims shall receive their Pro Rata share of the General Unsecured Convenience Class Claim Fund. For the avoidance of doubt, holders of Allowed General Unsecured Convenience Class Claims shall receive distributions solely under this Class 11 and not under Class 10.
c. | Voting: Class 11 is Impaired under the Plan. Holders of General Unsecured Convenience Class Claims are entitled to vote to accept or reject the Plan. |
xxiv. | Class 12 – Subordinated Claims |
a. | Classification: Class 12 consists of all Subordinated Claims, if any. |
b. | Treatment: All Subordinated Claims, if any, shall be discharged, cancelled, released, and extinguished as of the Effective Date, and the holders of Subordinated Claims shall not receive any distribution or retain any property on account of such Subordinated Claims. |
c. | Voting: Class 12 is Impaired under the Plan. Holders of Subordinated Claims are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xxv. | Class 13 – Intercompany Claims |
a. | Classification: Class 13 consists of all Intercompany Claims. |
b. | Treatment: Without effecting the settlements embodied in the Plan, each Intercompany Claim shall be either Reinstated or released and cancelled, as determined by the Debtors or Reorganized Debtors, as applicable, in consultation with Abra, or as required by Brazilian law. No property will be distributed to the holders of Intercompany Claims. |
c. | Voting: Depending on the treatment accorded, Class 13 is either Unimpaired or Impaired under the Plan. Holders of Intercompany Claims are either conclusively presumed to have accepted or deemed to have rejected the Plan pursuant to section 1126(f) or 1126(g) of the Bankruptcy Code, as applicable, and, in either case, are not entitled to vote to accept or reject the Plan. |
xxvi. | Class 14 – Existing GLAI Equity Interests |
a. | Classification: Class 14 consists of all Existing GLAI Equity Interests. |
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b. | Treatment: On the Effective Date, Existing GLAI Equity Interests shall be Reinstated, subject to dilution by the transactions contemplated by the Plan and the Transaction Steps (including any equity interest in Reorganized GLAI that is purchased through the GLAI Preemptive Rights Offering). The Existing GLAI Equity Interests have no value, and retained Existing GLAI Equity Interests will have de minimis value, if any, following the implementation of the Plan and the Transaction Steps. |
c. | Voting: Class 14 is Impaired under the Plan. Holders of Existing GLAI Equity Interests are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and, therefore, are not entitled to vote to accept or reject the Plan. |
xxvii. | Class 15 – Intercompany Interests |
a. | Classification: Class 15 consists of all Intercompany Interests. |
b. | Treatment: Intercompany Interests shall be Reinstated solely to the extent necessary to maintain the Reorganized Debtors’ corporate structure. No property will be distributed to the holders of Intercompany Interests. |
c. | Voting: Depending on the treatment accorded, Class 15 is either Unimpaired or Impaired under the Plan. Holders of Intercompany Interests are either conclusively presumed to have accepted or deemed to have rejected the Plan pursuant to section 1126(f) or 1126(g) of the Bankruptcy Code, as applicable, and, in either case, are not entitled to vote to accept or reject the Plan. |
3. | Special Provision Governing Unimpaired Claims |
Except as otherwise specifically provided in the Plan or by Final Order of the Bankruptcy Court, nothing in the Plan shall be deemed to affect, diminish, or impair the Debtors’ or the Reorganized Debtors’ rights and defenses, both legal and equitable, with respect to any Unimpaired Claim, including legal and equitable defenses to setoffs or recoupment against Unimpaired Claims, and, except as otherwise specifically provided in the Plan or by Final Order of the Bankruptcy Court, nothing in the Plan shall be deemed to constitute a waiver or relinquishment of any Claim, Cause of Action, right of setoff, or other legal or equitable defense that the Debtors had immediately prior to the Petition Date against or with respect to any Claim that is Unimpaired by the Plan. Except as otherwise specifically provided in the Plan, the Debtors and the Reorganized Debtors shall have, retain, reserve, and be entitled to assert all such Claims, Causes of Action, rights of setoff, and other legal or equitable defenses that the Debtors had immediately prior to the Petition Date as if the Chapter 11 Cases had not been commenced, and all of the Debtors’ and Reorganized Debtors’ legal and equitable rights with respect to any Claim that is Unimpaired by the Plan may be asserted after the Confirmation Date and the Effective Date to the same extent as if the Chapter 11 Cases had not been commenced.
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4. | Subordination of Claims |
Except as expressly provided in the Plan, the Allowance, classification, and treatment of all Claims and Interests and the respective treatments thereof under the Plan take into account and conform to the relative priority and rights of all Claims and Interests and comply with any contractual, legal, or equitable subordination rights relating thereto, whether arising under general principles of equitable subordination, section 510(b) of the Bankruptcy Code, or otherwise.
5. | Third-Party Beneficiaries / Derivative Claimants |
Any Claims asserted against the Debtors that are not direct obligations of any of the Debtors but are derivative of other Claims asserted against the Debtors shall not receive any recoveries under the Plan and shall be deemed satisfied by virtue of the treatment of the applicable direct obligation of the Debtors.
6. | Abra Noteholder Claims |
Without affecting any right to Adequate Protection payments under the DIP Order, any Claims asserted against the Debtors by the Abra Notes Agents and any holders of the Abra Notes (in their capacities as such) shall not receive any recovery under the Plan, and all Prepetition Debtor Abra Notes Pledged Liens asserted in connection therewith have been previously released consensually.
7. | Banco Pine and Banco Rendimento Settlements |
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under (i) that certain Bank Credit Note-Loan No. 0651/22 (Cédulas de Crédito Bancário) issued by GLA to Banco Pine S.A. on September 21, 2022 and (ii) the Order Authorizing the Debtors to Enter into a Settlement with Banco Pine S.A. [Docket No. 903]. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under (i) that certain Partnership and Cooperation Agreement, as amended from time to time, between Banco Rendimento S.A. and GLA, pursuant to which Banco Rendimento S.A. agreed to purchase GLA’s trade payables directly from GLA’s suppliers, and (ii) the Order Authorizing the Debtors to Enter into a Settlement with Banco Rendimento S.A. [Docket No. 904]. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
8. | Tax Agreement |
On the Effective Date, the Reorganized Debtors shall reaffirm their obligations under the Tax Agreement and all ancillary documents executed by the Debtors related thereto, including any
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fiduciary lien agreements or other similar security agreements executed by the Debtors. Accordingly, such obligations under all such agreements shall survive and remain unaffected by entry of the Confirmation Order, and, on the Effective Date, shall revest in and be fully enforceable by and against the applicable Reorganized Debtor in accordance with its terms and the applicable order of the Bankruptcy Court.
9. | Boeing Agreement |
On the Effective Date, if a Boeing Agreement has been agreed by the parties thereto on a Final Basis (and Bankruptcy Court approval has been obtained in respect of such agreement), the Reorganized Debtors shall reaffirm their obligations under such Boeing Agreement. Accordingly, such obligations 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, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
C. | Acceptance or Rejection of Plan |
1. | Confirmation Pursuant to Sections 1129(a)(10) and 1129(b) of the Bankruptcy Code |
Section 1129(a)(10) of the Bankruptcy Code shall be satisfied for purposes of confirmation of the Plan by acceptance thereof by any Impaired Class of Claims. The Debtors shall seek confirmation of the Plan pursuant to section 1129(b) of the Bankruptcy Code with respect to any rejecting Class of Claims or Interests.
2. | Voting Classes |
Holders of Claims as of the Voting Record Date in the following Classes are entitled to vote to accept or reject the Plan: Classes 3, 4, 5, 6, 7, 8, 10(a), 10(b), 10(c), 10(d), 10(f), 10(h), 10(i), 10(j), 10(k), and 11.
The Bankruptcy Code defines “acceptance” of a plan by a Class of (i) Impaired Claims as acceptance by creditors in that class that hold at least two-thirds (⅔) in amount and more than one-half (½) in number of the Claims in such Class that cast ballots to accept or reject the Plan and (ii) Impaired Interests as acceptance by the holders of Interests that hold at least two-thirds (⅔) in amount of the Interests in that Class that cast ballots to accept or reject the Plan.
3. | Presumed Acceptance by Non-Voting Classes |
If a Class contains Claims or Interests eligible to vote and no holders of Claims or Interests eligible to vote in such Class vote to accept or reject the Plan, the Plan shall be presumed accepted by such Class to the fullest extent permitted by law.
4. | Presumed Acceptance by Unimpaired Classes |
Classes 1, 2, 9, and, depending on their respective treatment, Classes 13 and 15, are Unimpaired under the Plan. Holders of Claims and Interests, as applicable, in such Classes are
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deemed to have accepted the Plan pursuant to section 1126(f) of the Bankruptcy Code and are not entitled to vote to accept or reject the Plan.
5. | Deemed Rejection by Impaired Classes |
Classes 10(e), 10(g), 10(l), 10(m), 12, 14, and, depending on their respective treatment, Classes 13 and 15, are Impaired under the Plan. Holders of Claims and Interests, as applicable, in such Classes are deemed to have rejected the Plan pursuant to section 1126(g) of the Bankruptcy Code and are not entitled to vote to accept or reject the Plan.
6. | Elimination of Vacant Classes |
Any Class that does not have a holder of a Claim or an Interest shall be deemed eliminated from the Plan for all purposes.
7. | Controversy Concerning Impairment |
If a controversy arises as to whether any Claims or Interests, or any Class of Claims or Interests, are Impaired, the Bankruptcy Court shall, after notice and a hearing, determine such controversy on or before the Confirmation Date.
D. | Means for Implementation of Plan |
1. | General Settlement of Claims and Interests |
The Plan is predicated on a global settlement between the Debtors, the Committee, Abra, and various other stakeholders regarding various issues, including, among others, the settlement of potential Causes of Action, the Plan value, and the allocation of value amongst creditors, and the allocation of value amongst the Debtors’ estates.
Pursuant to section 1123 of the Bankruptcy Code and Bankruptcy Rule 9019, and in consideration for the classification, distributions, releases, and other benefits provided under the Plan, on the Effective Date, the provisions of the Plan shall constitute an arms’ length and good faith compromise and settlement of all Claims, Interests, and controversies, which provides substantial value to the Estates, and all distributions made to holders of Allowed Claims and Interests in any Class in accordance with the Plan are intended to be, and shall be, final.
2. | Restructuring Transactions |
Prior to, on, or after the Effective Date, subject to and consistent with the terms of the Plan and Plan Support Agreement (and subject to the applicable consent and approval rights thereunder), the Debtors and the Reorganized Debtors, as applicable, shall be authorized to enter into such transactions and take such other actions as may be necessary or appropriate to effect the transactions described in, contemplated by, or necessary to effectuate, the Plan, which transactions may include one or more mergers, consolidations, dispositions, transfers, assignments, contributions, conversions, liquidations, dissolutions, or other transactions, as may be necessary or appropriate to result in substantially all of the respective assets, properties, rights, liabilities, duties, and obligations of the Debtors vesting in one or more surviving, resulting, or acquiring
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entities, and the other Transaction Steps (collectively, the “Restructuring Transactions”). Subject to the terms of the Plan, in each case in which the surviving, resulting, or acquiring Entity is a successor to a Debtor, such surviving, resulting, or acquiring Entity shall perform the obligations of such Debtor under the Plan, except as provided in any contract, instrument, or other agreement or document effecting a disposition to such surviving, resulting, or acquiring Entity, which may provide that another Debtor will perform such obligations.
In effecting the Restructuring Transactions, the Debtors and Reorganized Debtors, as applicable, shall implement the Transaction Steps and be permitted to: (i) execute and deliver any appropriate agreements or other documents of merger, consolidation, restructuring, disposition, liquidation, dissolution, or other transaction containing terms consistent with the Plan and that satisfy the requirements of applicable non-bankruptcy law, rule, or regulation; (ii) form new Entities and issue equity interests in such newly formed Entities, execute and deliver appropriate documents in connection therewith containing terms that are consistent with the Plan and that satisfy the requirements of applicable non-bankruptcy law, rule, or regulation; (iii) execute and deliver appropriate instruments of transfer, assignment, assumption or delegation of any asset, property, right, liability, duty, or obligation on terms consistent with the Plan and having such other terms to which the applicable Entities may agree and effectuate such transfers, assignments, assumptions, or delegations, including to any new Entities formed in accordance with the Restructuring Transactions; (iv) file appropriate certificates or articles of merger, consolidation, dissolution, or other documents pursuant to applicable non-bankruptcy law, rule, or regulation; and (v) take all other actions that the applicable Entities determine to be necessary or appropriate, including any filings or recordings, or withdrawing previously made filings or recordings, as may be required by applicable non-bankruptcy law, rule, or regulation. All of the Debtors’ agents and all other Persons authorized to make filings or recordings on the Debtors’ behalf are directed to cooperate with and to take direction from the Debtors and the Reorganized Debtors, as applicable, with respect to the foregoing. To the extent known, the actions or steps to be taken by the Debtors to implement the Restructuring Transactions will be set forth in the Transaction Steps. In all cases, such transactions shall be subject to the terms and conditions of the Plan and the Plan Support Agreement and any consents or approvals required under the Plan and the Plan Support Agreement.
The Confirmation Order shall and shall be deemed to, pursuant to sections 1123 and 363 of the Bankruptcy Code, authorize, among other things, all actions as may be necessary or appropriate to effect any transaction described in, approved by, contemplated by, or necessary to effectuate the Plan, including the Restructuring Transactions.
3. | Sources of Consideration for Plan Distributions |
i. | Cash |
The Reorganized Debtors shall fund distributions under the Plan required to be paid in Cash, if any, with Cash on hand (including Cash from operations and Cash received under the DIP Facility and refinanced pursuant to the Exit Notes) and from the Cash proceeds from the issuance of any Incremental New Money Exit Financing.
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ii. | Exit Financing |
a. | Exit Notes |
On the Effective Date, the Exit Notes Issuer shall issue the Exit Notes on the terms in the Plan and such other terms set forth in the Exit Notes Documents. The initial obligors in respect of the Exit Notes will be the Exit Notes Issuer and the applicable guarantors set forth in the Exit Notes Documents.
The Liens on any shared collateral securing the Exit Notes, the Incremental New Money Exit Debt, the Incremental New Money Exchangeable Debt (to the extent issued), the 2026 Alternative Notes (to the extent issued, and solely with respect to the 2026 Alternative Notes Collateral), and/or the Take Back Notes, and the priorities of such Liens shall be set forth in, and subject to, one or more intercreditor agreements consistent with the terms set forth in the Plan and otherwise in form and substance reasonably satisfactory to Abra, the Debtors, and the applicable purchasers and/or holders (or agents) thereof (each, an “Intercreditor Agreement”).
The maturity date for the Exit Notes shall be the date that is five (5) years after the Effective Date. The Exit Notes will accrue interest at a rate of [__]% per annum.
b. | Incremental New Money Exit Financing |
In addition to the Exit Notes, the Debtors may issue Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt on the terms set forth in the Plan and in the applicable Incremental New Money Exit Debt Documents and Incremental New Money Equity Documents, as applicable. Notwithstanding anything to the contrary in the Plan, the aggregate amount of Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt that may be issued is subject to adjustment as agreed by the Debtors and Abra and subject to the Committee Consent Right in accordance with the terms of the Plan Support Agreement.
iii. | Take-Back Notes |
a. | Non-Exchangeable Take-Back Notes |
On the Effective Date, the Take-Back Notes Issuers shall issue the Non-Exchangeable Take-Back Notes in the aggregate principal amount of (x) if the Class of 2026 Senior Secured Claims votes to accept the Plan, $700 million, and (y) if the Class of 2026 Senior Secured Notes votes to reject the Plan, $600 million, in each case on the terms set forth in the Plan and such other terms set forth in the Non-Exchangeable Take-Back Notes Documents. The initial obligors in respect of the Non-Exchangeable Take-Back Notes will be the Take-Back Notes Issuers and the applicable guarantors set forth in the Non-Exchangeable Take-Back Notes Documents.
The Non-Exchangeable Take-Back Notes shall be secured by a Lien on the terms set forth in the Non-Exchangeable Take-Back Notes Documents and subject to the terms of the applicable Intercreditor Agreement.
The maturity date for the Non-Exchangeable Take-Back Notes shall be six (6) months after
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the maturity date of the Exit Notes. The Non-Exchangeable Take-Back Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable quarterly in Cash; provided, that notwithstanding the foregoing, from and after the second anniversary of the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date. The Non-Exchangeable Take-Back Notes will amortize (or be mandatorily redeemable) quarterly with principal payments amounting to $25 million per annum (or, from and after the date on which the Exchangeable Take-Back Notes are no longer outstanding, $50 million per annum), commencing with the first interest payment date occurring on or after the date that is three (3) months after the Effective Date
b. Exchangeable Take-Back Notes
On the Effective Date, the Take-Back Notes Issuers shall issue the Exchangeable Take-Back Notes in the aggregate principal amount of $250 million that will be exchangeable into New Equity on the terms set forth in the Plan and such other terms set forth in the Exchangeable Take-Back Notes Documents. The initial obligors in respect of the Exchangeable Take-Back Notes will be the Take-Back Notes Issuers and the applicable guarantors set forth in the Exchangeable Take-Back Notes Documents.
The Exchangeable Take-Back Notes shall be secured by a Lien on the terms set forth in the Exchangeable Take-Back Notes Documents and subject to the terms of the applicable Intercreditor Agreement.
The maturity date for the Exchangeable Take-Back Notes shall be six (6) months after the maturity date of the Exit Notes. The Exchangeable Take-Back Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable quarterly in Cash; provided, that notwithstanding the foregoing, from and after the second anniversary of the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date.
The Exchangeable Take-Back Notes may be exchanged into a fixed number of shares of New Equity to be specified in the Exchangeable Take-Back Notes Documents (with exchange into common and/or preferred equity to be agreed between Abra and the Debtors) resulting in equity splits between Abra, on the one hand, and recipients of the General Unsecured Claimholder Distribution, on the other, that would have resulted on the Effective Date if the number of shares constituting the General Unsecured Claimholder Distribution had been determined based on Adjusted Specified Value rather than Specified Value, subject to customary anti-dilution protection, if:
(i) a majority of the holders of the Exchangeable Take-Back Notes provide the Reorganized Debtors and the trustee or agent, as applicable, with fifteen (15) days’ written notice of their intention to seek exchange of the Exchangeable Take-Back Notes (or such shorter period as reasonably comports with the applicable notice period following a notice of prepayment or redemption, as applicable, of the Exchangeable Take-Back Notes); or
(ii) on or after the later of 30 months after the Effective Date and October 31, 2027, (x) the Reorganized Debtors provide the holders of Exchangeable Take-Back Notes with fifteen (15)
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days’ written notice of their intention to seek exchange of the Exchangeable Take-Back Notes and (y) the value of the New Equity issued in respect of such exchange, measured based upon the then most recent applicable four calendar quarters using a total enterprise value to LTM EBITDAR multiple of 4.25x (with LTM EBITDAR and net debt determined in accordance with Abra’s debt arrangements), is greater than or equal to one-hundred and five (105) percent of the then-outstanding principal amount (for the avoidance of doubt, excluding any previously capitalized interest) under the Exchangeable Take-Back Notes, in each case on and subject to the terms and conditions to be set forth in the Exchangeable Take-Back Notes Documents.
For the avoidance of doubt, all Exchangeable Take-Back Notes must be exchanged at the same time. Any previously capitalized interest on the Exchangeable Take-Back Notes as of, and accrued and unpaid interest on the Exchangeable Take-Back Notes up to but excluding, the date that the Exchangeable Take-Back Notes are exchanged into New Equity, shall be paid in full in Cash by the Reorganized Debtors on such exchange date.
iv. | 2026 Alternative Notes |
If the Class of 2026 Senior Secured Notes Claims votes to reject the Plan, then, on the Effective Date, the 2026 Alternative Notes Issuer shall issue the 2026 Alternative Notes on the terms and conditions set forth in the Plan and in the 2026 Alternative Notes Documents and as otherwise necessary to satisfy 1129(b)(2) of the Bankruptcy Code. The initial obligors in respect of the 2026 Alternative Notes will be the 2026 Alternative Notes Issuer and the applicable guarantors set forth in the 2026 Alternative Notes Documents.
The 2026 Alternative Notes shall be secured by the same collateral securing the 2026 Senior Secured Notes as of the Petition Date (the “2026 Alternative Notes Collateral”) on the terms set forth in the 2026 Alternative Notes Documents and subject to the terms of the applicable Intercreditor Agreement. To the extent the 2026 Alternative Notes are issued, the Liens on the shared Collateral securing the Exit Notes and the 2026 Alternative Notes shall be subject to a pari passu intercreditor agreement on terms substantially consistent with the existing pari passu intercreditor agreement for the prepetition Liens securing the 2026 Senior Secured Notes.
The maturity date for the 2026 Alternative Notes shall be seven and one-half (7.5) years after the Effective Date. The 2026 Alternative Notes will accrue interest at nine and one-half (9.5) percent per annum, which shall be payable semi-annually; provided, that notwithstanding the foregoing, from and after the Effective Date, the Reorganized Debtors shall have the option to pay-in-kind up to one hundred (100) percent of the interest accruing from and after such date.
v. | Execution of New Debt Documents |
Except as otherwise noted in the Plan, on the Effective Date, the applicable Reorganized Debtors shall be authorized to execute, deliver, and enter into the New Debt Documents, without further (i) notice to, or order of, the Bankruptcy Court, (ii) vote, consent, authorization, or approval of any Person or Entity, or (iii) action by the holders of Claims or Interests.
The New Debt Documents shall constitute legal, valid, binding, and authorized joint and several obligations of the applicable Reorganized Debtors, enforceable in accordance with their respective terms, and such obligations shall not be enjoined or subject to discharge, impairment,
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release, avoidance, recharacterization, or subordination (including equitable subordination) for any purpose whatsoever under applicable law, the Plan, or the Confirmation Order and shall not constitute preferential transfers, fraudulent conveyances, or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. The financial accommodations to be extended pursuant to the New Debt Documents shall be deemed reasonable and having been extended in good faith and for legitimate business purposes.
Notwithstanding anything to the contrary in the Plan, the Exit Notes, Take-Back Notes and/or Incremental New Money Exit Debt may be structured as loans rather than notes as agreed among the respective parties to the Exit Notes Documents, Take-Back Notes Documents, and Incremental New Money Exit Debt Documents, respectively, with the reasonable consent of Abra and subject to the Committee Consent Right.
On the Effective Date, to the fullest extent permitted by applicable law, all of the Liens to be granted or continued in accordance with the New Debt Documents shall (i) be deemed to be approved; (ii) be legal, binding, and enforceable Liens on the property and assets granted under the New Debt Documents in accordance with the terms thereof; (iii) be deemed perfected on the Effective Date or, if necessary, after the fulfillment of any legal formality required by Brazilian law, and have the priorities as set forth in the New Debt Documents, subject only to such Liens as may be permitted under such documents; and (iv) not be subject to avoidance, recharacterization, or subordination (including equitable subordination) for any purpose whatsoever and shall not constitute preferential transfers, fraudulent conveyances or other voidable transfers under the Bankruptcy Code or any applicable non-bankruptcy law. For the avoidance of doubt, notwithstanding Article IX.C of the Plan or any other provision in the Plan, the Confirmation Order, or any other document entered into in connection with the Plan, including the New Debt Documents (other than the documents governing the Amended Safra Notes and the Amended Debentures, respectively) and any documents in connection with the Exit Notes, Incremental New Money Exit Debt, Take-Back Notes, and 2026 Alternative Notes, Safra and the Debenture Banks shall retain their respective first-priority liens and security interests (including through any “fiduciary assignment” granted under Brazilian law) in any collateral securing the Amended Safra Notes and Amended Debentures, BdoB Letters of Credit, Santander Letters of Credit, and Bradesco Letters of Credit, respectively, which liens shall be senior to any liens on collateral granted in connection with the Plan, including in connection with the Exit Notes, Incremental New Money Exit Debt, Take-Back Notes, and 2026 Alternative Notes.
The Reorganized Debtors and the secured parties (and their designees and agents) under the New Debt Documents are hereby authorized to make all filings and recordings and to obtain all governmental approvals and consents to create (or continue) and perfect such Liens under the provisions of the applicable state, provincial, federal, or other law (whether domestic or foreign) that would be applicable in the absence of the Plan and the Confirmation Order (it being understood that creation (or continuation) and perfection of the Liens granted under the New Debt Documents shall occur automatically (to the fullest extent permitted by applicable law) by virtue of the entry of the Confirmation Order or, if necessary, after the fulfillment of any legal formality required by Brazilian law (subject to the occurrence of the Effective Date), and any such filings, recordings, approvals, and consents shall not be necessary or required), and the Reorganized Debtors and the secured parties (and their designees and agents) under such New Debt Documents shall nevertheless cooperate to make all filings and recordings that otherwise would be necessary under
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applicable law to give effect to such creation (or continuation) and perfection and to give notice of such Liens to third parties, in each case to the extent required under the New Debt Documents.
vi. | New Equity |
On or prior to the Effective Date, there shall be a shareholders’ meeting to take the appropriate and necessary steps at GLAI, in accordance with the Transaction Steps and Brazilian law, to effectuate a capital increase at Reorganized GLAI, to give effect to the (i) capitalization of the 2028 Notes Claims, the General Unsecured Claims, and, if applicable, the 2026 Senior Secured Notes Claims and (ii) corresponding GLAI Preemptive Rights Offering, in accordance with the Transaction Steps. As a result thereof, prior to, on, or after the Effective Date, GLAI shall provide notice, as required under applicable Brazilian law, of Eligible Existing GLAI Equity Interest Holders’ right to participate in the GLAI Preemptive Rights Offering during the GLAI Preemptive Rights Offering Period in accordance with the Transaction Steps and applicable Brazilian law requirements. Any proceeds of the GLAI Preemptive Rights Offering shall be applied in accordance with the Transaction Steps, subject to requirements under Brazilian law.
On the Effective Date, New GOL Parent shall issue the New Equity in accordance with the terms of the Transaction Steps and the Plan without (i) further notice to, or order of, the Bankruptcy Court, (ii) act or action under any applicable law, regulation, order, or rule, or (iii) the vote, consent, authorization, or approval of any Person or Entity. It is currently contemplated that New GOL Parent will be organized under the laws of Luxembourg, as set forth in the Transaction Steps, and that the New Equity will not be traded on any public listing exchange on the Effective Date; provided, that the jurisdiction of New GOL Parent, its capitalization, and whether New Equity is publicly traded is subject to change as agreed among the Debtors, Abra, and the Committee in a manner designed to maximize the liquidity of New Equity and minimize cost. Such terms shall be disclosed in the Plan Supplement, including the New Organizational Documents.
Transfers of the New Equity outside of DTC will be subject to restrictions on transfers to the extent such transfer would subject the Reorganized Debtors or Abra to the registration and reporting requirements of the Securities Act and the Securities Exchange Act. The Debtors will make certain public disclosures regarding the New Equity through quarterly and annual financial statements and implement other procedures intended to provide liquidity for the New Equity on terms to be agreed among the Debtors, Abra, and the Committee. At least once following the Effective Date, at a time to be set forth in the Plan Supplement and subject to applicable law, New GOL Parent will send a notice to its shareholders inquiring whether certain shareholders desire to purchase or dispose any of their equity interests of New GOL Parent, and the desired terms for such transactions. To the extent that any shareholders offer to buy shares at a price that exceeds the price that any shareholders offer to sell their shares, New GOL Parent will facilitate a possible transaction, thereby allowing such shareholders to transact with one another, subject to certain procedures and conditions. The Reorganized Debtors can provide no assurances that this notice and facilitation process will result in any purchases or sales of equity interests as that will depend on many factors outside the control of the Reorganized Debtors, including market conditions.
The New Equity shall be distributed through the facilities of DTC, and applicable holders of Allowed Claims entitled to receive a distribution of New Equity under the Plan shall, unless otherwise agreed by the Debtors or Reorganized Debtors, as applicable, with the consent of Abra
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and the Committee, be required to hold New Equity through the facilities of DTC regardless of whether they held their Claims through the facilities of DTC prior to the Effective Date; provided, however, that, with respect to holders of Claims who are legally or contractually restricted from holding the New Equity through the facilities of DTC, the Debtors or Reorganized Debtors, as applicable, and Abra may, at their mutual election in their respective sole discretion, make accommodations for any such holder (including, without limitation, by selling the New Equity to which any such holder is otherwise entitled on the open market, provided the purchaser thereof holds such New Equity through the facilities of DTC, and distributing Cash to the Claim holder in an amount equal to the proceeds from such sale less any transaction expenses related to such sale).
Transfers of New Equity will require the prior written consent of New GOL Parent if such transfer could cause New GOL Parent or Abra to be required to, or could reasonably be expected to create the risk of New GOL Parent or Abra being required in the reasonably near future to, have Exchange Act Section 12(g) registration obligations (in each case as determined in good faith by New GOL Parent or Abra, as applicable) (“12(g) Obligations”). Abra ordinary shares received in exchange for New Equity may also be subject to restrictions on transfer designed to avoid triggering 12(g) Obligations.
The New Equity issued and/or distributed pursuant to the Plan shall be duly authorized, validly issued, and fully paid and non-assessable. Each distribution and issuance of the New Equity under the Plan shall be governed by the terms and conditions set forth in the Plan applicable to such distribution or issuance and by the terms and conditions of the instruments evidencing or relating to such distribution or issuance, which terms and conditions shall bind each Person or Entity receiving such distribution or issuance. The pre-money value of any Incremental New Money Equity shall be set at not less than the Pre-Dilution Specified Value and the terms thereof shall otherwise be satisfactory to the Debtors and Abra.
As a result of the exchange of debt for New Equity and the GLAI Preemptive Rights Offering contemplated under the Plan, Existing GLAI Equity Interests will be significantly diluted. The Debtors expect the resulting equity holdings of Existing GLAI Equity Interest holders to be de minimis.
4. | General Unsecured Claimholder Distribution |
i. | General Unsecured Claimholder Initial Distribution |
The percentage of the New Equity to be held by holders of General Unsecured Claims as a result of the General Unsecured Claimholder Distribution shall be subject to dilution by (i) any Incremental New Money Equity, (ii) any New Equity issued to holders of Allowed 2026 Senior Secured Notes Claims (and any shares held in escrow pursuant to Article V.D.2 of the Plan on account of such 2026 Senior Secured Notes Claims), if applicable, and (iii) any New Equity issued after the Effective Date, including in connection with the Management Incentive Plan, upon exchange of the Exchangeable Take-Back Notes, and upon exchange of any Incremental New Money Exchangeable Debt.
ii. | General Unsecured Claimholder Escrowed Shares |
If a Boeing Agreement has not been agreed by the parties thereto on a Final Basis (and/or
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Bankruptcy Court approval has not been obtained in respect of such agreement) on or before the Effective Date, the General Unsecured Claimholder Escrowed Shares shall have a value (based on the Specified Value) equal to $25 million. If, on or before the first anniversary of the Effective Date, the Boeing Agreement has been agreed by the parties thereto on a Final Basis, then all $25 million of the General Unsecured Claimholder Escrowed Shares shall be released to the holders of General Unsecured Claims (or to the applicable holders of New Equity) (as of a record date to be agreed). If any General Unsecured Claimholder Escrowed Shares remain in escrow on the first anniversary of the Effective Date, then such General Unsecured Claimholder Escrowed Shares shall not be distributed to the holders of General Unsecured Claims (or to applicable holders of New Equity) and such shares instead shall be returned to the issuer thereof automatically and without need for a further order by the Bankruptcy Court.
If the Class of 2026 Senior Secured Notes votes to reject the Plan, the holders of Allowed 2026 Senior Secured Notes Claims (or the applicable holders of New Equity) (as of a record date to be agreed) will receive a number of escrow shares in accordance with, and subject to, Article V.D.2 of the Plan consistent with their treatment under Article III.4.b of the Plan.
Holders of Allowed General Unsecured Claims that are entitled to rights to receive the General Unsecured Claimholder Escrowed Shares shall not be permitted to trade their right to receive the General Unsecured Claimholder Escrowed Shares prior to their release. To the extent that a holder is entitled to receive its share of New Equity outside of DTC, such holder shall also receive its right to General Unsecured Claimholder Escrowed Shares outside of DTC, and, in that case, the New Equity and the right to receive General Unsecured Claimholder Escrowed Shares may only be traded together with each other and may not be traded separately. Any such separate trade will be considered void by the Debtors and Reorganized Debtors, as applicable, and will not be registered in the applicable registers.
iii. | Mandatory Redemption/Exchange & Offer to Purchase/Exchange |
Upon the earliest to occur of (i) any Qualified Listing Event and (ii) a future bankruptcy filing by New GOL Parent, Reorganized GLAI, or Reorganized GLA, the New Equity issued on account of the General Unsecured Claimholder Distribution and, if applicable, the 2026 Senior Secured Notes Claims shall be (x) in the case of clause (i) above, exchanged for ordinary shares of Abra Group Limited (or any successor) (subject to, if agreed among the Debtors, Abra, and the Committee as set forth in the Plan Supplement, Abra’s right to instead mandatorily redeem such New Equity for cash), and (y) in the case of clause (ii) above, mandatorily redeemed in cash or (at Abra Group Limited’s sole discretion) exchanged for ordinary shares of Abra Group Limited (or any successor). The definitive instruments evidencing the terms of such mandatory redemption or exchange shall specify an exchange ratio, the methodology for determining the redemption price, and other terms to be agreed and shall be filed as part of the Plan Supplement.
In addition, Abra Group Limited (or its successor) shall make an offer to purchase or exchange New Equity issued on account of the General Unsecured Claimholder Distribution and, if applicable, the 2026 Senior Secured Notes Claims for cash or (at Abra Group Limited’s sole discretion) ordinary shares of Abra Group Limited (or any successor) upon the earliest to occur of any of the following events: (i) any Business Combination (other than a Business Combination that is a Qualified Listing Event) between Abra Group Limited (or any successor) and Azul S.A.
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or (ii) any Material Joint Venture between Abra Group Limited (or any successor) and Azul S.A. or any of their material Affiliates, excluding any joint venture between New GOL Parent or any of its subsidiaries and Azul S.A. and any of its Affiliates. For the avoidance of doubt, the events referenced in the foregoing sentence do not include any Business Combination or joint venture between New GOL Parent and/or any of its subsidiaries and Azul S.A. and/or any of its Affiliates. The definitive instruments evidencing the terms of such mandatory offer to purchase such New Equity or exchange such New Equity for ordinary shares of Abra Group Limited (or any successor) shall specify an exchange ratio, the methodology for determining the cash purchase price, and other terms to be agreed and shall be filed as part of the Plan Supplement.
5. | Corporate Existence |
Except as otherwise provided in the Plan, each Reorganized Debtor shall continue to exist after the Effective Date as a separate corporation, limited liability company, limited partnership, or other form, as the case may be, with all the powers of a corporation, limited liability company, limited partnership, or other form, as the case may be, pursuant to the applicable law of the jurisdiction in which the applicable Debtor is incorporated or formed and pursuant to the respective bylaws, limited liability company agreement, operating agreement, limited partnership agreement, or other formation documents in effect on the Effective Date, except to the extent such formation documents are amended pursuant to the Plan, which amendment shall require no further action or approval (other than any requisite filings required under applicable law).
6. | Vesting of Assets in the Reorganized Debtors |
Except as otherwise provided in the Plan, on the Effective Date, pursuant to sections 1141(b) and (c) of the Bankruptcy Code, all property in each Estate, and any property acquired by the Debtors pursuant to the Plan shall vest in the applicable Reorganized Debtors or, if applicable, any Entities formed pursuant to the Restructuring Transactions, free and clear of all Liens, Claims, Interests, charges, or other encumbrances. On and after the Effective Date, except as otherwise provided in the Plan, the Reorganized Debtors may operate their business and may use, acquire, or dispose of property and compromise or settle any Claims, Interests, or Causes of Action without supervision or approval by the Bankruptcy Court and free of any restrictions of the Bankruptcy Code or Bankruptcy Rules.
The Plan shall be conclusively deemed to be adequate notice that Liens, Claims, Interests, charges, or other encumbrances are being extinguished. Any Person having a Lien, Claim, Interest, charge, or other encumbrance against any of the property vested in accordance with the foregoing paragraph shall (i) be conclusively deemed to have consented to the transfer, assignment, and vesting of such property to or in the applicable Reorganized Debtor (or, if applicable, any Entities formed pursuant to the Restructuring Transactions) free and clear of all Liens, Claims, Interests, charges, or other encumbrances by failing to object to the confirmation of the Plan and (ii) provide any written consents as required under applicable law to the extent requested by the Debtors or Reorganized Debtors, as applicable.
7. | Cancellation of Loans, Securities, and Agreements |
Except for the Existing GLAI Equity Interests and the Existing Letters of Credit, and except
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as otherwise provided in the Plan, on the Effective Date: (i) the DIP Documents, 2028 Notes Documents, 2026 Senior Secured Notes Documents, 2024 Senior Exchangeable Notes Documents, 2025 Senior Notes Documents, Perpetual Notes Documents, and any other certificate, security, share, note, purchase right, option, warrant, or other instrument or document directly or indirectly evidencing or creating any indebtedness or other obligation of, or ownership interest in, a Debtor (except such certificates, securities, shares, notes, purchase rights, options, warrants, or other instruments or documents evidencing a Claim or an Interest that is Reinstated or otherwise retained by the holders thereof pursuant to the Plan), shall, to the fullest extent permitted by applicable law, be deemed cancelled, released, surrendered, extinguished, and discharged without any need for further action or approval of the Bankruptcy Court or any holder thereof or any other Person or Entity, and the Reorganized Debtors shall not have any continuing obligations thereunder or in any way related thereto; and (ii) the obligations of the Debtors pursuant, relating, or pertaining to any agreements, indentures, certificates of designation, bylaws, or certificate or articles of incorporation, or similar documents governing the shares, certificates, notes, purchase rights, options, warrants, or other instruments or documents evidencing or creating any indebtedness or obligation of, or ownership interest in, the Debtors (except such agreements, certificates, notes, or other instruments evidencing a Claim or an Interest that is Reinstated pursuant to the Plan or otherwise retained by the holders thereof pursuant to the Plan) shall be deemed satisfied in full, released, and discharged without any need for further action or approval of the Bankruptcy Court or any holder thereof or any other Person or Entity.
Notwithstanding such cancellation and discharge, the DIP Documents, 2028 Notes Documents, 2026 Senior Secured Notes Documents, Glide Notes Documents, 2024 Senior Exchangeable Notes Documents, 2025 Senior Notes Documents, and Perpetual Notes Documents shall continue in effect solely to the extent necessary to allow (i) the holders of Claims thereunder to receive distributions under the Plan; (ii) the Reorganized Debtors and the applicable Agents/Trustees to take other actions pursuant to the Plan on account of such Claims; (iii) holders of such Claims to retain their respective rights and obligations vis-à-vis other holders of Claims pursuant to such documents; (iv) the applicable Agents/Trustees to enforce their rights and claims under such documents against Persons and Entities other than the Debtors or Reorganized Debtors, including any rights to payment of fees, expenses, indemnification obligations, and any Indenture Trustee Charging Lien; (v) the Agents/Trustees to enforce any obligations owed to them under the Plan; (vi) the Agents/Trustees to appear in the Chapter 11 Cases or in any proceeding in the Bankruptcy Court or any other court relating to the such documents; provided, that nothing in Article V.G of the Plan shall affect the discharge of Claims pursuant to the Plan. The Agents/Trustees shall take all steps and/or execute and/or deliver all instruments or documents, in each case, reasonably requested by the Debtors or Reorganized Debtors, as applicable, to effect the release of the Liens granted pursuant to the DIP Documents, the 2028 Notes Documents, the 2026 Senior Secured Notes Documents, the Glide Notes Documents, the 2024 Senior Exchangeable Notes Documents, the 2025 Senior Notes Documents, and the Perpetual Notes Documents and/or reflect on the public record the consummation of the payoff, releases, and terminations contemplated thereby.
Except for the foregoing, on the Effective Date, the Agents/Trustees shall be automatically and fully discharged and relieved of all further duties and responsibilities related to such documents; provided, that any provisions of such documents that by their terms survive their termination shall survive in accordance with their terms.
