INCURRED BY
UNITED FOR ARRANGING AND PROVIDING FOR ANY REGIONAL AIRLINE, GROUND HANDLING AND
OTHER SERVICES TO REPLACE THE CONTRACTOR SERVICES (OR ANY PORTION THEREOF)
FOLLOWING A TERMINATION OF THIS AGREEMENT) SHALL BE CONSIDERED DIRECT AND ACTUAL
DAMAGES SUFFERED BY UNITED, AND SHALL NOT BE CONSIDERED CONSEQUENTIAL, PUNITIVE,
SPECIAL OR EXEMPLARY DAMAGES FOR PURPOSES OF THIS AGREEMENT.
NO PARTY SHALL BE
ENTITLED TO RESCISSION OF THIS AGREEMENT AS A RESULT OF BREACH OF ANY OTHER
PARTY'S REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS, OR FOR ANY OTHER
MATTER; PROVIDED FURTHER THAT NOTHING IN THIS SECTION 8.4(h) SHALL RESTRICT THE
RIGHT OF ANY PARTY TO EXERCISE ANY RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO
THE TERMS HEREOF.
(ii)
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY,
CONTRACTOR SHALL NOT BE LIABLE TO UNITED (OR ANY OF ITS AFFILIATES, OR ITS OR
ITS AFFILIATES' DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) FOR MONETARY DAMAGES
CALCULATED PURSUANT TO SECTION 8.4(c), 8.4(d) or 8.4(e) IN RESPECT OF ANY CLAIMS
ARISING FROM A TERMINATION FOR BREACH OF CONTRACT CONSTITUTING SPECIAL CAUSE IN
EXCESS (INDIVIDUALLY AND IN THE AGGREGATE) OF [***] DOLLARS ($[***]); PROVIDED
THAT IF SUCH CLAIMS ARE FOR A BREACH OF CONTRACT CONSTITUTING CAUSE OR ANY
BREACH (INCLUDING ANY BREACH CONSTITUTING AN INCHOATE OR UNMATURED DEFAULT)
OTHER THAN A BREACH CONSTITUTING ONLY SPECIAL CAUSE (BUT NOT ALSO CAUSE), THEN
THE PROVISIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8.4(h)(ii) SHALL NOT
APPLY; AND PROVIDED FURTHER THAT THE FOREGOING LIMITATIONS SHALL BE CALCULATED
WITHOUT REGARD TO, AND SHALL EXCLUDE, DAMAGES IN RESPECT OF CLAIMS MADE PURSUANT
TO ARTICLE VII HERETO FOR INDEMNIFICATION OF THIRD PARTY CLAIMS.
72
[***]=[CONFIDENTIAL PORTION HAS BEEN OMITTED BECAUSE IT (I) IS NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED]
--------------------------------------------------------------------------------
(i)
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 (and
notwithstanding the provisions of Section 11.15 below), may apply to any court
of law or equity of competent jurisdiction (without posting any bond or deposit
and without provision of any notice) for specific performance and/or other
injunctive relief in order to enforce or prevent any breach of the provisions of
this Agreement.
ARTICLE IX
REPRESENTATIONS, WARRANTIES AND COVENANTS
9.1
Representations and Warranties of Contractor.
Contractor represents, warrants and covenants to United as of the date hereof as
follows:
(a)
Organization and Qualification.
Contractor is a duly organized and validly
existing corporation under the laws of its state of incorporation.
Contractor
has the corporate power and authority to own, operate and use its assets and to
provide the Contractor Services.
Contractor is duly qualified to do business as
a foreign corporation under the