Remedies Available Upon the occurrence of any Event of Default and at any time thereafter so long as the same shall be continuing, this Mortgage shall be in default, and Security Agent shall, upon the direction of a Majority in Interest of the Lenders do one or more of the following:
(1) cause Borrower, upon the written demand of Security Agent, at Borrower’s expense, to deliver promptly, and Borrower shall deliver promptly, all or such part of the Airframe or any Engine (together with all Aircraft Documents and other documents at any time required to be maintained with respect to the Airframe or Engine (or part thereof), in accordance with the rules and regulations of the FAA or other Aviation Authority if the Aircraft to which the Airframe or Engine relates is registered under the laws of a country other than the United States) as Security Agent may so demand to Security Agent or its order, or Security Agent, at its option, may enter upon the premises where all or any part of the Airframe or any Engine or the related Aircraft Documents are located and take immediate possession of and remove the same together with any engine which is not an Engine but which is installed on the Airframe, subject to all of the rights of the owner, lessor, lienor or secured party of such engine; provided that the Airframe with an engine (which is not an Engine) installed thereon may be flown or returned only to a location within the continental United States, and such engine shall be held for the account of any such owner, lessor, lienor or secured party or, if such engine is owned by Borrower, may at the option of Security Agent and if agreed by Borrower be exchanged with Borrower for an Engine in accordance with the provisions of Section 4.4;
(2) sell all or any part of the Airframe and any Engine at public or private sale, whether or not Security Agent shall at the time have possession thereof, as Security Agent may determine, or otherwise dispose of, hold, use, operate, lease to others or keep idle all or any part of the Airframe or such Engine as Security Agent, in its sole discretion, but in accordance with applicable Law, may determine, all free and clear of any rights or claims of Borrower, and the proceeds of such sale or disposition shall be applied in the order of priorities set forth in Section 3; and/or
(3) exercise any other remedy of a secured party under the Uniform Commercial Code of the State of New York (whether or not in effect in the jurisdiction in which enforcement is sought) and other applicable Laws applicable to this Mortgage or to any Permitted Lease pursuant to Section 4.2 hereof. Without limiting the generality of the foregoing, Security Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by Law referred to below) to or upon Borrower or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of Security Agent or any Lender or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Security Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by Law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in Borrower, which right or equity of redemption is hereby waived and released. At any public or private sale the Lenders shall be entitled to credit against the purchase price bid at such sale all or any part of the unpaid amounts of Equipment Notes or other Secured Obligations. Borrower further agrees, at Security Agent’s request, to make the Collateral available to Security Agent at places which Security Agent shall reasonably select, whether at Borrower’s premises or elsewhere. Security Agent shall apply the net proceeds of any action taken by it pursuant to this Section 4.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of Security Agent and the Lenders hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as Security Agent may elect consistent with the provisions of Section 3.3, and only after such application and after the payment by Security Agent of any other amount required by any provision of Law, need Security Agent account for the surplus, if any to Borrower. To the extent permitted by applicable Law, Borrower waives all claims, damages and demands it may acquire against Security Agent or any Lender arising out of the exercise by them of any rights hereunder. Borrower shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay all Obligations. Upon every taking of possession of Collateral under this Section 5.2, Security Agent shall, acting at the written direction of a Majority in Interest of Lenders, from time to time, at the expense of the Collateral (and such expense shall be due and payable by Borrower), make all such expenditures for maintenance, repairs, replacements, and modifications to and of the Collateral, and such improvements to and insurance of the Collateral, as it may reasonably deem proper. In each such case, Security Agent shall have the right to maintain, use, operate, store, lease, control or manage the Collateral and to exercise all rights and powers of Borrower relating to the Collateral in connection therewith, as Security Agent shall deem best, acting at the written direction of