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All Indenture Trustee Fees incurred, or estimated to be incurred, up to and including the Effective Date, shall be paid in full in Cash on the Effective Date (to the extent not previously paid during the course of the Chapter 11 Cases) in accordance with the Plan, without any requirement to file a fee application with the Bankruptcy Court, without the need for itemized time detail, or without any requirement for Bankruptcy Court review or approval. The Debtors shall provide the applicable Agents/Trustees notice of the anticipated Effective Date at least seven (7) calendar days in advance thereof. At least three (3) Business Days before the anticipated Effective Date, summary invoices for all Indenture Trustee Fees incurred, and an estimate of Indenture Trustee Fees to be incurred (including the cost of providing notice of the Effective Date), up to and including the Effective Date shall be submitted to the Debtors; provided, that such estimates shall not be considered an admission or limitation with respect to such Indenture Trustee Fees. From and after the Effective Date, the Debtors and Reorganized Debtors (as applicable) shall pay, upon receipt of summary invoices, all reasonable and documented Indenture Trustee Fees solely to the extent incurred in connection with taking any action required by the Indenture Trustee to implement the Plan or requested by the Debtors or Reorganized Debtors, as applicable.
On and after the final distribution on account of the 2026 Senior Secured Notes Claims, the Glide Notes Claims, the 2024 Senior Exchangeable Notes Claims, the 2025 Senior Notes Claims, and the Perpetual Notes Claims, the 2026 Senior Secured Notes, the Glide Notes, the 2024 Senior Exchangeable Notes, the 2025 Senior Notes, and the Perpetual Notes, as applicable, shall be deemed to be null, void, and worthless, and DTC shall take down the relevant positions at the request of the applicable Agent/Trustee (and such Agent/Trustee shall make such request at the request of the Debtors or Reorganized Debtors, as applicable) without any requirement of indemnification or security on the part of the Agent/Trustee, the Debtors, or the Reorganized Debtors (as applicable).
Upon the payment or other satisfaction of an Allowed Other Secured Claim, the holder of such Allowed Other Secured Claim shall deliver to the Reorganized Debtors any collateral or other property of a Debtor held by such holder, together with any termination statements, instruments of satisfaction, or releases of all security interests that may be reasonably requested by the Reorganized Debtors to terminate any related financing statements, mortgages, mechanics’ or other statutory Liens, lis pendens, or similar interests or documents and take all other steps reasonably requested by the Reorganized Debtors that are necessary to cancel and/or extinguish Liens securing such holder’s Allowed Other Secured Claim.
8. | Corporate and Other Entity Action |
On the Effective Date, to the fullest extent permitted by applicable law, all actions contemplated under the Plan (including, for the avoidance of doubt, the documents in the Plan Supplement) shall be deemed authorized and approved in all respects, including: (i) the appointment of the New Boards and any other managers, directors, or officers for the Reorganized Debtors; (ii) the issuance and distribution of the New Equity by New GOL Parent; (iii) the adoption of the New Organizational Documents; (iv) entry into the New Equity Documents; (v) entry into the New Debt Documents; (vii) implementation of the Restructuring Transactions (which may be implemented before, on, or after the Effective Date); and (viii) all other actions contemplated under the Plan (whether to occur before, on, or after the Effective Date).
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All matters provided for in the Plan involving the corporate or other Entity structure of the Debtors or the Reorganized Debtors, and any corporate or other Entity action required by the Debtors or Reorganized Debtors in connection with the Plan, shall be deemed to have occurred and shall be in effect, without any requirement of further action by the security holders, managers, or officers of the Debtors or Reorganized Debtors. On or before the Effective Date, the appropriate officers of the Debtors or Reorganized Debtors, as applicable, shall be authorized and directed to issue, execute, and deliver the agreements, documents, securities, and instruments and documents contemplated under the Plan (or necessary or desirable to effectuate the transactions contemplated under the Plan) in the name, and on behalf, of the Reorganized Debtors. The authorizations and approvals contemplated by Article V.G of the Plan shall be effective notwithstanding any requirements of any otherwise applicable non-bankruptcy law.
9. | New Organizational Documents |
On or prior to the Effective Date, the applicable Reorganized Debtors shall, if so required under applicable non-bankruptcy law, file their respective New Organizational Documents with the applicable Secretaries of State and/or other applicable persons in their respective states or jurisdictions of organization in accordance with the laws, rules, and regulations of such jurisdictions. Pursuant to (and only to the extent required by) section 1123(a)(6) of the Bankruptcy Code, the New GOL Parent Organizational Documents shall prohibit the issuance of non-voting equity securities. After the Effective Date, the Reorganized Debtors may amend and restate their respective New Organizational Documents and other constituent documents as permitted by the laws of their respective states or jurisdictions of organization or formation and their respective New Organizational Documents without further order of the Bankruptcy Court.
10. | Directors and Officers of Reorganized Debtors |
i. | New GOL Parent Board |
On the Effective Date, the New GOL Parent Board shall consist of a maximum of nine (9) directors, at least one of whom shall be independent and shall serve a minimum term of two (2) years (subject to applicable law), and whose identities will, to the extent known, be disclosed in the Plan Supplement. The Committee shall be entitled to appoint, in consultation with Abra, an independent director to the initial New GOL Parent Board. All the other members of the New GOL Parent Board shall be selected by Abra in consultation with the Debtors and the Committee.
Except to the extent that a member of a Debtor’s board of directors or managers, as applicable, continues to serve as a director or manager of the corresponding Reorganized Debtor after the Effective Date, such Persons shall have no continuing obligations to the Reorganized Debtors on or after the Effective Date in their capacities as such, and each such director or manager shall be deemed to have resigned or shall otherwise cease to be a director or manager of the applicable Debtor on the Effective Date. Commencing on the Effective Date, each of the directors or managers, as applicable, of the Reorganized Debtors shall serve pursuant to the terms of the applicable New Organizational Documents and may be replaced or removed in accordance with such documents.
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ii. | Officers of Reorganized Debtors |
Except as otherwise provided in the Plan Supplement, the officers of the Debtors immediately before the Effective Date shall serve as the initial officers of the respective Reorganized Debtors on and after the Effective Date. After the Effective Date, the selection of officers of the Reorganized Debtors shall be in accordance with the Reorganized Debtors’ respective organizational documents.
iii. | New Subsidiary Boards |
On the Effective Date, the applicable New Subsidiary Boards shall be appointed in accordance with the applicable New Organizational Documents.
iv. | Management Incentive Plan |
The New GOL Parent Board shall determine the percentage of New Equity to allocate to the Management Incentive Plan.
11. | Effectuating Documents; Further Transactions |
On and after the Effective Date, the applicable Reorganized Debtors and their respective officers and members of the boards are authorized to and may issue, execute, deliver, file, or record, such contracts, securities, instruments, releases, and other agreements or documents and take such actions as may be necessary or appropriate to effectuate, implement, and further evidence the terms and conditions of the Plan, and the securities issued pursuant to the Plan in the name, and on behalf, of the applicable Reorganized Debtors, without the need for any approvals, authorization, or consents, except for those expressly required pursuant to the Plan, or the New Organizational Documents.
12. | Section 1146 Exemption |
Pursuant to section 1146 of the Bankruptcy Code, (i) the issuance, transfer, or exchange of any securities, instruments, or documents, (ii) the creation of any Lien, mortgage, deed of trust, or other security interest, (iii) the making or assignment 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, bills of sale, or assignments executed in connection with any of the transactions contemplated by 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 (whether to one or more of the Reorganized Debtors or otherwise), (iv) the grant of collateral under the New Debt Documents, and (v) the issuance, renewal, modification, or securing of indebtedness, and the making, delivery, or recording of any deed or other instrument of transfer under, in furtherance of, or in connection with, the Plan, including the Confirmation Order, shall not be subject to any document recording tax, stamp tax, conveyance fee, or other similar tax, mortgage tax, 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. Consistent with the foregoing, each recorder of deeds or similar official for any county, city, or Governmental Unit in which any instrument related to the foregoing is to be recorded shall be directed to accept such instrument without requiring the payment of any
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recording tax, stamp tax, conveyance fee or other similar tax, mortgage tax, 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.
13. | Preservation of Causes of Action |
In accordance with section 1123(b) of the Bankruptcy Code, but subject in all respects to Article IX.D of the Plan, the Reorganized Debtors shall retain and may enforce, in their discretion and in accordance with the best interests of the Reorganized Debtors, all rights to commence and pursue, as appropriate, any and all Retained Causes of Action, whether arising before or after the Petition Date, including any actions specifically enumerated in the Schedule of Retained Causes of Action, and the Reorganized Debtors’ rights to commence, prosecute, or settle such Retained Causes of Action shall be preserved notwithstanding the occurrence of the Effective Date; provided, however, that the Reorganized Debtors waive their rights to assert Preference Actions against holders of General Unsecured Claims (but reserve the right to assert any such Preference Actions solely as counterclaims or defenses to Claims asserted against the Debtors; provided, further, that any such assertion may solely be defensive, without any right to seek or obtain an affirmative recovery on account of any such counterclaim).
No Person or Entity may rely on the absence of a specific reference in the Plan (including, for the avoidance of doubt, the Plan Supplement) or the Disclosure Statement to any Retained Cause of Action against them as an indication that the Debtors or the Reorganized Debtors will not pursue any and all available Causes of Action against them. Unless any Retained Cause of Action is expressly waived, relinquished, exculpated, released, compromised, or settled by the Plan or a Final Order of the Bankruptcy Court, the Reorganized Debtors expressly reserve all available Causes of Action, for later adjudication, and, therefore 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, the confirmation of the Plan or the occurrence of the Effective Date.
E. | Treatment of Executory Contracts and Unexpired Leases |
1. | Assumption and Rejection of Executory Contracts and Unexpired Leases |
Except as otherwise provided in the Plan, each Executory Contract and Unexpired Lease shall be deemed rejected, without the need for any further notice to, or action, order, or approval of, the Bankruptcy Court, as of the Effective Date, pursuant to sections 365(a) and 1123 of the Bankruptcy Code, unless such Executory Contract or Unexpired Lease (i) was previously assumed or rejected; (ii) previously expired or terminated pursuant to its own terms; (iii) is the subject of a motion or notice to reject, assume, or assume and assign filed on or before the Confirmation Date; or (iv) is listed on the Schedule of Assumed Contracts. The assumption of Executory Contracts and Unexpired Leases under the Plan may include the assignment of such contracts to the Debtors’ Affiliates. Unless previously approved by the Bankruptcy Court, the Confirmation Order will constitute an order approving the above-described rejections, assumptions, and assumptions and assignments, all pursuant to sections 365(a) and 1123 of the Bankruptcy Code, effective on the occurrence of the Effective Date.
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The Debtors shall file, as part of the Plan Supplement, the Schedule of Assumed Contracts, which may be amended, supplemented, or otherwise modified through the Effective Date. Any objection to the assumption of an Executory Contract or Unexpired Lease under the Plan (other than those Executory Contracts and Unexpired Leases that were previously assumed by the Debtors or are the subject of a motion or notice to assume or assume and assign filed on or before the Confirmation Date) must be filed, served, and actually received by the Debtors no later than seven (7) days prior to the Confirmation Hearing; provided, that, if the Debtors file an amended Schedule of Assumed Contracts prior to the Confirmation Hearing, then, with respect to any lessor or counterparty affected by such amended Schedule of Assumed Contracts, objections to the assumption of the relevant Executory Contract or Unexpired Lease must be filed by the later of (i) ten (10) days from the date the amended Schedule of Assumed Contracts has been filed and served upon the applicable counterparties via electronic mail or overnight courier and (ii) the Confirmation Hearing; provided, further, that if the Debtors file an amended Schedule of Assumed Contracts after the Confirmation Hearing, but prior to the Effective Date, then, with respect to any lessor or counterparty affected by such amended Schedule of Assumed Contracts, objections to the assumption of the relevant Executory Contract or Unexpired Lease must be filed by ten (10) days from the date the amended Schedule of Assumed Contracts is filed and served upon the applicable counterparties via electronic mail or overnight courier; provided, further, that the Debtors may file an amended Schedule of Assumed Contracts after the Effective Date with the consent of the lessors or counterparties affected by such amended Schedule of Assumed Contracts.
To the extent any provision in any Executory Contract or Unexpired Lease to be assumed or assumed and assigned pursuant to the Plan restricts, limits or prevents, or purports to restrict, limit or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), any such anti-assignment provision shall be unenforceable pursuant to section 365(f) of the Bankruptcy Code. To the maximum extent permitted by law, such provision shall be deemed modified or stricken such that the transactions contemplated by the Plan shall not entitle the non-Debtor counterparty to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. Confirmation of the Plan and consummation of the transactions contemplated by the Plan shall not constitute a change of control under any Executory Contract or Unexpired Lease assumed by the Debtors on or prior to the Effective Date.
Except as otherwise provided in the Plan or agreed to by the Debtors and the applicable counterparty, each Executory Contract and Unexpired Lease assumed pursuant to Article VI.A of the Plan or by any order of the Bankruptcy Court, that has not been assigned to a third party prior to the Effective Date, shall revest in, be fully enforceable by, and constitute binding obligations of the applicable Reorganized Debtor in accordance with its terms (including any amendments entered into after the Petition Date), except as such terms are modified by the provisions of the Plan or any order of the Bankruptcy Court.
2. | Aircraft Leases |
i. | Assumption and Rejection of Prepetition Aircraft Leases |
With respect to Aircraft Leases entered into before the Petition Date that were not already assumed pursuant to an order of the Bankruptcy Court, that have not previously expired or
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terminated pursuant to their terms, or that are not subject to a pending motion to assume or pending stipulation providing for assumption filed on or before the Confirmation Date, the Debtors shall assume only those Aircraft Leases that are designated on the Schedule of Assumed Contracts, which may be amended, supplemented, or otherwise modified through the Effective Date; provided, however, that any Aircraft Lease that has not previously been assumed but is subject to a Lessor Agreement that has been approved by an order of the Bankruptcy Court shall be assumed, on the later of the Effective Date and the date on which the applicable definitive documentation is executed, and, notwithstanding anything to the contrary in the Plan, subject to the terms of the applicable Bankruptcy Court order or Lessor Agreement, without any further action by the Debtors or the Reorganized Debtors, as applicable.
Any agreements or documents by the Debtors that are ancillary to Aircraft Leases that have been previously assumed or are being assumed under the Plan shall be, and shall be deemed, assumed with the applicable Aircraft Lease. To the extent that certain of the Aircraft Leases identified on the Schedule of Assumed Contracts include finance leases of the Debtors that were amended during the course of the Chapter 11 Cases, the debt associated with such leases shall be provided the treatment agreed between the Debtors and other parties in the applicable governing amendment documents. To the extent that contracts of the Debtors that are subject to Lessor Agreements (in each case including documents that are ancillary to such contracts) are not subject to section 365 of the Bankruptcy Code (including so-called finance leases and guarantees by the Debtors), such contracts shall be deemed assumed to the extent necessary to effectuate terms of the Lessor Agreements, and the debt and obligations associated with such contracts, documents and guarantees shall be provided the treatment agreed between the Debtors and other parties in the applicable Lessor Agreements.
Subject to the terms of any Lessor Agreement, to the extent any provision in any Aircraft Lease to be assumed or assumed and assigned pursuant to the Plan restricts, limits or prevents, or purports to restrict, limit or prevent, or is breached or deemed breached by, the assumption or assumption and assignment of such Executory Contract or Unexpired Lease (including any “change of control” provision), any such anti-assignment provision shall be unenforceable pursuant to section 365(f) of the Bankruptcy Code. Subject to the terms of any Lessor Agreement, to the maximum extent permitted by law, such provision shall be deemed modified or stricken such that the transactions contemplated by the Plan shall not entitle the non-Debtor counterparty to terminate such Executory Contract or Unexpired Lease or to exercise any other default-related rights with respect thereto. As provided in the applicable Aircraft Lease, confirmation of the Plan and consummation of the transactions contemplated by the Plan shall not constitute a change of control under any Aircraft Lease assumed by the Debtors on or prior to the Effective Date.
With respect to Aircraft Leases not assumed pursuant to the terms of the Plan, such Aircraft Leases shall be rejected and the property subject to such lease shall be deemed abandoned subject to agreement by the parties or order of the Bankruptcy Court providing for alternative treatment of such Aircraft Lease and/or property.
With respect to any property subject to an Aircraft Lease that has been returned or redelivered to the applicable party, such Aircraft Lease shall be deemed rejected as of the date of such return or redelivery, subject to any agreement of the parties or an order of the Bankruptcy Court providing otherwise.
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ii. | Aircraft Leases Entered into After the Petition Date |
Aircraft Leases entered into after the Petition Date by the Debtors, together with any other agreements or documents by the Debtors that are ancillary to such Aircraft Leases, will be reaffirmed and performed by the applicable Debtor or Reorganized Debtor, as the case may be, in the ordinary course of its business or as authorized by the Bankruptcy Court. Accordingly, such Aircraft Leases, agreements, and documents shall survive and remain unaffected by entry of the Confirmation Order, and, on the Effective Date, shall revest in and be fully enforceable by and against the applicable Reorganized Debtor in accordance with its terms, subject to, and except as such terms may have been modified by, an order of the Bankruptcy Court.
3. | Cure of Defaults for Executory Contracts and Unexpired Leases Assumed |
Except as set forth below, Cure Claims shall be satisfied by payment in Cash, on the Effective Date, of the respective amounts set forth on the Schedule of Assumed Contracts or on such other terms as the parties to such Executory Contracts or Unexpired Leases may otherwise agree.
Subject to satisfaction of any applicable Cure Claims and the terms of any applicable Lessor Agreement, assumption of any Executory Contract or Unexpired Lease pursuant to the Plan shall result in the full release and satisfaction of any 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 such Executory Contract or Unexpired Lease at any time before the date that the Debtors assume or assume and assign such Executory Contract or Unexpired Lease. Subject to the terms of any applicable Lessor Agreement, the resolution of any timely objections in accordance with Article VI.D of the Plan, and the satisfaction of the any applicable Cure Claims, any Proofs of Claim filed with respect to an Executory Contract or Unexpired Lease that has been assumed or assumed and assigned shall be deemed Disallowed and expunged, without further notice to, or action, order, or approval of, the Bankruptcy Court.
4. | Dispute Resolution |
To the extent there is a dispute with respect to (i) the amount of a Cure Claim, (ii) the ability of the Reorganized Debtors or the applicable assignee to provide “adequate assurance of future performance” (within the meaning of section 365 of the Bankruptcy Code) under an Executory Contract or Unexpired Lease to be assumed, or (iii) any other matter pertaining to assumption or the cure of defaults required by section 365(b)(1) of the Bankruptcy Code (each, an “Assumption Dispute”), the Debtors or Reorganized Debtors, as applicable, may settle any such Assumption Dispute without any further notice to, or action, order, or approval of, the Bankruptcy Court.
Subject to the terms of any applicable Lessor Agreement, in the event that an Assumption Dispute cannot be resolved consensually and a timely objection is filed by a counterparty, such dispute shall be resolved by a Final Order of the Bankruptcy Court (which may be the Confirmation Order). Subject to the terms of any applicable Lessor Agreement, during the pendency of an Assumption Dispute, the applicable counterparty shall continue to perform under the applicable
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Executory Contract or Unexpired Lease.
To the extent an Assumption Dispute relates solely to the amount of a Cure Claim, the Debtors may assume or assume and assign the applicable Executory Contract or Unexpired Lease prior to the resolution of such Assumption Dispute; provided, that, pending resolution of the Assumption Dispute, the Debtors reserve Cash in an amount sufficient to pay the Cure Claim asserted by the counterparty. Subject to the terms of any applicable Lessor Agreement, to the extent that the Assumption Dispute is resolved unfavorably to the Debtors, the Debtors may reject the applicable Executory Contract or Unexpired Lease after such resolution.
For the avoidance of doubt, if the Debtors are unable to resolve an Assumption Dispute relating solely to the amount of a Cure Claim prior to the Confirmation Hearing, such Assumption Dispute may be scheduled to be heard by the Bankruptcy Court after the Confirmation Hearing; provided, that the Reorganized Debtors may settle any such dispute after the Effective Date without any further notice to any party or any action, order, or approval of the Bankruptcy Court.
5. | Rejection Damages Claims |
Any counterparty to an Executory Contract or Unexpired Lease that is rejected by the Debtors pursuant to the Plan must file and serve a Proof of Claim on the applicable Debtor that is party to the Executory Contract or Unexpired Lease to be rejected no later than thirty (30) days after the later of (i) the Confirmation Date or (ii) the effective date of rejection of such Executory Contract or Unexpired Lease. Any Claims arising from the rejection of an Executory Contract or Unexpired Lease not filed within such time shall be Disallowed, forever barred from assertion, and shall not be enforceable against the Debtors or the Reorganized Debtors, as applicable, or any property thereof, without the need for any objection by the Debtors or the Reorganized Debtors or further notice to, or action, order, or approval of, the Bankruptcy Court or any other Entity.
Claims arising from the rejection of the Executory Contracts or Unexpired Leases shall be classified as General Unsecured Claims and subject to the provisions of Article VI.D of the Plan and applicable provisions of the Bankruptcy Code and Bankruptcy Rules.
6. | Insurance Policies & Indemnification Obligations |
Notwithstanding anything to the contrary in the Confirmation Order, the Plan (including, for the avoidance of doubt, the Plan Supplement), the Plan Support Agreement, the New Debt Documents, the Incremental New Money Equity Documents, the New Equity Documents, any other document related to any of the foregoing, or any other order of the Bankruptcy Court (including any 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):
(i) each of the Insurance Contracts, including all D&O Policies, shall be deemed to have been assumed all Insurance Contracts, such that the applicable Reorganized Debtors shall become and remain liable in full for all of their and the applicable Debtors’ obligations under the Insurance Contracts, regardless of whether such obligations arise on, before, or after the Effective Date, without the requirement or need for any Insurer to file a Proof of Claim or a request for
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payment of an Administrative Expense; provided, that the Reorganized Debtors shall not indemnify their respective officers, directors, equity holders, agents, or employees for any claims or Causes of Action arising out of or relating to any act or omission that constitutes a criminal act, intentional fraud, gross negligence, or willful misconduct;
(ii) nothing shall alter, modify, amend, waive, release, discharge, prejudice, or impair in any respect (a) the terms and conditions of any Insurance Contract, (b) any rights or obligations of the Debtors or the Reorganized Debtors, as applicable, or Insurers thereunder, whether arising before or after the Effective Date, or (c) the duty, if any, of Insurers to pay claims covered by the Insurance Contracts or the right to seek payment or reimbursement from the Debtors or the Reorganized Debtors, as applicable, or to draw on any collateral or security therefor; and
(iii) the automatic stay of section 362(a) of the Bankruptcy Code and the injunctions set forth in Article IX.G of the Plan, if and to the extent applicable, shall be deemed lifted without further order of the Bankruptcy Court, solely to permit: (a) claimants with valid workers’ compensation claims or direct action claims against an Insurer under applicable non-bankruptcy law to proceed with their claims; and (b) the Insurers to administer, handle, defend, settle, and/or pay, in the ordinary course of business and without further order of this Bankruptcy Court, (1) workers’ compensation claims, (2) claims where a claimant asserts a direct claim against any Insurer under applicable non-bankruptcy law, or an order has been entered by the Bankruptcy Court granting a claimant relief from the automatic stay or the injunctions set forth in Article IX.G of the Plan to proceed with its claim, and (3) all costs in relation to each of the foregoing.
In addition, after the Effective Date, all current and former officers, directors, agents, or employees who served in such capacity at any time before the Effective Date shall be entitled to the full benefits of any D&O Policy for the full term of such policy regardless of whether such officers, directors, agents, and/or employees remain in such positions after the Effective Date, in each case, solely to the extent set forth in such D&O Policies and subject to any terms and conditions thereof. In addition, after the Effective Date, the Reorganized Debtors shall not terminate or otherwise reduce the coverage under any D&O Policy in effect as of the Petition Date; provided, that, for the avoidance of doubt, any Insurance Contract, including tail insurance policies, for directors’, members’, trustees’, and officers’ liability to be purchased or maintained by the Reorganized Debtors after the Effective Date shall be subject to the ordinary-course corporate governance of the Reorganized Debtors.
Notwithstanding anything in the Plan, any Indemnification Obligation to indemnify current and former officers, directors, members, managers, agents, sponsors, or employees with respect to all present and future actions, suits, and proceedings against the Debtors or such officers, directors, members, managers, agents, or employees based upon any act or omission for or on behalf of the Debtors shall (i) remain in full force and effect, (ii) not be discharged, impaired, or otherwise affected in any way, including by the Plan (including, for the avoidance of doubt, the Plan Supplement) or the Confirmation Order, (iii) not be limited, reduced, or terminated after the Effective Date, and (iv) survive unimpaired and unaffected irrespective of whether such Indemnification Obligation is owed for an act or event occurring before, on, or after the Petition Date; provided, that the Reorganized Debtors shall not indemnify officers, directors, members, or managers, as applicable, of the Debtors for any claims or Causes of Action that are not indemnified by such Indemnification Obligation. All such obligations shall be deemed and treated as Executory
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Contracts to be assumed by the Debtors under the Plan and shall continue as obligations of the Reorganized Debtors, and, if necessary to effectuate such assumption under local law, New GOL Parent shall contractually assume such obligations. Any claim based on the Debtors’ obligations under the Plan shall not be a Disputed Claim or subject to any objection, in either case, by reason of section 502(e)(1)(B) of the Bankruptcy Code.
7. | Modifications, Amendments, Supplements, Restatements, or Other Agreements |
Unless otherwise provided in the Plan, each Executory Contract and Unexpired Lease that is assumed and, if applicable, assigned to the Reorganized Debtors, shall include all modifications, amendments, supplements, restatements, or other agreements that in any manner affect such Executory Contract or Unexpired Lease, including all easements, licenses, permits, rights, privileges, immunities, options, rights of first refusal, and any other interests, unless any of the foregoing agreements has been previously terminated or is otherwise not in effect.
Modifications, amendments, supplements, and restatements to prepetition Executory Contracts or Unexpired Leases that have been executed by the Debtors during the Chapter 11 Cases shall not be deemed to alter the prepetition nature of such Executory Contracts or Unexpired Leases, or the validity, priority, or amount of any Claim that may arise in connection therewith, unless expressly noted in the Plan.
8. | Reservation of Rights |
Nothing contained in the Plan shall constitute an admission by the Debtors that any Executory Contract or Unexpired Lease is, in fact, an Executory Contract or Unexpired Lease or that any Debtor or the Reorganized Debtor has any liability thereunder.
9. | Contracts and Leases (other than Aircraft Leases) Entered into After Petition Date |
Contracts and leases entered into after the Petition Date by any Debtor will be performed by the applicable Debtor or Reorganized Debtor, as the case may be, 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 order of the Bankruptcy Court.
10. | Compensation and Benefits Plans |
All employment, confidentiality, and non-competition agreements, collective bargaining agreements, offer letters (including any severance set forth in the Plan), bonus, gainshare and incentive programs, additional pay required by Brazilian and other local law, vacation pay, holiday pay, 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, and other 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
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following the implementation of the Restructuring Transactions) are deemed to be, and shall be treated as, Executory Contracts under the Plan and, on the Effective Date, shall be deemed assumed (or, in the event that GLAI is party to such agreements or arrangements, assumed and assigned to New GOL Parent) pursuant to sections 365 and 1123 of the Bankruptcy Code (in each case, as amended prior to or on the Effective Date).
F. | Procedures for Resolving Contingent, Unliquidated, and Disputed Claims |
1. | Allowance of Claims and Interests |
Except as expressly provided in the Plan or in any order entered in the Chapter 11 Cases before the Effective Date (including the Confirmation Order), no Claim shall become an Allowed Claim unless and until such Claim is deemed Allowed pursuant to the Plan or a Final Order (including the Confirmation Order) Allowing such Claim. On and after the Effective Date, each of the Reorganized Debtors shall have, and retain any and all rights and defenses the corresponding Debtor had, with respect to any Claim immediately before the Effective Date.
2. | Claims Administration Responsibilities |
Except as otherwise expressly provided in the Plan and notwithstanding any requirements that may be imposed pursuant to Bankruptcy Rule 9019, after the Effective Date, the Reorganized Debtors shall have the authority (i) to file, withdraw, or litigate to judgment objections to Claims or Interests; (ii) to settle or compromise any Disputed Claim without any further notice to, or action, order, or approval of, the Bankruptcy Court; and (iii) to administer and adjust the Claims register to reflect any such settlements or compromises without any further notice to, or action, order, or approval of, the Bankruptcy Court. For the avoidance of doubt, except as otherwise provided in the Plan or by an order of the Bankruptcy Court, from and after the Effective Date, the Reorganized Debtors shall have and retain any and all rights and defenses the Debtors had immediately prior to the Effective Date with respect to any Disputed Claim, including the Retained Causes of Action.
3. | General Unsecured Claim Observer |
The Committee may appoint, as of the Effective Date, a Person or Entity with duties limited in all respects as set forth in the Plan to consult with the Reorganized Debtors with respect to the Allowance of any General Unsecured Claims in excess of $5 million (the “General Unsecured Claim Observer”); provided, that the General Unsecured Claim Observer shall have standing to appear before the Bankruptcy Court with respect to matters arising out of or related to reconciliation, Allowance, and settlement of any General Unsecured Claims, as well as any objections thereto.
The General Unsecured Claim Observer may employ, without further order of the Bankruptcy Court, professionals to assist in carrying out the duties described in Article VII.C of the Plan, and the reasonable and documented costs of the General Unsecured Claim Observer, including reasonable and documented external professionals’ fees and expenses, shall be reimbursed by the Reorganized Debtors in the ordinary course of business in an aggregate amount not to exceed $250,000 as soon as reasonably practicable after invoiced. In addition, subject to the fee cap in the preceding sentence, the General Unsecured Claim Observer may review and
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respond to inquiries from holders of Claims regarding distributions and implementation of the Plan and consult with the Reorganized Debtors with respect to the selection of the Distribution Dates.
The General Unsecured Claim Observer will be selected by a majority of the members of the Committee in accordance with the Committee’s by-laws and will be identified prior to the Confirmation Hearing. The General Unsecured Claim Observer’s role is to represent the interests of all holders of General Unsecured Claims. The General Unsecured Claim Observer will work with the Reorganized Debtors to ensure that Claims are reconciled, and distributions are made, in a fair and equitable manner. The General Unsecured Claim Observer minimizes the risk that the Reorganized Debtors reconcile General Unsecured Claims in a way that leads to Claims being Allowed at too high of an amount (which would otherwise harm all holders of General Unsecured Claims). The Debtors will be free to reconcile claims below $5,000,000 without oversight by the General Unsecured Claim Observer because the costs of such oversight would outweigh the benefits to all holders of General Unsecured Claims, whose claims in the aggregate are in excess of $1,000,000,000. Any Distribution Date selected in consultation with the General Unsecured Claim Observer will apply to all holders of General Unsecured Claims regardless of the size of any such holder’s Claim.
Upon the death, resignation, or removal of the General Unsecured Claim Observer, the Reorganized Debtors shall appoint a successor General Unsecured Claim Observer with approval of the Bankruptcy Court. Upon the resolution of all Disputed General Unsecured Claims, the General Unsecured Claim Observer shall be released and discharged of and from further authority, duties, responsibilities, and obligations relating to and arising from and in connection with the Chapter 11 Cases.
4. | Estimation of Claims |
Before or after the Effective Date, the Debtors or the Reorganized Debtors, as applicable, may at any time request the Bankruptcy Court to estimate any Claim that is contingent or unliquidated pursuant to section 502(c) of the Bankruptcy Code for any reason, regardless of whether any party previously has objected to such Claim or whether the Bankruptcy Court has ruled on any such objection, and the Bankruptcy Court shall retain jurisdiction to estimate any such Claim, including during the litigation of any objection to any Claim or during the appeal relating to such objection. In the event that the Bankruptcy Court estimates any contingent or unliquidated Claim, the estimated amount shall constitute either the Allowed amount of such Claim or a maximum limitation on such Claim for all purposes under the Plan. If the estimated amount constitutes a maximum limitation of the amount of such Claim, the Debtors or the Reorganized Debtors, as applicable, may elect to pursue any supplemental proceedings to object to the ultimate Allowance of such Claim. 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 be entitled to seek reconsideration of such estimation unless such holder has filed a motion requesting the right to seek such reconsideration on or before twenty-one (21) days after the date on which such Claim is estimated. All of the aforementioned objection, estimation, and resolution procedures are cumulative and not exclusive of one another.
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5. | Adjustment to Claims Register Without Objection |
Any duplicate Claim or any Claim that has been paid or otherwise satisfied, or any Claim that has been amended or superseded, may be adjusted or expunged on the Claims register by the Debtors or Reorganized Debtors, as applicable, upon stipulation between the parties without an objection to such Claim having to be filed and without any further notice or action, order, or approval of the Bankruptcy Court.
6. | Time to File Objections to Claims |
The Debtors and Reorganized Debtors, as applicable, shall be entitled to object to Claims. After the Effective Date, except as expressly provided in the Plan to the contrary, the Reorganized Debtors shall have and retain any and all rights and defenses that the Debtors had with regard to any Claim, except with respect to any Claim that is Allowed. Any objections to Proofs of Claim shall be served and filed on or before the later of (i) 180 days after the Effective Date, and (ii) such date as may be fixed by the Bankruptcy Court, after notice and a hearing, upon a motion by the Reorganized Debtors filed before the date that is 180 days after the Effective Date. Any Claims for which the Debtors do not timely file an objection to Proof of Claim pursuant to this section shall be Allowed. The expiration of such period shall not limit or affect the Debtors’ rights to dispute Claims asserted in the ordinary course of business other than through a Proof of Claim.
7. | Disallowance of Claims |
Any Claims held by a Person or Entity from whom property is recoverable under sections 542, 543, 550, or 553 of the Bankruptcy Code or that is a transferee of a transfer avoidable under sections 522(f), 522(h), 544, 545, 547, 548, or 549 of the Bankruptcy Code, shall be deemed Disallowed pursuant to section 502(d) of the Bankruptcy Code, and holders of such Claims shall not receive any distributions on account of such Claims until such time as the applicable Cause of Action against that Person or Entity has been settled or a Bankruptcy Court order with respect thereto has been entered, and, if such Cause of Action has been resolved in favor of the applicable Debtor, all sums due from that Person or Entity have been turned over or paid to the Debtors or the Reorganized Debtors, as applicable. All Claims filed on account of an indemnification obligation to a director, officer, or employee shall be deemed satisfied and may be expunged from the Claims register as of the Effective Date to the extent such indemnification obligation is assumed (or honored or reaffirmed, as the case may be) pursuant to the Plan, without any further notice to, or action, order, or approval of, the Bankruptcy Court.
8. | Amendments to Claims |
On and after the Effective Date, a Claim may not be amended without the prior authorization of the Reorganized Debtors or order of the Bankruptcy Court.
9. | No Distributions Pending Allowance |
If an objection, motion to estimate, or other challenge to a Claim is filed, or if the time to object to a Claim has not elapsed and the Claim has not been Allowed by the Plan or by Final Order, then no distribution shall be made on account of such Claim unless and until (and only to the extent that) such Claim becomes an Allowed Claim.
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10. | Distributions After Allowance |
As soon as reasonably practicable after the date that the order or judgment of a court of competent jurisdiction Allowing any Disputed Claim becomes a Final Order, the Reorganized Debtors shall provide to the holder of such Claim the distribution (if any) to which such holder is entitled under the Plan as of the Effective Date, without any interest, dividends, or accruals to be paid on account of such Claim unless required under applicable non-bankruptcy law.
11. | Disputed Claims Reserve |
The Disputed Claims Reserve shall be established and funded on or about the Effective Date; provided, that the Disputed Claims Reserve shall be funded with any General Unsecured Claimholder Released Escrowed Shares allocable to any Disputed Claims at the time of any release of such General Unsecured Claimholder Released Escrowed Shares. Any property that would be distributable in respect of any Disputed General Unsecured Claim had such Disputed General Unsecured Claim been Allowed on the Effective Date, together with all earnings thereon (net of any taxes imposed thereon or otherwise payable by the Disputed Claims Reserve), as applicable, shall be deposited in the Disputed Claims Reserve. The amount of, or the amount of property constituting, the Disputed Claims Reserve shall be determined prior to the Confirmation Hearing, based on the Debtors’ good faith estimates or an order of the Bankruptcy Court estimating such Disputed Claims.
The Disputed Claims Reserve shall be responsible for payment, out of the assets of the Disputed Claims Reserve, of any taxes imposed on the Disputed Claims Reserve or its assets. In the event, and to the extent, any Cash in the Disputed Claims Reserve is insufficient to pay the portion of any such taxes attributable to the taxable income arising from the assets of such reserve (including any income that may arise upon the distribution of the assets in such reserve), assets of the Disputed Claims Reserve may be sold to pay such taxes.
To the extent that a Disputed General Unsecured Claim becomes an Allowed Claim after the Initial Distribution Date, the Disbursing Agent shall distribute to the holder thereof out of the Disputed Claims Reserve any property to which such holder is entitled under the Plan (net of any allocable taxes imposed thereon or otherwise incurred or payable by the Disputed Claims Reserve, including in connection with such distribution) in accordance with Article VIII.A of the Plan.
The Disbursing Agent may request an expedited determination of taxes under section 505(b) of the Bankruptcy Code for all returns filed for or on behalf of the Disputed Claims Reserve for all taxable periods through the date on which final distributions are made.
In the event the assets of the Disputed Claims Reserve are insufficient to satisfy all the Disputed General Unsecured Claims that have become Allowed, such Allowed General Unsecured Claims shall be satisfied Pro Rata from any remaining assets. After all assets in the Disputed Claims Reserve have been distributed, no further distributions shall be made in respect of Disputed General Unsecured Claims. At such time as all Disputed General Unsecured Claims have been resolved, any remaining assets in the Disputed Claims Reserve shall be distributed Pro Rata to all holders of Allowed General Unsecured Claims.
On or before the Effective Date, in accordance with the terms of the Transaction Steps, a
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number of shares of New Equity equal to the General Unsecured Claimholder Distribution will be authorized and issued. On, or as soon as reasonably practicable after, the Effective Date, the Debtors or the Reorganized Debtors, as applicable, will determine the number of shares of New Equity that can be distributed to holders of Allowed General Unsecured Claims, while reserving a sufficient number of shares of New Equity (the “Reserved Shares”) to provide an equal percentage of recovery to holders of Disputed General Unsecured Claims should such Disputed General Unsecured Claims be Allowed in full. The Reserved Shares will be held in the Disputed Claims Reserve. Holders of Allowed General Unsecured Claims on the Effective Date, or if such claim is Allowed thereafter, will have the right to receive shares of New Equity that are deposited in the Disputed Claims Reserve but ultimately not distributed to holders of Disputed Claims that are ultimately Disallowed. At the time of the General Unsecured Claimholder Initial Distribution, or at each such later date as a Disputed General Unsecured Claims becomes an Allowed General Unsecured Claim and a distribution is paid thereon, New GOL Parent will keep a register of distributions and obtain an escrow CUSIP which corresponds to the holder’s right to receive a pro rata portion of the Reserved Shares that are not distributed to Disputed Claims that are ultimately Disallowed. Holders of Allowed General Unsecured Claims who hold their Allowed General Unsecured Claims through DTC will receive their escrow CUSIP through DTC at the time their distribution of New Equity is issued. All holders of Allowed General Unsecured Claims who hold their Allowed General Unsecured Claims outside of DTC will be tracked on a separate register maintained by New GOL Parent. The escrow CUSIP number and any interest related thereto will be non-transferable whether it is held in DTC or separately on the register maintained by New GOL Parent. Upon resolution of all Disputed General Unsecured Claims, the remaining Reserved Shares (if any) will be released and distributed Pro Rata to the holders of Allowed General Unsecured Claims with the escrow CUSIP number through DTC (to the extent that the escrow CUSIP is held in DTC) or to New GOL Parent’s register. A similar mechanism will be utilized for any General Unsecured Claimholder Released Escrowed Shares held in escrow and released therefrom pursuant to Article V.D.2 of the Plan.
