Frontier Airlines 2006 Annual Report Download - page 277

Section 10.11 Equitable Remedies; Certain Liquidated Damages
(a) Equitable Remedies. Each party acknowledges and agrees that, under certain circumstances, the breach by a
party of a term or provision of this Agreement will materially and irreparably harm the other party, that money damages will
accordingly not be an adequate remedy for such breach and that the non-defaulting party, in its sole discretion and in addition to its
rights under this Agreement and any other remedies it may have at law or in equity, may apply to any court of law or equity of
competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to enforce
or prevent any breach of the provisions of this Agreement.
(b) Certain Liquidated Damages. RAI will update from time to time Exhibit B to reflect the exact in-service week
and in-service day that each of the TBD aircraft appearing on Exhibit B is known, with notification to Frontier as to such week being
no later than [* ] in advance of the in-service week and the notification as to such date being no later than [*] in advance of the
in-service date. RAI will deliver such amended Exhibit B to Frontier as soon as possible. If RAI shall fail to provide a Covered
Aircraft (such Covered Aircraft being referred to as a “Delayed Aircraft”) on the applicable in-service day reflected on the amended
Exhibit B, or, if no inservice date has been specified, the last day of the applicable scheduled inservice week, or, if no inservice week
has been designated, the last day of the inservice month (in each case, the “Anticipated Service Date”), RAI will pay to Frontier
liquidated damages in an amount equal to [* ] per each day between the Anticipated Service Date and the actual in-service date of
such aircraft (or, if applicable, the date of any election by Frontier to remove the aircraft, as provided below), provided that, in the
event such inservice delay is due to circumstances beyond the control of RAI and RAI provides prior notice (the “Delay Notice”) of
such delay, such liquidated damages shall not in any event exceed (x) [*] if the Delay Notice is provided to Frontier no fewer than [*]
prior to the Anticipated Service Date for the Delayed Aircraft, or (y) if such notice is delivered fewer than [*] prior to the Anticipated
Service Date for the Delayed Aircraft, (i) [*] plus (ii) [*] times the difference between [*] minus the number of days between the date
of such notice and the Anticipated Service Date for the Delayed Aircraft, and provided further, if the revised delivery date for the
Delayed Aircraft indicated in the Delay Notice (or in any subsequent notice as a result of subsequent delays), is more than [*] beyond
the Anticipated Service Date, Frontier will have the right, to be exercised within five Business Days of receipt of such notice (or
subsequent notice), to elect to remove the Delayed Aircraft from the terms of this Agreement. Should Frontier elect to remove the
Delayed Aircraft from the terms of this Agreement pursuant to this Section 10.11(b), (x) if such removal occurs prior to the
Anticipated Service Date, no liquidated damages shall be payable by RAI, and (y) if such removal occurs after the Anticipated Service
Date as a result of any such subsequent notice, the liquidated damages described herein will be calculated based on the number of days
between the Anticipated Service Date and the date of Frontier’s election to remove such aircraft from this Agreement.
The parties agree that the damages to be suffered by Frontier in connection with RAI's failure to deliver an aircraft
on an Anticipated Service Date shall be difficult to calculate, and that the foregoing liquidated damages are a good faith estimate of
such damages, and that such liquidated damages are not intended to be a penalty. The parties further agree that the foregoing
liquidated damages shall be Frontier's sole and exclusive remedies against RAI for any damages suffered solely as a result of RAI's
failure to deliver an aircraft on an Anticipated Service Date as described above.
(c) Other Limitations on Seeking Damages. Neither the right of any party to terminate this Agreement, nor the
exercise of such right, shall constitute a limitation on such party's right to seek damages or such other legal redress to which such party
may otherwise be entitled; provided that, absent the occurrence of another breach of this Agreement by RAI, Frontier shall not be
entitled to seek damages solely for the occurrence of (i) an event of Cause of the type described in clause (iii) or clause (iv) of the
definition thereof, (ii) a material breach of the type described in clause (ii) of Section 8.02(b), or (iii) a termination pursuant to Section
5.03.
Section 10.12 Relationship of Parties. Nothing in this Agreement shall be interpreted or construed as establishing between
the parties a partnership, joint venture or other similar arrangement.
Section 10.13 Entire Agreement; No Third Party Beneficiaries. This Agreement (including the exhibits and schedules
hereto) are intended by the parties as a complete statement of the entire agreement and understanding of the parties with respect to the
subject matter hereof and all matters between the parties related to the subject matter herein or therein set forth. This Agreement is
made among, and for the benefit of, the parties hereto, and the parties do not intend to create any third-party beneficiaries hereby, and
no other Person shall have any rights arising under, or interests in or to, this Agreement.
Section 10.14 Governing Law. Except with respect to matters referenced in Section 10.08(e) (which shall be governed by
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 15, 2007 Powered by Morningstar® Document Research℠