Frontier Airlines 2008 Annual Report Download - page 210

fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, including, without
limitation, Attorney Costs and indemnities, such amount may be paid on behalf of such Loan Party by the Lender, in its sole discretion
and any such amounts so paid by the Lender, shall constitute Obligations owing to such person.
12.05 Indemnification by the Borrower. Whether or not the transactions contemplated hereby are consummated, the Borrower shall
indemnify and hold harmless the Lender and its respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties,
claims, demands, actions, judgments, suits, costs, expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (a) the execution, delivery, enforcement, performance or administration of any Loan Document or
any other agreement, letter or instrument delivered in connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) the Term Loan or the use or proposed use of the 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 Effective 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 replacement of the Lender, the termination of the Term Loan,, 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 Lender, or the 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 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 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.
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 the Lender and the Lender may not 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 the Lender.
(b) The Lender may at any time assign to any assignee that is an Affiliate of the Lender (an “Assignee”) all or a portion of its rights
and obligations under this Agreement. Upon request, the Borrower (at its expense) shall execute and deliver a Term Note to the
Assignee in the amount of such assignment.
(c) The Lender may at any time, without the consent of, or notice to, the Borrower, 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 the Lender’s
rights and/or obligations under this Agreement; provided that (i) the Lender’s obligations under this Agreement shall remain
unchanged, (ii) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations
under this Agreement. Subject to subsection (d) 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 the 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 the Lender.
(d) 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
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 16, 2009 Powered by Morningstar® Document Research℠