Convention on International Interests in Mobile Equipment Act, 2007 (Act No. 4 of 2007SchedulesSchedule 2 : ProtocolChapter II : Default Remedies, Priorities and AssignmentsArticle XI - Remedies on insolvency |
| (1) | This Article applies only where a Contracting State that is the primary insolvency jurisdiction has made a declaration pursuant to Article XXX (3). |
Alternative A
| (2) | Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, shall, subject to paragraph 7, give possession of the aircraft object to the creditor no later than the earlier of— |
| (a) | the end of the waiting period; and |
| (b) | the date on which the creditor would be entitled to possession of the aircraft object if this Article did not apply. |
| (3) | For the purposes of this Article, the "waiting period" shall be the period specified in a declaration of the Contracting State which is the primary insolvency jurisdiction. |
| (4) | References in this Article to the "insolvency administrator" shall be to that person in its official, not in its personal, capacity. |
| (5) | Unless and until the creditor is given the opportunity to take possession under paragraph 2— |
| (a) | the insolvency administrator or the debtor, as applicable, shall preserve the aircraft object and maintain it and its value in accordance with the agreement; and |
| (b) | the creditor shall be entitled to apply for any other forms of interim relief available under the applicable law. |
| (6) | Subparagraph (a) of the preceding paragraph shall not preclude the use of the aircraft object under arrangements designed to preserve the aircraft object and maintain it and its value. |
| (7) | The insolvency administrator or the debtor, as applicable, may retain possession of the aircraft object where, by the time specified in paragraph 2, it has cured all defaults other than a default constituted by the opening of insolvency proceedings and has agreed to perform all future obligations under the agreement. A second waiting period shall not apply in respect of a default in the performance of such future obligations. |
| (8) | With regard to the remedies in Article IX (1)— |
| (a) | they shall be made available by the registry authority and the administrative authorities in a Contracting State, as applicable, no later than five working days after the date on which the creditor notifies such authorities that it is entitled to procure those remedies in accordance with the Convention; and |
| (b) | the applicable authorities shall expeditiously co-operate with and assist the creditor in the exercise of such remedies in conformity with the applicable aviation safety laws and regulations. |
| (9) | No exercise of remedies permitted by the Convention or this Protocol may be prevented or delayed after the date specified in paragraph 2. |
| (10) | No obligations of the debtor under the agreement may be modified without the consent of the creditor. |
| (11) | Nothing in the preceding paragraph shall be construed to affect the authority, if any, of the insolvency administrator under the applicable law to terminate the agreement. |
| (12) | No rights or interests, except for non-consensual rights or interests of a category covered by a declaration pursuant to Article 39 (1), shall have priority in insolvency proceedings over registered interests. |
| (13) | The Convention as modified by Article IX of this Protocol shall apply to the exercise of any remedies under this Article. |
Alternative B
| (2) | Upon the occurrence of an insolvency-related event, the insolvency administrator or the debtor, as applicable, upon the request of the creditor, shall give notice to the creditor within the time specified in a declaration of a Contracting State pursuant to Article XXX (3) whether it will— |
| (a) | cure all defaults other than a default constituted by the opening of insolvency proceedings and agree to perform all future obligations, under the agreement and related transaction documents; or |
| (b) | give the creditor the opportunity to take possession of the aircraft object, in accordance with the applicable law. |
| (3) | The applicable law referred to in subparagraph (b) of the preceding paragraph may permit the court to require the taking of any additional step or the provision of any additional guarantee. |
| (4) | The creditor shall provide evidence of its claims and proof that its international interest has been registered. |
| (5) | If the insolvency administrator or the debtor, as applicable, does not give notice in conformity with paragraph 2, or when the insolvency administrator or the debtor has declared that it will give the creditor the opportunity to take possession of the aircraft object but fails to do so, the court may permit the creditor to take possession of the aircraft object upon such terms as the court may order and may require the taking of any additional step or the provision of any additional guarantee. |
| (6) | The aircraft object shall not be sold pending a decision by a court regarding the claim and the international interest. |