Frontier Airlines 2008 Annual Report Download - page 211

made with the Borrower’s prior written consent.
12.08 Setoff. In addition to any rights and remedies of the Lender provided by law, upon the occurrence and during the continuance
of any Event of Default, the 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, the Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to the Lender hereunder or under any other Loan
Document, now or hereafter existing, irrespective of whether or not the 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. The Lender agrees promptly to notify the Borrower after any such setoff and
application made by the Lender; provided, however, that the failure to give such notice shall not affect the validity of such setoff and
application. The rights of the 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 Lender and its respective Affiliates may have.
12.09 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
Lender 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.
12.10 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 Lender 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.
12.11 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 Lender, regardless of any
investigation made by the Lender or on their behalf and notwithstanding that the Lender may have had notice or knowledge of any
Default or breach of such representation and warranty at the time the Term Loan were extended, and shall continue in full force and
effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.
12.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a)
the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be
affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
12.13 Governing Law
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
ANY SUCH LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SUBSECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THAT WOULD REQUIRE APPLICATION OF ANOTHER LAW.
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY LOAN PARTY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND
CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH LOAN PARTY, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, THE LENDER, IRREVOCABLY
(i) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(ii) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(iii) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO BORROWER (IN THE CASE OF ANY LOAN
Source: REPUBLIC AIRWAYS HOLDINGS INC, 10-K, March 16, 2009 Powered by Morningstar® Document Research℠