test folder

2021 Stroock Bankruptcy Guide

Issue link: https://mbozikis.ufcontent.com/i/1422521

Contents of this Issue

Navigation

Page 206 of 319

141 order for relief and before the expiration of the Sixty-Day Period must be cured before the later of the date that is thirty days after the date of the default or the expiration of the Sixty-Day Period; and (iii) any defaults occurring on or after the expiration of the Sixty-Day Period must be cured in accordance with the underlying agreement, if a cure is permitted thereunder. 11 U.S.C. § 1110(a)(2). In the event that the trustee fails to make an 1110 election with respect to particular aircraft equipment or watercraft as described above, the trustee must immediately surrender and return such aircraft equipment or watercraft upon a written demand by the applicable secured party, lessor or conditional vendor. 11 U.S.C. § 1110(c)(1). Notably, the underlying agreement need not reference Section 1110 in order for the provisions of such Section to apply thereto. See H. REP. NO. 595, 95th Cong., 1st Sess. 240 (1977). Additionally, the fact that the trustee lacks actual possession of the aircraft equipment or watercraft is irrelevant to the right of the applicable secured party, lessor or conditional vendor to take possession of such aircraft equipment or watercraft. Finally, it is worth noting that Section 1110 does not indicate whether the trustee must comply with all of the conditions for return of the collateral set forth in the underlying agreement. It is unclear whether "the statute could be read in such a way that the estate would be required to shoulder, as an administrative expense, the costs of actually returning the [collateral] (which might, for example, include the cost of reinstalling original engines where those engines had been removed for repair or overhaul) to the lenders or lessors, or to pay, as an administrative expense, the lenders' or lessors' costs of retrieving their [collateral] and making [it] airworthy [or seaworthy]." In re US Airways Group, Inc., 287 B.R. 643, 646 (Bankr. E.D. Va. 2002).

Articles in this issue

view archives of test folder - 2021 Stroock Bankruptcy Guide