Republic Airways Holdings, Inc.: Liquidated damages under attack in U.S. Bankruptcy Court (again)

In a decision with sweeping consequences for equipment lessors, the bankruptcy court (SDNY) in Republic Airways held that a liquidated damages provision in a true lease is an unenforceable penalty if it provides for the unconditional transfer of residual value risk or market risk only upon default, without a cognizable connection to any anticipated harm caused by the default itself. Importantly for lessors and lenders alike, the bankruptcy court held that the unconditional guaranties of such obligations in favor of the lessor violated public policy and were unenforceable.

Background

The agreements at issue were true finance leases (aircraft leases) that had been rejected in the bankruptcy case. The leases provided that, upon default, the lessee must pay (i) any unpaid basic rent for the aircraft plus (ii) liquidated damages. The leases calculated liquidated damages in one of three ways:

  1. the stipulated loss value minus the present fair market rental value of the aircraft for the remainder of the lease term; or
  2. the stipulated loss value minus the fair market sales value of the aircraft;1 or
  3. the present value of the rent reserved for the remainder of the lease term minus the fair market rental value of the aircraft for the remainder of the lease term.

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The Greek Civil Code visits the English High Court: Personal guarantees, defences and competing applicable laws

Whenever interrelated contracts apply, different laws, issues and defences may arise owing to the discrepancies between the applicable legal systems. In HSBC Bank PLC v. Pearl Corporation SA and Ors, the High Court had to consider Greek law defences to a personal guarantee, governed by Greek law, in the context of a loan agreement governed by English law. It was held that on the particular facts the defences under Greek law failed. Nevertheless, such defences may be available in a future similar case in the context of different circumstances.

Personal guarantees in the Greek shipping market

It is not uncommon in the Greek shipping market, for personal bank guarantees to be governed by Greek law in the context of loan agreements governed by another legal system, usually English law. Why, one may ask, would someone do this? There are several reasons put forward for such an arrangement. First, as a matter of Greek law, consideration is not a prerequisite for contracts. A valid guarantee may be issued without referring to actual or ‘iconic’ consideration. Secondly, in the context of the Greek shipping market, the guarantors are usually domiciled in Greece, with personal assets there. Thirdly, Greek banks and the Greek branches of international banks are usually more familiar with Greek guarantees. Therefore, for various largely practical and historical reasons, such a practice prevails in the Greek shipping market. However, such an arrangement gives rise to potential issues and arguments that would not have arisen if the guarantee was governed by the same law as that of the loan agreement.

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California’s new commercial financing disclosures

Newly-effective California law requires a non-bank provider of commercial financing to present its financing recipient with certain consumer lending-style cost disclosures at the time when making an offer of commercial financing, and to obtain the recipient’s signature on the required disclosure before consummating the financing. While effective now, parties need not comply with the new law for an undetermined period of time.

California Senate Bill 1235 was approved and filed on September 30, 2018, creating a new Division 9.5 of the California Financial Code effective on January 1, 2019. However, financing providers need not comply with new Division 9.5 (the “Commercial Disclosure Requirement”) until the effectiveness of final regulations to be adopted by the Commissioner of Business Oversight, for which no deadline has been established.1 The Department of Business Oversight (“DBO”) invited comments on the content of such regulations, which comment period closed on January 22, 2019.2 No such regulations (either in draft or final form) have been adopted to date; no guidance has been provided by the DBO as to when such regulations will be issued.

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UK insolvency shake-up

On August 26, 2018, the UK government issued its response to its consultation on insolvency and corporate governance. The consultation sought views on how the risk of company failure could be reduced by improving the corporate governance and insolvency framework. The response summarized the views and comments received during the consultation, and sets out a number of proposals that will have significant implications for English companies and their creditors and investors. At the heart of the proposals is a desire to ensure there are a range of transparent rescue procedures that allow companies to restructure or seek new investment, in order to give them a greater chance of survival, while also ensuring fair and efficient procedures to protect the interests of creditors. The proposals mean that the government will seek measures that:

1. Ensure greater accountability of directors in group companies when selling subsidiaries in distress:

  • This measure will apply to large subsidiary companies.
  • Directors of the holding company who do not give due consideration to the interests of stakeholders of a financially distressed subsidiary when it is sold may be subject to disqualification action if that subsidiary enters insolvent liquidation or insolvent administration within 12 months of sale.
  • Directors of the holding company will need to provide evidence that they had a reasonable belief at the time of the sale that the sale would likely deliver a no-worse outcome for the stakeholders of the subsidiary than putting it into a formal insolvency process in order to avoid disqualification.

2. Enhance existing recovery powers of insolvency practitioners in relation to value extraction schemes: Continue Reading

TRAC leases as disguised financing transactions: recent developments and a reminder about TRAC neutral statutes

For many decades, companies in the business of leasing “over-the-road” vehicles such as trucks, tractors, and trailers, have used terminal rental adjustment clause (TRAC) leases to maximize the value they can provide to their customers. Traditionally speaking, TRAC leases combine the tax advantages of leasing with an option to purchase the equipment at the end of the lease term for a residual amount determined at the inception of the lease. Since 1981, it has been well-settled that TRAC leases constitute “true” leases, and not disguised financing transactions, for federal tax purposes. See, e.g., Swift Dodge v. Commissioner, 76 T.C. 547 (1981); affirmed Swift Dodge v. Commissioner of Internal Rev. 692 F.2d 651 (9th Cir. 1982). By contrast, however, whether TRAC leases are treated as true leases or disguised financing transactions in the context of a bankruptcy case is anything but settled.

