Category Archives: Aircraft Repair

Replacement of Parts and Part Pooling

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In a perfect world for an aircraft lessor the following rules would apply to each part on a leased aircraft:

Rule 1.  No part should be removed from the aircraft except as required for maintenance of the aircraft and/or the part.

Rule 2.  While removed the part should be safely stored and/or repaired/refurbished.

Rule 3.  No part on the aircraft should be replaced other than because of damage, failure, loss or expiry of that part.

Rule 4.  If a part is to be replaced because of damage, failure, loss or expiry, the part should be promptly replaced with a part of the same manufacturer and model (or a more advanced and compatible model), and upon installation title to the replacement part should vest in lessor free and clear of any liens.

I can hear a number of you saying “uh huh, yeah, that’s right, what’s your point?”

My point is that very few aircraft lease agreements actually contain the first three rules.  Don’t believe me?  Pick up any random lease and check.

Right now I am picking up a lease at random (I really am) and I see the following standard Replacement of Parts clause:

LESSEE, at its own cost and expense, will promptly replace all Parts which may from time to time become worn out, lost, stolen, destroyed, seized, confiscated, damaged beyond repair or rendered unfit or beyond economical repair for use for any reason. In the ordinary course of maintenance, service, repair, Overhaul or testing, LESSEE may remove any Part provided that LESSEE replaces such Part as promptly as practicable.

The wording in this lease agreement goes on to specify the requirements for the replacement part (Rule 4 above) and to address title transfer issues (also Rule 4 above) and the required timing for replacement (again, Rule 4 above).

But what about the first three rules?  They are not contained in the above quoted language (read it again).  Note especially that in the second sentence it does not say “Only in ordinary course of maintenance . . . ” or “maintenance, service, repair, Overhaul or testing of the Aircraft.”

You may be able to find the first three rules partly covered in other parts of the lease agreement.  For example, the lease agreement Possession section may have a provision prohibiting delivering possession of any part to a third party (though the prohibition in that section is often limited to the aircraft and engines).  The Maintenance section will likely have a clause on repair.  But I bet you didn’t find the first three rules in the Replacement of Parts section.

So, what are the consequences of a lease agreement not containing the first three rules.  Well, the most material and (highly) likely consequence is that parts will be removed from the lessor’s aircraft for use on other aircraft in the lessee’s fleet, with the only requirement usually being that the removed part be replaced with a compliant part “as soon as practical but in any case prior to the last day of the Lease Term”–and that the lessor will not be able to prohibit the use of its parts on other aircraft.  Another possible consequence, theoretically at least, is that good parts can also be swapped out for inferior parts–though most leases have a requirement that the replacement part have a value and utility at least equal to the replaced part.

Let me jump to another issue here and then I’ll come back the issues raised above.

Often during lease negotiations the lessee will say “we need the right to do part pooling,” and when I’m reviewing leases I sometimes run across a “Part Pooling” section in which the lessor gives the lessee broad rights to pool “Parts” from the aircraft with other airlines pursuant to an inter-airline pooling arrangement.  When I see such a part pooling section I wonder how can the lessee engage in inter-airline part pooling and still comply with its separate obligation to replace removed parts “as soon as practical,” vesting title to the replacement part in the lessor.  The two provisions are in conflict.

When pooling comes up in my lease negotiations, my first response is to ask the lessee’s representative what he/she means by “parts pooling.”  Invariably the response is something like “if we need a part from your aircraft to keep another aircraft in our fleet in operation then we will want the right to remove the part from your aircraft.”  Anyone who has been in the aircraft leasing business for more than a few deals knows that this sort of part sharing among aircraft is common.  Lessors don’t like it, but it’s going to happen and it’s unlikely the lessor will ever find out.

I don’t think I have ever heard the following response from a lessee:  “we want the ability to share your aircraft’s parts with other airlines as part of an inter-airline pooling arrangement without any obligation on our part to replace them before return of the aircraft to you.”  I can see a very creditworthy airline taking that position, but unfortunately (for me) those are the kind of airlines I don’t usually deal with.  My experience is that a request to “pool parts” is a pretty narrow request to use parts from a lessor’s aircraft in an “emergency.”  And if that is the case and the lessor is willing accommodate the lessee on this request, then the “part pooling” provision should be narrowly drafted.

I sometimes wonder whether the loose drafting around the removal and replacement of parts (as discussed above) is the result of lessees trying to leave open the possibility of removing parts from the leased aircraft for use on other aircraft in its fleet.  If so, I guess that is OK, but as a lessor’s counsel I would strongly prefer that the four rules above are clearly stated and that any exception for “emergency” use of parts on other aircraft is clearly and narrowly drafted.

Maintenance Reserves for LLPs: Some Random Thoughts

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I have been reviewing a lot of leases recently, and among the various lessors and forms of leases I am seeing that there is almost always a drafting or conceptual issue with the engine LLP reserve provisions.  This post will discuss a few of those issues.  Some of the issues below are also touched upon in less detail in a previous post.

Used LLPs

Several years ago a very sharp lessor tech officer pointed out that the lease agreement we were negotiating should have an adjustment to the LLP reserve reimbursement amount where the replacement LLP (for which reimbursement is being sought) is a used LLP.  The use of used LLPs by airlines and MROs is not uncommon, and the tech officer’s view was that the lessee should not be able to draw, without limit, from reserves or any lessor contributions (for utilization prior to the delivery date) for the cost of a used LLP.

