Last month I wrote about the most (IMO) overlooked important issue in an aircraft purchase agreement–the description of the aircraft. This post is about the least understood and most neglected (again IMO) section of lease agreements–the maintenance reserve provisions as they relate to engine LLPs.
Some lessors do understand the issues related to engine LLP reserves, and the lease agreements from those lessors reflect that understanding, but for purposes of this post let’s assume we are reviewing a lease agreement with an engine LLP reserve provision that reads as follows (paraphrasing):
In the event Lessee replaces LLPs on an Engine during the Lease Term Lessor will reimburse Lessee for the cost of the replacement LLPs from the LLP maintenance reserves paid by Lessee for such Engine.
If an Engine was delivered to the Lessee by the Lessor on the Delivery Date other than with zero time on the LLPs, then to the extent the reimbursement from the LLP maintenance reserves is insufficient to fully reimburse Lessee for the cost of the replacement LLPs Lessor will contribute a further amount up to the product of US$200 and the number of cycles of utilization on the LLPs on the Delivery Date.
Ignoring the imprecise drafting (I did say I was paraphrasing!), how many conceptual errors can you find in the above? Here are the ones I see:
1. First and most importantly, note the above drafting treats the LLPs as a pool. LLPs on an engine may have different manufacturer-mandated cycle-lives and an LLP may fail or be removed before its expected cycle-life. In addition, used LLPs are sometimes installed on an engine as replacement parts. So an engine with 15 LLPs may have 15 different LLP cycle-lives remaining.
If all LLPs stayed installed for their expected life and were always replaced with new LLPs, then treating the LLPs as a pool for maintenance reserves purposes should (I think) work out over time. But if an LLP fails early and needs to be replaced or an LLP needs to be replaced early to comply with an engine overhaul build standard, then under the above drafting a lessee could draw the full cost of the replacement LLP from the reserves and lessor contribution, thereby depleting the reserve pool and lessor contribution out of proportion to the part replaced.
For example, a lessee takes delivery of a used aircraft and operates it for six months, paying US$240,000 in LLP reserves on an engine, before an LLP costing US$400,000 fails. Under the above drafting the lessee could draw the entire US$240,000 plus up to $160,000 of the lessor contribution for the replacement of one LLP.
I can hear some of you saying “what’s wrong with that, the LLP reserve balance is then zero and the lessor contribution is reduced and so the next time the lessee needs to draw for an LLP replacement, it may need to come out of pocket for the cost, right?” Yes, but the problem is that lease terms do not go on forever and at some point the aircraft will need to transition to a new lessee, who will likely be smart enough to ask for a lessor contribution based on its calculation of the cycles used on each LLP; and if the reserves and lessor contributions under the current lease have been depleted through the replacement of a few parts the lessor will need to make up the difference.
To put it another way, treating the LLP maintenance reserves as a pool effectively shifts a lot of the risk of early LLP removal to the lessor. So, the first conceptual error is that LLP reserves and lessor contributions are not tracked on a per part basis.
2. Note that the above drafting does not require the replacement LLP to be new. Replacement of failed or (soon to be) expired LLPs with used LLPs is common practice; there are various legitimate reasons for a lessee to install a used replacement LLP instead of a new LLP. But if a Lessee does install on used LLP there should be limits on the lessor’s reimbursement obligation. For example, let’s say a lessee replaces an LLP with a used LLP that had exactly the same number of cycles as the replaced LLP had on the date the aircraft was delivered to the lessee? Should the lessee be entitled to draw on the LLP reserves allocated to such part? Yes, because the LLP has paid for the time used and is returning the LLP to is original (delivery date) condition. Should the lessee be entitled to make a claim against the lessor contribution for such part? No, because the lessee has not improved the condition of the LLP from its original (delivery date) condition.
As you can imagine there are numerous possible fact patterns to address when dealing with both new and used LLPs and both maintenance reserves and lessor contributions–and the drafting in the lease can get complex–but for purposes of this post just realize that if the lease documentation allows the installation of used LLPs then you need to be very careful how the reserve reimbursement and lessor contribution sections are drafted.
3. Note that the above drafting does not say lessor will reimburse lessee only for the lessee’s net cost of the replacement LLP. The cost of the LLP may be reduced in various ways that won’t be obvious from the invoice that the lessee provides the lessor with the lessee’s reimbursement request. For example, the removed part may have salvage value. Also, the engine manufacturer may have a deal with the airline to provide a credit or rebate in connection with the purchase of LLPs, especially if the LLP comes off early. It may be difficult to determine the lessee’s “true net cost” of an LLP, but at a minimum the lease agreement should contain some general language providing for the netting of salvage value, credits and rebates.
4. The above drafting assumes that the cycle-life of an LLP will not change after installation. If cycle-life is reduced (fortunately a rare occurrence) then the lessor should have the option to adjust upwards the per cycle reserve amount. Of course the lessor may have to concede that the reserve amount be adjusted downwards in the event that cycle-life on one or more of the LLPs is extended.
Finally, I have yet had to deal with this issue but I understand that at least one engine manufacturer is looking at assigning LLP cycle-life on an operator by operator basis–with each operator to be assigned into one of two categories–with some operators being allowed a longer cycle-life and some restricted to a shorter cycle life. The issues here for an operating lessor are obvious and scary, both in the calculation and collection of LLP reserves and the drafting of LLP return conditions. After I gain some real life experience on this issue I will revisit it in a post.