Frontier Airlines 2008 Annual Report Download - page 157

proceeds therefrom, (c) any actual or alleged presence or release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way to any
Loan Party, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any Indemnitee is a party thereto (all the foregoing,
collectively, the “Indemnified Liabilities”), in all cases, whether or not caused by or arising, in whole or in part, out of the negligence
of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee. No Indemnitee shall have any liability for any indirect, special or consequential damages relating to
this Agreement or any other Loan Document or arising out of its activities in connection herewith or therewith (whether before or after
the Initial Closing Date). In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 12.05
applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto
and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All
amounts due under this Section 12.05 shall be payable within ten Business Days after demand therefor. The agreements in this
Section shall survive the resignation of the Administrative Agent, the Collateral Agent, the replacement of any Lender, the termination
of the Term Commitments, and the repayment, satisfaction or discharge of all the other Obligations.
12.06 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent,
the Collateral Agent or any Lender, or the Administrative Agent, the Collateral Agent or any Lender exercises its right of setoff, and
such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the Collateral Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each
Lender severally agrees to promptly pay to the Administrative Agent and the Collateral Agent upon demand its Pro Rata Share of any
amount so recovered from or repaid by the Administrative Agent and the Collateral Agent.
12.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) in accordance with the provisions of subsection (b) of this Section or (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement. In addition, no Guarantor may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender.
(b) Any Lender may, with the prior written consent of each Significant Lender, at any time assign to any assignee (an “ Assignee”)
all or a portion of its rights and obligations under this Agreement (including all or a portion of its Term Commitment and the Term
Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Term Commitment and the Term Loans at the time owing to it, the aggregate amount of the Term Commitment or, if the
applicable Term Commitment is not then in effect, the principal outstanding balance of the Term Loan of the assigning Lender subject
to each such assignment shall not be less than $5,000,000 or an integral multiple of $50,000 in excess thereof; (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this
Agreement with respect to the Term Loans or the Term Commitment assigned. Subject to acknowledgement and recording thereof by
the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 12.04 and 12.05 with respect to
facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall
execute and deliver a Term Note to the Assignee. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Term Commitments of, and principal amounts of the Term Loans owing to, each Lender pursuant to
the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 16, 2009 Powered by Morningstar® Document Research℠