Frontier Airlines 2008 Annual Report Download - page 158

inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Term Commitment and/or the Term Loans; provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the Collateral Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification
described in the first proviso to Section 12.01 that directly affects such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 12.08 as though it were a Lender, provided such Participant agrees to be subject to Section
2.08 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment under Section 3.01 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant
is made with the Borrower’s prior written consent.
12.08 Setoff. In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and during the
continuance of any Event of Default, each Lender and each of its Affiliates is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower (on its own behalf and on behalf
of each Loan Party) to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness or other obligations at any time owing by, such Lender to or for the
credit or the account of the respective Loan Parties against any and all Obligations owing to such Lender hereunder or under any other
Loan Document, now or hereafter existing, irrespective of whether or not the Administrative Agent, the Collateral Agent or such
Lender shall have made demand under this Agreement or any other Loan Document and although such Obligations may be contingent
or unmatured or denominated in a currency different from that of the applicable deposit or indebtedness. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of such setoff and application. The rights of the
Administrative Agent, the Collateral Agent and each Lender and their respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of setoff) that the Administrative Agent, the Collateral Agent, such
Lender and their respective Affiliates may have.
12.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the “Maximum Rate”). If the Administrative Agent, the Collateral Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Term Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative
Agent, the Collateral Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.
12.10 Counterparts. This Agreement and each other Loan Document may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or
electronic image transmission (e.g., PDF) of an executed counterpart of a signature page to this Agreement and each other Loan
Document shall be effective as delivery of an original executed counterpart of this Agreement and such other Loan Document. The
Administrative Agent may also require that any such documents and signatures delivered by telecopier or electronic image
transmission be confirmed by a manually-signed original thereof; provided that the failure to request or deliver the same shall not limit
the effectiveness of any document or signature delivered by telecopier or electronic image transmission.
12.11 Integration. This Agreement, together with the other Loan Documents, comprises the complete and integrated agreement of
the parties on the subject matter hereof and thereof and supersedes all prior agreements, written or oral, on such subject matter. In the
event of any conflict between the provisions of this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or remedies in favor of the Administrative Agent, the
Collateral Agent or the Lenders in any other Loan Document shall not be deemed a conflict with this Agreement. Each Loan
Document was drafted with the joint participation of the respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
12.12 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution
and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent,
the Collateral Agent and each Lender, regardless of any investigation made by the Administrative Agent, the Collateral Agent or any
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 16, 2009 Powered by Morningstar® Document Research℠