12. | Claims Resolution Procedures Cumulative |
All of the objection, estimation, and resolution procedures with respect to Disputed Claims are cumulative and not exclusive of one another. Claims may be estimated and subsequently compromised, settled, withdrawn, or resolved in accordance with the Plan without further notice or Bankruptcy Court approval.
G. | Provisions Governing Distributions |
1. | Timing and Calculation of Amounts to Be Distributed |
Unless otherwise provided in the Plan or paid pursuant to a prior Bankruptcy Court order, and subject to any reserves or holdbacks established pursuant to the Plan, on the applicable Distribution Date or as soon as reasonably practicable thereafter, each holder of an Allowed Claim shall receive the distributions that the Plan provides for Allowed Claims in the applicable Class as of such date. 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.
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If and to the extent there are Disputed Claims as of the applicable Distribution Date, distributions on account of such Disputed Claims (which will only be made if and when they become Allowed Claims) shall be made pursuant to the provisions set forth in the Plan on or as soon as reasonably practicable after the next Distribution Date that is after the Allowance of each such Claim. No interest shall be paid on any Disputed Claim that becomes an Allowed Claim after the Initial Distribution Date.
For the avoidance of doubt, the Reorganized Debtors shall retain the ability to pay Claims pursuant to a prior Bankruptcy Court order after the Effective Date. The Debtors and Reorganized Debtors shall be entitled to withhold distributions on any Claim that they intend to pay pursuant to such an order.
2. | Disbursing Agent |
Unless otherwise provided in the Plan, all distributions under the Plan shall be made by the Disbursing Agent on the applicable Distribution Date. The Disbursing Agent shall not be required to give any bond or surety or other security for the performance of its duties unless otherwise ordered by the Bankruptcy Court.
3. | Rights and Powers of Disbursing Agent |
i. | Powers of the Disbursing Agent |
Without further order of the Bankruptcy Court, the Disbursing Agent shall be empowered to: (i) effect all actions and execute all agreements, instruments, and other documents necessary to perform its duties under the Plan; (ii) make all distributions contemplated hereby; (iii) employ professionals and incur reasonable fees and expenses to represent it with respect to its responsibilities; and (iv) exercise such other powers as may be vested in the Disbursing Agent by order of the Bankruptcy Court, pursuant to the Plan, or as deemed by the Disbursing Agent to be necessary and proper to implement the provisions of the Plan.
ii. | Incurred Expenses |
Except as otherwise ordered by the Bankruptcy Court, the amount of any reasonable fees and documented expenses incurred by the Disbursing Agent on or after the Effective Date (including taxes and reasonable attorney fees and expenses) in connection with making distributions shall be paid in Cash by the Reorganized Debtors.
4. | Delivery of Distributions and Undeliverable or Unclaimed Distributions |
i. | Delivery of Distributions in General |
Except as otherwise provided in the Plan or Bankruptcy Court order, the Disbursing Agent shall make distributions to holders of Allowed Claims as of the Distribution Record Date at the address for each such holder as indicated on the applicable Proofs of Claim (or, if no Proof of Claim has been filed, the Debtors’ records as of the date of any such distribution); provided, however, that the manner of such distributions shall be determined at the reasonable discretion of the Disbursing Agent. For the avoidance of doubt, the Distribution Record Date shall not apply to
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holders of public Securities.
ii. | Delivery of Distributions on 2028 Notes Claims |
Except as otherwise reasonably requested by holders of Allowed 2028 Notes Claims, all distributions to holders of Allowed 2028 Notes Claims shall be deemed completed when made to such holders.
iii. | Delivery of Distributions on 2026 Senior Secured Notes Claims |
Except as otherwise reasonably requested by the 2026 Senior Secured Notes Trustee, all distributions to holders of Allowed 2026 Senior Secured Notes Claims shall be deemed completed when made to the 2026 Senior Secured Notes Trustee. The 2026 Senior Secured Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2026 Senior Secured Notes Claims. As soon as practicable following the Effective Date, the 2026 Senior Secured Notes Trustee shall arrange to deliver such distributions to or on behalf of its holders in accordance with the terms of the applicable 2026 Senior Secured Notes Documents and the Plan.
Notwithstanding anything in the Plan to the contrary, the 2026 Senior Secured Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2026 Senior Secured Notes Trustee in accordance with the Plan, nor shall the 2026 Senior Secured Notes Trustee have any obligation to make any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC. The 2026 Senior Secured Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
iv. | Delivery of Distributions on 2025 Senior Notes |
Except as otherwise reasonably requested by the 2025 Senior Notes Trustee, all distributions to holders of Allowed 2025 Senior Notes Claims shall be deemed completed when made to the 2025 Senior Notes Trustee. The 2025 Senior Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2025 Senior Notes Claims. As soon as practicable following the Effective Date, the 2025 Senior Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed 2025 Senior Notes Claims in accordance with the terms of the applicable 2025 Senior Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the 2025 Senior Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the 2025 Senior Notes Trustee may (but is not required to) establish its own record date for distributions to holders of Allowed 2025 Senior Notes Claims. DTC shall be considered a single holder of all 2025 Senior Notes Claims for purposes of distributions under the Plan.
Notwithstanding anything in the Plan to the contrary, the 2025 Senior Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2025 Senior Notes Trustee in accordance with the Plan, nor shall the 2025 Senior Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the
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facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions (subject to the applicable Indenture Trustee Charging Lien). The 2025 Senior Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
v. | Delivery of Distributions on 2024 Senior Exchangeable Notes |
Except as otherwise reasonably requested by the 2024 Senior Exchangeable Notes Trustee, all distributions to holders of Allowed 2024 Senior Exchangeable Notes Claims shall be deemed completed when made to the 2024 Senior Exchangeable Notes Trustee. The 2024 Senior Exchangeable Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed 2024 Senior Exchangeable Notes Claims. As soon as practicable following the Effective Date, the 2024 Senior Exchangeable Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed 2024 Senior Exchangeable Notes Claims in accordance with the terms of the applicable 2024 Senior Exchangeable Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the 2024 Senior Exchangeable Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the 2024 Senior Exchangeable Notes Trustee may (but is not required to) establish its own record date for distributions to holders of Allowed 2024 Senior Exchangeable Notes Claims. DTC shall be considered a single holder of all 2024 Senior Exchangeable Notes Claims for purposes of distributions under the Plan.
Notwithstanding anything in the Plan to the contrary, the 2024 Senior Exchangeable Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the 2024 Senior Exchangeable Notes Trustee in accordance with the Plan, nor shall the 2024 Senior Exchangeable Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions (subject to the applicable Indenture Trustee Charging Lien). The 2024 Senior Exchangeable Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
vi. | Delivery of Distributions on Perpetual Notes |
Except as otherwise reasonably requested by the Perpetual Notes Trustee, all distributions to holders of Allowed Perpetual Notes Claims shall be deemed completed when made to the Perpetual Notes Trustee. The Perpetual Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed Perpetual Notes Claims. As soon as practicable following the Effective Date, the Perpetual Notes Trustee shall arrange to deliver or direct the delivery of such distributions to or on behalf of the holders of Allowed Perpetual Notes Claims in accordance with the terms of the applicable Perpetual Notes Documents, the Plan, and the Confirmation Order. Subject to the applicable Indenture Trustee Charging Lien, the Perpetual Notes Trustee (at its election) may transfer, direct the transfer of, or facilitate such distributions (and may rely upon information received from the Debtors or the Disbursing Agent for purposes of such transfer) directly through the facilities of DTC in accordance with DTC’s customary practices. Additionally, the Perpetual Notes Trustee may (but is not required to) establish its own record date
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for distributions to holders of Allowed Perpetual Notes Claims. DTC shall be considered a single holder of all Perpetual Notes Claims for purposes of distributions under the Plan.
Notwithstanding anything in the Plan to the contrary, the Perpetual Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the Perpetual Notes Trustee in accordance with the Plan, nor shall the Perpetual Notes Trustee have any duty, obligation, or responsibility to make, or liability whatsoever with respect to, any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC, and the Debtors or the Reorganized Debtors, as applicable, shall make such distributions (subject to the applicable Indenture Trustee Charging Lien). The Perpetual Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
vii. | Delivery of Distributions on Glide Notes |
Except as otherwise reasonably requested by the Glide Notes Trustee, all distributions to holders of Allowed Glide Notes Claims shall be deemed completed when made to the Glide Notes Trustee. The Glide Notes Trustee shall hold or direct such distributions for the benefit of the holders of Allowed Glide Notes Claims. As soon as practicable following the Effective Date, the Glide Notes Trustee shall arrange to deliver such distributions to or on behalf of its holders in accordance with the terms of the applicable Glide Notes Documents and the Plan.
Notwithstanding anything in the Plan to the contrary, the Glide Notes Trustee shall not have any liability to any Person or Entity with respect to distributions made or directed to be made by the Glide Notes Trustee in accordance with the Plan, nor shall the Glide Notes Trustee have any obligation to make any distribution that is not delivered to it in a form that is distributable through the facilities of the DTC. The Glide Notes Trustee shall be deemed a “Servicer” for purposes of the Plan.
viii. | Minimum Distributions |
No (i) fractional shares of New Equity or (ii) Cash payments of less than $50 shall be distributed to any holder of an Allowed Claim on account of such Allowed Claim. When any distribution pursuant to the Plan would otherwise result in the issuance of a number of shares of New Equity that is not a whole number, the actual distribution of such New Equity shall be rounded as follows: (i) fractions of greater than one-half (½) shares of New Equity shall be rounded to the next higher whole number and (ii) fractions of one-half (½) or less of New Equity shall be rounded to the next lower whole number with no further payment therefor. The total number of authorized shares of New Equity to be distributed to the holders of Allowed Claims may be adjusted as necessary to account for the foregoing rounding.
ix. | Undeliverable Distributions and Unclaimed Property |
In the event that any distribution to any holder is returned as undeliverable, no distribution to such holder shall be made unless and until the Disbursing Agent has determined the then-current address of such holder, at which time such distribution shall be made to such holder without interest; provided, that any distribution that remains undeliverable for one year from the date on which such distribution was attempted to be made shall be deemed unclaimed property under section 347(b) of the Bankruptcy Code. After such date, all unclaimed property shall revert to the
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Reorganized Debtors automatically and without need for a further order by the Bankruptcy Court (notwithstanding any applicable federal, provincial, or state escheat, abandonment, or unclaimed property laws to the contrary), and the claim of any holder to such property shall be discharged and forever barred.
5. | Exemption from Securities Laws |
See Section X herein.
6. | Compliance with Tax and Antitrust Requirements |
In connection with the Plan, to the extent applicable, the Reorganized Debtors and the Disbursing Agent shall comply with all tax withholding and reporting requirements imposed on them by any Governmental Unit, and all distributions pursuant to the Plan shall be subject to such withholding and reporting requirements. Any amounts withheld pursuant to the preceding sentence shall be deemed to have been distributed to and received by the applicable recipient for all purposes of the Plan. Notwithstanding any provision in the Plan to the contrary, the Reorganized Debtors and the Disbursing Agent shall be authorized to take all actions necessary or appropriate to comply with such withholding and reporting requirements, including withholding distributions pending receipt of information necessary to facilitate such distributions or establishing any other mechanisms they believe are reasonable and appropriate. The Reorganized Debtors reserve the right to allocate all distributions made under the Plan in compliance with all applicable wage garnishments, alimony, child support, and other spousal awards, liens, and encumbrances. Notwithstanding the above, each holder of an Allowed Claim or Allowed Interest that is to receive a distribution under the Plan shall have the sole and exclusive responsibility for the satisfaction and payment of any tax obligations imposed on such holder by any Governmental Unit, including income, withholding, and other tax obligations, on account of such distribution. The Disbursing Agent has the right, but not the obligation, to not make a distribution until such holder has made arrangements satisfactory to any issuing or disbursing party for payment of any such tax obligations. The Reorganized Debtors may require, as a condition to making a distribution, that the holder of an Allowed Claim complete and return a Form W-8 or W 9 or a similar form applicable to such holder.
The Debtors, Reorganized Debtors, and the Disbursing Agent are authorized to take all actions necessary or appropriate to ensure that any distribution under the Plan complies with, and would not violate, applicable Brazilian law, including any relevant antitrust laws. In order to comply with applicable law, the Debtors, the Reorganized Debtors, and the Disbursing Agent may, prior to making any distribution of New Equity under the Plan to any claimant holding Allowed Claims in excess of $500 million, require that such claimant provide the Debtors, Reorganized Debtors, or Disbursing Agent, as applicable, with additional disclosures reasonably necessary for the Debtors or Reorganized Debtors, as applicable, to comply with applicable law. Failure to provide any such requested information may result in the holdback of any distribution pending receipt of such information. To the extent that failure to disclose any required information, including failure to make any required representation as set forth in the Transaction Steps, results in violation of any applicable law, such claimant may have their distribution forfeited or, if the claimant has already received a distribution, be held directly liable for violation of such laws as well as be held liable for any damages incurred by the Reorganized Debtors, including any fines
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and/or penalties imposed on the Reorganized Debtors.
7. | No Postpetition Interest on Claims and Interests |
Unless otherwise specifically provided for in the Plan, the Confirmation Order, or other Bankruptcy Court order, postpetition interest shall not accrue or be paid on any Claims, and no holder of a Claim shall be entitled to interest on such Claim accruing on or after the Petition Date.
8. | Setoffs and Recoupment |
Except for Claims that are expressly Allowed under the Plan or pursuant to a Final Order, the Debtors and the Reorganized Debtors may, but shall not be required to, set off against any Claim (for purposes of determining the Allowed amount of such Claim on which distribution shall be made), any claims of any nature whatsoever that the applicable Debtors or the Reorganized Debtors may have against the holder of such Claim; provided, that neither the failure to do so nor the allowance of any Claim under the Plan shall constitute a waiver or release by the Debtors or the Reorganized Debtors of any such claim the Debtors or the Reorganized Debtors may have against the holder of such Claim.
9. | Claims Paid or Payable by Third Parties |
i. | Claims Paid by Third Parties |
A Claim shall be Disallowed without an objection having to be filed and without any further notice to, or action, order, or approval of, the Bankruptcy Court, to the extent and in the amount that the holder of such Claim receives payment (before or after the Effective Date) on account of such Claim from a party that is not a Debtor or Reorganized Debtor; provided, however, if such holder is required to repay all or any portion of a Claim (either by contract or by order of a court of competent jurisdiction) to the party that is not a Debtor or Reorganized Debtor, and such holder in fact repays all or a portion of the Claim to such third party, the repaid amount of such Claim shall remain subject to the applicable treatment set forth in the Plan and subject to the respective rights and defenses of the Debtors or Reorganized Debtors, as applicable, and the holder of such Claim. To the extent a holder of a Claim receives a distribution on account of such Claim under the Plan and receives payment from a party that is not a Debtor or a Reorganized Debtor on account of such Claim, such holder shall, within ten (10) days of receipt thereof, repay or return the applicable portion of the distribution to the applicable Debtor or Reorganized Debtor, to the extent the holder’s total recovery on account of such Claim from the third party and under the Plan exceeds the amount of such Claim as of the date of any such distribution under the Plan. The failure of such holder to timely repay or return such distribution shall result in the holder owing the applicable Reorganized Debtor annualized interest at the federal judgment rate, as in effect as of the Petition Date, on such amount owed for each day after the 10-day grace period specified above until such amount is repaid.
ii. | Claims Payable by Third Parties |
To the extent that one or more of the Debtors’ Insurers, in its role as an insurer (but not in any role as the issuer of surety bonds or similar instruments or as a guarantor of payment), agree to satisfy in full or in part a Claim (if and to the extent adjudicated by a court of competent
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jurisdiction or otherwise settled), then, immediately upon such Insurers’ payment thereof, the applicable portion of such Claim may be expunged without an objection having to be filed and without any further notice to, or action, order, or approval of, the Bankruptcy Court; provided, however, if such holder is required to repay all or any portion of a Claim (either by contract or by order of a court of competent jurisdiction) to the Insurer, and such holder in fact repays all or a portion of the Claim to such Insurer, the repaid amount of such Claim shall remain subject to the applicable treatment set forth in the Plan and subject to the respective rights and defenses of the Debtors or Reorganized Debtors, as applicable, and the holder of such Claim.
iii. | Applicability of Insurance Contracts |
Except as otherwise provided in the Plan, distributions to holders of Claims covered by Insurance Contracts shall be in accordance with the provisions of any applicable Insurance Contract. Except as otherwise expressly set forth in the Plan, nothing in the Plan shall constitute or be deemed a waiver of any Cause of Action that the Debtors or any Entity, including any holders of Claims, may hold against any other Entity under any Insurance Contract, including against Insurers or any insured, nor shall anything contained in the Plan constitute or be deemed a waiver by such Insurers of any rights or defenses, including coverage defenses, held by such Insurers.
10. | Allocation Between Principal and Accrued Interest |
Except as otherwise provided in the Plan, the aggregate consideration paid to the holders of Allowed Claims shall be treated pursuant to the Plan as allocated first to the principal amount of such Allowed Claims (to the extent thereof) and, thereafter, to the interest, if any, accrued through the Effective Date.
H. | Settlement, Release, Injunction, and Related Provisions |
1. | Compromise and Settlement |
The Confirmation Order will constitute the Bankruptcy Court’s finding and determination that all compromises and settlements reflected in the Plan are (i) fair, equitable, and reasonable, and (ii) in the best interests of the Debtors, their Estates, and their creditors. The Confirmation Order shall authorize and approve the compromises, settlements, and releases of all contractual, legal, and equitable rights and Causes of Action that are satisfied, compromised, and settled pursuant hereto except as specified on the Schedule of Retained Causes of Action. Notwithstanding anything in the Plan to the contrary, nothing in the Plan shall compromise or settle any (i) Causes of Action that the Debtors or Reorganized Debtors, as applicable, may have against any Person or Entity that is not a Released Party, (ii) Causes of Action that are preserved pursuant to Article V.N of the Plan, (iii) Causes of Action included on the Schedule of Retained Causes of Action, or (iv) Unimpaired Claims or Interests.
The allowance, classification, and treatment of Allowed Claims of any Released Party take into account any Causes of Action, whether under the Bankruptcy Code or under applicable non bankruptcy law, that the Debtors may have against such Released Party as of the Effective Date, and all such Causes of Action are settled, compromised, and released as set forth in the Plan except as specified on the Schedule of Retained Causes of Action.
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In accordance with the provisions of the Plan, and pursuant to Bankruptcy Rule 9019, without any further notice to, or action, order, or approval of, the Bankruptcy Court, after the Effective Date, the applicable Reorganized Debtors may, in their sole and absolute discretion, compromise and settle (i) Claims (including Causes of Action) not previously Allowed (if any) and (ii) claims (including Causes of Action) against other Persons or Entities.
2. | Discharge of Claims and Termination of Interests |
Except as otherwise provided in the Plan, effective as of the Effective Date: (i) the rights afforded in the Plan and the treatment of all Claims and Interests shall be in exchange for and in complete satisfaction, discharge, and release of such Claims and Interests, including any interest accrued on Claims from and after the Petition Date; (ii) the Plan shall bind all holders of Claims and Interests, notwithstanding whether any such holder failed to vote to accept or reject the Plan or voted to reject the Plan; and (iii) all Persons and Entities shall be precluded from asserting against the Debtors, the Estates, the Reorganized Debtors, the successors and assigns of the foregoing, and their respective assets and properties any Claims or Interests based upon any documents, instruments, or any act or omission, transaction, or other activity of any kind or nature that occurred before the Effective Date.
3. | Release of Liens |
Except as otherwise expressly provided in the Plan or in any contract, instrument, release, or other agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan, on the Effective Date, all mortgages, deeds of trust, Liens, pledges, and any other security interests with respect to any property of the Estates, subject to the consummation of the applicable distributions contemplated in the Plan, shall be released and discharged, and all of the right, title, and interest of any holder of such mortgages, deeds of trust, Liens, pledges, or other security interests shall revert to the Reorganized Debtors. The Agents/Trustees shall be directed to release any mortgages, deeds of trust, Liens, pledges, or other security interests they hold and to take such actions as may be requested by the Reorganized Debtors to evidence the release of such mortgages, deeds of trust, Liens, pledges, or other security interests, including the execution, delivery, and filing or recording of any documents or instruments that may be required to effectuate the foregoing, in each case, at the Reorganized Debtors’ sole cost and expense. On and after the Effective Date, the Reorganized Debtors (and any of their agents, attorneys, or designees) shall be authorized to execute and file on behalf of the applicable creditors Form UCC-3 termination statements, intellectual property assignments, mortgage or deed of trust releases, or such other forms or release documents in any jurisdiction as may be necessary or appropriate to evidence such releases and implement the provisions of Article IX.C of the Plan.
4. | Release by the Debtors |
Notwithstanding anything in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, to the maximum extent permitted by applicable law, the Debtors, the Reorganized Debtors, and the Estates (in each case on behalf of themselves and their respective successors, assigns,
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and representatives) are deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released, waived, and discharged each Released Party from, and covenanted not to sue on account of, any and all claims, interests, obligations (contractual or otherwise), rights, suits, damages, Causes of Action (including Avoidance Actions), remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, fixed or contingent, matured or unmatured, disputed or undisputed, liquidated or unliquidated, existing or hereafter arising, in law, equity, or otherwise, that the Debtors, the Reorganized Debtors, or the Estates (and in each case their respective successors, assigns, and representatives) would have been legally entitled to assert in their own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest, including any derivative claims or Causes of Action assertable on behalf of any Debtor, based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the Chapter 11 Cases, the DIP Facility, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security or other debt instrument of the Debtors or Reorganized Debtors, the assumption, rejection, or amendment of any Executory Contract or Unexpired Lease, the subject matter of, or the transactions or events giving rise to, any Claim or Interest dealt with in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of (i) the DIP Facility Documents, (ii) the Plan Support Agreement, (iii) the Disclosure Statement, (iv) the Plan (including, for the avoidance of doubt, the Plan Supplement), (v) the Transaction Steps, (vi) the Restructuring Transactions, (vii) the New Debt Documents, (viii) the Incremental New Money Equity Documents, (ix) the New Equity Documents, or (x) any related agreements, instruments, or other documents, in each case, in connection with or relating to any act or omission, transaction, event, or other occurrence taking place on or before the Effective Date, other than claims unknown to the Debtors as of the Effective Date arising out of or relating to any act or omission of a Released Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, intentional fraud, or gross negligence. Notwithstanding anything to the contrary in the foregoing, the release granted in Article IX.D of the Plan does not release any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the release described in Article IX.D of the Plan and shall constitute the Bankruptcy Court’s finding that such release (i) is an essential means of implementing the Plan; (ii) is an integral and non-severable element of the Plan and the transactions incorporated therein; (iii) confers substantial benefits on the Estates; (iv) is given in exchange for good and valuable consideration provided by the Released Parties; (v) constitutes a good-faith settlement and compromise of the claims and Causes of Action released by Article IX.D of the Plan; (vi) is in the best interests of the Debtors, their Estates, and all holders of Claims and Interests; (vii) is fair, equitable, and reasonable; and (viii) is given after due notice and opportunity for hearing. The release described in Article IX.D of the Plan shall, on the Effective Date, have the effect of res judicata to the fullest extent permissible under applicable laws of Brazil and
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any other jurisdiction in which the Debtors operate.
5. | Releases by Holders of Claims or Interests |
Notwithstanding anything in the Plan to the contrary, pursuant to section 1123(b) of the Bankruptcy Code, for good and valuable consideration, on and after the Effective Date, to the maximum extent permitted by applicable law, each Releasing Party shall be deemed to have conclusively, absolutely, unconditionally, irrevocably, and forever released, waived, and discharged the Released Parties from, and covenanted not to sue on account of, any and all claims, interests, obligations (contractual or otherwise), rights, suits, damages, Causes of Action (including Avoidance Actions), remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, fixed or contingent, matured or unmatured, disputed or undisputed, liquidated or unliquidated, existing or hereafter arising, in law, equity, or otherwise, that such Releasing Party would have been legally entitled to assert in its own right (whether individually or collectively) or on behalf of the holder of a Claim or Interest, including any derivative claims or Causes of Action assertable on behalf of any Releasing Party, based on or relating to, or in any manner arising from, in whole or in part, the Debtors (including the management, ownership, or operation thereof), the Chapter 11 Cases, the DIP Facility, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security or other debt instrument of the Debtors or Reorganized Debtors, the assumption, rejection, or amendment of any Executory Contract or Unexpired Lease, the subject matter of, or the transactions or events giving rise to, any Claim or Interest dealt with in the Plan, the business or contractual arrangements between any Debtor and any Released Party, the restructuring of Claims and Interests before or during the Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of (i) the DIP Facility Documents, (ii) the Plan Support Agreement, (iii) the Disclosure Statement, (iv) the Plan (including, for the avoidance of doubt, the Plan Supplement), (v) the Transaction Steps, (vi) the Restructuring Transactions, (vii) the New Debt Documents, (viii) the Incremental New Money Equity Documents, (ix) the New Equity Documents, or (x) any related agreements, instruments, or other documents, in each case, in connection with or relating to any act or omission, transaction, event, or other occurrence taking place on or before the Effective Date, other than claims unknown to such Releasing Party as of the Effective Date arising out of or relating to any act or omission of a Released Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, intentional fraud, or gross negligence. Notwithstanding anything to the contrary in the foregoing, the releases granted in Article IX.E of the Plan do not release any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
Entry of the Confirmation Order shall constitute the Bankruptcy Court’s approval of the releases described in Article IX.E of the Plan and shall constitute the Bankruptcy Court’s finding that such releases (i) are an essential means of implementing the Plan; (ii) are an integral and non-severable element of the Plan and the transactions incorporated therein; (iii) confer substantial benefits on the Estates; (iv) are in exchange for good and valuable
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consideration provided by the Released Parties; (v) constitute a good-faith settlement and compromise of the claims and Causes of Action released by Article IX.E of the Plan; (vi) are in the best interests of the Debtors, their Estates, and all holders of Claims and Interests; (vii) are fair, equitable, and reasonable; (viii) are given after due notice and opportunity for hearing; and (ix) are a bar to any of the Releasing Parties asserting any claim or Cause of Action released by Article IX.E of the Plan. The releases described in Article IX.E of the Plan shall on the Effective Date, have the effect of res judicata to the fullest extent permissible under applicable laws of Brazil and any other jurisdiction in which the Debtors operate.
Pursuant to Section IV.B of the Solicitation and Voting Procedures, claimants that have submitted a proof of claim with respect to a particular Aircraft Equipment Transaction that are not receiving ballots in accordance with Annex 1 of the Solicitation and Voting Procedures shall be deemed to have given or not given the releases in Article IX.E of the Plan in connection with their non-voting Claims to the same extent and in accordance with whether the voting claimant for such Aircraft Equipment Transaction grants or does not grant such releases.
6. | Exculpation |
Without affecting or limiting the releases set forth in Article IX.D and Article IX.E of the Plan, and notwithstanding anything in the Plan to the contrary effective as of the Effective Date, to the fullest extent permitted by law, no Exculpated Party[19] shall have or incur, and each Exculpated Party shall be exculpated from, any Claim, claim or Cause of Action in connection with or arising out of the administration of the Chapter 11 Cases, the negotiation and pursuit of the DIP Facility Documents, the Plan Support Agreement, the Disclosure Statement, the solicitation of votes on, or confirmation of, the Plan, the New Debt Documents, the Incremental New Money Equity Documents, the New Equity Documents, any settlement or compromise reflected in the Plan, the Transaction Steps, the Restructuring Transactions, and the Plan (including, for the avoidance of doubt, the Plan Supplement), the funding of the Plan, the occurrence of the Effective Date, the administration and implementation of the Plan or the property to be distributed under the Plan, the issuance or distribution of securities under or in connection with the Plan, the issuance, distribution, purchase, sale, or rescission of the purchase or sale of any security of the Debtors or the Reorganized Debtors under or in connection with the Plan, or the transactions in furtherance of any of the foregoing, in each case, other than claims or liabilities arising out of or relating to any act or omission of an Exculpated Party that is determined by a Final Order of a court of competent jurisdiction to have constituted willful misconduct, fraud, or gross negligence; provided, that, notwithstanding anything to the contrary in the foregoing, the exculpation
[19] | For purposes of the Plan, “Exculpated Parties” means, collectively, and in each case in their capacities as such: (i)(a) the Debtors, (b) the Reorganized Debtors, (c) the Committee and its members, (d) the General Unsecured Claim Observer, (e) the Ad Hoc Group of Abra Noteholders and Elliott, (f) the Abra Notes Agents, (g) the DIP Agent and the DIP Trustee, (h) the 2024 Senior Exchangeable Notes Trustee, the 2025 Senior Notes Trustee, and the Perpetual Notes Trustee, and (i) Abra; (ii) with respect to each of the Entities and Persons in clause (i), all of such Entities’ and Persons’ Related Parties, solely to the extent such Related Parties are fiduciaries of the Estates or otherwise to the fullest extent provided for pursuant to section 1125(e) of the Bankruptcy Code; and (iii) each other Consenting Stakeholder, its Affiliates, and each of its and their respective Related Parties; provided, that with respect to the Entities and Persons in clause (iii), any exculpations provided under the Plan or the Confirmation Order shall be granted only to the extent provided in section 1125(e) of the Bankruptcy Code. |
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set forth above does not apply to any (i) liability that cannot be exculpated pursuant to Rule 1.8(h) of the New York Rules of Professional Conduct (22 N.Y.C.P.R. § 1200), and (ii) cause of action, liability or claim arising out of or relating to any police, regulatory, criminal, or other enforcement action by a governmental agency. The Exculpated Parties have, and upon implementation of the Plan, shall be deemed to have, participated in good faith and in compliance with the applicable laws with regard to the solicitation of votes on, and distribution of consideration under, 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 distributions made pursuant to the Plan. This exculpation shall be in addition to, and not in limitation of, all other releases, indemnities, exculpations, and any applicable laws, rules, or regulations protecting the Exculpated Parties from liability. Notwithstanding anything to the contrary in the foregoing, the exculpation set forth above does not exculpate any post-Effective Date obligations or liabilities of any Person or Entity under the Plan, the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents, or any assumed Executory Contract or Unexpired Lease.
7. | Injunction |
UPON ENTRY OF THE CONFIRMATION ORDER, ALL HOLDERS OF CLAIMS AND INTERESTS AND OTHER PARTIES IN INTEREST, ALONG WITH THEIR RESPECTIVE PRESENT OR FORMER EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, AFFILIATES, AND RELATED PARTIES SHALL BE ENJOINED FROM TAKING ANY ACTIONS TO INTERFERE WITH THE IMPLEMENTATION OR CONSUMMATION OF THE PLAN IN RELATION TO ANY CLAIM EXTINGUISHED, DISCHARGED, OR RELEASED PURSUANT TO THE PLAN.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE PLAN OR THE CONFIRMATION ORDER, ALL ENTITIES THAT HAVE HELD, HOLD, OR MAY HOLD CLAIMS AGAINST OR INTERESTS IN THE DEBTORS AND OTHER PARTIES IN INTEREST, ALONG WITH THEIR RESPECTIVE PRESENT OR FORMER EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, PRINCIPALS, AFFILIATES, AND RELATED PARTIES ARE PERMANENTLY ENJOINED, FROM AND AFTER THE EFFECTIVE DATE, FROM TAKING ANY OF THE FOLLOWING ACTIONS AGAINST THE DEBTORS, THE REORGANIZED DEBTORS, THE RELEASED PARTIES, OR THE EXCULPATED PARTIES (TO THE EXTENT OF THE EXCULPATION PROVIDED PURSUANT TO ARTICLE IX.F OF THE PLAN WITH RESPECT TO THE EXCULPATED PARTIES): (I) COMMENCING OR CONTINUING ANY ACTION OR PROCEEDING OF ANY KIND ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS OR ANY OTHER CLAIMS OR INTERESTS RELEASED OR SETTLED PURSUANT TO THE PLAN; (II) ENFORCING, ATTACHING, COLLECTING, OR RECOVERING BY ANY MANNER OR MEANS ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; (III) CREATING, PERFECTING, OR ENFORCING ANY LIEN OR OTHER ENCUMBRANCE OF ANY KIND AGAINST SUCH ENTITIES OR THE PROPERTY OF SUCH ENTITIES OR THEIR ESTATES ON
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ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS; AND (IV) ASSERTING THE RIGHT OF SETOFF, SUBROGATION, OR RECOUPMENT AGAINST ANY OBLIGATION DUE FROM SUCH ENTITIES OR AGAINST THE PROPERTY OF SUCH ENTITIES ON ACCOUNT OF OR IN CONNECTION WITH OR WITH RESPECT TO ANY SUCH CLAIMS OR INTERESTS NOTWITHSTANDING AN INDICATION IN A DOCUMENT FILED WITH THE BANKRUPTCY COURT THAT SUCH ENTITY ASSERTS, HAS, OR INTENDS TO PRESERVE ANY SUCH RIGHT.
BY ACCEPTING DISTRIBUTIONS UNDER THE PLAN, EACH HOLDER OF A CLAIM OR INTEREST EXTINGUISHED, DISCHARGED, OR RELEASED PURSUANT TO THE PLAN SHALL BE DEEMED TO HAVE AFFIRMATIVELY AND SPECIFICALLY CONSENTED TO BE BOUND BY THE PLAN, INCLUDING THE INJUNCTIONS SET FORTH IN ARTICLE IX.G OF THE PLAN.
THE INJUNCTIONS IN ARTICLE IX.G OF THE PLAN SHALL INURE TO THE BENEFIT OF THE DEBTORS, ANY SUCCESSORS OF THE DEBTORS, THE REORGANIZED DEBTORS, THE RELEASED PARTIES, AND THE EXCULPATED PARTIES AND THEIR RESPECTIVE PROPERTY AND INTERESTS IN PROPERTY.
8. | Additional Provisions Regarding SEC |
Notwithstanding any language to the contrary in the Disclosure Statement, the Plan, or the Confirmation Order, no provision shall (i) preclude the SEC from enforcing its police or regulatory powers or (ii) enjoin, limit, impair or delay the SEC from commencing or continuing any claims, causes of action, proceedings or investigations against any non-Debtor Person or Entity in any forum.
SECTION
VII.
Solicitation and Voting Procedures
This Section VII is meant only to provide a summary of some of the provisions contained in the Solicitation and Voting Procedures attached to the Disclosure Statement Order as Exhibit 1. For complete information, please review the Solicitation and Voting Procedures attached to the Disclosure Statement Order as Exhibit 1.
Before voting to accept or reject the Plan, each holder of a Claim entitled to vote (an “Eligible Holder”) should carefully review this Disclosure Statement and the Plan, which, as noted, is attached to this Disclosure Statement as Exhibit A. All descriptions of the Plan set forth in this Disclosure Statement are subject to the terms and provisions of the Plan.
A. | Parties Entitled to Vote |
As set forth above, under the Bankruptcy Code, only holders of Claims and Interests in “impaired” classes that receive or retain any property under the Plan are entitled to vote on the Plan. Under section 1124 of the Bankruptcy Code, a class of Claims or Interests is “impaired” unless (1) the Plan leaves unaltered the legal, equitable, and contractual rights to which such Claim or Interest entitles the holder thereof or (2) notwithstanding any legal right to an accelerated
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payment, the Plan cures all existing defaults (other than defaults resulting from the occurrence of events of bankruptcy) and reinstates the maturity of such Claim or Interest as it existed before the default.
If, however, a holder of an impaired Claim or Interest will not receive or retain any distribution under the Plan on account of such Claim or Interest, the Bankruptcy Code deems such holder to have rejected the Plan, and, accordingly, holders of such Claims and Interests do not have the right to vote on the Plan and will not receive a Ballot. If a Claim or an Interest is not impaired by the Plan, the Bankruptcy Code presumes the holder of such Claim or Interest to have accepted the Plan and, accordingly, holders of such Claims and Interests are not entitled to vote on the Plan, and thus will not receive a Ballot.
The following Classes of Claims are the Voting Classes:
· | Class 3 (2028 Notes Claims) |
· | Class 4 (2026 Senior Secured Notes Claims) |
· | Class 5 (Glide Notes Claims) |
· | Class 6 (Debenture Banks Claims) |
· | Class 7 (AerCap Secured Note Claims) |
· | Class 8 (Safra Claims) |
· | Class 10(a) (GLAI General Unsecured Claims) |
· | Class 10(b) (GLA General Unsecured Claims) |
· | Class 10(c) (GFL General Unsecured Claims) |
· | Class 10(d) (GFC General Unsecured Claims) |
· | Class 10(f) (GAC General Unsecured Claims) |
· | Class 10(h) (Smiles Fidelidade General Unsecured Claims) |
· | Class 10(i) (Smiles Viagens General Unsecured Claims) |
· | Class 10(j) (Smiles Argentina General Unsecured Claims) |
· | Class 10(k) (Smiles Viajes General Unsecured Claims) |
· | Class 11 (General Unsecured Convenience Class Claims) |
Holders of Claims in the Voting Classes are entitled to vote on the Plan and will be receiving the Solicitation Package, including the applicable Ballot, together with this Disclosure
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Statement. Such holders should review their Ballots carefully and follow the instructions contained therein. Any Ballot that is executed and returned but that does not indicate an acceptance or rejection of the Plan or indicates both acceptance and rejection of the Plan will not be counted as votes on the Plan.
Each Ballot will provide holders the option to elect to opt out of the Third-Party Release by checking the appropriate box on the applicable Ballot. If a holder of a Claim in a Voting Class (i) either votes to accept the Plan, votes to reject the Plan, or abstains from voting on the Plan and (ii) does not elect to opt out of the Third-Party Release by checking the appropriate box on the applicable Ballot, such holder and their Related Parties (as defined below) will be deemed to have consented to the Third-Party Release and unconditionally, irrevocably, and forever released and discharged the Released Parties (as defined below) from, among other things, any and all claims that relate to the Debtors. If a holder of a Claim would otherwise be entitled to be a Released Party under the Plan, but such holder opts out of the Third-Party Release, then the holder will not be a Released Party.
