Frontier Airlines 2008 Annual Report Download - page 133

Material Adverse Effect.
5.17 Intellectual Property; Licenses, Etc.
(a) The Loan Parties own all right, title and interest in and to, or possess the right to use, the Intellectual Property Collateral
(as defined in Section 10.01(f)) that are reasonably necessary for the operation of their respective businesses.
(b) The operation of the Loan Parties’ respective businesses as currently conducted, or as contemplated to be conducted and
the use of the Intellectual Property Collateral in connection therewith do not infringe, misappropriate, conflict with, or otherwise
violate the rights of any other Person. The Intellectual Property Collateral is subsisting and has not been adjudicated invalid or
unenforceable in whole or in part, and is valid and enforceable.
(c) No claim or litigation has been asserted or is pending or, to the best knowledge of the Loan Parties, threatened, that,
either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, alleging that the Loan Parties’
rights in or use of the Intellectual Property Collateral or the operation of the businesses of the Loan Parties infringe, misappropriate, or
otherwise violate the rights of any other Person. To the Borrower’s best knowledge, no Person is engaging in any activity that
infringes, misappropriates, or otherwise violates the Intellectual Property Collateral.
(d) With respect to each IP Agreement (as defined in Section 10.01(f)): (i) such IP Agreement is valid and binding and in
full force and effect; (ii) such IP Agreement will not cease to be valid and binding and in full force and effect on terms identical to
those currently in effect as a result of the rights and interest granted herein, nor will the grant of such rights and interest constitute a
breach or default under such IP Agreement or otherwise give any party thereto a right to terminate such IP Agreement; (iii) Borrower
has not received any notice of termination, cancellation or received any notice of a breach or default under such IP Agreement; (iv)
except as set forth on Schedule 5.17(d), Borrower has not granted to any other third party any rights, adverse or otherwise, under such
IP Agreement; and (v) neither the Borrower nor, to the best of the Borrower’s knowledge, any other party to such IP Agreement is in
breach or default thereof in any material respect, and, to the best of the Borrower’s knowledge, no event has occurred that, with notice
or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under such IP
Agreement.
5.18 Security/Priority.
The provisions of the Loan Documents are effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties,
legal, valid and first priority perfected Liens (subject, in the case of priority, to Permitted Liens) on and security interests in all right,
title and interest in the Collateral, enforceable against each Loan Party that owns an interest in such Collateral and any other Person.
5.19 Slot Utilization. The Borrower and its Subsidiaries are utilizing the Slots in a manner consistent with applicable regulations
and contracts in order to preserve the value of the Slots, taking into account any waivers or other relief granted to the Borrower and/or
its Subsidiaries by the FAA. None of Parent, the Borrower or any of the Borrower’s Subsidiaries has received any notice from the
FAA, or is aware of any other event or circumstance, that would be reasonably likely to impair the Slots or the value thereof.
5.20 Representations and Warranties as to Collateral. (a) Each Loan Party’s exact legal name, as defined in Section 9-503(a) of the
Uniform Commercial Code, is correctly set forth in Schedule 5.20(a)(1) hereto. Each Loan Party has only the trade names, domain
names and marks listed on Schedule B of the Intellectual Property Security Agreement. Each Loan Party is located (within the
meaning of section 9-307 of the Uniform Commercial Code) and has its chief executive office in the state or jurisdiction set forth in
Schedule 5.20(a)(1) hereto. The information set forth in Schedule 5.20(a)(1) hereto with respect to each Loan Party is true and
accurate in all respects. Except as set forth in Schedule 5.20(a)(1), no Loan Party has previously changed its name, location, chief
executive office, type of organization, jurisdiction of organization or organizational identification number during the 5 years preceding
the execution of this Agreement from those set forth in Schedule 5.20(a)(1) hereto except as disclosed in Schedule 5.20(a)(2) hereto.
(b) Each Loan Party is the legal and beneficial owner of the Collateral of such Loan Party free and clear of any Lien of others,
except for Permitted Liens.
(c) Except for possessory interests of landlords and warehousemen, each Loan Party has exclusive possession and control of the
Equipment. In the case of Equipment located on leased premises or in warehouses, no lessor or warehouseman of any premises or
warehouse upon or in which such Equipment is located has (i) issued any warehouse receipt or other receipt in the nature of a
warehouse receipt in respect of any Equipment, (ii) to the best knowledge of any Loan Party, issued any document for any of any
Loan Party’s Equipment and (iii) to the best knowledge of any Loan Party, received notification of any secured party’s interest (other
than the security interest granted hereunder) in any Loan Party’s Equipment.
(d) The Pledged Equity of any Subsidiary of any Loan Party pledged by each Loan Party hereunder has been duly authorized and
validly issued and is fully paid and non-assessable, except in the case of any Wisconsin corporation, subject to personal liability which
may be imposed on shareholders by former Section 180.0622(2)(b) of the Wisconsin Business Corporation Law for debts incurred
prior to June 14, 2006 (for debts incurred on or after such date, such Section has been repealed). If any Loan Party is an issuer of
Pledged Equity, such Loan Party confirms that it has received notice of such security interest.
(e) The Pledged Equity of any Subsidiary of any Loan Party pledged by each Loan Party constitutes the percentage of the issued
and outstanding Equity Interests of the issuers thereof indicated on Schedule I hereto. The Pledged Debt constitutes all of the
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 16, 2009 Powered by Morningstar® Document Research℠