applicable law, and may, without limitation, by written notice to the Buyer,
immediately:
(1)
SUSPEND ITS PERFORMANCE UNDER THIS AGREEMENT WITH RESPECT TO ANY OR ALL
AIRCRAFT, (II) WITHOUT PREJUDICE TO SELLER'S OPTION TO EXERCISE ITS RIGHTS UNDER
CLAUSE 5.8.2, RESCHEDULE THE SCHEDULED DELIVERY MONTH OF ANY OR ALL AIRCRAFT
REMAINING TO BE DELIVERED UNDER THIS AGREEMENT, (III) RESCHEDULE THE DATE FOR
PERFORMANCE UNDER THIS AGREEMENT WITH RESPECT TO ANY OR ALL EQUIPMENT, SERVICES,
DATA AND OTHER ITEMS, AND/OR (IV) CANCEL OR TERMINATE THIS AGREEMENT (A
"TERMINATION") WITH RESPECT TO ANY OR ALL AIRCRAFT, AND/OR EQUIPMENT, SERVICES,
DATA AND/OR OTHER ITEMS RELATED THERETO; AND
(2)
CLAIM AND RECEIVE PAYMENT FROM THE BUYER OF A SUM EQUAL TO SELLER'S ACTUAL
DAMAGES INCURRED BY SELLER'S EXERCISE OF THE REMEDIES SET FORTH IN CLAUSE 21.2
(1) (I), (II) OR (III) AND, IN THE CASE OF A TERMINATION UNDER CLAUSE 21.2
(1) (IV) ONLY, THE SELLER WILL, IN LIEU OF ACTUAL DAMAGES, BE ENTITLED TO
RECEIVE PAYMENT FROM THE BUYER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AN
AMOUNT EQUAL TO, FOR EACH AFFECTED AIRCRAFT (AS DEFINED BELOW), THE SUM OF:
[***]
21.3
DEFINITIONS
FOR PURPOSES OF THIS CLAUSE 21, THE TERMS "AFFECTED AIRCRAFT", "APPLICABLE DATE
AND "ESCALATED PRICE" ARE DEFINED AS FOLLOWS:
(I)
"AFFECTED AIRCRAFT" - ANY OR ALL AIRCRAFT WITH RESPECT TO WHICH THE SELLER HAS
CANCELLED OR TERMINATED THIS AGREEMENT PURSUANT TO CLAUSE 21. 2 (1) (IV),
***
Confidential Treatment Requested
80
(II)
"APPLICABLE DATE" - FOR ANY AFFECTED AIRCRAFT THE DATE OF THE TERMINATION EVENT
SPECIFIED IN THE SELLER'S NOTICE AND DEMAND FOR PAYMENT OF LIQUIDATED DAMAGES
DELIVERED UNDER CLAUSE 21.2(3).
(III)
"ESCALATED PRICE" - THE SUM OF (I) THE BASE PRICE OF THE AIRFRAME, (II) THE BASE
PRICE OF SCNS AND MSCNS ENTERED INTO AFTER THE DATE OF THIS AGREEMENT, AND
(III) THE PROPULSION SYSTEMS REFERENCE PRICE, ALL AS ESCALATED TO THE APPLICABLE
DATE IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 4.
21.4.
NOTICE OF TERMINATION EVENT
PROMPTLY UPON BECOMING AWARE OF THE OCCURRENCE OF A TERMINATION EVENT BY THE
BUYER, THE BUYER WILL NOTIFY THE SELLER OF SUCH OCCURRENCE IN WRITING, PROVIDED,
THAT ANY FAILURE BY THE BUYER TO NOTIFY THE SELLER WILL NOT PREJUDICE THE
SELLER'S RIGHTS OR REMEDIES HEREUNDER.
21.5
INFORMATION COVENANTS
The Buyer hereby covenants and agrees that, from the date of this Agreement
until no further Aircraft are to be delivered hereunder, the Buyer will furnish
or cause to be furnished to the Seller the following:
(a)
Annual Financial Statements.
As soon as available and in any event no later
than the date that the Buyer furnishes such annual statements to the Securities
and Exchange Commission or successor thereto (the "SEC") (i) a copy of the SEC
Form 10-K filed by the Buyer with the SEC for such fiscal year, or, if no such
Form 10-K was filed by the Buyer for such a fiscal year, the consolidated
balance sheet of the Buyer and its Subsidiaries, as at the end of