LEGAL ISSUES. Financing and Investing in Engines. Gavin Hill. CFM / AirFinance Journal. Financing and Investing in Engines.

Transcription

1 LEGAL ISSUES Financing and Investing in Engines Gavin Hill CFM / AirFinance Journal Financing and Investing in Engines 31 March 2011

2 CONTENTS 1. Sample Structure 2. Title: Overview, Validity and Priorities 3. Title: Risk and Protection 4. Jurisdictional Review: Legal Families 5. Jurisdictional Review: Security Issues

3 Sample Structure US Owner Trust Structure Seller Sale of Engine Assets (Trust Interest) Purchaser Loan Lenders Trust Owner Trustee Lease Lessee

4 Sample Structure Benefits No lease transfer - limited lease / lessee interference No title transfer Strong perfection of interests - US owner permits CTC, FAA and UCC filings Tax transparency

5 Title Overview Good title is essential for equipment leasing and financing Establishing title Protecting title Risk of title loss / subject to third party priority interest Insolvency officials Third party purchasers / creditors Host aircraft owners Eurocontrol / national air traffic agencies Emissions Trading Scheme agencies National aviation authorities Airport operators Customs authorities Tax authorities

6 Title Validity Blue Sky v Mahan Air (2010) Validity of mortgage / title transfer Validity of mortgage / title transfer determined by reference to the lex situs Dicey, Morris and Collins ("The Conflict of Laws" - 14th edition / 2006) states at Rule 120 that "chattels are situate in the country where they are at the relevant time" One must apply the domestic laws of the country, and not its entire law (including its conflict of laws rules) no renvoi Local legal opinion cannot refer back to English law with respect to the validity of the mortgage (or bill of sale) to create (or transfer) an interest in an aircraft / engine (cf contractual obligations and execution requirements)

7 Title Validity Aircraft / engine located in international airspace Exception to Rule 120 stated in Dicey, Morris and Collins with respect to aircraft: "A civil aircraft may at some times be deemed to be situate in its country of registration The reasoning for this exception is stated to be that such an ascription would avoid difficulties which could arise in the case of an aircraft in flight over the high seas or a territorium nullius Blue Sky referred to this exception but did not need to consider it Position is unclear: - if English conflict rules follows DMC: - situs would be state of registration - following Blue Sky, one would apply the domestic laws of the state of registration, and not its entire law (including its conflict of laws rules) noting that this was not specifically considered in Blue Sky - English conflict rules might favour the proper law of the transfer (i.e. English law if that is chosen under the sale agreement / mortgage) this is logical in that: - engines invariably have no state of registration - where location is not known, Blue Sky says that English law applies (and what is the difference between no location and location in international airspace?)

8 Title Validity Aircraft / engine location cannot be determined An English law mortgage / bill of sale would be valid Blue Sky states "In the absence of proof of any other law, English law applies and the mortgage is valid" New York mortgages No reference to lex situs Requirement for connection to the jurisdiction All relevant perfection requirements remain

9 Title Priorities Purpose Ensure best title Ensure best title protection against rest of world - priority over any third parties - insolvency official, creditor, purchaser, lessee, etc Priority normally established by further action that perfects interest against third parties - to fullest extent possible - also possible by contract / structure (as between transaction parties) - CTC subordination agreement

10 Title Priorities Fundamental insolvency principle Pari passu / pro rata / equal payment of creditors Each creditor is paid from the insolvency estate proportionately to his debt Always varied Insolvency ladder (generalised) Super-priority creditors Priority creditors Pari passu creditors Subordinated creditors Equity shareholders Expropriated creditors

11 Title Priorities Super-priority creditors Secured creditors Title finance creditors Creditors with a set-off Beneficiaries under trusts Other special categories Priority creditors Administrative claims (i.e. insolvency-related) Taxes Employees Others Priority creditors can rank ahead of secured creditors jurisdictions vary

12 Title Priorities Pari passu creditors Self-explanatory true / pure unsecured pari passu creditors Subordinated creditors Equity creditors creditors whose debt is regarded as equity shares Equity shareholders Expropriated creditors Late claimants Foreign currency creditors (claim must be proved and converted) Tort claimants - Including jurisdictions that follow pre-1986 English insolvency model

