U.S. Treasury, Form of Payroll Support Program 3 (PSP3) Agreement
Summary
The Payroll Support Program 3 Agreement form of the Department of the Treasury, under which Treasury provides Payroll Support under section 7301 of the American Rescue Plan Act of 2021 to a Signatory Entity and its Affiliates. The form carries bracketed fields for the recipient, its participant number and the amount of the initial payment, and an OMB approval number, No. 1505-0263. It defines terms, states that the Recipient shall use the Payroll Support exclusively for Wages, Salaries, and Benefits, and sets conditions on involuntary terminations or furloughs, equity purchases, dividends through September 30, 2022, and compensation above $425,000 and $3,000,000 in calendar year 2019. It closes with a certification for a Corporate Officer of the Signatory Entity.
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“U.S. Treasury, Form of Payroll Support Program 3 (PSP3) Agreement.”
Original at home.treasury.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/u-s-treasury-form-of-payroll-support-program-3-psp3-agreement-b9668bce57/
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PAYROLL SUPPORT PROGRAM 3 AGREEMENT
Recipient: [Signatory Entity Name and PSP Participant Number: [ ]
Address] Employer Identification Number: [ ]
DUNS Number: _____________________________
Additional Recipients: [ ]
Amount of Initial Payroll Support Payment: $[ ]
The Department of the Treasury (Treasury) hereby provides Payroll Support (as defined herein) under
section 7301 of the American Rescue Plan Act of 2021. The Signatory Entity named above, on behalf of
itself and its Affiliates (as defined herein), agrees to comply with this Agreement and applicable Federal
law as a condition of receiving Payroll Support. The Signatory Entity and its undersigned authorized
representatives acknowledge that a materially false, fictitious, or fraudulent statement (or concealment or
omission of a material fact) in connection with this Agreement may result in administrative remedies as
well as civil and/or criminal penalties.
The undersigned hereby agree to the attached Payroll Support Program 3 Agreement.
_______________________________________
Department of the Treasury [Signatory Entity]
Name: Signature of First Authorized Representative Date
Title:
Date:
Print Name of First Authorized Representative Title
[Signatory Entity]
Signature of Second Authorized Representative Date
Print Name of Second Authorized Representative Title
OMB Approval No. 1505-0263
PAPERWORK REDUCTION ACT NOTICE
The information collected will be used for the U.S. Government to process requests for support. The estimated
burden associated with this collection of information is 2 hours per response. Comments concerning the accuracy of
this burden estimate and suggestions for reducing this burden should be directed to the Office of Privacy,
Transparency and Records, Department of the Treasury, 1500 Pennsylvania Ave., N.W., Washington, D.C. 20220.
DO NOT send the form to this address. An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a valid control number assigned by OMB.
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PAYROLL SUPPORT PROGRAM 3 AGREEMENT
INTRODUCTION
Section 7301 of the American Rescue Plan Act of 2021 (ARP) directs the Department of the
Treasury (Treasury) to provide Payroll Support (as defined herein) to passenger air carriers and
certain contractors that must be exclusively used for the continuation of payment of Employee
Salaries, Wages, and Benefits (as defined herein). The ARP requires certain assurances from the
Recipient (as defined herein).
This Payroll Support Program 3 Agreement, including all supporting documents submitted by
the Recipient and the Payroll Support Program 3 Certification attached hereto (collectively,
Agreement), memorializes the binding terms and conditions applicable to the Recipient.
DEFINITIONS
As used in this Agreement, the following terms shall have the following respective meanings,
unless the context clearly requires otherwise. In addition, this Agreement shall be construed in a
manner consistent with any public guidance Treasury may from time to time issue regarding the
implementation of section 7301 of the ARP.
Additional Payroll Support Payment means any disbursement of Payroll Support occurring after
the first disbursement of Payroll Support under this Agreement.
Affiliate means any Person that directly or indirectly controls, is controlled by, or is under
common control with, the Recipient. For purposes of this definition, “control” of a Person shall
mean having the power, directly or indirectly, to direct or cause the direction of the management
and policies of such Person, whether by ownership of voting equity, by contract, or otherwise.
ARP means the American Rescue Plan Act of 2021.