the Majority in Interest of Lenders, including the right to enter into any and all such agreements with respect to the maintenance, insurance, use, operation, storage, leasing, control, management or disposition of the Collateral or any part thereof as Security Agent may, acting at the written direction of the Majority in Interest of Lenders, reasonably determine; and Security Agent shall be entitled to collect and receive directly all tolls, rents, revenues, issues, income, products and profits of the Collateral and every part thereof. Such tolls, rents, revenues, issues, income, products and profits shall be applied by Security Agent, acting at the written direction of the Majority in Interest of Lenders, to pay any of the expenses of use, operation, storage, leasing, control, management or disposition of the Collateral, and of any or all maintenance, repairs, replacements, alterations, additions and improvements, and to make all payments which Security Agent may be required or may elect, acting at the written direction of the Majority in Interest of Lenders, to make, if any, for Taxes, insurance or other proper charges assessed against or otherwise imposed upon the Collateral or any part thereof, and all other payments which Security Agent may be required or expressly authorized to make under any provision of this Mortgage, as well as just and reasonable compensation for the services of Security Agent and all other amounts owing to Security Agent under Section 7, and shall otherwise be applied in accordance with the provisions of Section 3. In addition, Borrower shall be liable, without duplication of any amounts payable hereunder or under any other Operative Agreement, for all reasonable legal fees and other reasonable costs and expenses incurred by reason of the occurrence of any Event of Default or the exercise of Security Agent’s remedies with respect thereto, including all costs and expenses specified in the preceding paragraph incurred in connection with the retaking, return or sale of the Airframe and any Engine in accordance with the terms hereof or under the Uniform Commercial Code of the State of New York, which amounts shall, until paid, be secured by the Lien of this Mortgage. If an Event of Default shall have occurred and be continuing and the Equipment Notes shall have been accelerated pursuant to Section 5.2(c), at the request of Security Agent, acting at the written direction of the Majority in Interest of Lenders, Borrower shall promptly execute and deliver to Security Agent such instruments of title and other documents as Security Agent may deem necessary or advisable to enable Security Agent or an agent or representative designated by Security Agent, at such time or times and place or places as Security Agent may specify, to obtain possession of all or any part of the Collateral to which Security Agent shall at the time be entitled hereunder. If Borrower shall for any reason fail to execute and deliver such instruments and documents after such request by Security Agent, Security Agent, acting at the written direction of the Majority in Interest of Lenders, may obtain a judgment conferring on Security Agent the right to immediate possession and requiring Borrower to execute and deliver such instruments and documents to Security Agent, to the entry of which judgment Borrower hereby specifically consents to the fullest extent it may lawfully do so. Nothing in the foregoing shall affect the right of any Lender to receive all amounts owing to such Lender as and when the same may be due.
Remedies for Default (a) Enterprise Services’ rights to suspend and terminate Contractor’s rights under this Master Contract are in addition to all other available remedies.
(b) In the event of termination for default, Enterprise Services may exercise any remedy provided by law including, without limitation, the right to procure for all Purchasers replacement goods and/or services. In such event, Contractor shall be liable to Enterprise Services for damages as authorized by law including, but not limited to, any price difference between the Master Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement – e.g., the cost of the competitive procurement.
Specific Performance and Other Remedies The parties hereto each acknowledge that the rights of each party to consummate the transactions contemplated hereby are special, unique and of extraordinary character, and that, in the event that any party violates or fails or refuses to perform any covenant or agreement made by it herein, the non-breaching party may be without an adequate remedy at law. The parties each agree, therefore, that in the event that either party violates or fails or refuses to perform any covenant or agreement made by such party herein, the non-breaching party or parties may, subject to the terms of this Agreement and in addition to any remedies at law for damages or other relief, institute and prosecute an action in any court of competent jurisdiction to enforce specific performance of such covenant or agreement or seek any other equitable relief.