13 Title Priorities UK priority rights / title risk Statutory detention / sale rights - Eurocontrol / UK CAA for unpaid air navigation charges - Environment Agency for unpaid penalties under Emissions Trading Scheme legislation - Airport operator for unpaid airport charges - HMRC for unpaid taxes - Priority based on first to exercise detention right

14 Title Priorities Contractual liens Supersedes the terms of a lien that arises by operation of law Can be more extensive than a possessory lien May not be effective in all circumstances (e.g. if it extends common law lien to entire fleet or is stated to be effective regardless of possession) Salvage liens The Gustaf (1862) Possessory liens Common law lien Lawful continuous possession Work on equipment must improve it (not mere maintenance) Work must be authorised Registered mortgages in order of registration Unregistered mortgages

15 Title Risk Host Aircraft Owners Host aircraft owners Title annexation Most common in Roman-Germanic civil law systems (e.g. Scandinavia, The Netherlands and Russia) Engine is considered an integral part of aircraft Need for protective agreement between relevant parties Agreed value / total loss coverage for relevant loss event Increase in agreed value of host aircraft during installation

16 Title Risk Eurocontrol Eurocontrol / air navigation charges UK CAA has detention and sale right for Eurocontrol, NATS and Danish / Icelandic navigation charges detention and sale if charges not paid within 56 days of detention lien for liability of prior operator fleet-wide lien - seized aircraft need not have incurred charges - engines included in risk Eurocontrol zone operators / Eurocontrol abuse

17 Title Risk ETS ETS Emissions Trading Scheme legislation UK Environment Agency - detention and sale right for unpaid civil penalties under ETS legislation (failure to comply with regulations / reporting requirements / failure to surrender allowances) - detention and sale if charges not paid within 56 days of detention - fleet-wide lien - UK operators only - engines included in risk

18 Title Risk Customs Customs authority Russia (as recent example / Krasair) - Confiscation risk for breach of customs regulations - Risk applies even if lessee is not the engine owner - Engine can be treated as integral part of the aircraft - Risk logically applies if the engine is not the offending object

19 Title Risk Tax VAT (change in UK rules from 1 January 2011) Applies to sale, import into EU and lease Qualifying Aircraft / zero-rating - Historic 8,000 kg test - Current international test - zero-rating applies to aircraft used by an airline operating for reward chiefly on international routes matches general position across EU - international routes - any route that is not a domestic route within UK airspace - chiefly more than 50% non-uk - Cimber case (C-382/ ) test is assessed by reference to the airline and not the individual aircraft Engines - VAT treatment follows status of aircraft - If engines are supplied in relation to a qualifying aircraft, VAT will be zero rated the supply of parts and equipment, of a kind ordinarily installed or incorporated in, and to be installed, or incorporated in, the propulsion, navigation or communications systems or the general structure of qualifying aircraft - Value Added Tax Act 1994 / Schedule 8 Group 8 / Note 2A Detention / forfeiture right for non-payment

20 Title Risk Transaction Parties Servicing agent / lease manager Fees - security - proceeds entitlement / waterfall position - subordination Manufacturer Maintenance service agreements - Contractual / fleet lien over subject engines Buy-back rights / sale consent - Under original manufacturer purchase agreement - Due diligence / consent

21 Title Risk Insurances Possible challenges by insurers in relation to insurance proceeds entitlement Blue Sky case Insurable interest Principle - Insured must have some relationship with the subject matter of the insurance - English law definition a right in the property, or a right derivable out of some contract about the property, which in either case may be lost upon some contingency affecting the possession or enjoyment of the party (Lucena v Crauford (1806)) Examples include equipment owners and mortgagees Interest need not be vested or proprietary For liability insurance, this includes anyone with a potential liability Can insurers claim that a failure to properly create and perfect a mortgage means that the mortgagee has no insurable interest?