Benefits means, without duplication of any amounts counted as Salary or Wages, pension
expenses in respect of Employees, all expenses for accident, sickness, hospital, and death
benefits to Employees, and the cost of insurance to provide such benefits; any Severance Pay or
Other Benefits payable to Employees pursuant to a bona fide voluntary early retirement program
or voluntary furlough; and any other similar expenses paid by the Recipient for the benefit of
Employees, including any other fringe benefit expense described in lines 10 and 11 of Financial
Reporting Schedule P-6, Form 41, as published by the Department of Transportation, but
excluding any Federal, state, or local payroll taxes paid by the Recipient.
Corporate Officer means, with respect to the Recipient, its president; any vice president in
charge of a principal business unit, division, or function (such as sales, administration or
finance); any other officer who performs a policy-making function; or any other person who
performs similar policy making functions for the Recipient. Executive officers of subsidiaries or
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parents of the Recipient may be deemed Corporate Officers of the Recipient if they perform such
policy-making functions for the Recipient.
Employee means an individual who is employed by the Recipient and whose principal place of
employment is in the United States (including its territories and possessions), including salaried,
hourly, full-time, part-time, temporary, and leased employees, but excluding any individual who
is a Corporate Officer or independent contractor.
Involuntary Termination or Furlough means the Recipient terminating the employment of one or
more Employees or requiring one or more Employees to take a temporary suspension or unpaid
leave for any reason, including a shut-down or slow-down of business; provided, however, that
an Involuntary Termination or Furlough does not include a Permitted Termination or Furlough.
Maximum Awardable Amount means the amount determined by the Secretary with respect to the
Recipient pursuant to section 7301(b)(2) of the ARP.
Payroll Support means funds disbursed by the Secretary to the Recipient under this Agreement,
including the first disbursement of Payroll Support and any Additional Payroll Support Payment.
Permitted Termination or Furlough means, with respect to an Employee, (1) a voluntary
furlough, voluntary leave of absence, voluntary resignation, or voluntary retirement, (2)
termination of employment resulting from such Employee’s death or disability, or (3) the
Recipient terminating the employment of such Employee for cause or placing such Employee on
a temporary suspension or unpaid leave of absence for disciplinary reasons, in either case, as
reasonably determined by the Recipient acting in good faith.
Person means any natural person, corporation, limited liability company, partnership, joint
venture, trust, business association, governmental entity, or other entity.
PSP1 means the Payroll Support Program established under Division A, Title IV, Subtitle B of
the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. No. 116-136).
PSP2 means the Payroll Support Program Extension established under Subtitle A of Title IV of
Division N of the Consolidated Appropriations Act, 2021.
Recipient means, collectively, the Signatory Entity; its Affiliates that are listed on the signature
page hereto as Additional Recipients; and their respective heirs, executors, administrators,
successors, and assigns.
Salary means, without duplication of any amounts counted as Benefits, a predetermined regular
payment, typically paid on a weekly or less frequent basis but which may be expressed as an
hourly, weekly, annual or other rate, as well as cost-of-living differentials, vacation time, paid
time off, sick leave, and overtime pay, paid by the Recipient to its Employees, but excluding any
Federal, state, or local payroll taxes paid by the Recipient.
Secretary means the Secretary of the Treasury.
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Severance Pay or Other Benefits means any severance payment or other similar benefits,
including cash payments, health care benefits, perquisites, the enhancement or acceleration of the
payment or vesting of any payment or benefit or any other in-kind benefit payable (whether in
lump sum or over time, including after October 1, 2022) by the Recipient to a Corporate Officer
or Employee in connection with any termination of such Corporate Officer’s or Employee’s
employment (including, without limitation, resignation, severance, retirement, or constructive
termination), which shall be determined and calculated in respect of any Employee or Corporate
Officer of the Recipient in the manner prescribed in 17 CFR 229.402(j) (without regard to its
limitation to the five most highly compensated executives and using the actual date of
termination of employment rather than the last business day of the Recipient’s last completed
fiscal year as the trigger event).
Signatory Entity means the passenger air carrier or contractor that has entered into this
Agreement.
Taxpayer Protection Instruments means warrants, options, preferred stock, debt securities, notes,
or other financial instruments issued by the Recipient or an Affiliate to Treasury as compensation
for the Payroll Support under this Agreement, if applicable.
