Mark Bisset (Clyde & Co LLP) Alan Cunningham (DLA Piper) Ed Gross (Vedder Price P.C.) Lease vs Loan/Mortgage - Considerations

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1 Mark Bisset (Clyde & Co LLP) Alan Cunningham (DLA Piper) Ed Gross (Vedder Price P.C.) Lease vs Loan/Mortgage - Considerations July 2012

2 Overview Types of Lease / Mortgage Mortgage Issues Lease Issues Tax Treatment Filing Cape Town Convention Enforcement

3 The two basic alternatives available to a financier are: (a) outright ownership of the aircraft as owner/lessor or (b) a security interest as mortgagee

4

5

6 The lease agreement or not Lease agreement finance lease on balance sheet of lessee operating lease on balance sheet of lessor Hire purchase agreement lease agreement with purchase option nominal / low purchase option price likely to exercise substantial / fair market value purchase option price may not exercise Conditional sale agreement seller day 1 obligation to sell and transfer title to purchaser upon satisfaction of all relevant conditions, including payment of final instalment of sale price purchaser day 1 obligation to purchase and take title no option title retention

7 Cape Town Convention - definitions leasing agreement an agreement by which one person (the lessor) grants a right to possession or control of an object (with or without an option to purchase) to another person (the lessee) in return for a rental or other payment title reservation agreement an agreement for the sale of an object on terms that ownership does not pass until fulfilment of the condition or conditions stated in the agreement [**] security agreement an agreement by which a chargor grants or agrees t grant an interests (including an ownership interest) in or over an object to secure the payment of any existing or future obligation of the chargor or a third person ** Note: USA title reservation recharacterisation as secured finance

8 Finance Lease ( anything else is an operating lease) International Financial Reporting Standards IAS 17, "Leases, lease considered a finance lease if any of the following tests is satisfied: Ownership transferred to lesse at end of lease term Lease contains an option to buy the equipment at less than fair market value lease term is for the major part of the economic life of the asset At the inception of the lease the present value of the minimun lease payments amounts to at least substantially all of the fair value of the leased asset The leased assets are of a specialised nature such that only the lessee can use them without major modifications being made

9 Mortgage issues Type of security available (mortgage, pledge, charge, lien, hypothec ) Availability of aircraft mortgage register Blue Sky case Cost of registration / stamp duty / notarial fees Availability of self help remedies Grace periods / stay on execution Future debts Maximum secured amounts Interest limitations Foreign currency debt Third party security Recognition of trusts

10 The Blue Sky case Blue Sky One Limited & O rs v Mahan Air & Ano r [2010] EWHC 631 (Comm) English law mortgage must be created in accordance with the domestic laws of the jurisdiction where the aircraft is located (lex situs) What about offshore jurisdictions? What about international airspace? What about manufacturer delivery locations? (Canada, France, Germany, State of Georgia, State of Kansas, Brazil ) What about Cape Town interests? what about New York law mortgages? Solutions?

11 Lease considerations Strict Liability Negligent Entrustment Quiet Enjoyment Delivery conditions and procedures following ACG v Olympic Rental payments hell or high water following ACG v Olympic Redelivery conditions and procedures / Purchase Residual value risk (balloon payment?) Sale of the aircraft post-termination (warranties? sales tax?)

12 Tax Issues Capital Allowances double dipping Withholding Tax Corporation Tax Lessor Rentals taxable as trading income Interest payments on loans to finance equipment are deductible Other deductible trading expenses: legal fees arrangement fees rebates of rental Lessee May deduct rental payments as a trading expense

13 Withholding Tax Deduction of tax at source (example 20%) Payor has liability to pay Tax Authority Lessee $200k $800k Lessor Lessee pays 1m Tax = 200k Double taxation treaties Grossing up (in this example Lessee pays $1m to Lessor and $250k to Tax Authority)

14 Filings MORTGAGE State of Registry Company Registry of Mortgagor Other? LEASE State of Registry? Company Registry of Lessee? (security interests e.g. security deposit) Other?

15 Filings - Cape Town International Interests granted by the chargor under a security agreement vested in a person who is the conditional seller under a title reservation agreement vested in a person who is the lessor under a leasing agreement NB Operator management agreements

16 UCC Filings Reservation of title Conditional sale Finance lease Simple filing system Continuation statement to be filed every 5 years When is a lease a security interest? - lessee obligation to acquire title or use asset for projected useful life - lessee option to acquire title for no / nominal consideration

17 Enforcement Cape Town Default Remedies In addition to remedies under applicable national law Not necessary for the interest to be registered Articles 8 and 9 remedies of a chargee Article 10 remedies of a conditional seller or lessor (less detailed) ARTICLE 8 (i) take possession or control of object (ii) sell or grant a lease (ii) collect or receive any income Procedural rules of local courts where asset is located will apply ARTICLE 9 (i) take ownership of object in satisfaction of debt (ii) safeguards apply ARTICLE 10 (i) termination of the agreement (ii) possession or control ARTICLE 13 speedy interim relief ARTICLE 54 state may exclude self-help remedies

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