B. | Distribution of Notices to Holders of Claims and Interests in Non-Voting Classes and Holders of Disputed Claims |
The following Classes of Claims and Interests are Non-Voting Classes:
· | Class 1 (Priority Non-Tax Claims) |
· | Class 2 (Other Secured Claims) |
· | Class 9 (Non-U.S. General Unsecured Claims) |
· | Class 10(e) (GEF General Unsecured Claims) |
· | Class 10(g) (GTX General Unsecured Claims) |
· | Class 10(l) (CAFI General Unsecured Claims) |
· | Class 10(m) (Sorriso General Unsecured Claims) |
· | Class 12 (Subordinated Claims) |
· | Class 13 (Intercompany Claims) |
· | Class 14 (Existing GLAI Equity Interests) |
· | Class 15 (Intercompany Interests) |
The Debtors are not soliciting votes on the Plan from holders of Claims and Interests in the Non-Voting Classes. As such, holders of Claims and Interests in the Non-Voting Classes will not be receiving the Solicitation Package and, instead, will receive the appropriate notice as follows:
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· | Unimpaired Claims Other Than Intercompany Claims—Conclusively Presumed to Accept. Holders of Claims in Class 1 (Priority Non-Tax Claims), Class 2 (Other Secured Claims), and Class 9 (Non-U.S. General Unsecured Claims) are Unimpaired under the Plan and, therefore, conclusively presumed to have accepted the Plan. As such, holders of Claims in Classes 1, 2, and 9 will receive a Notice of Non-Voting Status, substantially in the form attached to the Disclosure Statement Order as Exhibit 9. The Notice of Non-Voting Status will include a Release Opt-Out Form that will provide holders the option to (i) opt out of the Third-Party Release by following the instructions therein or (ii) manifest their consent to such releases by not opting out. |
· | Intercompany Claims or Interests—Deemed to Accept or Reject. Holders of Claims and Interests in Class 13 (Intercompany Claims) and Class 15 (Intercompany Interests) are either conclusively presumed to have accepted the Plan or are deemed to have rejected the Plan. Accordingly, holders of Claims in Classes 13 and 15 are not entitled to vote to accept or reject the Plan. The Debtors requested a waiver of the strict notice requirement with respect to the holders of Intercompany Claims and Intercompany Interests because such Claims and Interests are held by the Debtors and/or their affiliates. |
· | Impaired Claims Other Than Intercompany Claims—Deemed to Reject. Holders of Claims in Class 10(e) (GEF General Unsecured Claims), Class 10(g) (GTX General Unsecured Claims), Class 10(l) (CAFI General Unsecured Claims), Class 10(m) (Sorriso General Unsecured Claims), Class 12 (Subordinated Claims), and Class 14 (Existing GLAI Equity Interests) are receiving no recovery under the Plan and, therefore, are deemed to reject the Plan and not entitled to vote. These holders of Claims and Interests will not be bound by the Third-Party Release contained in the Plan and will therefore receive only Confirmation Hearing Notice, which will provide notice of, among other things, the time, date, and place for the hearing to consider approval of the Plan and the deadline to object to confirmation of the Plan and will instruct them as to how to obtain copies of the documents contained in the Solicitation Package (excluding Ballots). |
· | Disputed Claims. Holders of Claims that are subject to a pending objection by the Debtors are not entitled to vote the disputed portions of their Claims. As such, holders of these Claims will receive a Notice of Non-Voting Status, substantially in the form attached to the Disclosure Statement Order as Exhibit 10. The Notice of Non-Voting Status will include a Release Opt-Out Form that will provide holders the option to (i) opt out of the Third-Party Release by following the instructions on the Release Opt-Out Form or (ii) manifest their consent to such releases by not opting out with respect to the disputed portions of their Claims. |
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If holders of Claims in Classes 1, 2, and 9 and holders of Claims that are subject to a pending objection by the Debtors do not elect to opt out of the Third-Party Release by following the instructions on the Release Opt-Out Form, such holders and their Related Parties (as defined below) will be deemed to have consented to the Third-Party Release and unconditionally, irrevocably, and forever released and discharged the Released Parties (as defined below) from, among other things, any and all claims that relate to the Debtors. If a holder of a Claim would otherwise be entitled to be a Released Party under the Plan, but such holder opts out of the Third-Party Release, then the holder will not be a Released Party.
C. | Voting and Third-Party Release Opt-Out Procedures |
The deadline to vote on the Plan and opt out of the Third-Party Release is 4:00 p.m. (prevailing Eastern time) on May 12, 2025—i.e., the Voting Deadline. FOR YOUR VOTE AND/OR OPT-OUT ELECTION TO BE COUNTED, YOUR VOTE AND/OR OPT-OUT ELECTION MUST BE RECEIVED BY THE SOLICITATION AGENT ON OR BEFORE THE VOTING DEADLINE. The Debtors may extend the Voting Deadline, in their discretion, without further order of the Bankruptcy Court. There can be no assurance that the Debtors will extend the Voting Deadline.
Each Ballot and Release Opt-Out Form contains detailed instructions for completion and submission. To be accepted, Ballots and Release Opt-Out Forms must be completed and delivered to the Solicitation Agent by one of the following methods:
· | Ballots (other than Master Ballots and Beneficial Holder Ballots) and Release Opt-Out Forms must be delivered to the Solicitation Agent (i) by first class mail; (ii) by overnight carrier; (iii) by personal delivery to GOL Ballot Processing Center, c/o Kroll Restructuring Administration LLC, 850 3rd Avenue, Suite 412, Brooklyn, NY 11232; or (iv) via the E-Ballot Portal.[20] Ballots (other than Master Ballots and Beneficial Holder Ballots) and Release Opt-Out Forms will not be accepted via electronic mail, facsimile, or other means of electronic submission (other than via the E-Ballot Portal). |
· | Master Ballots and “pre-validated” Beneficial Holder Ballots (both as defined below) ONLY must be delivered to the Solicitation Agent (i) by first class mail; (ii) by overnight carrier; (iii) by personal delivery to GOL Ballot Processing Center, c/o Kroll Restructuring Administration LLC, 850 3rd Avenue, Suite 412, Brooklyn, NY 11232; or (iv) via electronic mail to GOLBallots@ra.kroll.com (with “GOL Ballot Submission” in the subject line). Master Ballots and “pre-validated” Beneficial Holder Ballots will not be accepted via the E-Ballot Portal or other means of electronic submission (other than electronic mail). |
As noted, except as permitted by the Debtors, in their sole discretion, or as permitted by the Bankruptcy Court pursuant to Bankruptcy Rule 3018, for a holder’s vote on the Plan and/or opt-out
[20] | For a holder to retrieve and submit their customized electronic Ballot or Release Opt-Out Form, the holder will need the unique E-Ballot ID# or E-Opt-Out ID#, respectively. The E-Ballot ID# will be pre-populated and included on the Ballot included in the Solicitation Package. The E-Opt Out ID# will be pre-populated and included on the Release Opt-Out Form included in the Notice of Non-Voting Status. |
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election to be counted, the holder’s Ballot or Release Opt-Out Form, as applicable, must be properly executed, completed, and delivered to the Solicitation Agent by no later than the Voting Deadline.
If a holder elects to deliver its Ballot or Release Opt-Out Form by mail, it is recommended to use an air courier with a guaranteed next day delivery or registered mail, properly insured, with return receipt requested. In all cases, sufficient time should be allowed to ensure timely delivery.
IF AN ELIGIBLE HOLDER MUST RETURN ITS BALLOT TO ITS NOMINEE, SUCH ELIGIBLE HOLDER MUST RETURN ITS BALLOT TO THE NOMINEE IN SUFFICIENT TIME FOR THE NOMINEE TO PROCESS IT AND RETURN THE MASTER BALLOT TO THE SOLICITATION AGENT BEFORE THE VOTING DEADLINE.
The Voting Record Date for determining which holders of Claims are Eligible Holders who are entitled to vote on the Plan is March 12, 2025. The applicable administrative agent or indenture trustee under any debt documents will not vote on behalf of its holders. All holders must submit their own Ballot either directly to the Voting Agent or in accordance with voting instructions provided by their Nominee.
If a Ballot is damaged or lost, the Eligible Holder may contact the Voting Agent at the telephone number or email address set forth below to receive a replacement Ballot. If holders of Claims or Interests have any questions about the Solicitation Package or Notice of Non-Voting Status, as applicable, or if an Eligible Holder did not receive a Ballot, received a damaged Ballot, or lost its Ballot, such holders may contact the Solicitation Agent, at 844.553.2247 (U.S./Canada) (toll free) or +1.646.777.2315 (International) or by e-mail via GOLInfo@ra.kroll.com (with “GOL Solicitation Inquiry” in the subject line).
Additional copies of this Disclosure Statement, the Plan, and the Plan Supplement (when filed) are available upon written request made to the Solicitation Agent at the following address:
GOL Linhas Aéreas Inteligentes
S.A. Ballot Processing Center
c/o Kroll Restructuring Administration LLC
850 Third Avenue, Suite 412, Brooklyn,
NY 11232
844.553.2247 (U.S./Canada) (toll free) +1.646.777.2315 (International)
GOLInfo@ra.kroll.com (with “GOL Solicitation Inquiry” in the subject line)
Special procedures are set forth below for holders of Claims who hold their Claims through a broker, dealer, commercial bank, trust company, or other agent or nominee (each, a “Nominee”).
1. | Beneficial Holders |
Nominees that hold Claims in Voting Classes other than for their own account must provide copies of the solicitation materials included in the Solicitation Package, including this Disclosure Statement, to their customers that beneficially hold such Claims as of the Voting Record Date (each a “Beneficial Holder”). Any such Beneficial Holder who has not received a Ballot in regard to its beneficial holding of Claims that are through a Nominee (a “Beneficial Holder Ballot”) should contact his, her, or its Nominee for further assistance and to obtain instructions regarding submitting their vote on the Plan.
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A Beneficial Holder holding a Claim as a record holder in its own name should vote on the Plan by completing and signing a Beneficial Holder Ballot, along with an account statement, validating their position in the applicable security as of the Voting Record Date, and returning it directly to the Solicitation Agent on or before the Voting Deadline using the enclosed pre-addressed, postage-paid return envelope.
A Beneficial Holder holding a Claim through a Nominee may vote on the Plan by one of the following two methods (as selected by such Nominee):
· | completing and signing the enclosed Beneficial Holder Ballot. Beneficial Holders should return the Beneficial Holder Ballot to its Nominee as promptly as possible and in sufficient time to allow such Nominee to process such Beneficial Holder’s instructions and return a completed master ballot reflecting the Beneficial Holder’s vote (a “Master Ballot”) to the Solicitation Agent by the Voting Deadline. If no pre-addressed, postage-paid return envelope was enclosed for this purpose, contact your Nominee for instructions; or |
· | completing and signing the pre-validated Beneficial Holder Ballot (as described below) provided by the Nominee. Beneficial Holders should return the pre-validated Beneficial Holder Ballot to the Solicitation Agent by the Voting Deadline using the return envelope provided in the Solicitation Package. |
Any Beneficial Holder Ballot returned to a Nominee by an Eligible Holder will not be counted for purposes of acceptance or rejection of the Plan until such Nominee properly completes and delivers to the Solicitation Agent a Master Ballot reflecting the vote of such Eligible Holder.
If a Beneficial Holder holds Claims through more than one Nominee or through multiple accounts, such Beneficial Holder may receive more than one Beneficial Holder Ballot and must vote consistently and execute a separate Beneficial Holder Ballot for each block of Claims that it holds through any Nominee and must return each such Beneficial Holder Ballot to the appropriate Nominee. Votes submitted by a Nominee will not be counted in excess of the amount of the applicable securities held by such Nominee on account of its Beneficial Holder clients as of the Voting Record Date.
PLEASE SUBMIT YOUR BALLOT PROMPTLY, SUCH THAT YOUR NOMINEE HAS SUFFICIENT TIME TO SUBMIT A MASTER BALLOT REFLECTING YOUR VOTE SO THAT IT IS ACTUALLY RECEIVED BY THE SOLICITATION AGENT BEFORE THE VOTING DEADLINE.
2. | Nominees |
A Nominee that, on the Voting Record Date, is the record holder of Claims for one or more Eligible Holders can obtain the votes of the Eligible Holders of such Claims, consistent with customary practices for obtaining the votes of securities held in “street name,” in one of the following two ways:
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· | Master Ballots. If the Nominee elects not to pre-validate Beneficial Holder Ballots, the Nominee may obtain the votes of Beneficial Holders by forwarding to the Beneficial Holders the unsigned Beneficial Holder Ballots, voting information form (“VIF”), and/or other customary communication used by such Nominee to transmit solicitation information and materials to, and collect voting information from, its Beneficial Holder Clients, along with instructions to the Beneficial Holders as to how they can return their votes to the Nominee. Each such Beneficial Holder must then indicate his, her, or its vote on the Beneficial Holder Ballot, complete the information requested on the Beneficial Holder Ballot, review the certifications contained on the Beneficial Holder Ballot, execute the Beneficial Holder Ballot, and return the Beneficial Holder Ballot to the Nominee. After collecting the Beneficial Holders’ votes, the Nominee should, in turn, complete a Master Ballot compiling and evaluating the votes and other information of all its Beneficial Holders and transmit the Master Ballot to the Solicitation Agent so that it is received by the Solicitation Agent on or before the Voting Deadline. Nominees that submit Master Ballots must keep the original Beneficial Holder Ballots, VIFs, or other communication used by their Beneficial Holders to transmit their votes for a period of one year after the Effective Date of the Plan. |
· | Pre-Validated Ballots. The Nominee may “pre-validate” a Beneficial Holder Ballot by: (i) signing the Beneficial Holder Ballot and including the Nominee’s DTC participant number; (ii) certifying the Beneficial Holder’s voting amount as of the Voting Record Date, the Beneficial Holder’s account number and the amount of Claims in the applicable Class held by the Nominee for such Beneficial Holder with instructions to the Beneficial Holder to return its pre-validated Beneficial Holder Ballot to the Solicitation Agent in a timely fashion; and (iii) applying a medallion guarantee stamp attaching an authorized signatory list, or providing an account statement with such Beneficial Holder Ballot, validating the Beneficial Holder’s position in the applicably security as of the Voting Record Date. The Nominee may then forward such Beneficial Holder Ballot (together with the Solicitation Package) to the Beneficial Holder. The Beneficial Holder then must complete the remaining information on the Beneficial Holder Ballot and return the Beneficial Holder Ballot directly to the Solicitation Agent. The Nominee must maintain copies of all Beneficial Holder Ballots submitted to the Nominee and a list of the Beneficial Holders for whom the Nominee “pre-validated” Beneficial Holder Ballots for inspection for at least one year from the Effective Date. |
EACH NOMINEE SHOULD ADVISE ITS BENEFICIAL HOLDERS TO RETURN THEIR BENEFICIAL HOLDER BALLOTS TO THE NOMINEE BY A DATE CALCULATED BY THE NOMINEE TO ALLOW IT TO PREPARE AND RETURN THE MASTER BALLOT TO THE SOLICITATION AGENT SO THAT IT IS RECEIVED BY THE SOLICITATION AGENT ON OR BEFORE THE VOTING DEADLINE.
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3. | Tabulation of Votes |
The Bankruptcy Code defines “acceptance” of a plan by a class of (i) claims as acceptance by creditors in that class that hold at least two-thirds (2/3) in dollar amount and more than one-half (1/2) in number of the claims that cast ballots for acceptance or rejection of the Plan and (ii) interests as acceptance by interest holders in that class that hold at least two-thirds (2/3) in amount of the interests that cast ballots for acceptance or rejection of the plan.
All Ballots must be signed by the Eligible Holders, or by persons who have obtained a properly completed Ballot proxy from Eligible Holders by the Voting Record Date. Unless otherwise ordered by the Bankruptcy Court, Ballots that are signed, dated, and timely received, but on which a vote to accept or reject the Plan has not been indicated, will not be counted. The Debtors may request that the Solicitation Agent attempt to contact the Eligible Holders (or Nominees, if applicable) to cure any defects in the Ballots; however, neither the Debtors nor the Solicitation Agent are required to conduct outreach to cure defects associated with submitted Ballots. Any Ballot (other than Master Ballots) marked to both accept and reject the Plan or Ballots not marked to either accept or reject the Plan will not be counted. If you return more than one Ballot voting different Claims that are not voted in the same manner, and you do not correct such discrepancy before the Voting Deadline, your Ballots will not be counted.
The Ballots provided to Eligible Holders will reflect the principal amount of such Eligible Holder’s Claim; however, when tabulating votes, the Solicitation Agent may adjust the amount of such Eligible Holder’s Claim to reflect the full amount of the applicable Claim, including prepetition interest.
Under the Bankruptcy Code, for purposes of determining whether the requisite acceptances have been received, only the votes of Eligible Holders that actually cast a vote will be counted. The failure of an Eligible Holders to timely deliver a duly executed Ballot to the Solicitation Agent or its Nominee, as applicable, will constitute an abstention by such holder with respect to voting on the Plan.
A vote may be disregarded if the Bankruptcy Court determines, pursuant to section 1126(e) of the Bankruptcy Code, that it was not solicited or procured in good faith or in accordance with the provisions of the Bankruptcy Code.
Except as provided below, unless a Ballot or a Master Ballot, as applicable, is timely received by the Solicitation Agent before the Voting Deadline, together with any other documents required by such Ballot or Master Ballot, as applicable, the Debtors may, in their sole discretion, reject such Ballot or Master Ballot, as applicable, as invalid and decline to use it in connection with seeking confirmation of the Plan.
4. | Fiduciaries and Other Representatives |
If a Beneficial Holder Ballot is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or another person acting in a fiduciary or representative capacity, such person should indicate such capacity when signing and, if requested, must submit proper evidence satisfactory to the Debtors of their authority to so act. Authorized signatories
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should submit a separate Beneficial Holder Ballot for each Eligible Holder for whom they are voting.
UNLESS THE BALLOT OR THE MASTER BALLOT, AS APPLICABLE, IS RECEIVED BY THE SOLICITATION AGENT ON OR BEFORE THE VOTING DEADLINE, SUCH BALLOT WILL BE REJECTED AS INVALID AND WILL NOT BE COUNTED AS AN ACCEPTANCE OR REJECTION OF THE PLAN; PROVIDED, THAT THE DEBTORS RESERVE THE RIGHT, IN THEIR SOLE DISCRETION, TO ALLOW SUCH BALLOT TO BE COUNTED.
D. | Multiple Claims Within Class |
To the extent an Eligible Holder holds multiple Claims within a single Class, the Debtors may, in their discretion, instruct the Solicitation Agent to aggregate, to the extent possible, such holder’s Claims for purposes of counting votes.
E. | Agreements upon Furnishing Ballots |
The delivery of an accepting Ballot pursuant to one of the procedures set forth above will constitute the agreement of the corresponding creditor to accept: (i) all of the terms of, and conditions to, the Solicitation; and (ii) the terms of the Plan, including the injunction, releases, and exculpations set forth in Article IX of the Plan.
F. | Withdrawal or Change of Votes on Plan |
Any Eligible Holder that has previously timely submitted to the Solicitation Agent or its Nominee a properly completed and executed Ballot may revoke such Ballot and change their vote by submitting to the Solicitation Agent or its Nominee a subsequent, properly executed Ballot before the Voting Deadline (or, in the case of a Beneficial Holder Ballot, in sufficient time to allow the applicable Nominee to submit a Master Ballot to the Solicitation Agent before the Voting Deadline). If more than one timely, properly completed Ballot is received with respect to the same Claim, the Ballot that will be counted for purposes of determining the vote of the applicable Eligible Holder will be the Ballot last received before the Voting Deadline, as determined by the Solicitation Agent or the applicable Nominee in its sole discretion.
G. | Waivers of Defects, Irregularities, etc. |
Unless otherwise directed by the Bankruptcy Court, all questions as to the validity, form, eligibility (including time of receipt), acceptance, and revocation or withdrawals of Ballots and Master Ballots will be determined by the Solicitation Agent or the Debtors in their sole discretion, which determination will be final and binding. The Debtors reserve the right to reject any and all Ballots and Master Ballots submitted not in proper form, the acceptance of which would, in the opinion of the Debtors or their counsel be unlawful. The Debtors further reserve the right to waive any defects or irregularities or conditions of delivery as to any particular Ballot or Master Ballot. The Debtors’ determination with respect to the acceptability of any Ballot or Master Ballot, unless otherwise directed by the Bankruptcy Court, will be final and binding on all parties. Unless otherwise directed by the Bankruptcy Court, delivery of Ballots and Master Ballots will not be deemed to have been made until any irregularities have been cured or waived. Unless waived, any
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defects or irregularities in connection with deliveries of Ballots and Master Ballots must be cured within such time as the Debtors (or the Bankruptcy Court) determine. Neither the Debtors nor any other person will be under any duty to provide notification of defects or irregularities with respect to deliveries of Ballots and Master Ballots nor will any of them incur any liabilities for failure to provide such notification.
H. | Requirement to File a Proof of Claim |
Any person or entity that is required to timely file a Proof of Claim in the form and manner specified by the Claims Bar Date Order and who failed to do so on or before the applicable Claims Bar Date shall not be treated as a creditor of the Debtors with respect to such Claim for the purposes of voting on the Plan.
I. | Further Information; Additional Copies |
If you have any questions or require further information about the voting procedures for voting your Claims or about the solicitation materials you received, or if you wish to obtain an additional copy of the Plan, the Disclosure Statement, or any exhibits to such documents, please contact the Solicitation Agent.
SECTION
VIII.
Confirmation of the Plan
A. | Confirmation Hearing |
Section 1128(a) of the Bankruptcy Code requires the Bankruptcy Court to hold a confirmation hearing upon appropriate notice to certain parties. Notice of the Confirmation Hearing will be provided to all known creditors and equity holders or their authorized representatives. The Confirmation Hearing may be adjourned from time to time without further notice except for the announcement of the continuation date made at the Confirmation Hearing, at any subsequent continued Confirmation Hearing, or notice filed on the docket for the Chapter 11 Cases.
B. | Objections to Confirmation |
Section 1128(b) of the Bankruptcy Code provides that any party in interest may object to the confirmation of a chapter 11 plan. Any objection to confirmation of the Plan must (i) be in writing, (ii) conform to the Bankruptcy Rules and the Local Rules of the United States Bankruptcy Court for the Southern District of New York, (iii) set forth the name of the objector, the nature of the Claims or Interests asserted by the objector, and (iv) state with particularity the legal and factual basis for the objection. Objections must be filed with the Bankruptcy Court, together with proof of service, and must be served on the following parties so as to be received no later than 4:00 p.m. (prevailing Eastern time) on May 6, 2025:
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· | the Debtors GOL Linhas Aéreas Inteligentes S.A. Praça Comandante Lineu Gomes, S/N, Portaria 3, Jardim Aeroporto 04626-020 São Paulo, São Paulo, Brazil Attention: Joseph W. Bliley, Chief Restructuring Officer Email: jwbliley@voegol.com.br |
· | Counsel to the Debtors Milbank LLP 55 Hudson Yards New York, NY 10001 Attention: Evan R. Fleck, Esq. Lauren C. Doyle, Esq. Bryan V. Uelk, Esq. Email: efleck@milbank.com ldoyle@milbank.com buelk@milbank.com -and- |
Milbank LLP
2029 Century Park East, 33rd Floor
Los Angeles, CA 90067
Attention: Gregory A. Bray, Esq.
Email: gbray@milbank.com
-and-
Milbank LLP
1850 K St. NW, Suite 1100
Washington, DC 2006
Attention: Andrew M. Leblanc, Esq.
Erin E. Dexter, Esq.
Email: aleblanc@milbank.com
edexter@milbank.com
· | Counsel to the Committee: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attention: Brett Miller, Esq. Todd Goren, Esq. Craig A. Damast, Esq. James H. Burbage, Esq. Email: bmiller@willkie.com tgoren@willkie.com |
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cdamast@willkie.com
jburbage@willkie.com
· | Office of the U.S. Trustee: William K. Harrington U.S. Department of Justice, Office of the U.S. Trustee One Bowling Green, Suite 534 New York, NY 10004 Attention: Annie Wells, Esq. Rachael Siegel, Esq. Email: annie.wells@usdoj.gov rachael.e.siegel@usdoj.gov |
An objection to confirmation of the Plan may not be considered by the Bankruptcy Court if it is not timely served and filed.
C. | Requirements for Confirmation of Plan – Consensual Confirmation |
The Bankruptcy Court will confirm the Plan only if all of the applicable requirements of section 1129 of the Bankruptcy Code are met. Among the requirements for Confirmation are that the Plan is feasible and in the “best interests” of holders of Claims and Interests that have rejected the Plan.
1. | Feasibility |
Section 1129(a)(11) of the Bankruptcy Code requires that confirmation of a plan is not likely to be followed by liquidation or the need for further financial reorganization. This requirement is often referred to as the “feasibility” requirement. The Debtors believe that the Plan satisfies this requirement.
For purposes of determining whether the Plan meets the feasibility requirement, the Debtors, in consultation with their financial advisors, have analyzed their ability to meet the obligations that they will incur or assume under the Plan. As part of that analysis, the Debtors have prepared consolidated projected financial results (the “Financial Projections”) for each fiscal year following the Effective Date through 2029. These Financial Projections, and the assumptions on which they are based, are attached to this Disclosure Statement as Exhibit D.
The Financial Projections have not been prepared or examined by independent accountants, but the Debtors believe that the assumptions underlying the Financial Projections are reasonable as of the time of preparation. Those assumptions that the Debtors consider to be significant are described in the Financial Projections. Many of the assumptions on which the Financial Projections are based are subject to significant uncertainties. Inevitably, some assumptions will not materialize, and unanticipated events and circumstances may affect actual financial results. Therefore, the actual results achieved throughout the period covered by the Financial Projections may vary materially from the projected results. All Eligible Holders, in consultation with their financial advisors, are urged to carefully examine the Financial Projections and all of the assumptions on which they are based in evaluating the feasibility of the Plan.
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2. | Best Interests Test |
Section 1129(a)(7) of the Bankruptcy Code, known as the “best interests” test, requires the Debtors to show that each holder of an Impaired Claim or Interest that voted to reject the Plan, will receive, under the Plan, property with a value not less than the value such holder would have received if the Debtors were liquidated under chapter 7 of the Bankruptcy Code on the Effective Date. Based on the liquidation analysis attached to this Disclosure Statement as Exhibit C (the “Liquidation Analysis”), the Debtors believe that all holders of Impaired Claims and Interests will receive, under the Plan, property with a value greater than or equal to the value that they would have received in a chapter 7 liquidation.
To estimate the potential recoveries in a chapter 7 liquidation, the Debtors estimated the amount of liquidation proceeds, net of liquidation costs, that might be available for distribution under chapter 7 of the Bankruptcy Code and the allocation of those proceeds among the Classes of Claims and Interests based on their relative priorities.
The net amount of value available in a liquidation to the holders of unsecured Claims would be reduced by, first, the Claims of secured creditors to the extent of the value of their respective collateral and, second, the administrative expenses and priority claims allowed in chapter 7. Those administrative expenses would include compensation of a chapter 7 trustee, as well as counsel and other professionals retained by the trustee, asset disposition expenses, applicable taxes, litigation costs, unpaid administrative expenses incurred by the Debtors and the Committee in the Chapter 11 Cases, and Claims arising from the Debtors’ operations during the Chapter 11 Cases. Liquidation would prompt the rejection of executory contracts and unexpired leases that would otherwise be assumed, thereby creating a significantly greater aggregate amount of unsecured Claims. The liquidation may also trigger certain priority Claims that would otherwise be payable in the ordinary course of business. Those priority Claims would have to be paid in full from the liquidation proceeds before any balance would be made available to pay unsecured Claims.
If the probable value available for distribution to unsecured creditors, net of all of the foregoing, is greater than the value of distributions to be received by the unsecured creditors under the Plan, the Plan is not in the best interests of creditors and cannot be confirmed by the Bankruptcy Court.
The Liquidation Analysis demonstrates that each holder of Impaired Claims and Interests will receive at least as much, if not more, under the Plan as it would receive if the Debtors were liquidated under chapter 7 of the Bankruptcy Code on the Effective Date. Therefore, the Debtors believe that the Plan satisfies the “best interests” test.
D. | Requirements for Confirmation of Plan – Non-Consensual Confirmation |
Under the Bankruptcy Code, an impaired class of claims accepts a chapter 11 plan if holders of (i) two-thirds (2/3) in amount and (ii) a majority in number of claims in the class vote to accept the plan. Claims of the holders that fail to vote are not counted in determining the thresholds for acceptance of the plan.
If any impaired class of claims or interests votes to reject a plan or is deemed to reject the plan, the Bankruptcy Code nevertheless allows the plan to be confirmed over that class’s rejection,
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so long as the plan satisfies (i) each of the requirements of section 1129(a) other than the requirement for acceptance by each impaired class and (ii) certain additional requirements set forth in section 1129(b) discussed below. This power to confirm a plan over rejection of certain classes—often referred to as a “cram down”—assures that no single group of claims or interests can block a restructuring that otherwise meets the requirements of the Bankruptcy Code and is in the interests of the other constituents in the case.
Under section 1129(b) of the Bankruptcy Code, the Bankruptcy Court may confirm the Plan over actual or deemed rejection by an Impaired Class of Claims or Interests if the Plan (i) is accepted by at least one Impaired Class of Claims, (ii) “does not discriminate unfairly” any rejecting class, and (iii) is “fair and equitable” with respect to each rejecting class.
1. | Unfair Discrimination |
The “unfair discrimination” test applies to Classes of Claims or Interests that are of equal priority and legal character but are receiving different treatment under the Plan. The test does not require that the treatment be the same, but that the discrepancy in treatment be “fair.” Bankruptcy courts take into account a number of factors in determining whether a plan discriminates “unfairly.” This test applies only to Classes that reject or are deemed to reject the plan.
2. | Fair and Equitable |
A chapter 11 plan is fair and equitable with respect to a dissenting class only if no class senior to such dissenting class receives more than it is entitled to on account of such senior claims or interests. The “fair and equitable” test imposes certain statutory requirements that depend on the type of claims or interests in the dissenting class.
To be fair and equitable with respect to a dissenting class of impaired secured claims, a chapter 11 plan must provide that each holder of claims in such class either (i) retains its liens on the property subject to such liens (or if sold, on the proceeds thereof) to the extent of the allowed amount of its secured claim and receives deferred cash payments having a value, as of consummation of the chapter 11 plan, of at least such allowed amount or (ii) receives the “indubitable equivalent” of its secured claim.
To be fair and equitable with respect to a dissenting class of impaired unsecured claims, a chapter 11 plan must provide that either (i) each holder of a claim in such class receives or retains property having a value, as of consummation of the chapter 11 plan, equal to the allowed amount of its unsecured claim or (ii) no holder of claims or interests that are junior to the claims in the dissenting class will receive or retain any property under the plan.
To be fair and equitable with respect to a dissenting class of impaired equity interests, a chapter 11 plan must provide that either (i) each holder of an interest in such class receives or retains property having a value, as of consummation of the chapter 11 plan, equal to the greater of (a) the allowed amount of any fixed liquidation preference or fixed redemption price of its interest and (b) the value of its interest or (ii) no holders of interests that are junior to the interests in the dissenting class will receive or retain any property under the plan.
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The Debtors believe the Plan does not discriminate unfairly and satisfies the “fair and equitable” requirement with respect to each rejecting Class.
If all confirmation requirements (other than acceptance by each Impaired Class) are satisfied, the Debtors will ask the Bankruptcy Court to confirm the Plan under section 1129(b) of the Bankruptcy Code.
E. | Summary of Release, Injunction, and Exculpation Provisions |
The release, injunction, and exculpation provisions contained in Article IX of the Plan are set forth above in Section VI.H of this Disclosure Statement. As discussed in detail in the Debtors’ Opening Brief in Support of the Releases and Exculpation Provisions of the Debtors’ Disclosure Statement and Chapter 11 Plan [Docket No. 1229] (the “Debtors’ Release Brief”), these provisions are integral and material components of the settlement and compromise reached among the Debtors, the Committee, and Abra embodied in the Plan. The Debtors believe that these provisions in the Plan are necessary and appropriate and meet the requisite legal standard promulgated by the Second Circuit.
The Plan provides for the release of claims against the Released Parties (as defined below) by: (i) the Debtors (the “Debtor Release”) and (ii) the Releasing Parties (as defined below), including certain holders of Claims or Interests (i.e., the Third-Party Release), as well as each of the foregoing’s Related Parties. Set forth below are the definitions of certain important terms that are used in the release provisions:
· | “Cause of Action” means any action, claim, cross-claim, third-party claim, cause of action, controversy, dispute, demand, right, action, remedy, lien, indemnity, contribution, guaranty, suit, obligation, liability, loss, debt, fee or expense, damage, interest, judgment, cost, account, defense, remedy, offset, power, privilege, proceeding, license, and franchise of any kind or character whatsoever, whether known or unknown, foreseen or unforeseen, contingent or non-contingent, matured or unmatured, suspected or unsuspected, liquidated or unliquidated, disputed or undisputed, secured or unsecured, assertable directly or derivatively (including any alter ego theories), whether arising before, on, or after the Petition Date, in contract or in tort, in law or in equity, or pursuant to any other theory of law (including under any state or federal securities law). For the avoidance of doubt, “Cause of Action” includes: (i) any right of setoff or counterclaim or recoupment and any claim for breach of contract or for breach of duties imposed by law or in equity; (ii) the right to object to Claims; (iii) any claim pursuant to section 362 or chapter 5 of the Bankruptcy Code, including Avoidance Actions; (iv) any claim or defense, including fraud, mistake, duress, usury, recoupment, and any other defenses set forth in section 558 of the Bankruptcy Code; and (v) any Avoidance Action or foreign or state law fraudulent transfer or similar claim. |
· | “Released Parties” means, collectively, each of the following, in each case in its capacity as such: (i) the Debtors; (ii) the Reorganized Debtors; (iii) the Committee and its members; (iv) the other Consenting Stakeholders; (v) the DIP Noteholders, (vi) the Agents/Trustees; (vii) the Ad Hoc Group of Abra Noteholders and Elliott; and (viii) |
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with respect to each of the foregoing Entities and Persons set forth in clause (i) through (vii), each of such Entities’ and Persons’ Affiliates and its and their respective Related Parties. Notwithstanding the foregoing, (i) any Entity or Person that opts out of the releases set forth in Article IX.E shall not be deemed a Released Party and (ii) any Entity or Person that would otherwise be a Released Party hereunder but is party to one or more Retained Causes of Action shall not be deemed a Released Party with respect to such Retained Causes of Action.
· | “Releasing Parties” means, collectively, each of the following, in each case in its capacity as such: (i) each of the Released Parties; (ii) all holders of Claims that vote to accept the Plan and do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable ballot; (iii) all holders of Claims or Interests that are Unimpaired under the Plan and do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable notice; (iv) all holders of Claims in Classes that are entitled to vote under the Plan but that (a) vote to reject the Plan or do not vote either to accept or reject the Plan and (b) do not affirmatively opt out of granting the releases in Article IX.E by checking the box on the applicable ballot; and (v) with respect to each of the foregoing Entities and Persons set forth in clauses (ii) through (iv), all of such Entities’ and Persons’ respective Related Parties. For the avoidance of doubt, holders of Claims or Interests in Classes that are deemed to reject the Plan and therefore are not entitled to vote under the Plan are not Releasing Parties in their capacities as holders of such Claims or Interests. |
· | “Related Parties” means, with respect to any Entity or Person, in each case in its capacity as such with respect to such Entity or Person, such Entity’s or Person’s current and former directors, managers, officers, investment committee members, special committee members, equity holders (regardless of whether such interests are held directly or indirectly), affiliated investment funds or investment vehicles, managed accounts or funds, predecessors, participants, successors, assigns, subsidiaries, Affiliates, partners, limited partners, general partners, principals, members, management companies, fund advisors or managers, employees, agents, trustees, advisory board members, financial advisors, attorneys, accountants, investment bankers, consultants, representatives, and other professionals and advisors and any such Person’s or Entity’s respective heirs, executors, estates, and nominees. |
1. | Debtor Release |
The Debtor Release under Article IX.D of the Plan provides that the Debtors, the Reorganized Debtors, and the Debtors’ Estates will release the Released Parties (which include the other Debtors and Reorganized Debtors; the Committee and its members; the other Consenting Stakeholders, comprised of Abra entities that signed the Plan Support Agreement; the DIP Noteholders, the Ad Hoc Group of Abra Noteholders and Elliott; and the agents and indenture trustees that serve in such capacities under the Debtors’ funded indebtedness) in exchange for good and valuable consideration and valuable compromises made by the Released Parties as described in more detail below. The Debtor Release is an integral part of the Plan, and the Debtors believe the Released Parties have made substantial contributions to these Chapter 11 Cases.
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The Debtor Release applies to any and all claims and Causes of Action (as defined above) relating to the Debtors (including the management, ownership, or operation of the Debtors and their businesses), the purchase or sale of the Debtors’ securities or debt instruments, other contracts, any Claim or Interest dealt with in the Plan, these Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of the DIP Facility, the Plan, the Disclosure Statement, and related documents. The Debtor Release does not release any claims arising from willful misconduct, intentional fraud, or gross negligence that are unknown today. The Debtor Release also does not release any post-Effective Date obligations or liabilities of any person or entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
The Debtor Release constitutes a sound exercise of the Debtors’ business judgment, is supported by the investigations of the Restructuring Committee and the Committee and is a necessary component of the Plan Support Agreement and the Plan. The Debtors believe that the proposed Debtor Release is reasonable and in the best interests of their estates in light of the complex issues in these Chapter 11 Cases and the benefit they will provide to the Debtors on a go-forward basis.
2. | Third-Party Release |
The Third-Party Release under Article IX.E of the Plan provides, in sum, that the Releasing Parties will release the Released Parties (which include the other Debtors and Reorganized Debtors; the Committee and its members; the other Consenting Stakeholders, comprised of Abra entities that signed the Plan Support Agreement; the DIP Noteholders, the Ad Hoc Group of Abra Noteholders and Elliott; and the agents and indenture trustees that serve in such capacities under the Debtors’ funded indebtedness) from any and all claims and Causes of Action (as defined above) relating to the Debtors (including the management, ownership, or operation of the Debtors and their businesses), the purchase or sale of the Debtors’ securities or debt instruments, other contracts, any Claim or Interest dealt with in the Plan, these Chapter 11 Cases, and the negotiation, formulation, preparation, entry into, consummation, or dissemination of the DIP Facility, the Plan, the Disclosure Statement, and related documents. The Third-Party Release does not release any claims arising from willful misconduct, intentional fraud, or gross negligence that are unknown today. The Third-Party Release also does not release any post-Effective Date obligations or liabilities of any person or entity under the Plan, any assumed Executory Contract or Unexpired Lease, or agreement or document that is created, amended, ratified, entered into, or Reinstated pursuant to the Plan (including the New Debt Documents, the Incremental New Money Equity Documents, and the New Equity Documents).
The Plan provides that the following holders (and their Related Parties) shall be deemed to be Releasing Parties under the Plan (and thus deemed to have granted the Third-Party Release):
· | all holders of Claims who are eligible to vote on the Plan that (i) vote to accept the Plan, vote to reject the Plan, or do not vote to accept or reject the Plan and (ii) do not elect to opt out of granting the Third-Party Release by checking the box on the applicable Ballot; |
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· | all holders of Claims or Interests who (i) are Unimpaired under the Plan and presumed to accept the Plan and (ii) do not elect to opt out of granting the Third-Party Release by checking the box on the Release Opt-Out Form attached to the applicable Notice of Non-Voting Status; and |
· | all holders of Claims or Interests (i) that are Disputed Claims or Interests as of the Voting Record Date and (ii) who do not elect to opt out of granting the Third-Party Release by checking the box on the Release Opt-Out Form attached to the applicable Notice of Non-Voting Status. |
For the avoidance of doubt, holders of Claims or Interests that are Impaired and deemed to reject the Plan and therefore not entitled to vote on the Plan will not be bound by the Third-Party Release in their capacities as holders of such Claims or Interests.
Your consent to the Third-Party Release will be deemed to have been granted absent submission of a properly completed Ballot or Release Opt-Out Form by the Voting Deadline.
The Debtors believe that the Debtor Release and the Third-Party Release are appropriate in light of the thorough investigation of claims conducted by two independent committees—the Debtors’ Restructuring Committee and the Committee. These investigations concluded that there were no claims or Causes of Action that are being released, taking into consideration the merits, defenses, and other factors, that would warrant pursuit or were likely to yield greater value for the Debtors’ estates than the recoveries contemplated in the Plan.
In addition, the Debtors believe the Released Parties have made substantial contributions to these Chapter 11 Cases that justify the Debtor Release and the Third-Party Release because, among other things, the releases are narrowly tailored to matters related to the Debtors and their business affairs prior to the Effective Date, including their restructuring efforts during these Chapter 11 Cases, and each of the Released Parties has afforded value to the Debtors and aided in the reorganization process, which facilitated the Debtors’ ability to propose and pursue confirmation of the Plan.
For example, the Committee and its members served as estate fiduciaries and represented the interests of all general unsecured creditors during these Chapter 11 Cases, successfully negotiated significant recoveries for those creditors as part of the settlement embodied in the Plan, and investigated the Debtors’ prepetition transactions, including potential claims against the other Released Parties, which ultimately led to that settlement. As discussed, Abra has agreed to, among other things, limit its recovery and equitize a significant portion of its secured Claim as part of the Plan settlement, resulting in the settlement providing meaningful distributions to general unsecured creditors. In addition, absent Abra’s agreement, the Debtors believe that they would likely be unable to raise sufficient capital to satisfy their secured prepetition funded debt obligations or otherwise have the liquidity to support, among other things, the required go-forward debt and lease obligations. Abra’s agreement to equitize a portion of the Allowed 2028 Notes Claims facilitates the ability of the Debtors to raise new capital, which will be used to satisfy the Debtors’ existing obligations and to provide fresh capital, absent which the Debtors may have no other option than to liquidate. The DIP Noteholders, including the Ad Hoc Group of Abra Noteholders and Elliott, provided the capital that was critical for the Debtors to continue operating
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their businesses during these Chapter 11 Cases and have made valuable concessions throughout these cases, including agreeing to extend the DIP Facility maturity date without charging a fee and agreeing to extend the challenge period on several occasions to facilitate negotiations. In addition, the Ad Hoc Group of Abra Noteholders and Elliot in their capacities as Abra Noteholders agreed during the cases to release certain asserted liens against the Debtors’ assets that could have otherwise frustrated the Debtors’ attempts to raise new money capital and have agreed that they are not entitled to any distributions under the Plan. The Agents/Trustees representing the interests of diverse noteholders during these Chapter 11 Cases agreed to extend the challenge period on several occasions to facilitate the negotiation of the Plan settlement and will facilitate distributions to claimants holding Allowed Claims and perform all actions necessary to release any Liens securing those Claims.