Total Compensation means compensation including salary, wages, bonuses, awards of stock, and
any other financial benefits provided by the Recipient or an Affiliate, as applicable, which shall
be determined and calculated for the 2019 calendar year or any applicable 12-month period in
respect of any Employee or Corporate Officer of the Recipient in the manner prescribed under
paragraph e.6 of the award term in 2 CFR part 170, App. A, but excluding any Severance Pay or
Other Benefits in connection with a termination of employment.
Wage means, without duplication of any amounts counted as Benefits, a payment, typically paid
on an hourly, daily, or piecework basis, including cost-of-living differentials, vacation, paid time
off, sick leave, and overtime pay, paid by the Recipient to its Employees, but excluding any
Federal, state, or local payroll taxes paid by the Recipient.
PAYROLL SUPPORT PAYMENTS
1. Upon the execution of this Agreement by Treasury and the Recipient, the Secretary shall
approve the Recipient to receive Payroll Support.
2. The Recipient may receive Payroll Support in multiple payments up to the Maximum
Awardable Amount, and the amounts (individually and in the aggregate) and timing of such
payments will be determined by the Secretary in her sole discretion. The Secretary may, in
her sole discretion, increase or reduce the Maximum Awardable Amount consistent with
section 7301 of the ARP.
3. The Secretary may determine in her sole discretion that any Payroll Support shall be
conditioned on, and subject to, compliance by the Recipient with all applicable requirements
under (a) PSP2 and (b) PSP1 if the Recipient received financial assistance in PSP1, and such
additional terms and conditions (including the receipt of, and any terms regarding, Taxpayer
Protection Instruments) to which the parties may agree in writing.
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TERMS AND CONDITIONS
Retaining and Paying Employees
4. The Recipient shall use the Payroll Support exclusively for the continuation of payment of
Wages, Salaries, and Benefits to the Employees of the Recipient.
a. Furloughs and Layoffs. The Recipient shall not conduct an Involuntary Termination
or Furlough of any Employee between the date of this Agreement and September 30,
2021 or the date on which the Recipient has expended all of the Payroll Support,
whichever is later.
b. Employee Salary, Wages, and Benefits
i. Salary and Wages. Except in the case of a Permitted Termination or
Furlough, the Recipient shall not, between the date of this Agreement and
September 30, 2021 or the date on which the Recipient has expended all of the
Payroll Support, whichever is later, reduce, without the Employee’s consent,
(A) the pay rate of any Employee earning a Salary, or (B) the pay rate of any
Employee earning Wages.
ii. Benefits. Except in the case of a Permitted Termination or Furlough, the
Recipient shall not, between the date of this Agreement and September 30,
2021 or the date on which the Recipient has expended all of the Payroll
Support, whichever is later, reduce, without the Employee’s consent, the
Benefits of any Employee; provided, however, that for purposes of this
paragraph, personnel expenses associated with the performance of work
duties, including those described in line 10 of Financial Reporting Schedule P-
6, Form 41, as published by the Department of Transportation, may be
reduced to the extent the associated work duties are not performed.
Dividends and Buybacks
5. Through September 30, 2022, neither the Recipient nor any Affiliate shall, in any transaction,
purchase an equity security of the Recipient or of any direct or indirect parent company of
the Recipient that, in either case, is listed on a national securities exchange.
6. Through September 30, 2022, the Recipient shall not pay dividends, or make any other
capital distributions, with respect to the common stock (or equivalent equity interest) of the
Recipient.
Limitations on Certain Compensation
7. Beginning April 1, 2021, and ending April 1, 2023, the Recipient and its Affiliates shall not
pay any of the Recipient’s Corporate Officers or Employees whose Total Compensation
exceeded $425,000 in calendar year 2019 (other than an Employee whose compensation is
determined through an existing collective bargaining agreement entered into before March
11, 2021):
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a. Total Compensation which exceeds, during any 12 consecutive months of such two-
year period, the Total Compensation the Corporate Officer or Employee received in
calendar year 2019; or
b. Severance Pay or Other Benefits in connection with a termination of employment
with the Recipient which exceed twice the maximum Total Compensation received
by such Corporate Officer or Employee in calendar year 2019.