CUSTOMER REMEDIES 5.1. If the Supplier (a) fails to deliver the Goods and/or the Goods do not comply with any of the undertakings or warranties set out in clause 2 and/or (b) fails to deliver and/or perform the Services in accordance with any of the warranties or undertakings contained in clause 4 and/or by the applicable date(s), the Customer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights to:
5.1.1. terminate the Agreement with immediate effect by giving written notice to the Supplier;
5.1.2. reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
5.1.3. require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
5.1.4. require Supplier to re-perform, rectify or replace the affected Services and/or Deliverables;
5.1.5. refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
5.1.6. recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
5.1.7. require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and
5.1.8. claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s breach.
5.2. Notwithstanding any other rights or remedies available to Customer if the Goods are not delivered by the applicable date, the Customer may, at its option, claim or deduct 3% of the price of the Goods for each week’s delay in delivery, up to a maximum of 15% of the total price of the Goods. In the event such delay continues for six (6) weeks or more, Customer may terminate the Agreement with immediate effect upon given Supplier written notice.
5.3. These Terms shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
5.4. The Customer’s rights under the Agreement are in addition to its rights and remedies implied by statute and common law.
Other Remedies; Specific Performance Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
Waivers and Amendments; Non-Contractual Remedies; Preservation of Remedies This Guaranty may be amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party on exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. The rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.
Remedies Cumulative; Specific Performance The rights and remedies of the parties hereto shall be cumulative (and not alternative). The parties to this Agreement agree that, in the event of any breach or threatened breach by any party to this Agreement of any covenant, obligation or other provision set forth in this Agreement for the benefit of any other party to this Agreement, such other party shall be entitled (in addition to any other remedy that may be available to it) to (a) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (b) an injunction restraining such breach or threatened breach.
Specific Performance; Remedies Cumulative The parties hereto acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party, in addition to any other rights and remedies which the parties may have hereunder or at law or in equity, may, in his or its sole discretion, apply to a court of competent jurisdiction for specific performance or injunction or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such rights, powers or remedies by such party.
Rights and Remedies Cumulative; Non-Waiver; etc The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise. No delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver of any Event of Default. No course of dealing between the Borrower, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.
Authority’s Remedies In the event of any of the foregoing events of default enumerated in this Article, and following 30 days' notice by Authority and Company's failure to cure, Authority, at its election, may exercise any one or more of the following options or remedies, the exercise of any of which will not be deemed to preclude the exercise of any other remedy herein listed or otherwise provided by statute or general law:
A. Terminate Company’s rights under this Agreement. Company will remain liable for all payments or other sums due under this Agreement and for all damages suffered by Authority because of Company’s breach of any of the covenants of this Agreement; or
B. Treat the Agreement as remaining in existence, curing Company’s default by performing or paying the obligation that Company has breached. In such event all sums paid or expenses incurred by Authority directly or indirectly in curing Company’s default will become immediately due and payable, as well as interest thereon, from the date such fees or charges became due to the date of payment, at the Federal Reserve Bank of New York prime rate in effect on the date the fees or charges became due plus 4 percent (FRBNY prime + 4%) or 12 percent per annum, whichever is greater, to the maximum extent permitted by law; or
C. Declare this Agreement to be terminated, ended, null and void. No waiver by Authority at any time of any of the terms, conditions, covenants, or agreements of this Agreement, or noncompliance therewith, will be deemed or taken as a waiver at any time thereafter of the same or any other term, condition, covenant, or agreement herein contained, nor of the strict and prompt performance thereof by Company. No delay, failure, or omission of Authority to exercise any right, power, privilege, or option arising from any default, nor subsequent acceptance of fees or charges then or thereafter accrued, will impair any such right, power, privilege, or option, or be construed to be a waiver of any such default. No notice by Authority will be required to restore or revive time is of the essence hereof after waiver by Authority or default in one or more instances. No option, right, power, remedy, or privilege of Authority will be construed as being exhausted or discharged by the exercise thereof in one or more instances. It is agreed that each and all of the rights, powers, options, privileges, or remedies given to Authority by this Agreement are cumulative and that the exercise of one right, power, option, privilege, or remedy by Authority will not impair its rights to any other right, power, option, privilege, or remedy available under this Agreement or as provided by law.