Further, each of the Releasing Parties, including the Debtors, are releasing potential claims and Causes of Action against the other Debtors as part of the comprehensive settlement embodied in the Plan. For the same reasons that the Debtors and the Committee have determined to settle any potential claims and Causes of Action against Abra, they have determined that claims and Causes of Action by one Debtor against another Debtor relating to the same potential claims and Cause of Action and the costs of litigation associated therewith are not likely to yield greater recoveries for the Debtors’ estates and general unsecured creditors than the settlement embodied in the Plan. In addition, the settlement of potential claims and Causes of Action between Debtors facilitates the allocation of settlement value amongst the holders of General Unsecured Claims. Each of the Releasing Parties, including the Debtors, are releasing potential claims and Causes of Action against the Reorganized Debtors as the successors in interest to the Debtors and to avoid unnecessary and nuisance claims against the Reorganized Debtors for claims that have already been settled under the Plan. Releasing the Reorganized Debtors will reduce administrative costs that otherwise impact the value of the Reorganized Debtors and their future debt and equity holders—which are comprised of the Debtors’ current creditors.
Finally, the release of the Related Parties of each of the foregoing is justified because these parties will only be granting releases in their capacity as a party with a specified relationship to one of the Released Parties, and not in their individual capacities, in order to ensure that the releases for the Released Parties are not circumvented through the assertion of a claim against a technically but not substantively different party. The Released Parties act, and therefore provide the valuable consideration they provide, through their employees or agents (i.e., Related Parties). Thus, not only is the release of the Related Parties necessary to ensure parties that helped negotiate the various agreements reached with the Released Parties are not exposed to liability due to those positive efforts, but the above entities also required such release as a condition to agreeing to the terms of the Plan. Without releases for the Related Parties of the named Released Parties, Released Parties are exposed to an end-run on liability on account of their Related Parties who have otherwise been released for essentially the same causes of action. Absent releases of the Related Parties, the releases of the Released Parties may be rendered meaningless.
The Third-Party Release was negotiated in good faith in connection with the Plan Support Agreement, constitutes a sound exercise of the Debtors’ business judgment, and is an inextricable component of the Plan Support Agreement and the settlement embodied in the Plan. The Debtors believe that the proposed Third-Party Release is reasonable and in the best interests of their estates
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in light of the complex issues in these Chapter 11 Cases and the benefit they will provide to the Debtors on a go-forward basis.
THE DEADLINE TO OPT OUT OF THE THIRD-PARTY RELEASE IS MAY 12, 2025 AT 4:00 P.M. (PREVAILING EASTERN TIME).
3. | Exculpation |
In addition to the releases, Article IX.F of the Plan provides for the exculpation of the Exculpated Parties, which includes (i) estate fiduciaries (the Debtors, Reorganized Debtors, the Committee and its members, and the General Unsecured Claim Observer), (ii) certain prepetition trustees and agents, (iii) the Ad Hoc Group of Abra Noteholders and Elliott, (iv) the DIP Agent and DIP Trustee, (v) Related Parties of the foregoing to the extent provided in section 1125(e) of the Bankruptcy Code, and (vi) each other Consenting Stakeholder under the Plan Support Agreement and their Related Parties to the extent provided in section 1125(e).[21] The exculpation provision covers actions directly related to the Debtors’ restructuring and excludes claims arising from (i) post-Effective Date obligations or liabilities other than in connection with implementation of the Plan, and (ii) any acts or omissions conclusively determined to constitute willful misconduct, fraud, or gross negligence.
The exculpation provides necessary and customary protections to those parties in interest (whether estate fiduciaries or otherwise) whose efforts were and continue to be vital to these Chapter 11 Cases and formulating and implementing the Plan. Indeed, the exculpation provision represents an integral piece of the Plan and is the product of good-faith, arm’s-length negotiations and significant involvement in these Chapter 11 Cases by non-Debtor Exculpated Parties. These Chapter 11 Cases could not have progressed as quickly and as productively absent the significant contributions of the Exculpated Parties, whose efforts were, and continue to be, instrumental to the success of the Debtors’ efforts culminating in the Plan.
The Debtors submit that the exculpation provision is appropriate because the Exculpated Parties have participated in the Chapter 11 Cases in good faith, and such provision is necessary to protect them from collateral attacks related to good-faith acts or omissions in connection with these Chapter 11 Cases and the Plan. For instance, the Debtors acted as estate fiduciaries, successfully operated their business during the pendency of the Chapter 11 Cases, developed and negotiated restructuring transactions with their key stakeholders throughout their capital structure that preserve the value of the Debtors’ business, and were integrally involved in the negotiations that
[21] | The Plan defines “Exculpated Parties” as, collectively, and in each case in their capacities as such: (i)(a) the Debtors, (b) the Reorganized Debtors, (c) the Committee and its members, (d) the General Unsecured Claim Observer, (e) the Ad Hoc Group of Abra Noteholders and Elliott, (f) the Abra Notes Agents, (g) the DIP Agent and the DIP Trustee, (h) the 2024 Senior Exchangeable Notes Trustee, the 2025 Senior Notes Trustee, and the Perpetual Notes Trustee, and (i) Abra; (ii) with respect to each of the Entities and Persons in clause (i), all of such Entities’ and Persons’ Related Parties, solely to the extent such Related Parties are fiduciaries of the Estates or otherwise to the fullest extent provided for pursuant to section 1125(e) of the Bankruptcy Code; and (iii) each other Consenting Stakeholder, its Affiliates, and each of its and their respective Related Parties; provided, that with respect to the Entities and Persons in clause (iii), any exculpations provided under the Plan or the Confirmation Order shall be granted only to the extent provided in section 1125(e) of the Bankruptcy Code. |
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culminated in the Plan. The Committee, as an estate fiduciary, and its members conducted an exhaustive investigation of prepetition transactions, negotiated for significant distributions to unsecured creditors through the Plan Support Agreement, and ensured fair treatment across different classes of unsecured claims. As described in more detail in Section VI.F.3 herein, the General Unsecured Claim Observer will work to ensure that General Unsecured Claims are not allowed in too high an amount in order to maximize value of all other holders of Allowed General Unsecured Claims. The holders of the DIP Facility Claims, the Ad Hoc Group of Abra Noteholders, and Elliott provided critical postpetition financing at the outset of these Chapter 11 Cases, agreed to extend the DIP Facility maturity date without charging a fee, and participated in negotiations around the extension of the Challenge Period on multiple occasions. In addition, the Ad Hoc Group of Abra Noteholders and Elliot have provided their support throughout these cases for the various restructuring transactions, including the Tax Settlement Agreement entered into by the Debtors during these Chapter 11 Cases, without which the Debtors might otherwise have been in breach of the DIP Facility. The DIP Agent and the DIP Trustee managed the administration of the DIP Facility, which provided the financing the Debtors needed to maintain operations during these Chapter 11 Cases. Similarly, the Abra Notes Agents, the 2024 Senior Exchangeable Notes Trustee, the 2025 Senor Notes Trustee, and the Perpetual Notes Trustee all represented the interests of diverse bondholders in a large and complex restructuring. Each of the Agents/Trustees and the Reorganized Debtors will be responsible for making distributions under the Plan and for the Plan’s implementation. Abra has actively supported the Plan and the Debtors’ broader restructuring, having negotiated in good faith with the Debtors and the Committee, agreeing to the settlement and compromise of its Claims contained in the Plan, including its agreement to equitize a significant portion of its prepetition secured Claims, facilitating the Debtors’ ability to raise capital, reorganize successfully, and provide meaningful distributions to holders of General Unsecured Claims.
Like the Plan’s release of Related Parties, the exculpation of the Related Parties of the foregoing is warranted to ensure that the exculpation is not undermined by the assertion of a claim against a technically distinct but not substantively different party and in particular, the parties who in most instances were responsible for the decisions, negotiations, and acts taken by the other Exculpated Parties. The exculpation will ensure that the parties through whom the Exculpated Parties act (i.e., the Related Parties) also receive the benefit of the exculpation as a result.
4. | Injunction |
Article IX.G of the Plan provides for an injunction that applies to all holders of Claims and Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, affiliates, and Related Parties. The injunction enjoins these parties from acting to collect discharged debts, interfering with the implementation of the Plan, or taking similar actions.
The Plan’s injunction provision states that any person or entity that holds a Claim or an Interest that has been released, discharged, or that is subject to exculpation is permanently prohibited, after the Effective Date, from taking any actions to recover or collect any debt or property on account of such a Claim or an Interest. It further provides that by accepting distributions under the Plan, each holder of a Claim or an Interest extinguished, discharged, or
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released shall be deemed to have consented to being bound by the Plan, including the injunctions set forth in Article IX.G.
The injunction provision set forth in Article IX.G of the Plan implements the Plan’s discharge, release, and exculpation provisions by permanently enjoining persons and entities from, among others, commencing or maintaining any action against the Debtors, the Reorganized Debtors, and the other Released Parties and Exculpated Parties on account of Claims or Interests that were discharged, released, exculpated, or settled under the Plan. The Plan’s injunction is necessary and narrowly tailed to effectuate and implement the Debtors’ discharge under the Bankruptcy Code and to preserve and enforce the Debtor Release, the Third-Party Release, and the Plan’s exculpation of the Exculpated Parties. In addition, the Debtors intend to provide each holder of a Claim or an Interest with a notice that contains, in bold font, the express language of the Debtor Release, the Third-Party Release, and the Plan’s exculpation and injunction provisions. As such, to the extent the Bankruptcy Court finds that the Plan’s release and exculpation provisions are appropriate, the Bankruptcy Court should approve the Plan’s injunction provision.
SECTION
IX.
Risk Factors
Before voting to accept or reject the Plan, Eligible Holders should read and carefully consider the Plan and all of the information in this Disclosure Statement, including the risk factors set forth in this Section IX and all other information that this Disclosure Statement refers to or incorporates.
The risks described in this Section IX should not be regarded as the only risks associated with the Plan or its implementation. Additional risk factors identified in the Debtors’ public filings with the SEC may also be relevant and should be reviewed and considered in conjunction with this Disclosure Statement. New risks may emerge, and it is impossible to predict all such risks and uncertainties.
A. | Bankruptcy Law Considerations |
The Debtors cannot predict how much time will be required to implement the Plan.
Lengthy chapter 11 cases could disrupt the Debtors’ business, impair prospects for reorganization, and may result in other plans to be proposed.
The Debtors cannot predict how quickly they will be able to emerge from chapter 11 or how disruptive prolonged Chapter 11 Cases may be to their business. If the Debtors are unable to obtain confirmation of the Plan for any reason, the Debtors may be forced to operate in chapter 11 for an extended period while trying to develop a different chapter 11 plan that can be confirmed.
The Debtors cannot assure parties in interest that the Plan will be confirmed, and even after confirmation of the Plan, it is impossible to predict with certainty the amount of time that will be needed to implement the complex transactions that the Plan anticipates. Significant delay may result in the termination of the Plan Support Agreement or the DIP Facility due to missed milestones (including maturity dates and/or outside dates), other termination events, or other applicable events of default, to the extent that the Debtors are unable to obtain waivers or
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amendments from the relevant consenting stakeholders or lenders. Moreover, the Bankruptcy Code limits the time during which the Debtors will have the exclusive right to file a plan before other parties in interest are permitted to file alternative plans.
Delayed chapter 11 cases may also result in additional expenses and divert the attention of management from the operation of the business, as well as create concerns for personnel, vendors, suppliers, service providers, and customers. Even if the Plan is confirmed, the Chapter 11 Cases have adversely affected the Debtors’ relationships with key customers and employees.
The Debtors may be unable to obtain confirmation of the Plan.
Although the Debtors believe that the Plan satisfies all requirements for confirmation (including the “cramdown” requirements), there can be no assurance that the Bankruptcy Court will reach the same conclusion. Modifications to the Plan may be required, and those modifications may be sufficiently material to require re-solicitation of votes on the Plan.
If the Plan is not confirmed, there can be no assurance that the Chapter 11 Cases will continue; the Chapter 11 Cases may instead be converted to liquidation cases under chapter 7 of the Bankruptcy Code. Likewise, there can be no assurance that any alternative chapter 11 plan or plans will be on terms as favorable to the holders of Claims and Interests as the terms of the Plan. If a liquidation or a protracted reorganization occurs, there is a substantial risk that the Debtors’ going concern value will be substantially eroded to the detriment of all stakeholders. See Section XIV.A of this Disclosure Statement, as well as the Liquidation Analysis attached as Exhibit C, for a discussion of the effects that a chapter 7 liquidation may have on recoveries.
The Effective Date may not occur.
As discussed in further detail in Section IX.B, the Debtors operate in a highly regulated industry. As a result, the Restructuring Transactions may be subject to a number of governmental and regulatory consents and approvals, which may not be obtained prior to the anticipated Effective Date. The Debtors expect that the transactions contemplated under the Plan may require review under the antitrust laws of certain jurisdictions. Although the Debtors believe that the Effective Date will occur soon after the Confirmation Date and that there is not a material risk that the Debtors will not be able to obtain the necessary governmental and regulatory consents and approvals (including antitrust approvals), there can be no assurance as to the occurrence or timing of the Effective Date.
The Effective Date is also subject to certain conditions precedent set forth in Article X of the Plan. Failure to meet any of these conditions could prevent the Effective Date from occurring.
If the Effective Date does not occur, the Plan will be null and void in all respects and the Confirmation Order may be vacated. In that case, no distributions will be made under the Plan, the Debtors and all holders of Claims and Interests will be restored to the status quo ante immediately prior to Confirmation, and the Debtors’ obligations with respect to Claims and Interests will remain unchanged.
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The DIP Facility may be terminated.
If the Chapter 11 Cases take longer than expected to conclude, the Debtors may exhaust or lose access to the DIP Facility, which is currently set to mature on June 8, 2025, subject to one additional extension to July 29, 2025 upon the payment of an extension fee. Unless the Debtors receive necessary waivers, are eligible to (and elect to) extend the maturity date of the DIP Facility pursuant to its terms, or are able to refinance the DIP Facility, all Claims under the DIP Facility will become due and payable. If that were to occur, the Debtors also would lose access to the use of cash collateral and factoring. There is no assurance that the Debtors will be able to obtain additional financing from the Debtors’ existing lenders or other parties, nor is there any assurance that the Debtors will receive consent from their secured creditors to use their cash collateral or continue factoring in the event that the DIP Facility matures. The liquidity necessary for the orderly functioning of the Debtors’ business may be materially impaired.
Parties in interest may object to the Plan.
Parties in interest could object to either the entirety of the Plan or specific provisions of the Plan. Although the Debtors believe that the Plan complies with all relevant Bankruptcy Code provisions, there can be no guarantee that a party in interest will not file an objection to the Plan or that the Bankruptcy Court will not sustain such an objection.
The Debtors’ ability to confirm, consummate, or enforce the Plan outside of the United States may be challenged.
The Debtors operate largely outside the United States, with most of their assets, directors and officers located outside the United States. The Debtors may be unable to obtain prompt and effective enforcement of the Bankruptcy Court’s orders in the relevant jurisdictions outside the United States, including, but not limited to, Brazil, Argentina, Bolivia, the Dominican Republic, Paraguay, Suriname, and Uruguay.
The Reorganized Debtors may seek to obtain recognition or enforcement of the Plan and the Confirmation Order in jurisdictions outside the United States, including jurisdictions where the Debtors and/or the Reorganized Debtors are organized or conduct operations. Failure to obtain prompt and effective recognition and enforcement could prevent the Reorganized Debtors from implementing the Plan. If the Plan is not given effect outside the United States, the Chapter 11 Cases may be converted into liquidation cases under chapter 7 of the Bankruptcy Code, or the Reorganized Debtors may be otherwise forced to liquidate, dissolve, or attempt reorganization under non-U.S. laws. If the Debtors or Reorganized Debtors fail to obtain recognition and enforcement of the Plan in jurisdictions outside the United States, there is a substantial risk that the Debtors’ going concern value will be substantially eroded to the detriment of all stakeholders.
Although the Debtors believe that sufficient legal grounds exist to give effect to the Plan, the Confirmation Order, and the Restructuring Transactions in the non-U.S. jurisdictions in which the Debtors operate, a third party may nonetheless attempt to take action in a foreign jurisdiction to delay or frustrate confirmation or implementation of the Plan, consummation of the Restructuring Transactions, and/or the compromise of their Claims, which could result in the delay
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or frustration of the confirmation or implementation of the Plan, consummation of the Restructuring Transactions, or otherwise have an adverse effect on the Reorganized Debtors.
The Debtors’ ability to take corporate actions may be subject to applicable non-U.S. law.
To the extent the Reorganized Debtors are required to release liens, grant liens, and/or perfect liens and take other corporate action under the Plan, such actions may be subject to, and required to be performed in accordance, any applicable non-U.S. law. Any corporate action approved under the Plan may, nevertheless, be subject to, and the Debtors, Reorganized Debtors, or applicable third parties may be required to take further actions, including obtaining relevant consents under, applicable non-U.S. law, which may not ultimately be obtained.
Releases, injunctions, and exculpations contained in the Plan may not be approved.
Article IX of the Plan provides for certain releases, injunctions, and exculpations. The releases, injunctions, and exculpations provided in the Plan may be objected to by parties in interest and may not be approved by the Bankruptcy Court. If the releases and exculpations are not approved, certain Released Parties or Exculpated Parties may withdraw their support for the Plan, and the Plan may not be confirmed.
The releases provided to the Released Parties and the exculpation provided to the Exculpated Parties are necessary to the success of the Debtors’ reorganization because the Released Parties and Exculpated Parties have made significant contributions to the Debtors’ reorganization efforts and have agreed to make further contributions to the implementation of the transactions contemplated by the Plan, but only if they receive the full benefit of the Plan’s release and exculpation provisions. As a result, the releases and exculpation are an inextricable component of the Plan Support Agreement and the settlement embodied in the Plan.
The Disputed Claims Reserve may have insufficient shares to satisfy all unliquidated Disputed Claims in full if such Claims are ultimately Allowed.
In the event that the Debtors (i) underestimate the value of Disputed Claims such that the assets of the Disputed Claims Reserve are insufficient to satisfy all the Disputed General Unsecured Claims that have become Allowed and (ii) are unable to have additional shares of New Equity issued to ensure holders of Allowed General Unsecured Claims receive their Pro Rata share of New Equity on the terms set forth in the Plan, holders of Allowed Claims that would otherwise be entitled to such shares may not receive the full value of their recovery.
B. | Risks Associated with the Debtors’ Business and Industry |
The airline industry is highly competitive.
The airline industry is highly competitive, including in the markets in which the Debtors operate. The Company has already faced, and may in the future face, increased competition from existing and new participants in the markets in which it operates, including full-service and low-cost carriers. The air transportation sector is highly sensitive to price discounting and the use of aggressive pricing policies. Other factors, such as flight frequency, schedule availability, brand recognition, and quality of offered services (such as loyalty programs, VIP airport lounges,
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in-flight entertainment, and other amenities) also have a significant impact on market competitiveness. Further, the Brazilian government and regulators could prefer new or existing market participants when granting slots in Brazilian airports in order to promote competition. Thus, there can be no assurance that the Reorganized Debtors will be able to preserve their current market positions.
Fuel prices are volatile.
Aviation fuel is one of the most significant expenses for an airline. Its price is directly influenced by the price of crude oil, which, in turn, is influenced by a wide variety of macroeconomic and geopolitical events beyond the control of the Reorganized Debtors. In particular, hostilities in Eastern Europe and the Middle East could disrupt the supply of crude oil and lead to increased fuel costs.
If the future price of aviation fuel is higher than the prices assumed in the Financial Projections, the financial performance of the Reorganized Debtors could be materially and adversely impacted.
Fluctuations in foreign currency exchange rates may affect the Debtors’ operations.
In the regular course of its operations, the Debtors: (i) are required to maintain U.S. dollar denominated deposits and maintenance reserve deposits under the terms of some of their aircraft operating leases, (ii) incur additional U.S. dollar denominated leases or financial obligations and U.S. dollar denominated indebtedness, (iii) are subject to fuel cost increases linked to the U.S. dollar, and (iv) have recurring sales, investments, and capital expenditures in U.S. dollars, mainly as a result of international routes in South and North America. As such, fluctuations in foreign currency exchange rates between the Brazilian real and the U.S. dollar may significantly and adversely affect the Debtors’ operations.
The Debtors’ business is subject to international regulations.
The airline industry is highly regulated, and the imposition of new or modified regulations can have a significant impact on the Reorganized Debtors. For example, governmental agencies may enact new regulations relating to environmental, safety, security, scheduling, or other industry-related matters. Such new or modified regulations could have a material adverse effect on the Reorganized Debtors’ financial condition and operational results by increasing operating expenses or restricting the Reorganized Debtors’ operations.
The airline industry is particularly sensitive to changes in macroeconomic conditions.
The airline industry in general, and in Brazil in particular, is sensitive to changes in macroeconomic conditions. Unfavorable macroeconomic conditions, a significant decline in demand for air travel, or instability of the credit and capital markets could negatively impact the Reorganized Debtors’ costs, operating results, and financial condition. The Debtors cannot predict macroeconomic developments or their impact on the Reorganized Debtors’ business.
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Technical and operational problems in the Brazilian civil aviation infrastructure, including air traffic control systems, airspace, and airport infrastructure, may adversely affect the Debtors.
The Debtors depend on improvements in the coordination and development of Brazilian and other Latin American airspace control and airport infrastructure, which continue to require substantial improvements and government investments.
If the measures taken and investments made by the Brazilian government and regulatory authorities do not prove sufficient or effective, air traffic control, airspace management, and sector coordination difficulties might reoccur or worsen, which may adversely affect the Reorganized Debtors.
Aviation taxes and fees may be increased.
The airline industry is subject to extensive fees and costs, including taxes (such as ticket tax, passenger tax, and value added taxes), aviation and license fees, and various charges and surcharges (such as take-off charges, emission charges, noise charges, terminal navigation charges, and security charges), which are typically levied on the basis of national legislation and thus vary among countries. These taxes and fees represent a significant part of the Debtors’ operational costs. The Debtors may not be able to reduce the impact of such fees and costs on their financial results by passing them on to passengers. Consequently, the fees and costs could have a significant impact on the Reorganized Debtors’ cash flows, financial condition, and results of operations.
Certain contracts may be subject to change of control provisions.
The Debtors are party to certain contracts that may include change of control provisions. Although such provisions are unenforceable under section 365 of the Bankruptcy Code, in some instances, the Debtors may need to obtain waivers of these provisions from their non-U.S. counterparties so as not to be in default, as non-U.S. counterparties may not abide by U.S. law. However, the receipt of such waivers is not a condition precedent to either confirmation of the Plan or to the Effective Date. If the Debtors or Reorganized Debtors are unable to obtain such waivers where necessary, the consequences could have an adverse effect on the Reorganized Debtors’ operations.
The Debtors are subject to competitive price discounting.
The airline industry is highly competitive and susceptible to price discounting, particularly in the international markets. Despite the improved financial condition of the Reorganized Debtors as a result of the proposed reorganization, the Reorganized Debtors may have difficulty withstanding a prolonged industry recession, fare war, or other unforeseen circumstances or crisis, which may adversely and materially affect their operations and financial performance.
The airline industry experiences seasonal demand fluctuations.
The airline industry tends to be seasonal in nature, and the Company, like other airlines, has historically experienced substantial seasonal fluctuations in demand, earnings, and cash flow. The seasonality effects tend to be larger for leisure travel than business travel. Because a substantial share of the Debtors’ costs are fixed, earnings are disproportionately impacted by the
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fluctuations in revenue levels. There is a risk that measures undertaken to meet seasonal fluctuations in customer demand are not successful or sufficient.
The Debtors currently rely on one manufacturer for their aircraft, and any negative developments relating to Boeing 737 MAX aircraft could materially and adversely affect the Debtors.
One of the key elements of the Debtors’ business strategy is to reduce costs by operating a standardized aircraft fleet. The Debtors derive benefits from a fleet comprised of a standardized type of aircraft while still having the flexibility to match the capacity and range of the aircraft to the demands of each route.
After extensive research and analysis, the Debtors have selected the 737 aircraft manufactured by Boeing, which the Debtors are now, on an accelerated basis, replacing with Boeing 737 MAX aircraft. Operation of the Boeing 737 MAX aircraft are crucial to the Debtors’ strategy and fleet modernization initiatives. There is no assurance that any replacement aircraft would have the same operating advantages. In addition, replacement aircraft may require additional training of pilots and crew, as well as maintenance staff, which could materially affect operations and require the Reorganized Debtors to make significant unexpected expenditures. The Reorganized Debtors’ operations could also be disrupted by the failure or inability of Boeing to provide sufficient parts or related support services on a timely basis.
Following two accidents involving Boeing 737 MAX aircraft, regulators grounded such aircraft in March 2019, and the Company resumed operations of the 737 MAX in November 2020. As the Debtors’ operations have been designed around the single fleet model, if there is any future grounding of the MAX aircraft or if there are additional delays in delivery of ordered aircraft, the Reorganized Debtors may face increased maintenance costs, experience operational disruptions and decreases in customer ratings, be unable to realize expected fuel cost efficiencies, incur increased aircraft lease costs, and risk facing a shortage of available aircraft, which may limit the Reorganized Debtors’ growth plans and the execution of their long-term strategy.
In early 2024, several incidents involving Boeing aircraft occurred globally. Additionally, in the fall of 2024, more than 33,000 machinists at Boeing went on strike, halting the production of Boeing 737, 777, and 767 aircraft for almost two months. This led to additional delays in the delivery of Boeing aircraft. The Debtors’ reliance on a single supplier for aircraft means that any one of these developments or similar events relating to Boeing 737 MAX aircraft would materially and adversely affect the Reorganized Debtors.
Changes in the Brazilian and global airline industry framework may adversely affect the Debtors.
As a result of the competitive environment, there may be further changes in the Brazilian and global airline industry, whether by means of acquisitions, joint ventures, partnerships, or strategic alliances. The Debtors cannot predict the effects of further consolidation on the industry. Consolidation in the airline industry and changes in international alliances will continue to affect the competitive landscape in the industry and may result in the formation of airlines and alliances
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with greater financial resources, more extensive global networks, and lower cost structures than the Debtors can obtain.
The Debtors rely on complex systems and technology, and any operational or security inadequacy or interruption could materially and adversely affect the Debtors.
In the ordinary course of the Debtors’ business, their systems and technology require ongoing modification and refinements, which can be expensive to implement and may divert management’s attention from other matters. In addition, the Debtors operations could be adversely affected, or the Debtors could face regulatory penalties, if they were unable to timely or effectively modify their systems as necessary.
The Debtors have occasionally experienced system interruptions and delays that make their websites and services unavailable or slow to respond, which could prevent them from efficiently processing customer transactions or providing services. This could reduce the Debtors’ net revenue and the attractiveness of their services. The Debtors’ computer and communications systems and operations could be damaged or interrupted by catastrophic events such as fires, floods, earthquakes, power loss, computer and telecommunications failures, acts of war or terrorism, computer viruses, cybersecurity breaches, and similar events or disruptions. Any of these events could cause system interruptions, delays, and loss of critical data, and could prevent the Debtors from processing customer transactions or providing services, which could make the Debtors’ business and services less attractive and subject them to liability. Any of these events could damage the Debtors’ reputation and be expensive to remedy. There can be no assurance that the Debtors will not face issues deriving from their passenger service system or other technology.
Unauthorized access to or release or violation of the Debtors’ or their business partners’ systems and data could materially and adversely affect the Debtors.
The Debtors are subject to a broad range of cyber threats, including attacks, with varying levels of sophistication. These cyber threats are related to the confidentiality, availability, and integrity of the Debtors’ systems and data, including their customers’ and business partners’ confidential, classified, or personal information. In addition, because the Debtors have access to certain information technology systems of certain of their business partners, their systems may be subject to attacks aimed at accessing, tampering with, or exposing their business partners’ systems and data.
In addition, certain of the Debtors’ business partners, including their suppliers, have broad access to certain of the Debtors’ confidential and strategic information. Many of these business partners face similar security threats, and any attacks on their systems could result in unauthorized access to the Debtors’ systems or data. Any unauthorized access to, release, or violation of the Debtors’ systems and data, whether directly or through cyberattacks or similar breaches affecting their business partners, could materially and adversely affect the Debtors, including subjecting them to regulatory scrutiny and fines.
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The Debtors rely on maintaining a high daily aircraft utilization rate to increase revenues and reduce costs.
One of the key elements of the Debtors’ business strategy and an important element of the low-cost carrier business model is to maintain a high daily aircraft utilization rate, which generally allows the Debtors to generate more revenue from their aircraft and dilute fixed costs. High daily aircraft utilization is achieved in part by operating with quick turnaround times at airports so that the Debtors can fly more hours on average in a day. The Debtors’ rate of aircraft utilization could be adversely affected by a number of different factors that are beyond the Debtors’ control, including, among others, air traffic and airport congestion, adverse weather conditions, including as a result of climate change, and delays by third-party service providers relating to matters such as fueling and ground handling.
The Debtors may be adversely affected by events out of their control, including accidents.
Accidents or incidents involving the Reorganized Debtors’ aircraft could result in significant claims by injured passengers and others, as well as significant costs related to the repair or replacement of damaged aircraft and temporary or permanent loss from service. The Debtors are required by Brazilian regulatory authorities and their aircraft lessors under operating lease agreements to carry liability insurance. Although the Debtors believe they maintain liability insurance in amounts and of the type generally consistent with industry practice, the amount of such coverage may not be adequate, and the Reorganized Debtors may be forced to bear substantial losses in the event of an accident. Substantial claims resulting from an accident in excess of the Reorganized Debtors’ related insurance coverage would harm the Reorganized Debtors. Any accidents or incidents involving the Debtors’ or any other Boeing 737 Next Generation or Boeing 737-8 MAX aircraft or the aircraft of any major airline have and may again cause negative public perceptions about the Reorganized Debtors, and, consequently, adversely affect the Reorganized Debtors’ business.
C. | Other Risks Related to Operations |
The Debtors may be subject to labor disputes.
The Debtors have various collective bargaining agreements with their employees. There can be no assurance that major disputes, including disputes with any collective bargaining representatives of the Reorganized Debtors’ employees, will not arise in the future. Those disputes and the costs associated with their resolution could adversely affect the Reorganized Debtors’ operations and financial performance.
The Debtors’ business could suffer from the loss of key personnel.
The Debtors are dependent on the continued services of their senior management team and other key personnel. The loss of key personnel could have a material adverse effect on the Reorganized Debtors’ business, financial condition, and results of operations. The Debtors may be unable to retain and motivate key executives and employees through the process of reorganization, and the Reorganized Debtors may have difficulty attracting new employees. In addition, so long as the Chapter 11 Cases continue, senior management will be required to spend
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a significant amount of time and effort dealing with the reorganization instead of focusing exclusively on business operations.
Pursuit of litigation by parties in interest could disrupt the confirmation of the Plan and could have material adverse effects on the Debtors’ business and financial condition.
The pursuit of litigation in connection with objections to this Disclosure Statement or the Plan, including the effectiveness and effect of the steps required for the implementation of the Plan, could delay and disrupt confirmation of the Plan and the Debtors’ emergence from bankruptcy.
In addition, there can be no assurance that parties in interest will not pursue litigation strategies to enforce Claims against the Debtors in non-U.S. jurisdictions that may be less likely to recognize orders of the Bankruptcy Court. Litigation is by its nature uncertain and there can be no assurance of the ultimate resolution of the litigated Claims.
Any litigation may be expensive, lengthy, and disruptive to the Debtors’ or Reorganized Debtors’ normal business operations and the Plan confirmation process, and a resolution of any litigation that is unfavorable to the Debtors could have a material adverse effect on the Plan confirmation process, emergence from bankruptcy, or on the Debtors’ or Reorganized Debtors’ business, results of operations, financial condition, liquidity, and cash flow.
The Debtors are reliant upon suppliers and other third parties.
As is increasingly standard for the airline industry, the Debtors are dependent upon the services of suppliers and other third parties, such as aircraft manufacturers, airport operators, information technology service providers, maintenance support providers, ground services, aircraft leasing companies, and distributors, including travel agencies. Some of the Debtors key suppliers operate in a concentrated market, which makes finding equivalent suppliers on short notice and on commercially reasonable terms challenging.
A significant interruption, whether temporary or permanent, in the provision of any such services, an inability to renew or renegotiate contracts with third-party providers on commercially reasonable terms, or action by regulatory bodies having jurisdiction over suppliers would have an adverse impact on the or Reorganized Debtors’ business, financial condition, and results of operations.
Adverse publicity in connection with the Chapter 11 Cases or otherwise could negatively affect the Debtors’ business.
Adverse publicity or news coverage relating to the Debtors, including but not limited to publicity or news coverage in connection with the Chapter 11 Cases, may negatively affect the Debtors’ business during the Chapter 11 Cases and the Reorganized Debtors’ efforts to establish and promote name recognition and a positive image after the Effective Date.
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Any damage to the Debtors’ brand name and reputation would negatively affect the Debtors’ business.
The Debtors’ brand name and reputation have significant commercial value, and the Debtors rely on positive brand recognition as part of their overall business model. Any damage to the Debtors’ brand name or reputation likely would have a negative impact on the Reorganized Debtors’ ability to market their services and retain customers and employees. Events that risk bringing damage to the Debtors’ brand or reputation include noncompliance with laws and regulations, internal rules and policies, labor unrest, aircraft accidents, legal proceedings and investigations, unsatisfied customers, poor working conditions, significant operational disruptions and interruptions, and a failure to achieve communicated sustainability targets, satisfy evolving customer expectations, and comply with emission regulations.
Risks related to credit card fraud, cyber-crimes, and hold-backs could adversely affect the Debtors’ business.
A large portion of the Debtors’ ticket sales are purchased on the Debtors’ own website through credit card payments, thereby presenting risks related to credit card fraud and other cyber-crimes. If credit card details and other personal data pertaining to the Debtors’ customers were hacked in connection with such ticket sales, there would be a risk that such a breach may harm customer confidence in the Debtors and result in potential liabilities owed to credit card companies. Furthermore, there is a risk that payments of the Debtors’ tickets are made with credit cards acquired through fraud or crime, presenting a risk that the Debtors may need to refund such payments to the cardholder or credit card company. The degree to which risks relating to credit fraud and other crimes may affect the Debtors is uncertain and presents a significant risk to the Debtors’ reputation and business.
Under the contractual agreements in place between the Debtors and applicable credit card companies, the credit card companies may decide to forward a portion of the payment to the Debtors upon booking and the remaining part at a later time. Accordingly, there is a risk that credit card companies may hold-back payments to the Debtors or Reorganized Debtors, as applicable, and subsequently increase any such hold-back, thereby negatively affecting the Debtors’ or Reorganized Debtors, as applicable, cash flow.
D. | Risks Relating to Brazil |
The Debtors are subject to the Brazilian government’s influence over the Brazilian economy.
The Brazilian government has frequently intervened in the Brazilian economy and has occasionally made drastic changes in policy and regulations. The Brazilian government’s actions to control inflation and other policies and regulations have involved, among other measures, increases in interest rates, changes in tax and social security policies, price controls, currency exchange and remittance controls, devaluations, capital controls and limits on imports. The Reorganized Debtors may be adversely affected by changes in policy or regulations at the federal, state, or municipal level including, but not limited to, interest rates, currency fluctuations, monetary policies, inflation, liquidity of capital and lending markets, tax and social security
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policies, labor regulations, energy and water shortages and rationing, and other political, social, and economic developments in or affecting Brazil.
Political instability may adversely affect the Debtors.
The Brazilian economy has been and continues to be affected by political events in Brazil, which have also affected the confidence of the public, adversely affecting the performance of the Brazilian economy.
Brazilian markets have experienced heightened volatility due to uncertainties from investigations carried out by the Brazilian Federal Police and the Office of the Brazilian Federal Prosecutor related to allegations of money laundering, corruption, and misconduct by government officials and legal entities and individuals from the private sector. These investigations have adversely affected the Brazilian economy and political environment. The Debtors cannot predict future developments in these investigations nor whether such investigations or new allegations will result in further political and economic instability, which could adversely affect the Reorganized Debtors’ business.
Political bipolarization between the left and right wings of the Brazilian government tends to enhance political instability, which could adversely affect the economy and therefore the Reorganized Debtors’ business. The president of Brazil has the power to determine policies and issue governmental acts related to the Brazilian economy that affect operations and financial performance of Brazilian companies.
Uncertainty regarding political developments and the policies the Brazilian federal government may adopt or alter may have material adverse effects on the macroeconomic environment in Brazil, as well as on the operations and financial performance of the Reorganized Debtors. The Debtors cannot predict which policies the newly elected president will adopt or if these new policies or changes in current policies may have an adverse effect on the Brazilian economy or the Reorganized Debtors.
Government efforts to combat inflation may materially and adversely affect the Debtors.
Historically, Brazil has experienced high rates of inflation, which, together with actions taken by the Central Bank to curb inflation, have had significant adverse effects on the Brazilian economy. Inflation and the Brazilian government’s measures to curb it, principally the Central Bank’s monetary policy, may have significant effects on the Reorganized Debtors. In addition, the Reorganized Debtors may not be able to adjust the fares charged to customers to offset the effects of inflation on the Reorganized Debtors’ cost structure.
Exchange rate volatility may materially and adversely affect the Debtors.
The Brazilian currency has, during the last decades, experienced frequent and substantial variations in relation to the U.S. dollar and other foreign currencies. The Debtors are required to maintain U.S. dollar denominated deposits and reserves under the terms of some of their aircraft operating leases. The Reorganized Debtors may incur substantial additional amounts of U.S. dollar denominated leases or financial obligations and U.S. dollar denominated indebtedness. They will also be subject to fuel cost increases linked to the U.S. dollar. While in the past the
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Debtors have generally adjusted fares in response to, and to alleviate the effect of, depreciation of the real against the U.S. dollar and increases in the price of jet fuel (which is priced in U.S. dollars) and have entered into hedging arrangements to protect themselves against the short-term effects of such developments, there can be no assurance that the Reorganized Debtors will be able to continue to do so.
Depreciation of the real against the U.S. dollar creates inflationary pressures in Brazil and causes increases in interest rates, which adversely affects the growth of the Brazilian economy as a whole, curtails access to foreign financial markets, and may prompt government intervention, including recessionary governmental policies. Depreciation of the real against the U.S. dollar has also, as in the context of an economic slowdown, led to decreased consumer spending, deflationary pressures, and reduced growth of the economy as a whole. Depending on the circumstances, either depreciation or appreciation of the real could materially and adversely affect the Reorganized Debtors.
Any changes in tax law, tax reforms, or review of the tax treatment of the Debtors’ activities may adversely affect the Debtors’ operations and profitability.
The Brazilian government regularly proposes changes to the tax regime applicable to different sectors of the economy, including changes that increase the Debtors’ tax burden and the tax burden of the Debtors’ customers and suppliers, which can negatively impact the Reorganized Debtors’ business. These changes include changes in tax rates, tax base, tax deductibility, and, occasionally, the creation of taxes (temporary or non-temporary). If these changes directly or indirectly increase the Reorganized Debtors’ tax burden, the Reorganized Debtors may have their gross margin reduced, adversely affecting their business, financial condition, and results of operations.