8. Beginning April 1, 2021, and ending April 1, 2023, the Recipient and its Affiliates shall not
pay, during any 12 consecutive months of such two-year period, any of the Recipient’s
Corporate Officers or Employees whose Total Compensation exceeded $3,000,000 in
calendar year 2019 Total Compensation in excess of the sum of:
a. $3,000,000; and
b. 50 percent of the excess over $3,000,000 of the Total Compensation received by such
Corporate Officer or Employee in calendar year 2019.
9. For purposes of determining applicable amounts under paragraphs 7 and 8 with respect to
any Corporate Officer or Employee who was employed by the Recipient or an Affiliate for
less than all of calendar year 2019, the amount of Total Compensation in calendar year 2019
shall mean such Corporate Officer’s or Employee’s Total Compensation on an annualized
basis.
Service and Eligibility
10.1.If the Recipient is an air carrier, until March 1, 2022, the Recipient shall comply with any
applicable requirement issued by the Secretary of Transportation under section 407 of the
PSP Extension Law to maintain scheduled air transportation service to any point served by
the Recipient before March 1, 2020.
10.2. The Recipient represents, warrants, and certifies that as of March 31, 2021, the Recipient:
a. provided air transportation as an air carrier, as defined under 49 U.S.C. § 40102; or
b. (i) performed, under contract with a passenger air carrier conducting operations under
14 CFR part 121, (A) catering functions; or (B) functions on the property of an airport
that were directly related to the air transportation of persons, property, or mail,
including the loading and unloading of property on aircraft, assistance to passengers
under 14 CFR part 382, security, airport ticketing and check-in functions,
groundhandling of aircraft, or aircraft cleaning and sanitization functions and waste
removal; or (ii) was a subcontractor that performed such functions.
10.3. The Recipient represents, warrants, and certifies that between March 31, 2021, and the
effective date of this Agreement, it has not:
a. conducted an Involuntary Termination or Furlough;
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b. reduced, without the Employee’s consent, (i) the pay rate of any Employee earning a
Salary, or (ii) the pay rate of any Employee earning Wages; or
c. except in the case of a Permitted Termination or Furlough, reduced, without the
Employee’s consent, the Benefits of any Employee (provided, however, that for
purposes of this subparagraph, personnel expenses associated with the performance of
work duties, including those described in line 10 of Financial Reporting Schedule P-
6, Form 41, as published by the Department of Transportation, may be reduced to the
extent the associated work duties are not performed).
Effective Date
11. This Agreement shall be effective as of the date of its execution by both parties.
Reporting and Auditing
12. Until the calendar quarter that begins after the later of January 1, 2023, and the date on which
no Taxpayer Protection Instrument is outstanding, not later than 45 days after the end of each
of the first three calendar quarters of each calendar year and 90 days after the end of each
calendar year, the Signatory Entity, on behalf of itself and each other Recipient, shall certify
to Treasury that it is in compliance with the terms and conditions of this Agreement and
provide a report containing the following:
a. the amount of Payroll Support funds expended during such quarter;
b. the Recipient’s financial statements (audited by an independent certified public
accountant, in the case of annual financial statements);
c. a copy of the Recipient’s IRS Form 941 filed with respect to such quarter; and
d. a detailed summary describing, with respect to the Recipient, (a) any changes in
Employee headcount during such quarter and the reasons therefor, including any
Involuntary Termination or Furlough, (b) any changes in the amounts spent by the
Recipient on Employee Wages, Salary, and Benefits during such quarter, and (c)
any changes in Total Compensation for, and any Severance Pay or Other Benefits
in connection with the termination of, Corporate Officers and Employees subject
to limitation under this Agreement during such quarter; and the reasons for any
such changes.
13. If the Recipient or any Affiliate, or any Corporate Officer of the Recipient or any Affiliate,
becomes aware of facts, events, or circumstances that may materially affect the Recipient’s
compliance with the terms and conditions of this Agreement, the Recipient or Affiliate shall
promptly provide Treasury with a written description of the events or circumstances and any
action taken, or contemplated, to address the issue.
14. In the event the Recipient contemplates any action to commence a bankruptcy or insolvency
proceeding in any jurisdiction, the Recipient shall promptly notify Treasury.