22 Title Risk Insurances Duty of Good Faith Utmost good faith / uberrima fides Duty arises by operation of law Disclosure - insured s duty to disclose all material facts (1) that are within the actual knowledge of the insured or (2) that, in the ordinary course of business, ought to be known by the insured and are reasonably ascertainable - provisions of the Marine Insurance Act 1906 (ss.17-19) state the common law position and apply equally to aviation insurance - possible breach of duty of good faith for failure to disclose non-perfected mortgage interest

23 Title Risk Insurances Duty of Good Faith Misrepresentation - a representation as to a material fact that is false or inaccurate - again derived from Marine Insurance Act 1906 (s.20) Continuing duty - not just at policy inception - applies at renewal / extension and at other key points (e.g. if the policy is varied mid-term) -..continues throughout the contractual relationship at a level appropriate to the moment (Manifest Shipping Co Ltd v Uni-Polaris Ins Co Ltd (The Star Sea) (1997)) Consequence of breach of duty of good faith - insurers can avoid insurance contract

24 Title Risk Insurances Duty of Good Faith AVN 67 (s.3.2) - coverage for Contract Parties not invalidated by act or omission (including misrepresentation and non-disclosure) of any other person Duty of Contract Parties - duty applies equally to Contract Parties (subject to AVN 67 protection above)

25 Title Protection Practical Methods Variety of practical methods Host aircraft owners Protective agreement (RoRA) Agreed value payment obligation on title loss / increase in agreed value of host aircraft Monitoring Eurocontrol letter (current approach / all operated aircraft) ETS letter Airport letter Insurance Non-repossession insurance - Physical re-possession risk - De-registration / export risk - Government / third party lien risk - Technical records

26 Title Protection Practical Methods Insurance (cont.) Contingent insurance - Airline s policy fails to respond - Termination for non-payment of premium - Operations outside geographical limits - Failure of cut-through clause - Insurer payment illegality / impossibility (e.g. caused by sanctions or exchange control restrictions) - Limits exceeded - Errors and omissions by insurance broker

27 Title Protection Legal Methods Basic legal requirements Specific documentary provisions to be included - see Jurisdictional Review: Security Issues Specific documentary formalities to be observed - notarisation / other documentary formality - stamping / other payment - as condition to effectiveness of document / filing / perfection / admissibility in court Perfection Assuming due transfer / creation of original interest - effective as between the parties Perfection - how does the interest become effective against third parties? - third party creditor / purchaser / lessee / other - insolvency officials

28 Title Protection Legal Methods Methods of perfection Filing in public register - debtor registers (companies / commercial register) - asset registers (national aircraft register / CTC International Registry) - UCC style registers - other registers (title / deeds register) Notice Possession / control

29 Title Protection Cape Town Convention Application to engines Aircraft engines are aircraft objects - 1,750+ lbs thrust / 555+ horsepower Helicopter engines are not aircraft objects - if installed - ability to register prospective international interest Engines in context of aircraft financing - if the only CTC connection is the state of registration of the aircraft, international interest in engine is not registrable (c.f. actual practice) Where is the debtor situated? - Place of incorporation - Place of registered office - Centre of administration - Place of business - Cayman / Irish entities

30 Title Protection Cape Town Convention Priorities A registered interest has priority over an unregistered interest and a subsequently registered interest Art 29 A Contracting State can declare that CTC applies to pre-existing interests (3 year limit) Art 60 A Contracting State can declare priority for certain non-consensual interests Art 39 A Contracting State can declare certain nonconsensual interests to be registrable Art 40

31 Title Protection Cape Town Convention Interaction with domestic law Good international interest / bad national interest Why do you need a good national interest? Practice on engine transactions Valid international interest / remedies should be recognised by Contracting States that is the purpose of CTC Ensure effective national interest in non- Contracting States Example financing of engine owned by US owner trust and leased to Brazilian airline

32 Title Protection National Registers Lack of engine-specific registers / registers that permit recording of engine interests US / FAA Notable exception Register for leases / mortgages in relation to engine interests that have US connection (owner / operator) FAA counsel Pre-positioning of original documents Other countries Title / deed register Napoleonic jurisdictions (e.g. Brazil) Company / commercial registers

33 Title Protection UCC Article 9 Uniform Commercial Code Overview Unified code of rules for creation and public registration of security interests in personal property State law - model law that can be adopted by each state (level of overall harmony is high since 1998 revisions) Personal property all assets other than land Security interests - broad - any transaction that creates a security interest in personal property by contract Security created by all persons (including individuals) Coverage - Creation / attachment - Publicity / perfection - Priorities - Enforcement (excluding on insolvency)