Brazil is currently undergoing significant tax reform that involves both direct and indirect taxation. The indirect tax reform has advanced through Constitutional Amendment No. 132/2023 (“EC 132”), which replaces several existing taxes on goods and services—such as State VAT (ICMS), Federal Excise Tax (IPI), Municipal Service Tax (ISS), and Social Contributions on Gross Revenue (PIS/Cofins)—with three new taxes: the Goods and Services Tax (IBS), the Contribution on Goods and Services (CBS), and the Excise Tax (IS). The transition to this new system is expected to be gradual, with full implementation anticipated by 2033. The Brazilian congress is actively debating complementary legislation to define the framework for these new taxes, which could impact the Reorganized Debtors’ business environment.
On the direct tax front, reforms are being implemented incrementally. New legislation has introduced changes to individual and corporate income tax rules, and further significant reforms are expected in the near future.
Additionally, Brazil has taken steps to align with international tax standards. The government has adopted a new transfer pricing system in line with Organisation for Economic Co-operation and Development (“OECD”) guidelines and initiated the implementation of Pillar 2 of the OECD/G20 Inclusive Framework. The Qualified Domestic Minimum Top-up Tax (QDMTT) is expected to be effective starting in 2025, subject to congressional approval. These
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changes could further increase the Reorganized Debtors’ compliance obligations and financial burden.
Given the scope and ongoing nature of these reforms, there remains uncertainty about their full impact on the Reorganized Debtors, particularly as transitional rules and detailed legislation continue to evolve.
E. | Risks Related to Existing GLAI Equity Interests |
Existing GLAI Equity Interests will be significantly diluted.
On or prior to the Effective Date, there will be a shareholders’ meeting to take the appropriate and necessary steps at GLAI in accordance with the Transaction Steps, to effectuate the capital increase of GLAI, with the issuance of equity interests and the corresponding GLAI Preemptive Rights Offering. As a result of the exchange of debt for New Equity and the GLAI Preemptive Rights Offering contemplated under the Plan, Existing GLAI Equity Interests will be significantly diluted, and it is expected that Existing GLAI Equity Interests will retain de minimis value, if any, following the implementation of the Plan and the Transaction Steps. Holders of Existing GLAI Equity Interests may dispute, among other things, the terms of GLAI’s capital increase in connection with the capitalization and may pursue litigation. Such litigation could cause the Effective Date to be delayed. Additionally, if the holders Existing GLAI Equity Interests prevail in such litigation, modifications to the Plan could be required.
F. | Risks Related to Ownership of New Equity |
A liquid trading market for the New Equity may not develop.
There can be no assurance as to the development or liquidity of any market for the New Equity. In the event an active trading market does not develop, the ability to transfer or sell New Equity may be substantially limited and its price may be negatively impacted. It is currently contemplated that New GOL Parent will not list the New Equity on any securities exchange on the Effective Date. There can be no assurance that an active trading market for the New Equity will develop, nor can any assurance be given as to the prices at which the New Equity might be traded, even if an active trading market develops. Accordingly, holders of the New Equity may not be able to sell New Equity at a particular time or at favorable prices, and may be required to bear certain risks associated with holding securities for an indefinite period of time.
The New Equity may be subject to restrictions on transfers.
To the extent that New Equity issued under the Plan is covered by section 1145(a)(1) of the Bankruptcy Code, such securities may be resold by the holders thereof without registration under the Securities Act unless the holder is an “underwriter,” as defined in section 1145(b) of the Bankruptcy Code with respect to such securities. Any New Equity issued to an entity that is an “underwriter,” as defined in section 1145(b) of the Bankruptcy Code, will be “restricted securities,” and resales by holders deemed to be “underwriters” would not be exempted by section 1145 of the Bankruptcy Code from registration under the Securities Act or applicable law. Accordingly, such securities may only be resold, exchanged, assigned, or otherwise transferred pursuant to
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registration or an applicable exemption from registration under the Securities Act and other applicable law.
In addition, the New Equity will not be freely tradable if, at the time of a transfer, the holder is an “affiliate” of the Reorganized Debtors as defined in Rule 144(a)(1) under the Securities Act or had been such an “affiliate” within ninety days of the transfer. “Affiliate” holders will be permitted to sell New Equity without registration only if they comply with an exemption from registration, including Rule 144 under the Securities Act.
The New Equity will not be registered under the Securities Act or any other securities laws, and the Debtors make no representation regarding the right of any holder to freely resell securities.
The terms of the New Organizational Documents are expected to contain prohibitions on the transfer of the New Equity to the extent such transfer would subject the Reorganized Debtors to the registration and reporting requirements of the Securities Act and the Securities Exchange Act.
Additionally, applicable holders that receive their rights to receive the General Unsecured Claimholder Escrowed Shares through DTC will not be permitted to trade their right to receive the General Unsecured Claimholder Escrowed Shares. To the extent that any applicable holder receives its New Equity outside of DTC, it will also receive its right to General Unsecured Claimholder Escrowed Shares outside of DTC, and, in that case, the New Equity and the right to receive General Unsecured Claimholder Escrowed Shares may only be traded together and may not be traded separately. Any such separate trade will be considered void by the Debtors and Reorganized Debtors, as applicable, and will not be registered in the applicable registers.
The New Equity may become diluted.
The ownership percentage represented by the New Equity distributed on the Effective Date will be subject to dilution by (i) any Incremental New Money Equity, (ii) any New Equity issued after the Effective Date, including in connection with the Management Incentive Plan, upon exchange of the Exchangeable Take-Back Notes, and upon exchange of any Incremental New Money Exchangeable Debt, and (iii) the conversion or exchange of any other exchangeable securities, options, warrants, exercisable securities, or other securities. The dilutive effect of any of the foregoing could be material.
Ownership of the New Equity may be concentrated in the hands of a limited number of holders.
The Debtors expect that certain holders of Claims will acquire a significant ownership interest in the New Equity pursuant to the Plan. Such holders may be in a position to control the outcome of all actions requiring stockholder approval, including the election of directors, without the approval of other shareholders. This concentration of ownership could also facilitate or hinder a negotiated change of control of the Reorganized Debtors and may consequently affect the value of the New Equity. Further, the possibility that one or more holders of significant numbers of shares of New Equity may sell all or a large portion of their shares in a short period of time may adversely affect the market price of the New Equity.
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Abra, which will acquire a significant ownership interest in the New Equity—approximately 76-81% as of the Effective Date, which amount is subject to dilution and varies as set forth in Section I.B—and certain of the New Debt, may be required to pledge any New Equity and New Debt it receives pursuant to the Plan to secure its financial obligations to its own secured creditors. In the event of an enforcement action over the New Equity or the New Debt, Abra’s secured creditors may be in position to exercise all rights of ownership with respect to the New Equity and New Debt, and such creditors’ objectives as owners of the New Equity and New Debt may differ from those previously pursued by Abra.
Certain holders of Claims, including Abra, that are expected to acquire a significant ownership interest in the New Equity may currently own, or may in the future acquire, direct or indirect interests in other airlines or other companies in the aviation industry. Such holders, together with other significant holders of New Equity, may be in a position to control stockholder approval of any transactions between the Reorganized Debtors and such other industry participants.
Equity interests will be subordinated to the Reorganized Debtors’ indebtedness.
In any subsequent reorganization, liquidation, dissolution, or winding up of the Reorganized Debtors, the New Equity would rank below all debt claims against the Reorganized Debtors. As a result, holders of the New Equity will not be entitled to receive any payment or other distribution upon the reorganization, liquidation, dissolution, or winding up of the Reorganized Debtors until after all the Reorganized Debtors’ obligations to their debt holders have been satisfied.
Implied valuation of New Equity is not intended to represent trading value of New Equity.
The valuation of the Reorganized Debtors is not intended to represent the trading value of New Equity in public or private markets and is subject to additional uncertainties and contingencies, all of which are difficult to predict. Actual market prices of such securities at issuance will depend upon, among other things: (i) prevailing interest rates; (ii) conditions in the financial markets; (iii) the anticipated initial securities holdings of prepetition creditors, some of whom may prefer to liquidate their investment rather than hold it on a long-term basis; and (iv) other factors that generally influence the prices of securities. The actual market price of the New Equity is likely to be volatile. Many factors, including factors unrelated to the Reorganized Debtors’ actual operating performance and other factors not possible to predict, could cause the market price of the New Equity to rise and fall. Accordingly, the implied value, stated herein and in the Plan, of the New Equity to be issued does not necessarily reflect, and should not be construed as reflecting, values that will be attained for these securities in the public or private markets.
The Reorganized Debtors have no intention to pay dividends.
The Reorganized Debtors may not pay any dividends on the New Equity and may instead retain any future cash flows for debt reduction and to support their operations. As a result, the success of an investment in the New Equity may depend entirely upon any future appreciation in the value of the New Equity. There is, however, no guarantee that the New Equity will appreciate in value or even maintain their initial value.
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The Reorganized Debtors and New GOL Parent may not be subject to reporting under the Exchange Act.
While GLAI is currently a public reporting company under section 12(g) of the Exchange Act, it is currently contemplated that neither the Reorganized Debtors nor New GOL Parent will be subject to the reporting requirements of section 13 or 15(d) of the Exchange Act. However, it is possible that a Reorganized Debtor and/or New GOL Parent may be a reporting company under the Exchange Act. As such, there may be a period after emergence from chapter 11 during which a Reorganized Debtor and/or New GOL Parent are subject to the reporting requirements of section 13 or 15(d) of the Exchange Act. There can be no assurance that any of the Reorganized Debtors or New GOL Parent will be reporting companies after emergence from chapter 11. If neither the Reorganized Debtors nor New GOL Parent are subject to reporting requirements under the Exchange Act, holders of the New Equity may receive less information with respect to the Reorganized Debtors’ and New GOL Parent’s business than they would have received if a Reorganized Debtor and/or New GOL Parent were subject to such reporting requirements. Further, any securities issued by the Reorganized Debtors or New GOL Parent to holders of the New Equity will likely be subject to transfer restrictions.
The Reorganized Debtors may be a private company.
The Plan will not require the Reorganized Debtors to continue to be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, and it is currently contemplated that the Reorganized Debtors will not be subject to the reporting requirements of section 13 or 15(d) of the Exchange Act. While there may be a period after emergence from chapter 11 during which the Reorganized Debtors are subject to the reporting requirements of section 13 or 15(d), there can be no assurance that the Reorganized Debtors will continue to be reporting companies. If the Reorganized Debtors cease to be subject to reporting requirements under the Exchange Act, holders of the New Equity may receive less information with respect to the Reorganized Debtors’ business than they would have received if the Reorganized Debtors were subject to such reporting requirements.
The jurisdiction of organization of New GOL Parent is subject to change.
As set forth in the Transaction Steps, it is currently contemplated that New GOL Parent will be organized under the laws of Luxembourg. However, the determination of the jurisdiction of organization of New GOL Parent is subject to change upon agreement by the Debtors, Abra, and the Committee.
New Equity could be held in escrow pending approval from Brazilian antitrust authorities.
As set forth in the Transaction Steps, if any holder of an Allowed General Unsecured Claim or Allowed 2026 Senior Secured Notes Claim that is otherwise entitled to receive New Equity pursuant to the Plan would, following receipt of such New Equity, directly or indirectly, hold 5% or more of the shares of New GOL Parent, New GOL Intermediate Co. (as defined in the Transaction Steps), or Reorganized GLAI, and such holder does not represent to the Debtors and Abra, prior to receiving such shares of New Equity, that its economic group does not directly or indirectly hold control of and/or hold 20% or more of the equity interests (voting or non-voting)
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of a Competing Business,[22] then such holder will have its shares of New Equity held in escrow pending approval from Brazilian antitrust authorities. While such shares are held in escrow, the holder will not be entitled to any voting rights in connection therewith, and any economic rights attributed to such shares of New Equity will also be held in escrow to be paid to the holder together with the delivery of such escrowed shares once approval for the distribution of such New Equity is obtained from the applicable Brazilian antitrust authorities.
Additionally, to ensure that any distribution under the Plan complies with, and would not violate, applicable Brazilian law, including any relevant antitrust laws, the Debtors, the Reorganized Debtors, and the Disbursing Agent may, prior to making any distribution of New Equity under the Plan to any claimant holding Allowed Claims in excess of $500 million, require that such claimant provide the Debtors, Reorganized Debtors, or Disbursing Agent, as applicable, with additional disclosures reasonably necessary for the Debtors or Reorganized Debtors, as applicable, to comply with applicable law. Failure to provide such requested information may result in the holdback of any distribution pending receipt of such information. To the extent that failure to disclose any required information, including failure to make any required representation as set forth in the Transaction Steps, results in violation of any applicable law, such claimant may have their distribution forfeited or, if they have already received a distribution, be held directly liable for violation of such laws as well as be held liable for any damages incurred by the Reorganized Debtors, including any fines and/or penalties imposed on the Reorganized Debtors.
G. | Risks Related to Exit Notes, Incremental New Money Exit Financing, and Other Debt Obligations |
The Debtors’ ability to incur indebtedness under the Exit Notes and the Incremental New Money Exit Financing is subject to several contingencies, such financing arrangements may not become available to the Reorganized Debtors, and the Reorganized Debtors may be unable to remain in compliance with the terms of such financing agreements.
The Debtors may not be able to raise the Exit Notes or the Incremental New Money Exit Financing on the terms set forth in the Plan Support Agreement or at all. There is no assurance that the Debtors will be able to raise the full amount of the Exit Notes or the Incremental New Money Exit Financing, if any.
In addition, the Incremental New Money Exit Financing may be in the form of Incremental New Money Exit Debt, Incremental New Money Equity, and/or Incremental New Money Exchangeable Debt. There is no guarantee as to (i) whether the Incremental New Money Exit Financing will take the form of debt or equity, or (ii) what percentage of equity, if any, the Incremental New Money Equity or any New Equity issued upon conversion of any Incremental New Money Exchangeable Debt will represent. Further, the Incremental New Money Equity may exceed $330 million if so agreed by the Debtors, Abra, and the Committee.
[22] | “Competing Business” means companies that (i) compete with Reorganized GLAI and its
subsidiaries in Brazil or abroad in air cargo or passenger transportation; (ii) compete with Reorganized GLAI and its subsidiaries in
Brazil in loyalty programs, aircraft chartering or tourism/travel intermediation (i.e., travel agencies); and (iii) are vertically related (i.e., clients or suppliers) to the sector or markets mentioned in items (i) and (ii) above. |
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Additionally, the Debtors’ ability to incur the Exit Notes or the Incremental New Money Exit Financing will be subject to the satisfaction of certain conditions precedent. The definitive documentation for the Exit Notes and Incremental New Money Exit Financing, if any, will include various conditions to closing, and Debtors cannot give assurances that they will be able to meet or otherwise obtain waivers to such conditions.
If the Debtors cannot satisfy such conditions precedent, if such conditions precedent are not otherwise waived, or if the Debtors are unable to raise the Exit Notes or the Incremental New Money Exit Financing in sufficient amounts, the Effective Date could be significantly delayed or may not occur, or the Debtors’ ability to consummate the Plan could otherwise be materially and adversely affected.
Furthermore, the terms of the definitive documentation for the Exit Notes or the Incremental New Money Exit Financing, if any, remain subject to ongoing negotiation, and certain material terms of the Exit Notes and Incremental New Money Exit Financing have yet to be agreed. If the Debtors cannot obtain sufficiently favorable terms for the Exit Notes or the Incremental New Money Exit Financing, the Debtors’ ability to consummate the Plan could be materially and adversely affected.
The Exit Notes and the Incremental New Money Exit Financing, if any, will contain restrictive covenants which will impose certain restrictions on the ability of the Reorganized Debtors to conduct their business. Any inability of the Reorganized Debtors to remain in compliance with covenants or to comply with other conditions under the Exit Notes and the Incremental New Money Exit Financing, if any, could materially and adversely affect the Reorganized Debtors’ ability to operate their business.
Defects may exist in the collateral securing the New Debt, and it may be difficult for lenders under the New Debt to realize the value of the collateral.
The indebtedness under the Exit Notes, the Take-Back Notes, the Amended Glide Notes, the Amended Debentures, the Amended Safra Notes, and, if applicable, the 2026 Alternative Notes, the Incremental New Money Exit Debt, and the Incremental New Money Exchangeable Debt (collectively, the “New Debt”) will be secured, subject to certain exceptions and permitted liens, by security interests in certain property (the “Collateral”). The Collateral securing the New Debt may be subject to exceptions, defects, encumbrances, liens, and other imperfections, and the security interests of lenders in any after-acquired assets may also not be perfected in a timely manner or at all. The existence of any such exceptions, defects, encumbrances, defects, encumbrances, liens, and other imperfections could adversely affect the value of the Collateral. The ranking of security interests can also be affected by a variety of factors, including, among others, the timely satisfaction of perfection or priority requirements, statutory liens, or characterization under the laws of certain jurisdictions. Material decisions with respect to the enforcement of Collateral and other material decisions with respect to the Collateral may also be primarily controlled by lenders or agents under certain series of New Debt that have priority with respect to the Collateral, or as a result of the terms of intercreditor arrangements or other definitive documentation for such series of New Debt.
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Further, there is no assurance that the proceeds from the sale of the Collateral would be sufficient to repay the holders of the obligations under the New Debt. The fair market value of the Collateral is subject to fluctuations based on factors that include, among others, the ability to sell Collateral in an orderly manner, general economic conditions, the availability of buyers, the Reorganized Debtors’ failure to implement their business strategy, and similar factors. The amount received upon a sale of the Collateral would depend on numerous factors, including the actual fair market value of the Collateral at such time, and the timing and manner of the sale.
There can also be no assurance that the Collateral will be saleable, and, even if saleable, the timing of its liquidation would be uncertain. By its nature, portions of the Collateral may be illiquid and may not have readily ascertainable market value. The ability of the lenders under any series of New Debt to enforce certain of the Collateral may also be restricted by local law.
Accordingly, in the event of a subsequent foreclosure, liquidation, bankruptcy, or similar proceeding, there can be no assurance that lenders will be able to realize the value of the Collateral, or that the proceeds from the Collateral will be sufficient to pay the Reorganized Debtors’ obligations under the New Debt, in full or at all.
H. | Risks Affecting the Value of Plan Distributions |
Holders of 2026 Senior Secured Notes Claims will receive less value on account of their Claims if their Class votes to reject the Plan than if their Class votes to accept the Plan.
The Plan provides that each holder of an Allowed 2026 Senior Secured Notes Claim will receive its Pro Rata share of $100 million of Non-Exchangeable Take-Back Notes only if the Class of 2026 Senior Secured Notes Claims votes to accept the Plan. The primary reason for the alternative treatment provision is to encourage the holders of the 2026 Senior Secured Notes Claims to vote to accept the Plan, and this treatment is a component of the Plan Support Agreement and being provided as part of the settlement and compromises contemplated in the Plan. As explained above, holders of Claims who vote to accept the Plan will be bound by the releases contained in Article IX.E of the Plan unless they affirmatively opt out of such releases by following the instructions on the applicable Ballot.
However, if the Class of 2026 Senior Secured Notes Claims votes to reject the Plan, then each holder of Allowed 2026 Senior Secured Notes Claim will receive its Pro Rata share of (i) the 2026 Alternative Notes and (ii) number of shares of New Equity having a value that would entitle such holder to receive the same recovery (expressed as a percentage of such holder’s Claim) on account of its unsecured deficiency claim that holders of Allowed General Unsecured Claims in the same amounts in each of Class 10(a), 10(b), and 10(c) are entitled to receive. The Debtors can provide no assurance to holders of 2026 Senior Secured Notes Claims that the Class of 2026 Senior Secured Notes Claims will vote to accept the Plan or that the incremental distribution will be distributed.
The amount of Allowed Claims could be greater than projected.
There Debtors cannot assure that the estimated Allowed amount of Claims in certain Classes will not be significantly higher than projected, which could cause the value of distributions to the claimholders in such Classes to be reduced substantially. Inevitably, some assumptions will
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not materialize, and unanticipated events and circumstances may affect the ultimate results. Therefore, the actual amount of Allowed Claims may materially vary from the Financial Projections and the Debtors’ feasibility analysis.
Projections and other forward-looking statements are not assured, and actual results may vary.
Certain of the information contained herein is, by nature, forward-looking, and contains estimates and assumptions, which might ultimately prove to be incorrect, and projections, which may be materially different from actual future experiences. There are uncertainties associated with any projections and estimates, and they should not be considered assurances or guarantees of the amount of funds or the amount of Allowed Claims in various Classes. Some assumptions may not materialize, and unanticipated events and circumstances may affect the actual results. Projections are inherently subject to substantial and numerous uncertainties and to a wide variety of significant business, economic, and competitive risks, and the assumptions underlying the projections may be inaccurate in material respects.
Many of the assumptions underlying the Financial Projections are subject to significant uncertainties that are beyond the control of the Debtors or Reorganized Debtors, including the timing of the Confirmation Date and/or Consummation of the Plan, customer demand for the Reorganized Debtors’ products, inflation, and other unanticipated market and economic conditions. In addition, unanticipated events and circumstances occurring after the approval of this Disclosure Statement, including natural disasters, terrorist attacks, health epidemics, or mandated lockdowns or quarantines, may affect the actual financial results achieved. Those results may vary significantly from the forecasts and such variations may be material.
The extent of leverage may limit the Reorganized Debtors’ ability to obtain additional financing.
Although the Plan will result in the elimination of a substantial amount of the Company’s debt, the Reorganized Debtors will continue to bear a significant amount of indebtedness and lease obligations after the Effective Date, including under the Exit Notes. The Reorganized Debtors’ ability to service their debt obligations will depend, among other things, on their future operating performance, which will, at least partially, depend on economic, financial, competitive, and other factors beyond the Reorganized Debtors’ control.
The Reorganized Debtors may not be able to generate sufficient cash from operations to meet their debt service obligations as well as finance their fleet, fund necessary capital expenditures, and invest in sales and marketing. In addition, if the Reorganized Debtors need to refinance their debt, obtain additional financing, or sell assets or equity, they may not be able to do so on commercially reasonable terms, if at all.
I. | Other Risks |
The Debtors may withdraw the Plan.
The Plan may be revoked or withdrawn prior to the Confirmation Hearing by the Debtors.
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The Debtors have no duty to update.
The statements contained in the Disclosure Statement are made by the Debtors as of the date of the Disclosure Statement, unless otherwise specified herein, and the delivery of the Disclosure Statement after that date does not imply that the information set forth in this Disclosure Statement has been updated or has remained accurate since that date. The Debtors have no duty to update the Disclosure Statement unless ordered to do so by the Bankruptcy Court.
No representations outside the Disclosure Statement are authorized.
No representations concerning or related to the Debtors, the Chapter 11 Cases, or the Plan are authorized by the Bankruptcy Court or the Bankruptcy Code, other than as set forth in the Disclosure Statement.
Any representations or inducements made to secure your vote for acceptance or rejection of the Plan other than those contained in the Disclosure Statement should not be relied upon in making the decision to vote to accept or reject the Plan.
No legal or tax advice is provided by the Disclosure Statement.
The contents of the Disclosure Statement should not be construed as legal, business, or tax advice. Each holder of a Claim or an Interest should consult their own legal counsel, financial advisor, and/or accountant as to the legal, financial, tax, and other matters concerning their Claim or Interest.
The Disclosure Statement is not legal advice to you. The Disclosure Statement may not be relied upon for any purpose other than to determine how to vote on the Plan or object to confirmation of the Plan.
No admissions are made in this Disclosure Statement or the Plan.
Nothing contained herein or in the Plan constitutes an admission of, or will be deemed evidence of, the tax or other legal effects of the Plan on the Debtors or the holders of Claims or Interests.
Tax consequences.
For a discussion of certain tax considerations to the Debtors and certain holders of Claims in connection with the implementation of the Plan, see Sections XI–XIII of this Disclosure Statement.
SECTION
X.
Transfer Restrictions and
Consequences Under Federal Securities Laws
A. | 1145 Securities |
No registration statement will be filed under the Securities Act, or pursuant to any state
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securities laws, with respect to the offer and distribution of securities under the Plan. The offer, issuance, and distribution under the Plan of (i) the New Equity other than any (a) Incremental New Money Equity and (b) New Equity issued upon conversion of the Incremental New Money Exchangeable Debt and (ii) to the extent the 2026 Alternative Notes, Take-Back Notes, Amended Glide Notes, or Amended Safra Notes are issued in the form of notes or other securities under the Plan (collectively, the “Section 1145 Securities”) shall be exempt, without further act or actions by any Person or Entity, from registration under the Securities Act and any state, local, or other applicable securities laws to the fullest extent permitted by section 1145 of the Bankruptcy Code, subject to certain exceptions, including those described below.
Section 1145 of the Bankruptcy Code generally exempts from registration under the Securities Act and state and local securities laws the offer or sale under a chapter 11 plan of a security of the debtor, of an affiliate participating in a joint plan with the debtor, or of a successor to the debtor under a plan, if such securities are offered or sold in exchange for a claim against, or an interest in, the debtor or such affiliate, or principally in such exchange and partly for cash. Section 1145 of the Bankruptcy Code also exempts from registration the offer of a security through any right to subscribe sold in the manner provided in the prior sentence, and the sale of a security upon the exercise of such right.
In reliance upon this exemption, the Section 1145 Securities will be exempt from the registration requirements of the Securities Act and state and local securities laws. Subject to the restrictions on transfer, if any, and other applicable provisions set forth in the New Organizational Documents, the Section 1145 Securities will, upon initial issuance under the Plan, be freely tradable and transferable by any initial recipient thereof that (i) is not an “affiliate” of the Debtors as defined in Rule 144(a)(1) under the Securities Act, (ii) has not been such an “affiliate” within ninety (90) days of such transfer, and (iii) is not an Entity that is an “underwriter” as that term is defined in section 1145(b) of the Bankruptcy Code, and may be resold without registration under the Securities Act or other federal securities laws pursuant to the exemption provided by section 4(a)(1) of the Securities Act. In addition, subject to the restrictions on transfer, if any, and other applicable provisions set forth in the New Organizational Documents, such Section 1145 Securities generally may be resold without registration under state securities laws pursuant to various exemptions provided by the respective laws of the several states. Notwithstanding anything to the contrary set forth herein, the Debtors, Abra, and the Committee agree that the terms of the Section 1145 Securities and the New Organizational Documents shall contain restrictions on transfer and such other terms and conditions as are necessary to ensure that none of the Section 1145 Securities are required by Section 12 of the Exchange Act to be registered thereunder at the Effective Time or thereafter.
Section 1145(b)(1) of the Bankruptcy Code defines an “underwriter” as one who, except with respect to “ordinary trading transactions” of an entity that is not an “issuer”: (i) 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 an interest; (ii) offers to sell securities offered or sold under a plan for the holders of such securities; (iii) offers to buy securities offered or sold under a plan from the holders of such securities, if such offer to buy is (a) with a view to distribution of such securities and (b) 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 (iv) is an “issuer” of the securities within the
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meaning of section 2(a)(11) of the Securities Act. In addition, a person who receives a fee in exchange for purchasing an issuer’s securities could also be considered an underwriter within the meaning of section 2(a)(11) of the Securities Act.
The definition of an “issuer” for purposes of whether a person is an underwriter under section 1145(b)(1)(D) of the Bankruptcy Code, by reference to section 2(a)(11) of the Securities Act, includes as “statutory underwriters” all Persons who, directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with, an issuer of securities (i.e., “affiliates”). The reference to “issuer,” as used in the definition of “underwriter” contained in section 2(a)(11) of the Securities Act, is intended to cover “controlling persons” of the issuer of the securities.
“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. The legislative history of section 1145 of the Bankruptcy Code suggests that a creditor who owns ten percent (10%) or more of a class of voting securities of a reorganized debtor may be presumed to be a “controlling person” and, therefore, an underwriter.
Notwithstanding the foregoing, control person underwriters may be able to sell securities without registration pursuant to the resale limitations of Rule 144 of the Securities Act, as described below.
Whether or not any particular Person would be deemed to be an underwriter with respect to the Section 1145 Securities or other security to be issued pursuant to the Plan and the Confirmation Order would depend upon various facts and circumstances applicable to that Person. Accordingly, the Debtors express no view as to whether any particular Person receiving the Section 1145 Securities or other securities under the Plan and the Confirmation Order would be an underwriter with respect to such Section 1145 Securities or other securities, whether such Person may freely resell such securities or the circumstances under which they may resell such securities. Parties who believe they may be statutory underwriters as defined in section 1145 of the Bankruptcy Code are advised to consult with their own legal advisors as to the availability of the exemption provided by Rule 144.
B. | Section 4(a)(2) Securities |
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.
The offer, sale, issuance, and distribution under the Plan of any category of securities that would constitute Section 1145 Securities but are issued to a Person or Entity that is an “underwriter” with respect to such securities, as that term is defined in section 1145(b) of the Bankruptcy Code (the “Underwriter Securities”), shall be exempt from registration under the Securities Act and any other applicable securities laws in reliance on the exemption from registration set forth in section 4(a)(2) under the Securities Act and/or Regulation D promulgated
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thereunder or, solely to the extent such exemptions are not available, other available exemptions from registration under the Securities Act on equivalent state law registration exemptions. In addition, the offer, sale, issuance, and distribution under the Plan of the Exit Notes, any Incremental New Money Exit Financing, and New Equity issued upon conversion of any Incremental New Money Exchangeable Debt, in each case to the extent issued in the form of notes or other securities under the Plan (the “New Money Securities”), will be issued without registration under the Securities Act in reliance upon the exemption set forth in section 4(a)(2) of the Securities Act, Regulation S or Regulation D promulgated thereunder, and similar registration exemptions applicable outside of the United States. The Underwriter Securities and the New Money Securities are collectively referred to herein as the “4(a)(2) Securities.”
The 4(a)(2) Securities will be considered “restricted securities,” will bear customary legends and transfer restrictions, and may not be transferred except pursuant to an effective registration statement or under an available exemption from the registration requirements of the Securities Act.
Rule 144 provides a limited safe harbor for the public resale of restricted securities, such as the 4(a)(2) Securities, if certain conditions are met. Generally, Rule 144 would permit the public sale of securities received by such Person if, at the time of the sale, certain current public information regarding the issuer is available, and only if such Person also complies with the volume, manner of sale, and notice requirements of Rule 144. If the issuer is not subject to the reporting requirements of section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), adequate current public information as specified under Rule 144 is available if certain company information is made publicly available, as specified in section (c)(2) of Rule 144.
These conditions vary depending on whether the holder of the restricted securities is an “affiliate” of the issuer. Rule 144 defines an affiliate of the issuer as “a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such issuer.”
A non-affiliate of an issuer that is not subject to the reporting requirements of section 13 or 15(d) of the Exchange Act and who has not been an affiliate of the issuer during the ninety days preceding such sale may resell restricted securities after a one-year holding period whether or not there is current public information regarding the issuer.
An affiliate of an issuer that is not subject to the reporting requirements of section 13 or 15(d) of the Exchange Act may resell restricted securities after the one-year holding period if at the time of the sale certain current public information regarding the issuer is available. An affiliate must also comply with the volume, manner of sale, and notice requirements of Rule 144. First, the rule limits the number of restricted securities (plus any unrestricted securities) sold for the account of an affiliate (and related persons) in any three-month period to the greater of 1% of the outstanding securities of the same class being sold or, if the class is listed on a stock exchange, the average weekly reported volume of trading in such securities during the four weeks preceding the filing of a notice of proposed sale on Form 144 or if no notice is required, the date of receipt of the order to execute the transaction by the broker or the date of execution of the transaction directly with a market maker. Second, the manner of sale requirement provides that the restricted securities
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must be sold in a broker’s transaction, directly with a market maker or in a riskless principal transaction (as defined in Rule 144). Third, if the amount of securities sold under Rule 144 in any three month period exceeds 5,000 shares or has an aggregate sale price greater than $50,000, an affiliate must file or cause to be filed with the SEC three copies of a notice of proposed sale on Form 144, and provide a copy to any exchange on which the securities are traded.
The Debtors believe that the Rule 144 exemption will not be available with respect to any 4(a)(2) Securities (whether held by non-affiliates or affiliates) until at least one year after the Effective Date. Accordingly, unless transferred pursuant to an effective registration statement or another available exemption from the registration requirements of the Securities Act, such holders of 4(a)(2) Securities will be required to hold their 4(a)(2) Securities for at least one year and, thereafter, to sell them only in accordance with the applicable requirements of Rule 144, pursuant to the an effective registration statement or pursuant to another available exemption from the registration requirements of applicable securities laws.
While GLAI is currently a public reporting company under section 12(g) of the Exchange Act, it is currently contemplated that the Reorganized Debtors and New GOL Parent will not be subject to the reporting requirements of section 13 or 15(d) of the Exchange Act. However, depending on the number and nature of the common shareholders of the Reorganized Debtors after emergence from chapter 11 or number and nature of the common shareholders of New GOL Parent, it is possible that the Reorganized Debtors or New GOL Parent may be a reporting company under the Exchange Act. As such, there may be a period after emergence from chapter 11 during which the Reorganized Debtors or New GOL Parent are subject to the reporting requirements of section 13 or 15(d). As described above, if the Reorganized Debtors or New GOL Parent are not subject to the reporting requirements of section 13 or 15(d) of the Exchange Act after emergence, the holding period for any restricted securities issued pursuant to Rule 144 will be one year. However, such holding period will decrease from one year to six months if the Reorganized Debtors or New GOL Parent are subject to the reporting requirements of section 13 or 15(d) of the Exchange Act after emergence from chapter 11.
* * * * *
Legends. To the extent certificated or issued by way of direct registration on the records of the Reorganized GLAI’s transfer agent, certificates evidencing the New Equity held by holders of 10% or more of the outstanding New Equity, or who are otherwise underwriters as defined in section 1145(b) of the Bankruptcy Code, and all 4(a)(2) Securities will bear a legend substantially in the form below:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON [DATE OF ISSUANCE], HAVE NOT BEEN REGISTERED UNDER THE SECURITIES 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 SECURITIES ACT OR AN AVAILABLE EXEMPTION FROM REGISTRATION THEREUNDER.
The Reorganized Debtors reserve the right to reasonably require certification, legal opinions, or other evidence of compliance with Rule 144 as a condition to the removal of such
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legend or to any resale of the 4(a)(2) Securities. The Reorganized Debtors also reserve the right to stop the transfer of any 4(a)(2) Securities if such transfer is not in compliance with Rule 144, pursuant to an effective registration statement, or pursuant to another available exemption from the registration requirements of applicable securities laws. All persons who receive 4(a)(2) Securities will be required to acknowledge and agree, pursuant to and to the extent set forth in the applicable rights offering subscription form, that (i) they will not offer, sell, or otherwise transfer any 4(a)(2) Securities except in accordance with an exemption from registration, including under Rule 144 under the Securities Act, if and when available, or pursuant to an effective registration statement, and (ii) the 4(a)(2) Securities will be subject to the other restrictions described above.
In any case, recipients of securities issued under or in connection with the Plan are advised to consult with their own legal advisers as to the availability of any such exemption from registration under state law in any given instance and as to any applicable requirements or conditions to such availability.
BECAUSE OF THE COMPLEX, SUBJECTIVE NATURE OF THE QUESTION OF WHETHER A PARTICULAR PERSON MAY BE AN UNDERWRITER OR AN AFFILIATE AND THE HIGHLY FACT-SPECIFIC NATURE OF THE AVAILABILITY OF EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT, INCLUDING THE EXEMPTIONS AVAILABLE UNDER SECTION 1145 OF THE BANKRUPTCY CODE AND RULE 144 UNDER THE SECURITIES ACT, NONE OF THE DEBTORS MAKE ANY REPRESENTATION CONCERNING THE ABILITY OF ANY PERSON TO DISPOSE OF THE SECURITIES TO BE ISSUED UNDER OR OTHERWISE ACQUIRED PURSUANT TO THE PLAN. THE DEBTORS RECOMMEND THAT POTENTIAL RECIPIENTS OF THE SECURITIES TO BE ISSUED UNDER OR OTHERWISE ACQUIRED PURSUANT TO THE PLAN CONSULT THEIR OWN COUNSEL CONCERNING WHETHER THEY MAY FREELY TRADE SUCH SECURITIES AND THE CIRCUMSTANCES UNDER WHICH THEY MAY RESELL SUCH SECURITIES.
SECTION
XI.
Certain Tax Consequences of Plan
The following discussion is a summary of certain material U.S. federal income tax consequences of the consummation of the Plan to holders of 2028 Notes Claims, 2026 Senior Secured Notes Claims, Glide Notes Claims, Debenture Banks Claims, Safra Claims (other than Safra Trade Payables), GLAI General Unsecured Claims, GLA General Unsecured Claims, GFL General Unsecured Claims, GFC General Unsecured Claims, GAC General Unsecured Claims, Smiles General Unsecured Claims, or General Unsecured Convenience Class Claims (collectively, the “Addressed Claims”). The following discussion does not address the U.S. federal income tax consequences to holders of Claims who are Unimpaired or who are not entitled to vote because they are deemed to accept or reject the Plan. In addition, this discussion does not address the receipt of any consideration being received on account of a person’s capacity other than as a holder of a Claim.
This discussion is limited to U.S. Holders (defined below) of Addressed Claims, who hold their Addressed Claims as capital assets for purposes of the Internal Revenue Code of 1986, as amended (the “Tax Code”). This discussion does not address rules relating to special categories
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of holders, including financial institutions, insurance companies, regulated investment companies, real estate investment trusts, broker-dealers, tax-exempt organizations, traders in securities that elect to mark-to-market, persons subject to special accounting rules under section 451(b) of the Tax Code, U.S. expatriates, investors that hold Addressed Claims as part of a straddle, hedging, constructive sale, or conversion transaction, holders whose functional currency is not the U.S. dollar or holders who will actually or constructively own 5% or more of New Equity (by either vote or value). The discussion does not address any U.S. state, local, or foreign taxes, the “Medicare” tax on net investment income, any U.S. federal alternative minimum tax or any other U.S. federal tax other than the U.S. federal income tax.
Generally, the Plan is not expected to have any material U.S. federal income tax consequences to the Debtors. Accordingly, this discussion does not address any U.S. federal income tax consequences relevant to the implementation of the Plan to the Debtors.
The discussion of U.S. federal income tax consequences below is based on the Tax Code, U.S. Treasury regulations promulgated under the Tax Code (“Treasury Regulations”), judicial authorities, published positions of the U.S. Internal Revenue Service (the “IRS”) and other applicable authorities, all as in effect on the date of this Disclosure Statement and all of which are subject to change or differing interpretations (possibly with retroactive effect). The U.S. federal income tax consequences of the contemplated transactions are complex and subject to significant uncertainties. No rulings from the IRS have been sought with respect to any of the U.S. federal income tax consequences discussed below, and no assurance can be given that the IRS or a court will not take contrary positions.
This discussion is not a comprehensive description of all of the U.S. federal tax consequences that may be relevant with respect to the Plan. U.S. Holders (as defined below) are urged to consult their own tax advisors regarding their particular circumstances and the U.S. federal tax consequences with respect to the Plan, as well as any tax consequences arising under the laws of any U.S. state, local, or foreign tax jurisdiction and the possible effects of changes in U.S. federal or other tax laws.
As used herein, the term “U.S. Holder” means a beneficial owner of Addressed Claims that, for U.S. federal income tax purposes, is any of the following:
· | an individual citizen or resident of the United States for U.S. federal income tax purposes; |
· | a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof, or the District of Columbia; |
· | an estate the income of which is subject to U.S. federal income taxation regardless of its source; or |
· | a trust if it (i) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial |
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decisions of the trust or (ii) has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.
If an entity or arrangement treated as a partnership or other pass-through entity for U.S. federal income tax purposes holds Addressed Claims, the U.S. federal income tax treatment of a partner (or other beneficial owner) therein generally will depend upon the status of the partner (or other beneficial owner) and the activities of the partnership or other pass-through entity, and accordingly, this summary does not apply to partnerships or other pass-through entities. A partner (or other beneficial owner) of a partnership or other pass-through entity or arrangement exchanging Addressed Claims pursuant to the Plan should consult its own tax advisor regarding the U.S. federal income tax consequences to the partner (or other beneficial owner) of exchanging Addressed Claims.