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15. The Recipient shall:
a. Promptly provide to Treasury and the Treasury Inspector General a copy of any
Department of Transportation Inspector General report, audit report, or report of
any other oversight body, that is received by the Recipient relating to this
Agreement.
b. Immediately notify Treasury and the Treasury Inspector General of any indication
of fraud, waste, abuse, or potentially criminal activity pertaining to the Payroll
Support.
c. Promptly provide Treasury with any information Treasury may request relating to
compliance by the Recipient and its Affiliates with this Agreement.
16. The Recipient and Affiliates will provide Treasury, the Treasury Inspector General, and such
other entities as authorized by Treasury timely and unrestricted access to all documents,
papers, or other records, including electronic records, of the Recipient related to the Payroll
Support, to enable Treasury and the Treasury Inspector General to make audits,
examinations, and otherwise evaluate the Recipient’s compliance with the terms of this
Agreement. This right also includes timely and reasonable access to the Recipient’s and its
Affiliates’ personnel for the purpose of interview and discussion related to such documents.
This right of access shall continue as long as records are required to be retained. In addition,
the Recipient will provide timely reports as reasonably required by Treasury, the Treasury
Inspector General, and such other entities as authorized by Treasury to comply with
applicable law and to assess program effectiveness.
Recordkeeping and Internal Controls
17. If the Recipient is a debtor as defined under 11 U.S.C. § 101(13), the Payroll Support funds,
any claim or account receivable arising under this Agreement, and any segregated account
holding funds received under this Agreement shall not constitute or become property of the
estate under 11 U.S.C. § 541.
18. The Recipient shall expend and account for Payroll Support funds in a manner sufficient to:
a. Permit the preparation of accurate, current, and complete quarterly reports as
required under this Agreement.
b. Permit the tracing of funds to a level of expenditures adequate to establish that
such funds have been used as required under this Agreement.
19. The Recipient shall establish and maintain effective internal controls over the Payroll
Support; comply with all requirements related to the Payroll Support established under
applicable Federal statutes and regulations; monitor compliance with Federal statutes,
regulations, and the terms and conditions of this Agreement; and take prompt corrective
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actions in accordance with audit recommendations. The Recipient shall promptly remedy
any identified instances of noncompliance with this Agreement.
20. The Recipient and Affiliates shall retain all records pertinent to the receipt of Payroll Support
and compliance with the terms and conditions of this Agreement (including by suspending
any automatic deletion functions for electronic records, including e-mails) for a period of
three years following the period of performance. Such records shall include all information
necessary to substantiate factual representations made in the supporting documents submitted
by the Recipient related to the Payroll Support, including ledgers and sub-ledgers, and the
Recipient’s and Affiliates’ compliance with this Agreement. While electronic storage of
records (backed up as appropriate) is preferable, the Recipient and Affiliates may store
records in hardcopy (paper) format. The term “records” includes all relevant financial and
accounting records and all supporting documentation for the information reported on the
Recipient’s quarterly reports.
21. If any litigation, claim, investigation, or audit relating to the Payroll Support is started before
the expiration of the three-year period, the Recipient and Affiliates shall retain all records
described in paragraph 20 until all such litigation, claims, investigations, or audit findings
have been completely resolved and final judgment entered or final action taken.
Remedies
22. If Treasury believes that an instance of noncompliance by the Recipient or an Affiliate with
(a) this Agreement, (b) section 7301 of the ARP, or (c) the Internal Revenue Code of 1986 as
it applies to the receipt of Payroll Support has occurred, Treasury may notify the Recipient in
writing of its proposed determination of noncompliance, provide an explanation of the nature
of the noncompliance, and specify a proposed remedy. Upon receipt of such notice, the
Recipient shall, within seven days, accept Treasury’s proposed remedy, propose an
alternative remedy, or provide information and documentation contesting Treasury’s
proposed determination. Treasury shall consider any such submission by the Recipient and
make a final written determination, which will state Treasury’s findings regarding
noncompliance and the remedy to be imposed.
23. If Treasury makes a final determination under paragraph 22 that an instance of
noncompliance has occurred, Treasury may, in its sole discretion, withhold any Additional
Payroll Support Payments; require the repayment of the amount of any previously disbursed
Payroll Support, with appropriate interest; require additional reporting or monitoring; initiate
suspension or debarment proceedings as authorized under 2 CFR Part 180; terminate this
Agreement; or take any such other action as Treasury, in its sole discretion, deems
appropriate.
