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Cape Town Convention

1 If the Cape Town Convention applies to any asset financed under a loan facility provided by Speirs Finance, the following provisions will apply and will be incorporated into that facility. Any references to “you” in a loan facility shall be deemed to be references to “the Customer”.

     

  • The Customer hereby represents and warrants the following:
      1. The Customer is ‘situated’ in a country that has ratified or acceded to the Cape Town Convention within the meaning of Article 4 of the Convention.
      2. The Customer has good and marketable title to the Goods free and clear of any and all liens or any other rights or remedies in relation to the Goods except for the security interests and International Interests created by this Agreement in favor of Speirs, and all filings, recordings or other actions necessary or desirable in order to establish, perfect and give first priority to such Security Interest (including any filings and/or registrations with the International Registry pursuant to the Cape Town Convention) have been, or contemporaneously herewith will be, effected.
      3. There are no International Interests registered with the International Registry with respect to the Goods, other than those relating to this Agreement, and the Customer will not authorize any Sale, International Interests, assignments of International Interests relating thereto, or Transfer of the Right to Discharge same, to be registered with the International Registry against the Goods except (1) for the registration of an International Interest between the Customer as debtor and Speirs as creditor with respect to this Agreement; (2) Transfers of the Right to Discharge any and all interests relating thereto from the Customer to Speirs; or (3) as otherwise consented to in writing by Speirs (collectively the “IR Registrations”).
      4. The Customer is a Transacting User Entity, has appointed an Administrator and has designated a Professional User Entity approved by Speirs.  The Customer has paid all required fees and taken all actions necessary to enable Speirs to register the IR Registrations with the International Registry.
      5. The Customer has the power to grant any security interests described in this Agreement, each within the meaning of Article 7(b) of the Convention.
      6.    Each of the Engine(s) is rated to have at least 550 takeoff horsepower or at least 1,750 pounds of thrust or its equivalent.
      7. Any Airframe is type certified to transport at least eight people (including crew) or goods in excess of 2,750 kilograms, and any Helicopter is type certified to transport at least five people (including crew) or goods in excess of 450 kilograms.
      8. The Customer shall not register any prospective or current International Interest or Sale (or any amendment, modification, supplement, subordination or subrogation thereof) with the International Registry without Speirs’ prior written consent which may be withheld in Speirs’ sole discretion. The Customer shall not execute or deliver any IDERA to any party other than Speirs unless Speirs agrees in writing. Any agreement between the Customer and a third party regarding the Aircraft shall contain similar restrictions on said third party, as well as an agreement by said third party to include said restrictions in agreements with other parties.
  • The Customer agrees to promptly execute and deliver to Speirs such International Registry filings and other documents, and take such further action, as Speirs may from time to time reasonably request in order to further carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies created, or intended to be created, in favor of Speirs.  The Customer further agrees not to Discharge or consent to the Discharge of any Interest, including the IR Registrations, created in favor of Speirs without Speirs’ prior written consent and to promptly cause any non-consensual lien that is filed on the International Registry to be Discharged.
  • In addition to the security interests granted in this Agreement, the Customer further hereby grants to Speirs a first priority security interest and International Interest in and lien on the Goods, and collaterally assign to Speirs, all of its right, title and interest in, to and under any and all Associated Rights and Transfer of the Right to Discharge relating to the Goods.
  • The Customer hereby consents to the registration of the IR Registrations, and any other interests arising in connection with this Agreement in favor of Speirs and hereby authorize the Professional User Entity to make such registrations (including the IR Registrations), upon request, including a request to register a prospective International Interest as contemplated under the Cape Town Convention.
  • In addition to all other rights and remedies granted to Speirs in this Agreement, upon the occurrence and during the continuation of a default hereunder (any default hereunder shall be considered a default under the Cape Town Convention), Speirs may exercise all rights and remedies of a creditor under the Cape Town Convention, which may be used successively and cumulatively and in addition to any other right or remedy referred to in this Agreement or otherwise available to Speirs at law or in equity.  Specifically, Speirs may exercise all of the rights and remedies, granted a creditor under the Convention, including Articles 8, 9, 10, 12 and 13 of the Convention, and Articles IX and XIII of the Aircraft Protocol and as an assignee under Article 34 of the Convention and, further, may exercise any right under the IDERA, including de-registering the Aircraft and the Customer acknowledges and agrees that, notwithstanding any such de-registration and any subsequent re-registration, it shall continue to be liable for the indebtedness secured hereby.  As specifically provided in the Cape Town Convention, Speirs may apply for the following court orders: (1) Speirs may apply for a court order authorizing the remedies set out in Article 8(2) of the Convention; and (2) Speirs may, pending final determination of its claim in any court proceeding, obtain speedy relief in the form of an order providing for (i) preservation of the object and its value; (ii) possession, control or custody of the object; (iii) immobilization of the object; (iv) lease or, except where covered by sub-paragraphs (i) to (iii), management of the object and the income therefrom; and (v) sale and application of proceeds therefrom.
  • The Customer shall pay Speirs upon demand all fees and reasonable out-of-pocket costs and expenses incurred by or on behalf of Speirs at any time in connection with the Cape Town Convention and the International Registry, excluding fees to register us as a Transacting User Entity of the International Registry.
  • Notwithstanding anything to the contrary contained in this Agreement, the parties may bring a judicial proceeding in the Republic of Ireland against the registrar of the International Registry solely and to the extent such proceeding seeks an order or judgment against the International Registry.
  • In connection with the Cape Town Convention, the following terms shall have the following meanings:
    1. “Administrator” shall have the meaning ascribed thereto in the International Registry Regulations.
    2. “Aircraft Protocol” shall mean the official English language text of the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment, adopted on November 16, 2001 at a diplomatic conference held in Cape Town and signed in Rome, Italy on May 9, 2003, as the same may be amended or modified from time to time.
    3. “Associated Rights” shall have the meaning ascribed thereto in the Cape Town Convention, including all rights to payment or other performance.
    4. “Cape Town Convention” shall mean, collectively, the Aircraft Protocol, the Convention, the International Registry Procedures and the International Registry Regulations.
    5. “Contract of Sale” or “Sale” shall have the meaning ascribed thereto in the Cape Town Convention.
    6. “Convention” shall mean the official English language text of the Convention on International Interests in Mobile Equipment, adopted on November 16, 2001 at a diplomatic conference held in Cape Town, South Africa and signed in Rome, Italy on May 9, 2003, as the same may be amended or modified from time to time.
    7. “Discharge” shall have the meaning ascribed thereto in the Cape Town Convention.
    8. “IDERA” shall mean an Irrevocable De-Registration and Export Request Authorization in the form provided for in the Aircraft Protocol.
    9. “International Interest” shall have the meaning ascribed thereto in the Cape Town Convention.
    10. International Registry shall mean the International Registry of Mobile Assets located in Dublin, Ireland and established pursuant to the Cape Town Convention, along with any successor registry thereto.
    11. “International Registry Procedures” shall mean the official English language text of the procedures for the International Registry issued by the supervisory authority thereof pursuant to the Convention and the Aircraft Protocol, as the same may be amended or modified from time to time.
    12. “International Registry Regulations” shall mean the official English language text of the regulations for the International Registry issued by the supervisory authority thereof pursuant to the Convention and the Aircraft Protocol, as the same may be amended or modified from time to time.
    13. “Professional User Entity” shall have the meaning ascribed thereto in the International Registry Regulations.
    14. “Transacting User Entity” shall have the meaning ascribed thereto in the International Registry Regulations.
    15. “Transfer of the Right to Discharge” shall have the meaning ascribed thereto in the Cape Town Convention.