The following discussion also does not address the U.S. federal income taxes of a future conversion of the New Equity as described in the Plan, as such consequences are currently uncertain and may be impacted by the facts present at such time.
A. | U.S. Holders of Addressed Claims |
Subject to finalization of their terms (including which Reorganized Debtor will be the issuer of such New Debt), the Reorganized Debtors believe it is reasonable to take the position, and, to the extent the Reorganized Debtors are required to adopt a position for U.S. federal income tax purposes, they currently intend to take the position, that the Take-Back Notes, 2026 Alternative Notes, and Amended Glide Notes are indebtedness for U.S. federal income tax purposes, and the discussion below assumes such treatment.
Pursuant to the Plan, each holder of a General Unsecured Convenience Class Claim will receive, Cash equal to a percentage of the amount of such Allowed General Unsecured Convenience Class Claim, and each holder of the other Addressed Claims will receive its Pro Rata share of: (i) in the case of 2028 Notes Claims, the Take-Back Notes, the Abra Equity Distribution, and Cash; (ii) in the case of 2026 Senior Secured Notes Claims, (a) the Non-Exchangeable Take-Back Notes if the Class votes to accept the Plan, or (b) the 2026 Alternative Notes and New Equity if the Class votes to reject the Plan; (iii) in the case of Glide Notes Claims, the Amended Glide Notes and Cash; (iv) in the case of Debenture Banks Claims, the Amended Debentures; (v) in the case of the Safra Claims (other than the Safra Trade Payables), the Amended Safra Notes; (vi) in the case of GLAI General Unsecured Claims, the GLAI General Unsecured Claimholder Distribution; (vii) in the case of GLA General Unsecured Claims, the GLA General Unsecured Claimholder Distribution; (viii) in the case of GFL General Unsecured Claims, the GFL General Unsecured Claimholder Distribution; (ix) in the case of GFC General Unsecured Claims, the GFC General Unsecured Claimholder Distribution; (x) in the case of GAC General Unsecured Claims, the GAC General Unsecured Claimholder Distribution; and (xi) in the case of Smiles General Unsecured Claims, Cash or New Equity at the Debtors’ election (in consultation with Abra and the Committee) subject to the Smiles General Unsecured Claims Cap, in each case, in satisfaction of its Addressed Claims (collectively, the “Consideration”). The following discussion assumes that the receipt of Consideration in exchange for an Addressed Claim constitutes a sale or exchange of the Addressed Claim for U.S. federal income tax purposes.
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The U.S. federal income tax consequences of the Plan to U.S. Holders of Addressed Claims will depend on whether the exchange of the Addressed Claims pursuant to the Plan constitutes a taxable transaction or a tax-deferred (or partially tax-deferred) transaction, such as an exchange governed by section 351 or section 368 of the Tax Code. Whether the exchange constitutes a taxable transaction or a tax-deferred (or partially tax-deferred) transaction will depend on the manner in which the Restructuring Transactions undertaken pursuant to the Plan (including pursuant to the Transaction Steps) are consummated (which is not yet finally determined or certain), the identity and U.S. federal income tax classification of the issuer of the Consideration, whether the relevant Addressed Claim is treated as a “security” for U.S. federal income tax purposes, whether the Consideration received in exchange (in whole or partial consideration) for the relevant Addressed Claim is treated as a “security” for U.S. federal income tax purposes, and whether Cash or any other amounts are attributable to accrued but unpaid interest on such Addressed Claims.
Whether a debt instrument constitutes a “security” for U.S. federal income tax purposes is determined based on all the relevant facts and circumstances, but most authorities have held that the length of the term of a debt instrument at initial issuance is an important factor in determining whether such instrument is a “security” for U.S. federal income tax purposes. These authorities have indicated that a term of less than five years is evidence that the instrument is not a security, whereas a term of ten years or more is evidence that it is a security. There are a number of other factors that could be taken into account in determining whether a debt instrument is a security, including the security for payment, the creditworthiness of the obligor at the time of issuance, the subordination or lack thereof with respect to other creditors, the right to vote or otherwise participate in the management of the obligor, convertibility of the instrument into an equity interest of the obligor, whether payments of interest are fixed, variable, or contingent, and whether such payments are made on a current or accrued basis. A U.S. Holder of Addressed Claims should consult its own tax advisor to determine whether its Addressed Claims should be treated as “securities” for U.S. federal income tax purposes and, if such Addressed Claims are “securities” for such purposes, whether any instrument issued as Consideration are “securities” for such purposes.
If the exchange of Addressed Claims for any of the Consideration constitutes a tax-deferred transaction with respect to a U.S. Holder of an Addressed Claim, generally, such U.S. Holder, subject to the discussion under “Accrued Interest” below, should be required to recognize gain (but not loss), to the lesser extent of (i) the amount of gain realized from the exchange (generally equal to the fair market value of all of the Consideration received in exchange for the Addressed Claim minus the U.S. Holder’s adjusted tax basis, if any, in such Addressed Claim) or (ii) the amount of Cash and fair market value of “other property” (as described under section 356 of the Tax Code in the case of a reorganization pursuant to section 368 of the Tax Code or section 351(b) of the Tax Code in the case of a transaction described in section 351 of the Tax Code) received in the exchange. In such case, a U.S. Holder’s tax basis in the Consideration received (other than (i) any Cash or “other property” or (ii) Consideration treated as received in satisfaction of accrued but unpaid interest and accrued original issue discount (“OID”), if any) should be equal to the tax basis in the Addressed Claims exchanged therefor increased by the amount of any gain recognized upon the exchange, and the holding period for such Consideration should include the holding period for the exchanged Addressed Claims. The tax basis of any “other property” should be equal to the fair market value of such property, and the holding period for such “other property” should
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commence on the day following the Effective Date. Each U.S. Holder of Addressed Claims should consult its own tax advisor regarding the consequences to them that may apply in the event that the exchange of the Addressed Claims pursuant to the Plan constitutes a tax-deferred (or partially tax-deferred) transaction, such as an exchange governed by section 351 or section 368 of the Tax Code.
If the exchange of Addressed Claims for the Consideration constitutes a taxable transaction, each U.S. Holder of an Addressed Claim generally will recognize gain or loss in an amount equal to the difference between (i) the sum of (a) in the case of 2028 Notes Claims, the “issue price” of the Take-Back Notes, the fair market value of the Abra Equity Distribution, and the amount of Cash received, (b) in the case of 2026 Senior Secured Notes Claims, the “issue price” of the Non-Exchangeable Take-Back Notes or, the “issue price” of the 2026 Alternative Notes and the fair market value of the General Unsecured Claimholder Distribution received, as the case may be, (c) in the case of Glide Notes Claims, the “issue price” of the Amended Glide Notes and the amount of Cash received, (d) in the case of Debenture Banks Claims, the “issue price” of the Amended Debentures received, (e) in the case of Safra Claims other than the Safra Trade Payables, the “issue price” of the Amended Safra Notes received, (f) in the case of GLAI General Unsecured Claims, the fair market value of the GLAI General Unsecured Claimholder Distribution, (g) in the case of GLA General Unsecured Claims, the fair market value of the GLA General Unsecured Claimholder Distribution, (h) in the case of GFL General Unsecured Claims, the fair market value of the GFL General Unsecured Claimholder Equity Distribution, (i) in the case of GFC General Unsecured Claims, the fair market value of the GFC General Unsecured Claimholder Distribution, (j) in the case of GAC General Unsecured Claims, the fair market value of the GAC General Unsecured Claimholder Distribution, (k) in the case of Smiles General Unsecured Claims, the fair market value of the New Equity or amount of Cash received, as the case may be, and (l) in the case of the General Unsecured Convenience Class Claims, the amount of Cash received (other than, in each case, any such Consideration treated as received for accrued but unpaid interest and accrued OID, if any) (each based on the U.S. dollar value of any such amount paid in the form of, or based on, a foreign currency translated at the spot rate of exchange on the Effective Date) and (ii) the U.S. Holder’s adjusted tax basis in its Addressed Claim immediately prior to the exchange (other than any tax basis attributable to accrued but unpaid interest and accrued OID, if any). The character of such gain or loss as capital gain or loss or as ordinary income or loss will be determined by a number of factors, including the tax status of the U.S. Holder, the nature of the Addressed Claim in such U.S. Holder’s hands, whether the Addressed Claim was purchased at a discount, and whether and to what extent the U.S. Holder previously claimed a bad debt deduction with respect to its Addressed Claim. If recognized gain is capital gain, it generally would be long-term capital gain if the U.S. Holder held its Addressed Claim for more than one year at the time of the exchange. The deductibility of capital losses is subject to certain limitations. To the extent that a portion of the Consideration received is allocable to accrued but untaxed interest or OID, the U.S. Holder may recognize ordinary income. See “Accrued Interest” and “Market Discount” below. A U.S. Holder’s tax basis in any New Debt and New Equity received in a taxable transaction should be equal to the amount required to be taken into account in computing gain or loss as described above. A U.S. Holder’s holding period in any item of Consideration received on the Effective Date in a taxable transaction should begin on the day following the Effective Date.
As a result of the Disputed Claims Reserve and the General Unsecured Claimholder
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Escrowed Shares, U.S. Holders of Addressed Claims that receive the General Unsecured Claimholder Initial Distribution as Consideration in the exchange may receive some additional consideration after the Effective Date. The possibility that a U.S. Holder of such Addressed Claims may receive additional consideration following the Effective Date may require such U.S. Holder to defer all or a portion of any tax loss on its Claim until it is clear that the U.S. Holder will not receive any further distributions with respect to the Claim. In addition, a U.S. Holder that may have gain with respect to its Claim may be eligible to report such gain using the installment method. A U.S. Holder of Addressed Claims should consult their own tax advisor regarding the timing of any gain or loss relating to its Claims, including the potential application of the installment method.
Regardless of whether the exchange is treated as a taxable transaction or a tax-deferred (or partially tax-deferred) transaction, a U.S. Holder will have taxable interest income to the extent of any Consideration allocable to accrued but unpaid interest or OID not previously included in income, as more fully described below under “Accrued Interest,” which amounts will not be included in the amount realized with respect to a U.S. Holder’s Addressed Claim.
B. | Consequences of Owning and Disposing of New Debt and New Equity |
1. | Ownership of the New Debt |
If in certain circumstances the issuer of a class of New Debt is required to make payments on a class of New Debt that would change the yield of such class of New Debt, this obligation may implicate the provisions of Treasury Regulations relating to contingent payment debt instruments (“CPDIs”). According to the applicable Treasury Regulations, certain contingencies will not cause a debt instrument to be treated as a CPDI if such contingencies, as of the date of issuance, are “remote or incidental” or certain other circumstances apply. Given that the terms of the New Debt are unknown at this time, it is possible that one or more classes of New Debt may be treated as a CPDI. Further, any determination by an issuer of a class of New Debt as to whether it is a CPDI is not binding on the IRS and if the IRS were to challenge this determination, a U.S. holder may be required to accrue income on a class of New Debt that such U.S. Holder owns in excess of stated interest, and to treat as ordinary income rather than capital gain any income realized on the taxable disposition of such notes before the resolution of the contingency. In the event that such contingency was to occur, it would affect the amount and timing of the income that a U.S. Holder recognizes. U.S. Holders are urged to consult their own tax advisors regarding the potential application to the notes of the CPDI rules and the consequences thereof. The remainder of this discussion assumes that the New Debt will not be treated as CPDIs.
Stated interest on the New Debt (including any additional amounts paid in respect of withholding taxes and without reduction for any amounts withheld) generally will be includible in the gross income of a U.S. Holder as ordinary income at the time that such payments are received or accrued, in accordance with such U.S. Holder’s method of accounting for U.S. federal income tax purposes. With respect to payments on any New Debt that are permitted to be made in a foreign currency, a U.S. Holder that uses the cash method of accounting for U.S. federal income tax purposes and that receives a payment of stated interest on the New Debt in foreign currency will be required to include in income (as ordinary income) the U.S. dollar value of the foreign currency interest payment (determined based on the spot rate of exchange on the date such payment is
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received) regardless of whether the payment is in fact converted to U.S. dollars at such time.
A cash method U.S. Holder will not recognize foreign currency exchange gain or loss with respect to the receipt of stated interest paid in foreign currency, but may recognize foreign currency exchange gain or loss attributable to the actual disposition of the foreign currency so received.
With respect to payments on any New Debt that is permitted to be made in a foreign currency, a U.S. Holder that uses the accrual method of accounting for U.S. federal income tax purposes, or that is otherwise required to accrue interest prior to receipt, will be required to include in income (as ordinary income) the U.S. dollar value of the amount of stated interest income in foreign currency that has accrued for such year determined by translating such amount into U.S. dollars at the average spot rate of exchange for the accrual period or, with respect to an accrual period that spans two taxable years, at the average spot rate of exchange for the partial period within each taxable year. Alternatively, an accrual basis U.S. Holder may make an election (which must be applied consistently to all debt instruments held by the electing U.S. holder at the beginning of the first taxable year to which the election applies or thereafter acquired by the U.S. holder, and cannot be changed without the consent of the IRS) to translate accrued interest income into U.S. dollars using the spot rate of exchange on the last day of the interest accrual period (or the last day of the portion of the accrual period within each taxable year in the case of a partial accrual period), or at the spot rate of exchange on the date of receipt, if that date is within five business days of the last day of the accrual period. A U.S. Holder that uses the accrual method of accounting for U.S. federal income tax purposes will recognize foreign currency exchange gain or loss with respect to accrued stated interest income on the date such interest is received. The amount of foreign currency exchange gain or loss recognized will equal the difference, if any, between the U.S. dollar value of the foreign currency payment received (determined based on the spot rate of exchange on the date such stated interest is received) in respect of such accrual period and the U.S. dollar value of the interest income that has accrued during such accrual period (as determined above), regardless of whether the payment is in fact converted to U.S. dollars at such time. Any such foreign currency exchange gain or loss generally will constitute ordinary income or loss and be treated, for foreign tax credit purposes, as U.S. source income or loss, and generally will not be treated as an adjustment to interest income or expense.
The New Debt will be treated as issued with OID for U.S. federal income tax purposes if the sum of all principal and interest payments (other than “qualified stated interest”), with respect to any New Debt, exceeds the “issue price” (as defined below) of such New Debt by more than a statutorily defined de minimis amount. U.S. Holders, whether on the cash or accrual method of accounting for U.S. federal income tax purposes, generally must include any OID in gross income as it accrues (on a constant yield to maturity basis), regardless of whether cash attributable to such OID is received at such time. OID accrued by a U.S. Holder generally will be treated as foreign source ordinary income and generally will be considered “passive” category income in computing the foreign tax credit such U.S. Holder may claim for U.S. federal income tax purposes. The availability of a foreign tax credit is subject to certain conditions and limitations, and the rules governing the foreign tax credit are complex. U.S. Holders should consult their own tax advisors regarding the rules governing the foreign tax credit and deductions.
The amount of OID includible in gross income by a U.S. Holder of New Debt in any taxable year generally is the sum of the “daily portions” of OID with respect to New Debt for each day
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during such taxable year on which the U.S. Holder holds such New Debt. The daily portion is determined by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. The “accrual period” for the New Debt may be of any length and may vary in length over the term of such New Debt provided that each accrual period is no longer than one year, and each scheduled payment of principal or interest occurs on the first day or the final day of an accrual period.
The amount of OID allocable to any accrual period will be an amount equal to the product of the “adjusted issue price” for the applicable New Debt at the beginning of the accrual period and its yield to maturity (determined on a constant yield method, compounded at the close of each accrual period and properly adjusted for the length of the accrual period). OID allocable to the final accrual period is the difference between the amount payable at maturity and the “adjusted issue price” at the beginning of the final accrual period. The “adjusted issue price” of the applicable New Debt at the beginning of any accrual period is equal to its “issue price,” increased by the accrued OID for each prior accrual period and reduced by any payments previously made on such New Debt other than any payments of qualified stated interest. The “yield to maturity” of the New Debt is the discount rate that, when used in computing the present value (as of the issue date) of all principal and interest payments to be made on the applicable New Debt produces an amount equal to the “issue price” of such New Debt. OID, if any, on any foreign currency denominated New Debt will be determined for any accrual period in foreign currency and then translated into U.S. dollars.
The “issue price” of a class of New Debt will be determined separately and will depend on whether such class of New Debt is considered “publicly traded” for U.S. federal income tax purposes as of the issue date of such New Debt. New Debt will be treated as “publicly traded” for U.S. federal income tax purposes if it exceeds $100 million and is traded on an “established market,” within the meaning of the applicable Treasury Regulations, at any time during a 31-day period ending 15 days after the issue date of the New Debt. The issue date is the date of the exchange of the New Debt for the applicable Addressed Claims.
If a class of New Debt is treated as “publicly traded” for U.S. federal income tax purposes, the “issue price” of each New Debt will be its fair market value determined as of the issue date.
If a class of New Debt is not treated as “publicly traded” for U.S. federal income tax purposes, but the applicable Addressed Claim (whichever is surrendered in exchange for such New Debt that is not treated as “publicly traded” for such purposes) is treated as “publicly traded” for such purposes (under the rules described above), the “issue price” of such class of New Debt (that is not treated as “publicly traded” for such purposes) would be the fair market value of the portion of the applicable Addressed Claim exchanged for the class of New Debt that is not treated as “publicly traded” for such purposes, determined as of the issue date.
If neither a class of New Debt nor the applicable Addressed Claim surrendered in exchange for such class of New Debt is treated as “publicly traded” for U.S. federal income tax purpose, the “issue price” of such class of New Debt will be the stated principal amount of such class of New Debt as long as such New Debt is considered to have “adequate stated interest” for U.S. federal income tax purposes.
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Reorganized Debtors may not be able to determine whether any of the New Debt is treated as “publicly traded” and, relatedly, the “issue price” for each New Debt, for U.S. federal income tax purposes until after the Effective Date.
A U.S. Holder of foreign currency denominated New Debt will recognize foreign currency exchange gain or loss when OID, if any, is paid (including, upon the disposition of the New Debt, the receipt of proceeds that include amounts attributable to OID previously included in income) to the extent of the difference, if any, between the U.S. dollar value of the foreign currency payment received, translated at the spot rate of exchange on the date such payment is received, and the U.S. dollar value of the accrued OID. For these purposes, all receipts on the New Debt will be viewed first, as payment of stated interest payable on the New Debt; second, as receipt of previously accrued OID (to the extent thereof), with payments considered made for the earliest accrual periods first; and third, as receipt of principal. The rules governing OID instruments are complex, and prospective purchasers should consult their own tax advisors concerning the application of such rules to the New Debt, as well as the interplay between the application of the OID rules and the currency exchange gain or loss rules.
Interest on the New Debt generally will be treated as foreign source income for U.S. federal income tax purposes and generally will constitute “passive category” income for most U.S. Holders. Subject to generally applicable restrictions and conditions, including a minimum holding period requirement, a U.S. Holder generally will be entitled to a foreign tax credit in respect of any foreign income taxes withheld on interest payments on the New Debt. Alternatively, the U.S. Holder may be able to deduct such foreign income taxes in computing taxable income for U.S. federal income tax purposes, provided that the U.S. Holder does not elect to claim a foreign tax credit with respect to any foreign income taxes paid or accrued during the taxable year. The rules governing the foreign tax credit are complex. U.S. Holders are urged to consult their tax advisors regarding the availability of the foreign tax credit or a deduction for foreign taxes paid under their particular circumstances.
2. | Sale or Other Taxable Disposition of the New Debt |
Upon the sale or other taxable disposition (including redemption) of New Debt, a U.S. Holder generally will recognize taxable gain or loss equal to the difference, if any, between the amount realized on the sale or other taxable disposition (other than accrued but unpaid interest, which will be taxable as interest) and the U.S. Holder’s adjusted tax basis in the New Debt. A U.S. Holder’s adjusted tax basis in New Debt will depend upon the U.S. federal income tax consequences of the exchange of Addressed Claims for such New Debt, as further described above. Subject to the discussion below under “Market Discount,” any such gain or loss generally will be capital gain or loss and generally will be long-term capital gain or loss if the New Debt has been held for more than one year at the time of its sale or other taxable disposition. Certain non-corporate U.S. Holders (including individuals) may be eligible for preferential rates of U.S. federal income tax in respect of long-term capital gains. The deductibility of capital losses is subject to limitations.
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3. | Exchange of Exchangeable Take-Back Notes |
i. Exchange of the Exchangeable Take-Back Notes into New Equity
Subject to finalization of its terms, including a determination of the entity treated as the issuer of the Exchangeable Take-Back Notes for U.S. federal income tax purposes, upon an exchange of Exchangeable Take-Back Notes for New Equity, it may be reasonable to characterize such exchange as a recapitalization under section 368(a)(1)(E) of the Tax Code or otherwise treated as tax-free for U.S. federal income tax purposes. In such case, a U.S. Holder will recognize any gain realized in the exchange to the extent of any Cash received, but not recognize any loss realized in the exchange (in each case, except with respect to Cash received in lieu of a fractional share of New Equity, if applicable, which should be treated as described below). A U.S. Holder’s adjusted tax basis in the New Equity received in the recapitalization, excluding New Equity received with respect to accrued interest, will equal its tax basis in the Exchangeable Take-Back Notes (reduced by any basis allocable to a fractional share, if applicable), less the amount of Cash received (excluding Cash received in lieu of a fractional share, if applicable, or for accrued interest), plus the amount of any taxable gain recognized on the exchange. A U.S. Holder’s holding period for the New Equity received will include the holding period for the Exchangeable Take-Back Notes in the exchange, except that the holding period of any New Equity received with respect to accrued interest will commence on the day after the exchange, and a U.S. Holder’s tax basis in any New Equity received with respect to accrued interest will equal the fair market value of the New Equity received. If applicable, Cash received in lieu of a fractional share of New Equity upon exchange of the Exchangeable Take-Back Notes will generally be treated as a payment in exchange for the fractional share, and, accordingly, the receipt of Cash in lieu of a fractional share generally will result in the recognition of capital gain or loss measured by the difference between any Cash received for the fractional share and the portion of a U.S. Holder’s tax basis allocable to the fractional share.
ii. Constructive Dividends
If the terms of the Exchangeable Take-Back Notes provide for adjustments in certain circumstances, the Exchangeable Take-Back Notes may be subject to section 305 of the Tax Code. Under section 305(c) of the Tax Code, adjustments (or failures to make adjustments) that have the effect of increasing a U.S. Holder of Exchangeable Take-Back Notes proportionate interest in our assets or earnings may in some circumstances result in a deemed distribution of New Equity to the U.S. Holder of Exchangeable Take-Back Notes that is treated as a dividend for U.S. federal income tax purposes. However, adjustments to the conversion rate made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing the dilution of the interest of the owners of the Exchangeable Take-Back Notes will generally not be deemed to result in a constructive distribution of New Equity. If such adjustments are made, a U.S. Holder will be deemed to have received constructive distributions includible in its income in the manner described under “Distributions on New Equity” below even though it has not received any Cash or property as a result of such adjustments. A U.S. Holder should consult its tax advisor to determine whether the preferential tax rate described below under “–Distributions on New Equity” is applicable to such a constructive dividend. Generally, a U.S. Holder’s adjusted tax basis in the Exchangeable Take-Back Notes will be increased to the extent any such constructive distribution is treated as a dividend.
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On April 12, 2016, the IRS proposed Treasury Regulations addressing the amount and timing of deemed distributions, obligations of withholding agents, and filing and notice obligations of issuers. If adopted as proposed, such Treasury Regulations would generally provide that (i) a deemed distribution to a holder of a convertible debt instrument, including, based on our assumed treatment, the notes, is treated as a distribution in an amount equal to the increase in the value of the exchange right, measured by valuing the exchange right without the adjustment, generally after the adjustment in each case, and (ii) the Reorganized Debtors may be required to report the amount of any deemed distributions on its website or to the IRS and all holders of notes (including holders of notes that would otherwise be exempt from reporting). The final Treasury Regulations will be effective for deemed distributions occurring on or after the date of adoption, but owners of notes may rely on the Treasury Regulations prior to that date under certain circumstances. Prior to the finalization of the Treasury Regulations, deemed distributions may be treated as equal either to the increase in the value of the exchange right or to the fair market value of the additional New Equity that would be received on an exchange of the Exchangeable Take-Back Notes. A U.S. Holder should consult its tax advisor regarding the applicability of the proposed Exchangeable Take-Back Notes to its particular situation.
4. | Distributions on New Equity |
Subject to the discussion below under “Possible Treatment of New GOL Parent as a Passive Foreign Investment Company,” any distributions with respect to the New Equity (including any amounts withheld in respect of taxes thereon) generally will be treated as taxable dividends to the extent paid out of New GOL Parent’s current or accumulated earnings and profits (as determined under U.S. federal income tax principles). To the extent the amount of any distribution exceeds New GOL Parent’s current and accumulated earnings and profits for a taxable year (as determined under U.S. federal income tax principles), the distribution will first be treated as a tax-free return of capital to the extent of the U.S. Holder’s adjusted tax basis in the New Equity, and thereafter as capital gain, subject to the discussion below under “Market Discount.” New GOL Parent does not know whether it will keep record of its earnings and profits in accordance with U.S. federal income tax principles. Therefore, U.S. Holders should expect that any distribution on the New Equity generally will be treated as a dividend unless otherwise noted. If any such distributions are in foreign currency, such amount will be included in income at the U.S. dollar value of the foreign currency (determined based on the spot rate of exchange on the date such amount is received) regardless of whether the payment is in fact converted to U.S. dollars at such time. A U.S. Holder will later recognize foreign currency exchange gain or loss, if any, upon converting such funds to U.S. dollars.
Any such taxable dividends received by a corporate U.S. Holder will not be eligible for the “dividends received deduction.” Any such taxable dividends will be eligible for reduced rates of taxation as “qualified dividend income” for non-corporate U.S. Holders if the following conditions are met: (i) either (a) New GOL Parent is eligible for the benefits of a comprehensive income tax treaty with the United States that the Secretary of the U.S. Treasury has determined is satisfactory and that includes an exchange of information program or (b) the New Equity is readily tradable on an established securities market in the United States (including, e.g., the NYSE or NASDAQ); (ii) the U.S. Holder meets the holding period requirement for the New Equity (generally more than 60 days during the 121-day period that begins 60 days before the ex-dividend date); and (iii) New GOL Parent was not in the year prior to the year in which the dividend was paid (with respect to a
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U.S. Holder that held New Equity), and is not in the year in which the dividend is paid, a passive foreign investment company (“PFIC”). Otherwise, such taxable dividends will not be eligible for reduced rates of taxation as “qualified dividend income.”
If one class of New Equity satisfies the requirements of clause (i) above but another class of New Equity does not, it is not entirely clear whether dividends received with respect to such other class of New Equity will be treated as qualified dividend income. In addition, the U.S. Treasury Department has announced its intention to promulgate rules pursuant to which holders of American Depositary Shares (“ADSs”) or stock and intermediaries through whom such securities are held will be permitted to rely on certifications from issuers to establish that dividends are treated as qualified dividend income. Because such procedures have not yet been issued, Reorganized Debtors are not certain that it will be able to comply with them.
The tax residency of New GOL Parent is not currently known, and, as a result, it cannot currently be determined whether New GOL Parent will qualify for the benefits of a comprehensive income tax treaty. It is also currently not known whether the New Equity will be considered readily tradable on an established securities market in the United States as described above. In addition, as discussed below under “Possible Treatment of New GOL Parent as a Passive Foreign Investment Company,” no assurance can be given that New GOL Parent will not be treated as a PFIC. Accordingly, each non-corporate U.S. Holder is urged to consult its tax advisor regarding whether taxable dividends received by such U.S. Holder will be eligible for qualified dividend income treatment.
5. | Sale, Exchange, or Other Taxable Disposition of New Equity |
Subject to the discussion below under “Possible Treatment of New GOL Parent as a Passive Foreign Investment Company,” a U.S. Holder generally will recognize gain or loss on a sale, exchange, or other taxable disposition of New Equity equal to the difference between the amount realized on the disposition and the U.S. Holder’s adjusted tax basis in the New Equity. If the proceeds of such sale are received in foreign currency, for purposes of determining gain or loss, such amount will be converted into the U.S. dollar value of the foreign currency (determined based on the spot rate of exchange on the date such amount is received) regardless of whether the payment is in fact converted to U.S. dollars at such time. A U.S. Holder will later recognize foreign currency exchange gain or loss, if any, upon converting such funds to U.S. dollars. Subject to the discussion below under “Market Discount,” this gain or loss generally will be capital gain or loss and generally will be long-term capital gain or loss if the U.S. Holder has held (or is deemed to hold) the New Equity for more than one year. For foreign tax credit limitation purposes, gain or loss recognized upon a disposition generally will be treated as from sources within the United States. The deductibility of capital losses is subject to limitations for U.S. federal income tax purposes is subject to limitations.
6. | Possible Treatment of New GOL Parent as a Passive Foreign Investment Company |
Special tax rules may apply if New GOL Parent is classified as a PFIC for U.S. federal income tax purposes. In general, a foreign corporation will be classified as a PFIC if (i) 75% or more of its gross income in a taxable year is passive income, or (ii) 50% or more of its assets in a
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taxable year, averaged quarterly over the year, produce, or are held for the production of, passive income. Passive income for this purpose generally includes, among other items, interest, dividends, royalties, rents, and annuities. For purposes of these PFIC tests, if New GOL Parent directly or indirectly owns at least 25% (by value) of the stock of another corporation, New GOL Parent will be treated as owning its proportionate share of such other corporation’s gross assets and receiving its proportionate share of such other corporation’s gross income.
The determination of whether New GOL Parent is a PFIC is a factual determination made annually and thus may be subject to change. Because these determinations are based on the nature of New GOL Parent’s income and assets from time to time, and involve the application of complex tax rules, no assurances can be provided that New GOL Parent will not be considered a PFIC for the current or any past or future tax year.
If New GOL Parent is a PFIC for any taxable year during which a U.S. Holder holds (or is deemed to hold) New Equity, New GOL Parent will continue to be treated as a PFIC with respect to such U.S. Holder for all succeeding years during which the U.S. Holder holds (or is deemed to hold) the New Equity unless (i) New GOL Parent ceases to be a PFIC and (ii) the U.S. Holder makes a “deemed sale” election under the PFIC rules. In general, if the New GOL Parent is a PFIC for any taxable year during which a U.S. Holder holds (or is deemed to hold) New Equity, any gain recognized by the U.S. Holder on a sale or other taxable disposition of such New Equity, as well as the amount of any “excess distribution” (defined below) received by such U.S. Holder, would be allocated ratably over the U.S. Holder’s holding period for the New Equity. The amounts allocated to the taxable year of the sale or other disposition (or the taxable year of receipt, in the case of an excess distribution) and to any year before New GOL Parent became a PFIC would be taxed as ordinary income. The amounts allocated to each other taxable year would be subject to tax at the highest rate in effect for that taxable year, and an interest charge would be imposed. For purposes of these rules, an excess distribution is the amount by which any distribution received by a U.S. Holder on its New Equity in a taxable year exceeds 125% of the average of the annual distributions on the New Equity received during the preceding three years or the U.S. Holder’s holding period, whichever is shorter. Certain elections may be available that would result in alternative treatments (such as mark-to-market treatment or “qualified electing fund” treatment) of the New Equity. It is not known whether New GOL Parent will make available the information necessary for U.S. Holders to make a “qualified electing fund” election with respect to their New Equity.
The rules relating to PFICs are complex. Each U.S. Holder is urged to consult its tax advisor regarding whether New GOL Parent is or will become a PFIC and, if so, the U.S. federal income tax consequences of holding the New Equity.
C. | Accrued Interest |
To the extent that any amount received by a U.S. Holder of a surrendered Addressed Claim is attributable to accrued but unpaid interest or OID, the receipt of such amount should be taxable to the U.S. Holder as ordinary interest income (to the extent not already taken into income by the U.S. Holder, and subject to a special exception that may be available to cash-method U.S. Holders in certain circumstances). Conversely, a U.S. Holder of an Addressed Claim may be able to recognize a deductible loss (or, possibly, a write off against a reserve for worthless debts) to the
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extent that any accrued interest or OID was previously included in the U.S. Holder’s gross income but was not paid in full. Such loss may be ordinary, but the tax law is unclear on this point.
If the fair market value of the Consideration is not sufficient to fully satisfy all principal and interest on an Addressed Claim, the extent to which such consideration will be attributable to accrued interest is unclear. Under the Plan, the aggregate Consideration received in respect of Addressed Claims will be allocated first to the principal amount of such Claims, with any excess allocated to unpaid interest, if any, that accrued on such Claims through the Effective Date. Certain legislative history indicates that an allocation of consideration as between principal and interest provided in a chapter 11 plan of reorganization is binding for U.S. federal income tax purposes, while certain Treasury Regulations treat payments as allocated first to any accrued but unpaid interest. The IRS could take the position that the consideration received by a U.S. Holder should be allocated in some way other than as provided in the Plan. U.S. Holders of Addressed Claims should consult their own tax advisors regarding the proper allocation of the consideration received by them under the Plan.
D. | Market Discount |
Under the “market discount” provisions of the Tax Code, some or all of any gain realized by a U.S. Holder of an Addressed Claim who receives consideration pursuant to the Plan in satisfaction of its Addressed Claim (or, if the exchange is tax-deferred, upon the disposition of the New Debt) may be treated as ordinary income (instead of capital gain), to the extent of the amount of “market discount” on the Addressed Claim. In general, a debt instrument is considered to have been acquired with “market discount” if the U.S. Holder’s adjusted tax basis in the debt instrument is less than (i) the sum of all remaining payments to be made on the debt instrument, excluding “qualified stated interest” or (ii) in the case of a debt instrument issued with OID, its “adjusted issue price,” in either case, by at least a statutorily defined de minimis amount.
Any gain recognized by a U.S. Holder on the taxable disposition of an Addressed Claim acquired with market discount should generally be treated as ordinary income to the extent of the market discount that accrued thereon while the Addressed Claim was considered to be held by the U.S. Holder (unless the U.S. Holder elected to include market discount in income as it accrued).
U.S. Holders are urged to consult their own tax advisors regarding the tax consequences of the exchange of Addressed Claims that were acquired with market discount pursuant to the Plan.
E. | Information Reporting and Backup Withholding |
All distributions to U.S. Holders of Claims under the Plan are subject to any applicable tax withholding, including (as applicable) employment tax withholding. Under U.S. federal income tax law, interest, dividends, and other reportable payments may, under certain circumstances, be subject to “backup withholding” at the then applicable withholding rate (currently 24%). Backup withholding generally applies if the holder fails to furnish its social security number or other taxpayer identification number (a “TIN”), furnishes an incorrect TIN, fails properly to report interest or dividends, or under certain circumstances, fails to provide a certified statement, signed under penalty of perjury, that the TIN provided is its correct number and that it is a U.S. person that is not subject to backup withholding. Backup withholding is not an additional tax but merely
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an advance payment, which may be refunded (or credited against the holder’s U.S. federal income tax liability) to the extent it results in an overpayment of tax and the appropriate information is timely supplied to the IRS. Certain persons are exempt from backup withholding, including, in certain circumstances, corporations and financial institutions.
In addition, from an information reporting perspective, the Treasury Regulations generally require disclosure by a U.S. taxpayer on its U.S. federal income tax return of certain types of transactions in which the taxpayer participated, including, among other types of transactions, certain transactions that result in the taxpayer claiming a loss in excess of specified thresholds. U.S. Holders are urged to consult their tax advisors regarding these regulations and whether the transactions contemplated by the Plan would be subject to these rules in the regulations and require disclosure on the holders’ tax returns.
The U.S. federal income tax consequences of the Plan are complex. The foregoing summary does not discuss all aspects of U.S. federal income taxation that may be relevant to a particular U.S. Holder in light of such U.S. Holder’s circumstances and income tax situation. All holders of Claims should consult with their tax advisors as to the particular tax consequences to them of the transactions contemplated by the Plan, including the applicability and effect of any U.S. state, local, or foreign tax laws, of any applicable income tax treaty, and of any change in applicable tax laws.
F. | Importance of Obtaining Professional Tax Assistance |
The foregoing summary has been provided for informational purposes only. All holders of Claims and Interests are urged to consult their own tax advisors concerning the U.S. federal, local, and non-U.S. income tax and other tax consequences that may result from implementation of the Plan.
SECTION
XII.
CERTAIN brazilian TAX CONSIDERATIONS
The following discussion is a summary of certain material Brazilian tax consequences of the consummation of the Plan to holders of Addressed Claims. The following discussion does not address the Brazilian tax consequences to holders of Claims and Interests who are either (x) Unimpaired and presumed to have accepted the Plan or (y) Impaired and deemed to have rejected the Plan. In addition, this discussion does not address the receipt of any consideration being received on account of a person’s capacity other than as a holder of a Claim.
This discussion applies to individuals,
legal entities, trusts, or organizations that are resident or domiciled outside of Brazil for purposes of Brazilian taxation
(“Non-Resident Holders”), and to individuals or legal entities that are resident or domiciled in Brazil for purposes
of Brazilian taxation (“Resident Holders”).
Generally, the Plan as currently stated is not expected to have any material Brazilian tax consequences to the Debtors. Accordingly, this discussion does not address Brazilian income tax consequences to the Debtors resulting from the implementation of the Plan.
The discussion of Brazilian tax consequences below is based on the Brazilian laws and
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regulations currently enforced and as applied on the date of this Disclosure Statement, which are subject to change and to differing interpretations. The tax consequences described below do not take into account tax treaties or reciprocity of tax treatment entered into by Brazil and other countries.
This discussion is not a comprehensive description of all of the Brazilian tax consequences that may be relevant with respect to the Plan. Non-Resident Holders and Resident Holders are urged to consult their own tax advisors regarding their particular circumstances and the Brazilian tax consequences with respect to the Plan.
The following discussion also does not address any potential Brazilian tax consequences of a future conversion of the New Equity as described in the Plan as such consequences are currently uncertain and may be impacted by the facts present at such time.
A. | Brazilian Tax Consequences of the Consideration |
1. | Non-Resident Holders |
Pursuant to the Plan, each Non-Resident Holder of an Addressed Claim will receive its applicable Consideration.
The payment in Cash of the Addressed Claims is not expected to trigger any Brazilian tax consequence; provided, that the holder of such Addressed Claim is a Non-Resident Holder and that the payments will be made by a Debtor that is not resident or domiciled in Brazil for tax purposes (“Non-Resident Debtor”) and such payments are made with funds held by such Non-Resident Debtor outside of Brazil.
If the payment in Cash is made by a Debtor resident or domiciled in Brazil (“Brazilian Debtor”) to a Non-Resident Holder, it may be subject to withholding income tax at rates of up to 25%, depending on the nature of the Addressed Claim. With respect to Addressed Claims arising from services rendered to the Brazilian Debtor, other taxes may be applicable, such as the Services Tax.
The exchange of the Addressed Claims for other debt instruments or equity, as the case may be, would be considered a disposition event, according to Brazilian Law.
Generally, capital gains generated outside of Brazil arising from the sale or disposition of assets in Brazil by a non-resident of Brazil either to a Brazilian buyer or not, are subject to withholding income tax in Brazil, according to Article 26 of Law No. 10,833, of December 29, 2003. With respect to the Addressed Claims that are issued and/or registered abroad or otherwise owed by a Non-Resident Debtor, they should not fall within the definition of assets located in Brazil for purposes of Law No. 10,833. Therefore, it is possible to argue that any gain on the exchange of the Addressed Claims made outside Brazil would not be subject to Brazilian taxes. However, given the general and unclear scope of this legislation and the absence of judicial guidance in respect thereof, no assurances can be provided that such interpretation would prevail in the courts of Brazil.