24. Treasury may make a final determination regarding noncompliance without regard to
paragraph 22 if Treasury determines, in its sole discretion, that such determination is
necessary to protect a material interest of the Federal Government. In such event, Treasury
shall notify the Recipient of the remedy that Treasury, in its sole discretion, shall impose,
after which the Recipient may contest Treasury’s final determination or propose an
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alternative remedy in writing to Treasury. Following the receipt of such a submission by the
Recipient, Treasury may, in its sole discretion, maintain or alter its final determination.
25. Any final determination of noncompliance and any final determination to take any remedial
action described herein shall not be subject to further review. To the extent permitted by law,
the Recipient waives any right to judicial review of any such determinations and further
agrees not to assert in any court any claim arising from or relating to any such determination
or remedial action.
26. Instead of, or in addition to, the remedies listed above, Treasury may refer any
noncompliance or any allegations of fraud, waste, or abuse to the Treasury Inspector General.
27. Treasury, in its sole discretion, may grant any request by the Recipient for termination of this
Agreement, which such request shall be in writing and shall include the reasons for such
termination, the proposed effective date of the termination, and the amount of any unused
Payroll Support funds the Recipient requests to return to Treasury. Treasury may, in its sole
discretion, determine the extent to which the requirements under this Agreement may cease
to apply following any such termination.
28. If Treasury determines that any remaining portion of the Payroll Support will not accomplish
the purpose of this Agreement, Treasury may terminate this Agreement in its entirety to the
extent permitted by law.
Debts
29. Any Payroll Support in excess of the amount which Treasury determines, at any time, the
Recipient is authorized to receive or retain under the terms of this Agreement constitutes a
debt to the Federal Government.
30. Any debts determined to be owed by the Recipient to the Federal Government shall be paid
promptly by the Recipient. A debt is delinquent if it has not been paid by the date specified
in Treasury’s initial written demand for payment, unless other satisfactory arrangements have
been made. Interest, penalties, and administrative charges shall be charged on delinquent
debts in accordance with 31 U.S.C. § 3717, 31 CFR 901.9, and paragraphs 31 and 32.
Treasury will refer any debt that is more than 180 days delinquent to Treasury’s Bureau of
the Fiscal Service for debt collection services.
31. Penalties on any debts shall accrue at a rate of not more than 6 percent per year or such other
higher rate as authorized by law.
32. Administrative charges relating to the costs of processing and handling a delinquent debt
shall be determined by Treasury.
33. The Recipient shall not use funds from other federally sponsored programs to pay a debt to
the government arising under this Agreement.
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Protections for Whistleblowers
34. In addition to other applicable whistleblower protections, in accordance with 41 U.S.C.
§ 4712, the Recipient shall not discharge, demote, or otherwise discriminate against an
Employee as a reprisal for disclosing information to a Person listed below that the Employee
reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a
gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a
substantial and specific danger to public health or safety, or a violation of law, rule, or
regulation related to a Federal contract (including the competition for or negotiation of a
contract) or grant:
a. A Member of Congress or a representative of a committee of Congress;
b. An Inspector General;
c. The Government Accountability Office;
d. A Treasury employee responsible for contract or grant oversight or management;
e. An authorized official of the Department of Justice or other law enforcement
agency;
f. A court or grand jury; or
g. A management official or other Employee of the Recipient who has the
responsibility to investigate, discover, or address misconduct.
Lobbying
35. The Recipient shall comply with the provisions of 31 U.S.C. § 1352, as amended, and with
the regulations at 31 CFR Part 21.
Non-Discrimination
36. The Recipient shall comply with, and hereby assures that it will comply with, all applicable
Federal statutes and regulations relating to nondiscrimination including:
a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), including
Treasury’s implementing regulations at 31 CFR Part 22;
b. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794);
c. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101–6107),
including Treasury’s implementing regulations at 31 CFR Part 23 and the general
age discrimination regulations at 45 CFR Part 90; and
d. The Air Carrier Access Act of 1986 (49 U.S.C. § 41705).
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Additional Reporting
37. Within seven days after the date of this Agreement, the Recipient shall register in SAM.gov,
and thereafter maintain the currency of the information in SAM.gov until at least January 1,
2023. The Recipient shall review and update such information at least annually after the
initial registration, and more frequently if required by changes in the Recipient’s information.