34 Title Protection UCC Article 9 Uniform Commercial Code Overview (cont.) Simple filing system - notice filing system - Name of parties / simple description of collateral - No filing of security agreement - Tender rule filing is at the time of communication (not time of entry on record) - Debtor need only authorise (not sign) - Third parties make enquiries of debtor (secured party has no obligation to give information) - Electronic filing - No filing time limit - Filing renewal requirements - continuation statement filed within 6 months of each 5 year period

35 Title Protection UCC Article 9 Unique features Title finance = secured finance Coverage - Reservation of title - Conditional sale - Finance lease Lease tests when is a lease a security interest? - Lessee obligation to acquire title or use asset for projected useful life - Lessee option to acquire title (or extend lease term beyond projected useful life) for no / nominal consideration Substance over form - c.f. English common law Subject to Federal law - e.g. separate FAA rules for aircraft mortgages Codifies priority rules

36 Title Protection UCC Article 9 Perfection Methods Filing - The basic method of perfection Other required methods for different collateral (examples) - Federal action - Aircraft / engines (FAA rules) - Possession - chattel paper a record that evidences a monetary obligation and a security interest in specific goods (e.g. finance lease or operating lease with security deposit) - Control - deposit accounts automatic if secured party is depositary bank; otherwise control agreement under which depositary bank agrees to comply with secured party s instructions without debtor consent

37 Jurisdictional Review Legal Families Anglo-American Common Law c.47% (by number of jurisdictions) / c.35% (by population) England, Australia, Canada (excl. Québec), much of Caribbean, Cyprus, Hong Kong, India, Ireland, Israel, Malaysia, New Zealand, Nigeria, Pakistan, Singapore, USA Napoleonic (Civil Law) c.26% (by number of jurisdictions) / c.23% (by population) France, Belgium, Greece, Italy, Luxembourg, Portugal, Spain, Francophone Africa, most of Latin America and North Africa, much of Middle East Roman-Germanic (Civil Law) c.10% (by number of jurisdictions) / c.11% (by population) Germany, Austria, Baltic States, Czech Republic, Korea, The Netherlands, Poland, Russia, Scandinavia, Switzerland

38 Jurisdictional Review Legal Families English common law Most comprehensive and liberal system with respect to corporate entities Generally creditor friendly Few formalities Great scope for security (including universal security) - present and future assets - present and future liabilities Simple enforcement procedures - usually without court assistance - usually without grace periods / limitations Simple / centralised debtor filing systems for security interests Relatively low avoidance risk Recognition of trusts

39 Jurisdictional Review Legal Families American common law Largely protective of security interests Similar to English common law UCC simple perfection system Differences - Separate state regimes for real property - Self-help enforcement more restricted - Chapter 11 corporate reorganisation restricts security interest - Title finance recharacterisation as secured finance

40 Jurisdictional Review Legal Families Roman-Germanic Arguably less favourable than Anglo-American group; more favourable than Napoleonic group Scope of security can be quite wide Corporate rescue principles limited Limiting features - Restrictions on security over future assets - Restrictions on security over all assets (cf English floating charges) - Requirement for possession in certain jurisdictions (such as Austria / Switzerland) - Special requirements for security (such as a statement as to the secured amount) - Lack of recognition of trusts (subject to Hague Trusts Convention 1985)

41 Jurisdictional Review Legal Families Roman-Germanic (cont.) - Accessory nature of security - Requirement for parallel debt provisions - Notarial formalities - over-security principles (Germany) - limited security renewal requirements (Finland 10 years)

42 Jurisdictional Review Legal Families Napoleonic Less favourable than Anglo-American and Roman- Germanic groups Limiting features - Restrictions on security over future assets - Problematic to secure future debt - Special requirements for security (such as maximum secured amount / specified interest rate) - Enforcement regime tends to be debtor-protective - Emphasis on judicial processes (auctions / court orders) - Restrictions on self-help

43 Jurisdictional Review Legal Families Napoleonic (cont.) - Security registrations subject to renewal requirements - Argentina 7 years - France 10 years - Italy 20 years - Greater formalities - notarial requirements - formalised notification procedures for assignments of contracts and rights - Centralised debtor filing systems for security interests less common (e.g. at a companies / commercial registry) - Possessory requirements - Historic non-recognition of trusts (except in much of Latin America and (more recently) France / subject to Hague Trusts Convention 1985)