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Financing of Scrubber Units and Emissions Technology

As part of a concerted move by the shipping industry community to reduce the environmental impact of shipping, the International Maritime Organization (IMO) has introduced regulations to reduce sulphur oxides emissions. These regulations require ships operating outside designated emission control areas to burn marine fuel with a limit of up to 0.5 per cent sulphur content by January 1, 2020, or install scrubber units into exhaust stacks to continue to burn High Sulphur Fuel Oil (HSFO) bunkers. As a result, the financing of scrubber units alongside other emissions technology is an increasingly important topic and this blog sets out some of the key issues in what remains a relatively novel asset class for financing.

Scrubber units

Scrubber units are one of the more prominent emissions technology options that aim to reduce component gases such as nitrogen and sulphur oxide in exhaust emissions from vessels. Marine scrubber units remove sulphur oxides from exhaust emissions in part by mixing these exhaust emissions with a water-based solution. Generally, scrubber units come in one of three forms: open, closed and hybrid. Open systems take on and discharge seawater. Closed systems use a freshwater solution in the ‘scrubbing’ process before discharge into the sea. Hybrid systems have both capabilities. In the process of treating the solution, prior to discharge, sludge is created and this sludge must be retained onboard before disposal onshore.

The cost of fitting scrubber units will vary based on whether they are retrofitted or installed onto newbuilds, but most analysts expect these costs to be recouped within several years of fitting. An important consideration for these assumptions will be the availability of HSFO bunkers and the price spread of high and low sulfate bunkers, which will be a key factor for the expected returns on scrubber units. As scrubber unit technology becomes more cost efficient and improves over time, the installation of scrubber units may become an increasingly attractive option.

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The alternative path to damages in a true lease if liquidated damages are unenforceable (or Lessees, be careful what you wish for!)

Liquidated damages in true leases: applicable law

Uniform Commercial Code Section 2-A-504 is the applicable law regarding liquidated damages in a lease agreement. Section 2-A-504(1) provides that: “Damages payable by either party for default . . . including . . . loss or damage to lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default . . . .”

As an exemplar, the Official Comment to Section 2-A-504 (the Official Comment) provides a commonly accepted formula used in leasing practice to liquidate the lessor’s damages for breach or early termination: the sum of (1) lease payments past due, plus (2) accelerated future lease payments, plus (3) the lessor’s estimated residual interest, determined ex ante, less (4) the net proceeds of disposition (whether by sale or re-lease) of the leased goods.

The Official Comment recognizes that stipulated loss schedules are common and that whether such a formula is enforceable will be determined in the context of each case by applying a standard of reasonableness in light of the harm anticipated when the formula was agreed to between the parties, i.e., at the inception of the lease transaction. Lessees that contest the reasonableness of a liquidated damages formula for the most part attempt to analyze the reasonableness of the formula ex post, which is directly contradicted by the plain language of the statute’s direction to assess the “then anticipated harm.”

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The Financing of Green Shipping

The shipping industry is a major contributor to harmful air pollution, generating an estimated 2.5 percent of the world’s greenhouse gas emissions. In a global market, the maritime transport sector is depended on as a reliable and cost-effective means of transporting goods. The huge volume of shipping activity and direct impact of the industry on carbon dioxide emissions have led the shipping industry to become the focus of several new green shipping initiatives, particularly in the European market.

What can be done?

It is recognized that technology exists that could cut emissions from the shipping industry by at least 75 percent, but the industry has lagged behind in reducing its carbon emissions and promoting sustainable practices. However, there have been recent signs of change; in February 2018, two Japanese companies announced a partnership to test using solar power on ships and China launched its first all-electric cargo vessel late last year, able to carry 2,200 tonnes with every haul.

Many shipowners have demonstrated a willingness to improve their environmental performance. For example, Cargill has pledged to cut greenhouse gas emissions by 15 percent per cargo-tonne-mile by 2020, in line with the group’s intention to reduce overall emissions by 10 percent by 2025.

Despite their apparent commitment to environmental improvement, owners face a number of challenges to making this reality. Firstly, competitiveness: Investing in greener technologies represents an upfront expense that does not provide owners with a competitive advantage. Users of shipping services are not always willing to pay for goods to be transported in a more environmentally friendly manner, although stricter emissions standards will ensure a more level playing field in this respect. Secondly, the availability of financing: For various reasons, many commercial banks have reduced their lending to the shipping industry. Some banks decided to withdraw from the sector following the 2008 financial crisis. In addition, commercial banks have limited capital and tough choices to make. Ship financing is not always an easy sector to be in, given its high levels of capital utilization, cyclicality and associated risk.

What does this mean for ship finance?

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An Introduction to ECA Finance

In this blog post we take a brief look at export credit agency (“ECA”) supported finance in the asset finance industry, and the development of a new template loan agreement by the UK’s Loan Market Association.

The role of the ECAs

ECA finance describes transactions where states (whether by direct sovereign bodies or by separately mandated organisations) provide (financial) support to would-be purchasers of certain goods or equipment constructed in that ECA’s home jurisdiction.

ECA support can make deals both more bankable and more affordable, and has long been a useful feature of asset and project finance. Over the last two decades, a significant amount of export credit support in the form of both guarantees and insurance has been provided to capital-intensive global projects.

With the increased capital adequacy requirements of the Basel III and Basel IV accords, the importance of the sector has continued to grow. ECAs were once seen as insurers of “last resort” and were largely confined to support high risk financings in emerging markets, with much export credit agency insurance having been counter-cyclical. Whilst the perception remains that ECA support increases in importance as traditional financiers become more reluctant to lend (and so provides a bridge where the required debt finance exceeds the available bank liquidity) they just as often will now be found providing specialised products not available elsewhere, for example political risk insurance. Continue Reading

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