The Recipient agrees that this Agreement and information related thereto, including the
Maximum Awardable Amount and any executive total compensation reported pursuant to
paragraph 38, may be made available to the public through a U.S. Government website,
including SAM.gov.
38. For purposes of paragraph 37, the Recipient shall report total compensation as defined in
paragraph e.6 of the award term in 2 CFR part 170, App. A for each of the Recipient’s five
most highly compensated executives for the preceding completed fiscal year, if:
a. the total Payroll Support is $25,000 or more;
b. in the preceding fiscal year, the Recipient received:
i. 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance, as defined at
2 CFR 170.320 (and subawards); and
ii. $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance, as defined at
2 CFR 170.320 (and subawards); and
c. the public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of
the Internal Revenue Code of 1986. To determine if the public has access to the
compensation information, the Recipient shall refer to U.S. Securities and
Exchange Commission total compensation filings at
http://www.sec.gov/answers/execomp.htm.
39. The Recipient shall report executive total compensation described in paragraph 38:
a. as part of its registration profile at https://www.sam.gov; and
b. within five business days after the end of each month following the month in
which this Agreement becomes effective, and annually thereafter.
40. The Recipient agrees that, from time to time, it will, at its own expense, promptly upon
reasonable request by Treasury, execute and deliver, or cause to be executed and delivered,
or use its commercially reasonable efforts to procure, all instruments, documents and
information, all in form and substance reasonably satisfactory to Treasury, to enable Treasury
to ensure compliance with, or effect the purposes of, this Agreement, which may include,
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among other documents or information, (a) certain audited financial statements of the
Recipient, (b) documentation regarding the Recipient’s revenues derived from its business as
a passenger air carrier or regarding the passenger air carriers for which the Recipient
provides services as a contractor (as the case may be), and (c) the Recipient’s most recent
quarterly Federal tax returns. The Recipient agrees to provide Treasury with such documents
or information promptly.
41. If the total value of the Recipient’s currently active grants, cooperative agreements, and
procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any
period before termination of this Agreement, then the Recipient shall make such reports as
required by 2 CFR part 200, Appendix XII.
Other
42. [Reserved]
43. Notwithstanding any other provision of this Agreement, the Recipient has no right to, and
shall not, transfer, pledge, mortgage, encumber, or otherwise assign this Agreement or any
Payroll Support provided under this Agreement, or any interest therein, or any claim, account
receivable, or funds arising thereunder or accounts holding Payroll Support, to any party,
bank, trust company, or other Person without the express written approval of Treasury.
44. The Signatory Entity will cause its Affiliates to comply with all of their obligations under or
relating to this Agreement.
45. Unless otherwise provided in guidance issued by Treasury or the Internal Revenue Service,
the form of any Taxpayer Protection Instrument held by Treasury and any subsequent holder
will be treated as such form for purposes of the Internal Revenue Code of 1986 (for example,
a Taxpayer Protection Instrument in the form of a note will be treated as indebtedness for
purposes of the Internal Revenue Code of 1986).
46. This Agreement may not be amended or modified except pursuant to an agreement in writing
entered into by the Recipient and Treasury, except that Treasury may unilaterally amend this
Agreement if required in order to comply with applicable Federal law or regulation.
47. Subject to applicable law, Treasury may, in its sole discretion, waive any term or condition
under this Agreement imposing a requirement on the Recipient or any Affiliate.
48. This Agreement shall bind and inure to the benefit of the parties and their respective heirs,
executors, administrators, successors, and assigns.
49. The Recipient represents and warrants to Treasury that this Agreement, and the issuance and
delivery to Treasury of the Taxpayer Protection Instruments, if applicable, have been duly
authorized by all requisite corporate and, if required, stockholder action, and will not result in
the violation by the Recipient of any provision of law, statute, or regulation, or of the articles
of incorporation or other constitutive documents or bylaws of the Recipient, or breach or
constitute an event of default under any material contract to which the Recipient is a party.
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50. The Recipient represents and warrants to Treasury that this Agreement has been duly
executed and delivered by the Recipient and constitutes a legal, valid, and binding obligation
of the Recipient enforceable against the Recipient in accordance with its terms.