44 Jurisdictional Review Security Issues Accessory security Usually in civil code jurisdictions Security is accessory to secured debt (i.e. it follows and depends upon it) Assignment of debt carries assignment of security Discharge of debt (or invalidity of secured obligation) terminates the security - classic English law / LMA loan transfers Role of security trustees Parallel debt provisions

45 Jurisdictional Review Security Issues Third party security Security granted for the obligations of a third party Unusual to find prohibitions Some exceptions - France assignment of business receivables under the Monetary and Financial Code (arts ) - Belgium general enterprise pledge Possible solution - Security granted to secure debtor s obligations under a guarantee given by it in relation to the third party liabilities

46 Jurisdictional Review Security Issues Security over derivative assets and rights Ideal security over an asset includes: Asset in another form - such as proceeds / insurance proceeds Derivative / related assets and rights - such as rights in relation to shares (e.g. dividends / voting rights) in the case of share security - such as guarantee rights

47 Jurisdictional Review Security Issues Security over derivative assets and rights (cont.) Proceeds English law no automatic entitlement UCC includes proceeds any property arising in respect of the collateral (can include proceeds of proceeds) Insurances English-based systems do not cover insurances - A security interest over an asset does not (per se) include an assignment of the related insurances Civil law / US jurisdictions cover insurances - Insurances automatically follow the mortgaged asset - Austria, Denmark, France, Germany, The Netherlands, Norway, Switzerland, USA (personal property covered by UCC 9-102)

48 Jurisdictional Review Security Issues Supporting guarantees and security General rule - an assignment of a debt includes any supporting guarantees or security Examples - England - if a debt is assigned without reference to any supporting mortgage, the transferor holds as trustee and must enforce in accordance with the instructions of the transferee as beneficial owner - USA creation of security over debt / contract carries with it supporting guarantees and security interests (UCC 9-203) Perfection registration of assignment might be required at any relevant registry Prudent practice formal assignment / transfer

49 Jurisdictional Review Security Issues Description of secured debt English and American common law systems allow cross-reference to other documents (e.g. loan agreement) Many Napoleonic (and some Roman-Germanic) jurisdictions require full details of secured debt in the security agreement

50 Jurisdictional Review Security Issues Future debt English and American common law systems freely allow security for all present and future debts expressed as a continuing security - unless (for example) the future debts are outside the originally intended scope of the security (in which case new security must be granted) UCC Article 9 is more permissive than English law Roman-Germanic and Napoleonic systems are less permissive and often require that the debt is determinable (future debt can be determinable) - new security might have to be created for new debt - in traditional Napoleonic jurisdictions, there are real limitations (so that even a revolving credit facility might not be covered)

51 Jurisdictional Review Security Issues Maximum secured amount / maturity date English common law jurisdictions - no objection in most jurisdictions to security for an unspecified amount Napoleonic / Roman-Germanic jurisdictions most jurisdictions require stated maximum amount Amounts to be stated might include principal, interest and other amounts - possible limitations / calculations required in relation to interest (e.g. 3 years interest in France and Belgium) - creditors will look to have highest amounts - debtor might not wish to have inflated amounts recorded on a public register - stated amount may drive costs (notarial or registry fees; which might be affected by inflated figures) - if stated amount is exceeded, new security will be required (which might be subject to intervening security)

52 Jurisdictional Review Security Issues Maximum secured amount / maturity date (cont.) Maturity date statement more common in Napoleonic jurisdictions (but generally not usual instead there might be a requirement to state that the security is granted for an undetermined period)

53 Jurisdictional Review Security Issues Interest Some jurisdictions limit: - the rate of interest that can be charged - the period of back interest - the capitalisation of interest or the charging of interest on interest Basis in usury laws No usury laws in England since 1854 Back interest - Napoleonic jurisdictions often limit - Argentina, Italy 2 years - Belgium, France, Greece 3 years - Most English-based jurisdictions do not have limits (just usual limitation periods for claims)

54 Jurisdictional Review Security Issues Interest (cont.) Capitalisation of interest - Problematic in some jurisdictions (Germany, Argentina, Brazil) - Permitted in most English-based jurisdictions Penalty interest - Reasonable penalty interest is valid in many countries Foreign currency debt A number of countries have restrictions on mortgage debts being expressed in a foreign currency - often due to exchange control rules or a lack of updating in the law - land mortgages may have to state the local currency amount for registration purposes Germany, The Netherlands, Switzerland and Sweden