In case this interpretation does not prevail and the Addressed Claims that are issued and/or
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registered abroad or that are owed by a Non-Brazilian Debtor are deemed to be assets in Brazil, as well as in the case of the Addressed Claims that are issued and/or registered in Brazil or owed by a Brazilian Debtor, as applicable, any gain earned by the Non-Resident Holder on the exchange may be subject to withholding income tax in Brazil. For Non-Resident Holders that are not resident in Favorable Tax Jurisdictions (see Section XII.B.5 (Discussion on Favorable Tax Jurisdictions)), income tax on gains realized on the sale or disposition of assets located in Brazil will be subject to rates ranging from 15% to 22.5%, according to the amount of the gain, as follows: (i) 15% for the part of the gains up to R$5 million; (ii) 17.5% for the part of the gain that exceeds R$5 million but does not exceed R$10 million; (iii) 20% for the part of the gain that exceeds R$10 million but does not exceed R$30 million; and (iv) 22.5% for the part of the gain that exceeds R$30 million.
A rate lower than 15% may be provided for in an applicable tax treaty between Brazil and the country where the Non-Resident Holder is domiciled.
If the Non-Resident Holder making the disposition is domiciled or resident in a Favorable Tax Jurisdiction, the gain will be subject to a flat 25% rate (see Section XII.B.5 (Discussion on Favorable Tax Jurisdictions)).
The exchange may be deemed as payment of the debt owed by a Brazilian Debtor. If the debt comprises accrued interest, the payment of interest portion will be subject to withholding income tax at the rate of 15% or 25%, in case of a Non-Resident Holder that is domiciled or resident in a Favorable Tax Jurisdiction. See Section XII.B.5 (Discussion on Favorable Tax Jurisdictions). In case of claims arising from services or other commercial transaction, the withholding income tax could also apply at rates of up to 25%, and other taxes may be applicable, such as the Services Tax.
2. | Resident Holder |
As a rule, any income (including interest, fees, commissions, expenses, consideration for services, capital gains, and any other increase in the net worth) earned by a Resident Holder is subject to income tax in Brazil, regardless of the location of the paying source. The payment of principal of a debt instrument does not qualify as income for Brazilian tax purposes.
Accordingly, the payment of the Consideration to Resident Holders will generally be subject to income taxes (including Personal Income Tax – “IRPF,” Corporate Income Tax – “IRPJ,” and Social Contribution on Profits – “CSLL”) in Brazil at nominal rates of up to 34%, to the extent it corresponds to income that was not previously taxed. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. In case of Addressed Claims arising from services rendered to the Debtor or other commercial transaction not taxed before, the Consideration could also be subject to other taxes, such as Service Tax and Social Security Contributions on Gross Revenues.
If the Consideration is paid by a Brazilian Debtor, the applicable taxes may be withheld at the source. In certain cases, these withheld at source taxes may be used as a tax credit by the Resident Holder.
The exchange of the Addressed Claims that are debt instruments for New Debt and/or New
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Equity, as the case may be, would be considered a disposition event, according to Brazilian Law. Capital gains arising from such disposition will generally be subject to income taxes at nominal rates of up to 34%. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. Losses incurred by Resident Holders outside Brazil are generally non-deductible for tax purposes in Brazil.
B. | Consequences of Owning or Disposing the New Debt and the New Equity |
1. | Ownership of the New Debt |
i. | Non-Resident Holder |
As a rule, a Non-Resident Holder is taxed in Brazil only when income is derived from Brazilian sources. Therefore, as long as the New Debt will be issued outside Brazil by a Non-Brazilian Debtor, any income (including interest, fees, commissions, expenses, and any other income payable by such Non-Brazilian Debtor in respect of the New Debt in favor of Non-Resident Holders) should not be subject to withholdings or deduction in respect of Brazilian income taxes or any other taxes, duties, assessments, or governmental charges in Brazil, provided that such payments are made with funds held by such Non-Brazilian Debtor outside of Brazil and an entity organized in Brazil serves as a guarantor on such debt (“Brazilian Guarantor”) is not required to pay any amount in respect of the New Debt.
In the event the issuer fails to timely pay any amount due, including any payment of principal, interest or any other amount that may be due and payable in respect of the New Debt, the Brazilian Guarantor may be required to assume the obligation to pay such amounts due. In this case, Brazilian tax authorities could attempt to impose withholding income tax upon such payments.
As there are no specific legal provisions dealing with the imposition of withholding income tax on payments made by Brazilian sources to non-resident beneficiaries under guarantees and no uniform decision from the Brazilian courts, there is a risk that tax authorities could take the position that the funds (interest and principal) remitted by the Brazilian Guarantor to the Non-Resident Holders may be subject to the imposition of withholding income tax at a generally applicable 15% rate or at a 25% rate, if the Non-Resident Holders are located in a Favorable Tax Jurisdiction. See Section XII.B.5 (Discussion on Favorable Tax Jurisdictions).
There are grounds to argue that (i) payments made under a guarantee structure should be subject to imposition of withholding income tax according to the nature of the guaranteed payment, in which case only interest should be subject to taxation at the rates of 15% or 25%, in cases of beneficiaries located in a Favorable Tax Jurisdiction; or (ii) that payments made under guarantee by Brazilian sources to non-resident beneficiaries should not be subject to the imposition of withholding income tax, to the extent that they should qualify as a credit transaction between the Guarantor and the obligor. The imposition of withholding income tax under these circumstances has not been settled by the Brazilian courts. Any other payments made by a Brazilian Guarantor may be subject to a specific tax treatment in Brazil, depending on the nature of the payment and the location of the respective Non-Resident Holder.
Please note that a different income tax rate may be provided for in an applicable tax treaty
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between Brazil and the country of residence of the Non-Resident Holder.
In the case of interest paid in connection with the New Debt by a Brazilian Debtor, a withholding income tax will be levied at a generally applicable 15% rate or at a 25% rate, if the Non-Resident Holders are located in a Favorable Tax Jurisdiction. See Section XII.B.5 (Discussion on Favorable Tax Jurisdictions).
ii. | Resident Holder |
As a rule, any interest income arising from the New Debt earned by a Resident Holder will generally be subject to income taxes in Brazil at nominal rates of up to 34%. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. If the interest is subject to any withholding tax abroad, a tax credit may be available in Brazil to the Resident Holder. In case of Resident Holders that are legal entities, other taxes may be applicable.
If the payment of interest is made by a Brazilian Guarantor, a withholding income tax at rates ranging from 22.5% to 15% may be applicable. In certain cases, this withholding income tax may be used as a tax credit by the Resident Holder.
The payments of the principal of the New Debt should not qualify as income for Brazilian tax purposes.
2. | Sale, Exchange, or Disposition of the New Debt |
i. | Non-Resident Holder |
Under Article 26 of Law No. 10,833, of December 29, 2003, capital gains generated outside Brazil arising from the sale, exchange, or disposition of assets in Brazil by a non-resident of Brazil either to a Brazilian buyer or not, are subject to income tax in Brazil. In case of the New Debt being issued and registered abroad, it should not fall within the definition of assets located in Brazil for purposes of Law No. 10,833. Therefore, it is possible to argue that the gains on the sale, exchange or disposition of the New Debt would not be subject to Brazilian taxes. However, given the general and unclear scope of this legislation and the absence of judicial guidance in respect thereof, we cannot assure that such interpretation will prevail in the courts of Brazil.
In case the New Debt issued and registered abroad is deemed to be an asset located in Brazil, the gains deriving from a sale, exchange or disposition of the New Debt may be subject to withholding income tax in Brazil. For Non-Resident Holders that are not resident in Favorable Tax Jurisdictions (as defined below), income tax on gains realized on the sale, exchange, or disposition of assets located in Brazil will be subject to rates ranging from 15% to 22.5%, according to the amount of the gain, as follows: (i) 15% for the part of the gains up to R$5 million; (ii) 17.5% for the part of the gain that exceeds R$5 million but does not exceed R$10 million; (iii) 20% for the part of the gain that exceeds R$10 million but does not exceed R$30 million; and (iv) 22.5% for the part of the gain that exceeds R$30 million. A rate lower than 15% may be provided for in an applicable tax treaty between Brazil and the country where the Non-Resident Holder is domiciled.
If the Non-Resident Holder making the disposition is domiciled or resident in a Favorable
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Tax Jurisdiction, the gains may be subject to a flat 25% rate. See Section XII.B.5 (Discussion on Favorable Tax Jurisdictions).
In the case of New Debt issued in Brazil, as applicable, the gains deriving from a sale, exchange, or disposition of the New Debt may be subject to withholding income tax in Brazil at the general rate of 15%.
ii. | Resident Holder |
Generally, any capital gain earned by a Brazilian Holder from the sale, exchange, or disposition of the New Debt may be subject to income taxes in Brazil at rates of up to 34%, regardless of where the disposition is made. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. If the capital gain is subject to income tax abroad, a tax credit may be available in Brazil to the Resident Holder. In case of Resident Holders that are legal entities, other taxes may be applicable.
3. | Ownership of the New Equity |
i. | Non-Resident Holder |
According to the Plan, the New Equity will be issued by New GOL Parent, a company that is not domiciled or resident in Brazil. The New GOL Parent would own, directly or indirectly, equity interest in Reorganized GLAI.
Generally, a Non-Resident Holder is taxed in Brazil only when income is derived from Brazilian sources. Therefore, as the New GOL Parent is not expected to be considered as resident or domiciled in Brazil for tax purposes, any dividends paid in favor of Non-Resident Holders should not be subject to withholdings or deductions in respect of Brazilian income tax or any other taxes, duties, assessments, or governmental charges in Brazil, provided that such payments are made with funds held by the New GOL Parent outside of Brazil.
ii. | Resident Holder |
As a rule, any dividend income arising from the New Equity earned by a Resident Holder will generally be subject to income taxes in Brazil at nominal rates of up to 34%. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. If the dividend is subject to withholding tax abroad, a tax credit may be available in Brazil to the Resident Holder. In case of Resident Holders that are legal entities, other taxes may be applicable.
4. | Sale, Exchange, or Other Disposition of New Equity |
i. | Non-Resident Holder |
Generally, capital gains generated outside Brazil as a result of a transfer of assets located outside Brazil are not subject to taxation in Brazil. On the other hand, capital gains derived from the transfer of assets located in Brazil between non-Brazilian residents, and between a non-Brazilian resident and a Brazilian resident, are subject to income tax, according to Law No. 10,833, enacted on December 29, 2003. Given that New GOL Parent will not be incorporated under the
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laws of Brazil and will not be domiciled or resident in Brazil, it would not qualify as a Brazilian resident for purposes of the Brazilian tax legislation. Therefore, the New Equity should not fall within the definition of assets located in Brazil for purposes of Law No. 10,833.
However, considering the general and unclear scope of this legislation and the absence of judicial guidance in respect thereof, we cannot assure that such interpretation will prevail in the courts of Brazil. If the New Equity is deemed to be an asset located in Brazil, the gains deriving from a sale, exchange or disposition of the New Debt may be subject to withholding income tax in Brazil, at progressive rates as follows: (i) 15% for the part of the gain that does not exceed R$5 million, (ii) 17.5% for the part of the gain that exceeds R$5 million but does not exceed R$10 million, (iii) 20% for the part of the gain that exceeds R$10 million but does not exceed R$30 million, and (iv) 22.5% for the part of the gain that exceeds R$30 million; or a 25% rate, if the Non-Resident Holders are located in a Favorable Tax Jurisdiction. See Section XII.B.5 (Discussion on Favorable Tax Jurisdictions).
Please note that a different income tax rate may be provided for in an applicable tax treaty between Brazil and the country of residence of the Non-Resident Holder.
ii. | Resident Holder |
Generally, any capital gain earned by a Brazilian Holder from the sale, exchange, or disposition of the New Equity may be subject to income taxes in Brazil at rates of up to 34%, regardless of where the disposition is made. The applicable rates will depend on the nature and tax regime applicable to each Resident Holder. If the capital gain is subject to any income tax abroad, a tax credit may be available in Brazil to the Resident Holder. In case of Resident Holders that are legal entities, other taxes may be applicable.
5. | Discussion on Favorable Tax Jurisdiction |
For Brazilian tax purposes, a “Favorable Tax Jurisdiction” is a country that (i) does not impose any tax on income; (ii) imposes income tax at a maximum rate lower than 17%; or (iii) imposes restrictions on the disclosure of ownership composition or securities ownership or does not allow for the identification of the beneficial owners of the earnings that are attributed to non-residents.
Brazilian tax regulations provide for a concept of “Privileged Tax Regime” (as per Law No. 11,727, dated June 23, 2008, as amended by Law No. 14,596, dated June 14, 2023), i.e., a regime that (i) does not tax income or taxes it at a maximum rate lower than 17%; (ii) grants tax advantages to a non-resident entity or individual (a) without the need to carry out a substantial economic activity in the country or in the territory, or (b) conditioned upon the non-exercise of a substantial economic activity in the country or in the territory; (iii) does not tax or taxes foreign sourced income at a maximum rate lower than 17%; or (iv) restricts the disclosure of information related to the ownership of shares, goods, and rights, as well as to the information related to the economic transactions carried out.
Normative Ruling No. 1,037, dated June 4, 2010, as amended (“Normative Ruling No. 1,037”), provides a list of the Favorable Tax Jurisdictions and Privileged Tax Regimes. Normative Ruling No. 1,037 is periodically updated to include and exclude
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countries, locations, and tax regimes from the lists of Favorable Tax Jurisdictions and Privileged Tax Regimes. Our interpretation is that Normative Ruling No. 1,037 represents an exhaustive list of the Favorable Tax Jurisdictions and Privileged Tax Regimes to be considered for Brazilian tax purposes.
Although we believe that the best interpretation of the current tax legislation could lead to the conclusion that the above-mentioned concept of “Privileged Tax Regime” should not apply to any withholding income tax on the New Debt and the New Equity, one cannot assure that subsequent legislation or interpretations by the Brazilian tax authorities will provide otherwise. Currently, the understanding of the Brazilian tax authorities is that the 15% rate would apply to interest such as those eventually paid to a Non-Resident Holder under a Privileged Tax Regime (Answer to Advance Tax Ruling Request COSIT No. 575, dated December 20, 2017). In any case, if Brazilian tax authorities determine that payments made to a Non-Resident Holder under a Privileged Tax Regime are subject to the same rules applicable to payments made to Non-Resident Holder located in a Favorable Tax Jurisdiction, the withholding income tax applicable to such payments could be assessed at a rate up to 25%.
We recommend prospective investors consult their own tax advisors from time to time to verify any possible tax consequences arising of Normative Ruling No. 1,037, as amended, Law No. 11,727 and Law No. 14,596.
C. | Other Brazilian Tax Considerations |
In addition to withholding income tax, Brazilian law imposes a Tax on Foreign Exchange Transactions (Imposto sobre Operações de Crédito, Câmbio e Seguro, ou relativas a Títulos e Valores Mobiliários), or “IOF/FX,” on the conversion of reais into foreign currency and on the conversion of foreign currency into reais.
Currently, the IOF/FX rate for almost all foreign currency exchange transactions is 0.38%, including foreign exchange transactions in connection with payments of interest to Non-Resident Holders.
Despite the above, in any case, the Brazilian government is allowed to reduce the IOF/FX rate at any time down to 0% or increase the IOF/FX rate at any time up to 25%, but only with respect to future foreign exchange transactions.
In addition, the Brazilian tax authorities could argue that a tax on credit transactions (Imposto sobre Operações de Crédito, Câmbio e Seguro, ou relativas a Títulos e Valores Mobiliários, or “IOF/Loan”), could be imposed upon any amount paid by a Brazilian Guarantor at a rate of, in principle, 1.88% of the total amount paid. In that case, the Brazilian Guarantor would be liable for the IOF/Loan.
D. | Stamp, Transfer, or Similar Taxes |
Generally, there is no stamp, transfer, or other similar tax in Brazil with respect to the transfer, assignment, or sale of any debt or equity instrument outside Brazil (including the New Debt and New Equity) nor any federal inheritance, gift, or succession tax applicable to the ownership, transfer, or disposition of the New Debt or New Equity; however, there are gift and
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inheritance taxes imposed in some states of Brazil on gifts and bequests by individuals or entities not domiciled or residing in Brazil to individuals or entities domiciled or residing within such Brazilian states.
E. | Importance of Obtaining Professional Tax Assistance |
THIS SUMMARY HAS BEEN PROVIDED FOR INFORMATIONAL PURPOSES ONLY. ALL NON-RESIDENT HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE BRAZILIAN TAX AND OTHER TAX CONSEQUENCES THAT MAY RESULT FROM IMPLEMENTATION OF THE PLAN.
SECTION
XIII.
CERTAIN LUXEMBOURG INCOME TAX CONSIDERATIONS
This summary addresses solely certain material Luxembourg tax consequences of the implementation of the Plan and does not purport to describe every aspect of taxation that may be relevant to a particular Holder (as defined below). Tax matters are complex, and the tax consequences of the Plan to a particular Holder will depend in part on such Holder’s circumstances. Accordingly, a Holder is urged to consult its own tax advisor for a full understanding of the tax consequences of transactions contemplated by the Plan to them, including the applicability and effect of Luxembourg tax laws.
Where in this summary English terms and expressions are used to refer to Luxembourg concepts, the meaning to be attributed to such terms and expressions shall be the meaning to be attributed to the equivalent Luxembourg concepts under Luxembourg tax law. For the purposes of this summary, the term “Holder” shall mean a holder of the Addressed Claims and/or the New Debt. Similarly, for the purposes of this summary, New GOL Parent is assumed to be solely a tax resident in Luxembourg.
This summary is based on the tax law of Luxembourg (excluding unpublished case law) in effect as of the date of the Plan. The tax law upon which this summary is based is subject to changes, possibly with retroactive effect. Any such change may invalidate the contents of this summary, which will not be updated to reflect such change.
This overview assumes that each transaction with respect to the Plan is at arm’s length.
The summary in this Luxembourg taxation paragraph does not address the Luxembourg tax consequences for a Holder who:
(i) | is an investor as defined in a specific law (such as the law on family wealth management companies of 11 May 2007, as amended, the law on undertakings for collective investment of 17 December 2010, as amended, the law on specialized investment funds of 13 February 2007, as amended, the law on reserved alternative investment funds of 23 July 2016, the law on securitisation of 22 March 2004, as amended, the law on venture capital vehicles of 15 June 2004, as amended and the law on pension saving companies and associations of 13 July 2005); |
(ii) | is, in whole or in part, exempt from tax; |
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(iii) | acquires, owns, or disposes of the Addressed Claims in connection with a membership of a management board, a supervisory board, an employment relationship, a deemed employment relationship, or management role; or |
(iv) | has a substantial interest in GEF or GFL (the “Luxembourg Debtors”) or a deemed substantial interest in the Luxembourg Debtors, for Luxembourg tax purposes. Generally, a person holds a substantial interest if such person owns or is deemed to own, directly or indirectly, more than 10% of the shares or interest in an entity. |
The following paragraphs do not address any Luxembourg taxation aspects in relation to a potential future conversion of any New Debt to the applicable issuer of the New Debt and New Equity as described in the Plan, as such consequences are currently uncertain and may be impacted by the facts present at such time.
A. | Certain Luxembourg Tax Consequences for Debtors of the Addressed Claims and the New Debt |
Any gain derived by a Debtor upon exchange of the Addressed Claims by Luxembourg tax resident Debtors for the Take-Back Notes and 2026 Alternative Notes is in principle fully taxable to Luxembourg corporate income tax (“CIT”) and municipal business tax (“MBT”) (at a combined rate of 23.87% in 2025, if its tax base exceeds EUR 200,000 and it maintained its registered office in Luxembourg-city). However, such taxable gain may potentially (i) be offset (entirely or partially) by any available tax losses carry forward at the time of the Effective Date (including any such losses arising during the year of the exchange) of such Debtor or (ii) be exempt from CIT and MBT if they qualify as “debt waiver gains” (gain d’assainissement).
The Debtors are not expected to suffer any increased CIT or MBT cost solely resulting from the contemplated exchange, provided however that each of the Debtors has sufficient available and unquestioned tax losses brought forward so as to entirely offset the gains (if any) deriving from such exchange.
A potential application of the tax exemption referred to under (ii) requires a certain number of factual conditions which have so far been subject to a rather conservative interpretation from the Luxembourg tax authorities. The current expectation is that the availability of the tax exemption applicable to “debt waiver gains” (gain d’assainissement) is rather unlikely to be achievable for the Debtors as the factual framework, and the relevant elements do not seem to fully align with the required conditions.
It follows from these considerations that—in the absence of sufficient available and unquestioned tax losses brought forward for each of the Debtors (as explained to above)—any gains derived from the contemplated exchange could be either partially (if only partially offset by available tax losses carried forward) or fully taxable to CIT and MBT (at the above rate) for each of such Debtors, which could therefore result in material adverse effects on their businesses, financial conditions, results, or operations.
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B. | Certain Luxembourg Tax Consequences for Holders of Addressed Claims, the New Debt, and the New Equity |
1. | Certain Luxembourg Tax Consequences for Holders in Relation with Exchange of Addressed Claim |
Non-resident Holders that do not have a permanent establishment, a permanent representative, or a fixed place of business in Luxembourg to which the Consideration received in exchange (in whole or partial consideration) for the relevant Addressed Claim are attributable are not subject to Luxembourg income taxes in respect of any payments of principal or interest (including accrued but unpaid interest) or realise capital gains derived or deemed to be derived in connection with the exchange of the Addressed Claims by Luxembourg tax resident Debtors for the Take-Back Notes and 2026 Alternative Notes.
2. | Certain Luxembourg Tax Consequences for Holders in Relation with the Conversion of the Exchangeable Take-Back Notes into New Equity |
Non-resident Holders that do not have a permanent establishment, a permanent representative, or a fixed place of business in Luxembourg to which the New Equity received upon conversion (in whole or in part) of the Exchangeable Take-Back Notes are attributable are not subject to Luxembourg income taxes in respect of any payments of principal or interest (including accrued but unpaid interest) or capital gains derived or deemed to be derived from the conversion of the Exchangeable Take-Back Notes into the New Equity issued by New GOL Parent.
3. | Withholding Tax |
i. | Withholding Tax on the New Debt |
d. | Luxembourg Non-Resident Holders |
All payments of interest and principal under the New Debt made to Luxembourg non-resident Holders may be made free from withholding or deduction of or for any taxes of whatever nature imposed, levied, withheld, or assessed by Luxembourg or any political subdivision or taxing authority of or in Luxembourg.
e. | Luxembourg Individual Resident Holders |
Under the law of 23 December 2005 as amended (the “Relibi Law”), payments of interest and similar income paid by a paying agent and made or deemed to be made to an individual who is resident in Luxembourg may be subject to a withholding tax of 20% of the payment. The 20% withholding tax is levied by the aforementioned paying agent.
In the event that interest is paid to a Luxembourg resident individual Holder by a paying agent established in an EU Member State other than Luxembourg, or an EEA State, the beneficiary may opt for the application of the 20% withholding tax in accordance with the Relibi Law (see above), or the 20% tax. The 20% tax is paid and declared by the beneficiary.
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The 20% withholding tax and the 20% tax will constitute a full discharge of income tax for Luxembourg resident individuals acting in the context of the management of their private wealth.
ii. | Withholding Tax on the New Equity |
Dividends distributed by New GOL Parent to its Luxembourg resident and non-resident shareholders are generally subject to a fifteen percent (15%) withholding tax in Luxembourg (if levied on the gross dividend amount), or seventeen point sixty-five percent (17.65%) (if levied on the net dividend amount made available (mis à disposition) of the beneficiary), unless a reduced treaty rate or the participation exemption applies. Under certain conditions, a corresponding tax credit may be granted to the shareholders (subject to certain restrictions and limitations). Responsibility for the withholding of the tax is assumed by New GOL Parent.
A withholding tax exemption applies under the participation exemption regime (subject to any applicable anti-abuse rules), if cumulatively (i) the shareholder is an eligible parent (“Eligible Parent”) and (ii) at the time the income is made available, the Eligible Parent holds or commits itself to hold for an uninterrupted period of at least twelve (12) months a participation representing either (a) a direct participation of at least ten percent (10%) in the share capital of New GOL Parent or (b) a direct participation in New GOL Parent of an acquisition price of at least one million two hundred thousand euros (EUR 1,200,000) or its equivalent in another currency. Holding a participation through a tax transparent entity is deemed to be a direct participation in the proportion of the net assets held in this entity. An Eligible Parent includes notably (i) a company covered by Article 2 of the Council Directive 2011/96/EU dated November 30, 2011 (the “Parent-Subsidiary Directive”) or a Luxembourg permanent establishment thereof, (ii) a company resident in a State having a double tax treaty with Luxembourg and liable to a tax corresponding to Luxembourg CIT or a Luxembourg permanent establishment thereof, (iii) a capital company (société de capitaux) or a cooperative company (société coopérative) resident in a Member State of the EEA other than an EU Member State and liable to a tax corresponding to Luxembourg CIT or a Luxembourg permanent establishment thereof, or (iv) a Swiss capital company (société de capitaux) which is subject to CIT in Switzerland without benefiting from an exemption.
No withholding tax is levied on capital gains and liquidation proceeds.
4. | Taxes on Income and Capital Gains |
i. | Luxembourg Non-Resident Holders |
Non-resident Holders that do not have a permanent establishment a permanent representative or a fixed place of business in Luxembourg to which exchange or income thereon are attributable are not subject to Luxembourg income taxes in respect of any payments of principal or interest (including accrued but unpaid interest) or realise capital gains derived or deemed to be derived in connection from the New Debt.
Under Luxembourg tax laws currently in force (subject to the provisions of any applicable double taxation treaty), capital gains realized by a Luxembourg non-resident holder of the New Equity (not acting through a permanent establishment, a permanent representative or a fixed place of business in Luxembourg through which/whom the New Equity are held) are not taxable in Luxembourg unless (i) such holder holds a Substantial Participation (as defined below) in New
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GOL Parent and the disposal of the New Equity takes place less than six (6) months after the New Equity were acquired or (ii) such holder has been a former Luxembourg resident for more than fifteen (15) years and has become a non-resident, at the time of transfer, less than five (5) years ago.
ii. | Luxembourg Resident Holders |
Individuals. Any payments of principal or interest (including accrued but unpaid interest) or realise capital gains derived or deemed to be derived from or in connection with the New Debt by a Luxembourg resident Holder and that that are attributable to an enterprise from which an individual derives profits, whether as an entrepreneur or pursuant to a co-entitlement to the net value of an enterprise, are generally subject to Luxembourg income tax. A Luxembourg resident individual Holder who invests in the New Debt as part of such person’s private wealth management is subject to Luxembourg income tax in respect of interest and similar income (such as premiums or issue discounts) derived from the New Debt, except if tax is levied on such income in accordance with the Relibi Law (see above). A gain realised by a Luxembourg resident individual Holder, acting in the course of the management of that person’s private wealth, upon the sale or disposal, in any form whatsoever, of the New Debt is not subject to Luxembourg income tax, provided this sale or disposal takes place more than six months after the New Debt are acquired. However, any portion of such gain corresponding to accrued but unpaid interest is subject to Luxembourg income tax, except if tax is levied on such interest in accordance with the Relibi Law (see above). Any payments of principal or interest (including accrued but unpaid interest) or realise capital gains derived by a Luxembourg resident individual Holder from the disposal of the New Debt prior to its acquisition is subject to income tax as well.
Dividends and other payments derived from the New Equity held by resident individual Holders, who act in the course of the management of either their private wealth or their professional/business activity, are subject to income tax at the ordinary progressive rates. Under current Luxembourg tax laws, fifty percent (50%) of the gross amount of dividends received by resident individuals from the New Equity may however be exempt from income tax under certain conditions. A total lump sum of one thousand five hundred euros (EUR 1,500) (doubled for individual taxpayers who are jointly taxable) is also deductible from total dividend received during the tax year.
Capital gains realized on the disposal of the New Equity by resident individual Holders, who act in the course of the management of their private wealth, are not subject to income tax, unless said capital gains qualify either as speculative gains or as gains on a substantial participation. Capital gains are deemed to be speculative if the New Equity are disposed of within six (6) months after their acquisition or if their disposal precedes their acquisition. Speculative gains are subject to income tax as miscellaneous income at ordinary rates. A participation is deemed to be substantial where a resident individual Holder holds or has held, either alone or together with his/her spouse or partner and/or minor children, directly or indirectly at any time within the five (5) years preceding the disposal, more than ten percent (10%) of the share capital of the company whose shares are being disposed of the substantial participation (“Substantial Participation”). A Holder is also deemed to alienate a Substantial Participation if he/she acquired free of charge, within the five (5) years preceding the transfer, a participation that was constituting a Substantial Participation in the hands of the alienator (or the alienators in case
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of successive transfers free of charge within the same five (5)-year period). Capital gains realized on a Substantial Participation more than six (6) months after the acquisition thereof are taxed according to the half-global rate method (i.e., the average rate applicable to the total income is calculated according to progressive income tax rates and half of the average rate is applied to the capital gains realized on the Substantial Participation).
Corporations. A corporate Luxembourg resident Holder must include any payments derived or deemed to be derived from or in connection with the New Debt, such as principal, interest accrued or received, any redemption premium or issue discount, as well as any gain realized on the sale or disposal, in any form whatsoever, of the New Debt, in its taxable income for Luxembourg income tax purposes.
Dividends and other payments derived from the New Equity held by Luxembourg resident fully taxable companies are subject to CIT and MBT, unless the conditions of the participation exemption regime, as described below, are satisfied. A tax credit is generally granted for withholding taxes levied at source within the limit of the CIT payable in Luxembourg on such income, whereby any excess withholding tax is not refundable (but may be deductible under certain conditions). If the conditions of the participation exemption regime are not met, fifty percent (50%) of the dividends distributed by the Company to a Luxembourg fully taxable resident company are nevertheless exempt from income tax.
Under the participation exemption regime (subject to any applicable anti-abuse rules), dividends derived from the New Equity may be exempt from CIT and MBT at the level of the Holder (which holds shares into New GOL Parent) if (i) the Holder is an Eligible Parent (as defined above) and (ii) at the time the dividend is made available to the Holder, the latter holds or commits itself to hold for an uninterrupted period of at least twelve (12) months a shareholding representing a direct participation of at least ten percent (10%) in the share capital of New GOL Parent or a direct participation in New GOL Parent of an acquisition price of at least one million two hundred thousand euros (EUR 1,200,000) or its equivalent in another currency. Liquidation proceeds are assimilated to a received dividend and may be exempt under the same conditions. Capital gains realized by a Luxembourg fully taxable resident company on the disposal of the New Equity are subject to income tax at ordinary rates, unless the conditions of the participation exemption regime, as described below, are satisfied.
Under the participation exemption regime (subject to any applicable anti-abuse rules), capital gains realized on the New Equity may be exempt from CIT and MBT (save for any portion of such gain falling under certain recapture rules) at the level of the Holder if cumulatively (i) the Holder is a Luxembourg Eligible Parent and (ii) at the time the capital gain is realized, the Holder holds or commits itself to hold for an uninterrupted period of at least twelve (12) months the New Equity representing either (a) a direct participation of at least ten (10%) in the share capital of New GOL Parent or (b) a direct participation in the Company of an acquisition price of at least six million euros (EUR 6,000,000) or its equivalent in another currency. Taxable gains are determined as being the difference between the price for which the New Equity have been disposed of and the lower of their cost or book value.
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For the purposes of the participation exemption regime, the New Equity held through a tax transparent entity are considered as a direct participation proportionally to the percentage held in the net assets of the transparent entity.
iii. | General |
If a Holder is neither resident nor deemed to be resident in Luxembourg, such Holder will for Luxembourg tax purposes not carry on or be deemed to carry on an enterprise, in whole or in part, through a permanent establishment or a permanent representative in Luxembourg by reason only of the execution of the documents relating to the issue of New Debt and/or the New Equity or the performance by the Luxembourg Debtors of its obligations under such documents or under the New Debt and/or the New Equity.
5. | Net Wealth Tax |
Corporate Holders resident in Luxembourg and non-resident corporate Holders of the New Debt and/or the New Equity that maintain a permanent establishment, a permanent representative or fixed place of business in Luxembourg to which or to whom the New Debt and/or the New Equity are attributable are subject to annual net wealth tax on their unitary value (i.e., non-exempt assets minus liabilities and certain provisions as valued according to the Luxembourg valuation rules), levied at a rate of 0.5% if the unitary value does not exceed €500,000,000.
Individuals Holders are not subject to Luxembourg net wealth tax.
6. | Other Taxes and Duties |
It is not compulsory that the New Debt agreements be filed, recorded, or enrolled with any court or other authority in Luxembourg. No registration tax, stamp duty, or any other similar documentary tax or duty is due in respect of or in connection with the Plan, the performance by the Luxembourg Debtors of its obligations under the Plan, or the mere transfer of the New Debt and/or the New Equity. The mere issuance of the New Equity by New GOL Parent triggers registration taxes and duties which should in principle amount to EUR 75 (fixed registration tax). However, a fixed or ad valorem registration duty in Luxembourg may apply (i) upon registration voluntarily or pursuant to a contractual obligation of the New Debt and/or the New Equity agreements before the Registration and Estates Department (Administration de l’enregistrement, des domaines et de la TVA) in Luxembourg (présentation à l’enregistrement), or (ii) if the New Debt and/or the New Equity agreements are (a) enclosed to a compulsorily registrable deed under Luxembourg law, (acte obligatoirement enregistrable) or (b) deposited with the official records of a notary (déposé au rang des minutes d’un notaire).
7. | Importance of Obtaining Professional Tax Assistance |
The foregoing summary has been provided for informational purposes only. All Holders are urged to consult their own tax advisors concerning the Luxembourg income tax and other tax consequences that may result from implementation of the Plan.
SECTION XIV.
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Alternatives to Confirmation
and Consummation of Plan
If the Plan is not confirmed, alternatives include (i) liquidation of the Debtors under chapter 7 of the Bankruptcy Code, (ii) formulation of an alternative chapter 11 plan(s) of reorganization or liquidation; (iii) a sale of substantially all of the Debtors’ assets under section 363 of the Bankruptcy Code, or (iv) dismissal of the Chapter 11 Cases in contemplation of liquidation or dissolution under non-U.S. law. Each of these possibilities is discussed below. The Debtors have concluded that the Plan, if confirmed and consummated, is the best alternative and will maximize recoveries to their creditors and equity holders.
A. | Liquidation Under Chapter 7 or Chapter 11 of Bankruptcy Code |
If the Plan is not confirmed, the Chapter 11 Cases could be converted to liquidation cases under chapter 7 of the Bankruptcy Code. In chapter 7, a trustee would be appointed to promptly liquidate the Debtors’ assets.
Although it is impossible to predict the amount of proceeds that may be obtained in a chapter 7 liquidation, the Debtors believe that the value of their estates would be substantially diminished in a liquidation, due to additional administrative expenses involved in the appointment of a trustee and attorneys, accountants, and other professionals to assist the trustee. The assets available for distribution to creditors would be reduced by those additional expenses and by additional Claims, some of which would be entitled to priority, that would arise in a liquidation, including damages claims from the rejection of leases and executory contracts in connection with the cessation of the Debtors’ operations.
The Debtors could also be liquidated pursuant to a chapter 11 plan. In a liquidation under chapter 11, the Debtors’ assets could be sold in a more orderly fashion over a longer period of time than in a chapter 7 liquidation. In addition, because no trustee is required in a chapter 11 liquidation, expenses for professional fees should be lower than in a chapter 7 liquidation. However, the drafting and pursuit of a liquidation plan and the balloting and tabulation of votes on such plan would result in additional administrative costs, and any distributions probably would be delayed. Thus, a chapter 11 liquidation might result in larger recoveries than a chapter 7 liquidation, but the delay in distributions could result in lower present values of such distributions.
It is highly unlikely that Unsecured Claim holders and Interest holders would receive any distribution in a liquidation under either chapter 7 or chapter 11.
The Debtors believe that any liquidation is a much less attractive alternative for creditors than the Plan because of the greater recoveries that the Debtors anticipate will be provided under the Plan. The Debtors believe that the Plan affords substantially greater benefits to holders of Claims and Interests than would liquidation under any chapter of the Bankruptcy Code.
The Liquidation Analysis, prepared by the Debtors with their financial advisors, premised upon a chapter 7 liquidation, is attached hereto as Exhibit C. In the Liquidation Analysis, the Debtors have considered the nature, status, and underlying value of their assets, the ultimate realizable value of such assets, and the extent to which the assets are subject to liens and security
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interests. Based on this analysis, it appears that a liquidation of the Debtors’ assets would produce less value for distribution to creditors and equity interest holders than that recoverable in each instance under the Plan.
B. | Alternative Chapter 11 Plans |
If the Plan is not confirmed, the Debtors (or if the Debtors’ Exclusive Plan Period expires or is terminated, any other party in interest) could propose a different plan. Such a plan might involve (i) a reorganization and continuation of the Debtors’ business or (ii) an orderly liquidation of their assets. The Debtors, however, believe that the Plan, as described herein, enables their creditors to realize the most value under the circumstances.
The Debtors could continue to operate their business as debtors in possession, subject to the restrictions imposed by the Bankruptcy Code. However, it is not clear whether the Debtors could continue as a going concern in protracted Chapter 11 Cases due to, among other things, the high costs of operating in chapter 11 and the eroding confidence of the Debtors’ customers and trade vendors. Additionally, if the DIP Facility were terminated, it likely would be very difficult for the Debtors to obtain alternative financing.
C. | Sale Under Section 363 of the Bankruptcy Code |
If the Plan is not confirmed, the Debtors could seek from the Bankruptcy Court, after notice and hearing, authorization to sell their assets under section 363 of the Bankruptcy Code. The DIP Noteholders and other secured creditors would be entitled to credit bid on any property to which their security interests attach to the extent of the value of their security interests and to offset their Claims against the purchase price of such property. In addition, all security interests in the Debtors’ assets would attach to the proceeds of any sale of the applicable assets to the same extent. In addition, the Debtors may be unable to transfer their non-U.S. operating licenses to a purchaser of their assets. The Debtors do not believe a sale of their assets under section 363 of the Bankruptcy Code would yield a higher recovery for the holders of Claims or Interests.
D. | Dismissal and Local Liquidation or Dissolution |
If the Plan is not confirmed, the Chapter 11 Cases could be dismissed, in which case separate liquidation or dissolution proceedings may be commenced in the various jurisdictions where the Debtors are organized. Such proceedings may be lengthy, are unlikely to be effectively coordinated across national borders, and are unlikely to preserve the going-concern value of the Debtors’ enterprise. Accordingly, the Debtors believe that dismissal of the Chapter 11 Cases in favor of local proceedings is a much less attractive alternative compared to the Plan.
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SECTION
XV.
Conclusion and Recommendation
The Debtors believe the Plan is in the best interests of their estates and stakeholders and urge the holders of Claims in the Voting Classes to vote in favor of the Plan.
As set forth in the Committee Recommendation Letter attached hereto as Exhibit F, the Committee recommends that all unsecured creditors in the Voting Classes vote to accept the Plan.
Dated: March 20, 2025 Respectfully submitted,
GOL Linhas Aéreas Inteligentes S.A., on behalf of itself and each of its Debtor affiliates
/s/ Joseph W. Bliley
Name: Joseph W. Bliley
Title: Chief Restructuring Officer
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EXHIBIT A
Plan
GAC, Inc. (Cayman Islands) Gol Finance (Luxembourg) Gol Finance (Cayman Islands) GTX S.A. (Brazil) GOL Linhas Aéreas S.A. (Brazil) GOL Linhas Aéreas Inteligentes S.A. (Brazil) Smiles Fidelidade Argentina S.A. (Argentina) Capitânia Air Fundo de Investimento Multimercado Crédito Privado Investimento no Exterior (Brazil) Sorriso Fundo de Investimento em Cotas de Fundos de Investimento Multimercado Crédito Privado Investimento no Exterior (Brazil) Smiles Viajes y Turismo S.A. (Argentina) Smiles Viagens e Turismo S.A. (Brazil) Gol Equity Finance Orphan SPV (Luxembourg) Smiles Fidelidade S.A. (Brazil) 100% 100% 100% 100% 100% 100% 100% 100% 100% 100% 5% 2% 98% Exhibit T3G – Organizational Chart
Exhibit T3G - Organizational Chart