51. This Agreement may be executed in counterparts, each of which shall constitute an original,
but all of which together shall constitute a single contract.
52. The words “execution,” “signed,” “signature,” and words of like import in any assignment
shall be deemed to include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to
the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act. Notwithstanding anything herein to the contrary, delivery of an executed
counterpart of a signature page of this Agreement by electronic means, or confirmation of the
execution of this Agreement on behalf of a party by an email from an authorized signatory of
such party, shall be effective as delivery of a manually executed counterpart of this
Agreement.
53. The captions and paragraph headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of this Agreement.
54. This Agreement is governed by and shall be construed in accordance with Federal law.
Insofar as there may be no applicable Federal law, this Agreement shall be construed in
accordance with the laws of the State of New York, without regard to any rule of conflicts of
law (other than section 5-1401 of the New York General Obligations Law) that would result
in the application of the substantive law of any jurisdiction other than the State of New York.
55. Nothing in this Agreement shall require any unlawful action or inaction by either party.
56. The requirement pertaining to trafficking in persons at 2 CFR 175.15(b) is incorporated
herein and made applicable to the Recipient.
57. This Agreement, together with the attachments hereto, including the Payroll Support
Program 3 Certification and any attached terms regarding Taxpayer Protection Instruments,
constitute the entire agreement of the parties relating to the subject matter hereof and
supersede any previous agreements and understandings, oral or written, relating to the subject
matter hereof. There may exist other agreements between the parties as to other matters,
which are not affected by this Agreement and are not included within this integration clause.
58. No failure by either party to insist upon the strict performance of any provision of this
Agreement or to exercise any right or remedy hereunder, and no acceptance of full or partial
Payroll Support (if applicable) or other performance by either party during the continuance of
any such breach, shall constitute a waiver of any such breach of such provision.
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ATTACHMENT
Payroll Support Program 3 Certification of Corporate Officer of Recipient
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PAYROLL SUPPORT PROGRAM 3
CERTIFICATION OF CORPORATE OFFICER OF RECIPIENT
In connection with the Payroll Support Program 3 Agreement (Agreement) between [Signatory
Entity] and the Department of the Treasury (Treasury) relating to Payroll Support being provided
by Treasury to the Recipient under section 7301 of the American Rescue Plan Act of 2021, I
hereby certify under penalty of perjury to the Treasury that all of the following are true and
correct. Capitalized terms used but not defined herein have the meanings set forth in the
Agreement.
(1) I have the authority to make the following representations on behalf of myself and the
Recipient. I understand that these representations will be relied upon as material in the
decision by Treasury to provide Payroll Support to the Recipient.
(2) The information, certifications, attachments, and other information provided by the
Recipient to Treasury related to the Payroll Support are true and correct and do not contain
any materially false, fictitious, or fraudulent statement, nor any concealment or omission of
any material fact.
(3) The Recipient has the legal authority to apply for the Payroll Support, and it has the
institutional, managerial, and financial capability to comply with all obligations, terms, and
conditions set forth in the Agreement and any attachment thereto.
(4) The Recipient and any Affiliate will give Treasury, Treasury’s designee or the
Treasury Office of Inspector General (as applicable) access to, and opportunity to examine,
all documents, papers, or other records of the Recipient or Affiliate pertinent to the provision
of Payroll Support made by Treasury to the Recipient, in order to make audits, examinations,
excerpts, and transcripts.
(5) No Federal appropriated funds, including Payroll Support, have been paid or will be
paid, by or on behalf of the Recipient, to any person for influencing or attempting to
influence an officer or employee of an agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in connection with the
awarding of any Federal contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative
agreement.
(6) If the Payroll Support exceeds $100,000, the Recipient shall comply with the
disclosure requirements in 31 CFR Part 21 regarding any amounts paid for influencing or
attempting to influence an officer or employee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee of a Member of Congress in connection
with the Payroll Support.
I acknowledge that a materially false, fictitious, or fraudulent statement (or concealment or
omission of a material fact) in this certification may be the subject of criminal prosecution
and also may subject me and the Recipient to civil penalties and/or administrative remedies
for false claims or otherwise.
_____________________________________ _____________________________________
Corporate Officer of Signatory Entity Second Authorized Representative
Name: Name:
Title: Title:
Date: Date:
File and source
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