For example, why should a lessee be allowed to draw reserves, without limit, for the cost of a used LLP where the replacement LLP has less cycles remaining than the replaced LLP had at removal (e.g., in a replacement required because of FOD or failure)?  Similarly, why should a lessee be allowed to draw lessor contributions, without limit, for the cost of a used LLP where the replacement LLP has less cycles remaining than the replaced LLP had on the delivery date? Underlying these questions is the (correct and accepted) premise that a lessor should at all times have LLP reserves for an LLP that reflect the utilization of that LLP since new.

The tech officer and I came up with some unfortunately complicated drafting adjusting the LLP reserve reimbursement amount in the above scenarios.  I say “unfortunately” because I value simplicity in drafting–easier to negotiate, easier to administer, easier to enforce.  Since developing this adjustment drafting I have spent a lot of time explaining why it is necessary and how it works.

In the numerous leases I have reviewed recently not one has made a distinction between used LLPs and new LLPs in the reserve reimbursement section, and I so started to wonder whether maybe I was missing something.  Why didn’t these other lessors care about the used LLP issue?  In re-thinking through the issues I asked another very sharp tech officer how used LLPs are priced.  He told me that used LLPs are generally priced pro rata (straight line) to the price of a new part–so an LLP with 75% life remaining would cost 75% of the catalog price of such part.

If we assume that used LLPs are always priced on a straight-line pro rata basis and if the working assumption for drafting is that the reserve balance and any lessor contribution amount for any LLP reflects all prior utilization for such LLP at catalog price, then the use of used parts should not be an issue.  In other words, any LLP reserve reimbursement should deplete the reserves and lessor contribution only to the extent of life remaining on the replacement part.  For example, if a part with 10% life remaining (and for which lessor holds reserves and lessor contributions equal to 90% of the cost of such part) is replaced by a part with 75% remaining (with a cost of 75% of catalog price), then after lessor’s reimbursement (65% of catalog price after netting any waste expense on the replaced part–see more on waste expense below) the lessor should have the benefit of an LLP with 75% life remaining and 25% in reserves/lessor contributions.

Let’s try a more detailed example.  An aircraft is delivered used to the lessee.  One of the LLPs on one of the engines has 60% life remaining at delivery to lessee and the lessor has provided to lessee a lessor contribution equal to 40% of the catalog price for such part.  Lessee pays reserves on such LLP during the term and at the time of removal of such LLP for replacement, 20% life remains on such part; in other words, lessee has paid 40% of catalog price in reserves.  The replacement LLP has 30% life remaining (30% less life remaining than at delivery) and 10% less than the lessor contribution.  Lessor’s reimbursement would be 10% of catalog price after netting any waste expense on the replaced part) and the lessor should have the benefit of an LLP with 30% life remaining and 70% in reserves/lessor contributions.

The key to making these examples work is the assumption that the used LLP is priced on a straight line basis.  And so the conclusion I am drawing from the above thinking is that I can scrap the complicated drafting language I have been using and replace it with something along the lines of the following:  “If the replacement LLP is used then Lessor’s reimbursement obligation will be equal to the lesser of (1) the actual cost of such LLP and (2) the product of (a) the catalog price of such part divided by its cycle life and (b) the number of cycles remaining on such part, in either case, less waste expense.”

Reimbursement on a Part-by-Part Basis vs. from the LLP Reserve Pool

I have discussed this issue in another post and so won’t repeat myself here.  In the leases I have reviewed recently I have seen both approaches taken and also saw a hybrid where the pool approach was used for the LLP reserves and a part-by-part approach was used for the LLP lessor contribution (I didn’t understand the reason behind that split).  My view is that the part-by-part approach is the logical and correct approach because the pool approach shifts operational risk on the LLPs to the lessor.  For a discussion of this issue see this previous post.

Salvage Value, Waste Expense and Stub Life

LLPS are very rarely removed with no life remaining.  Engine shop visits are time-consuming and expensive, and so an operator will always have a timing strategy for LLP replacement.  For example, if an engine is going into the shop for a performance restoration and after the performance restoration the engine will be expected to run without another shop visit for 7,000 cycles, then the operator will generally replace all LLPs on the engine with life remaining of less than 7,000 cycles.  The lease agreement for an aircraft will also usually have an LLP “build standard” for a performance restoration and separately an LLP cycle-remaining return condition, both of which requirements will affect the timing of LLP replacement during a lease term.

The question for the lessor is how to account for the “early removal” of LLPs when collecting and reimbursing reserves.

Some lessors will build the lost cycle life into the reserve rate using a “stub life” assumption–with the effect that the per cycle reserve rate for an LLP is higher than the per cycle catalog price for such LLP.  Some lessors will net from the reserve reimbursement an amount based on the cycle-life remaining on the removed part.  Some lessors will net from the reserve reimbursement the market salvage value (if any) of the removed part, usually in connection with using the stub life approach.

I think the most direct, transparent and easiest-to-explain approach is to base the reserve rate on catalog prices (without adjustment) and then deduct from the reimbursement an amount equal to the product of (1) the per cycle then catalog price of the replaced LLP and (2) the number of cycles remaining on the replaced LLP.  This approach removes the guesswork of stub life and salvage value, with the calculation of LLP reserve rate and reimbursement tied directly to catalog prices.

LLP Replacement–Scope of Reimbursement

LLP reserve reimbursement is for the purchase price of the part, not for repair, installation or any other labor or any other cost.  This preceding sentence isn’t debatable, it’s not an “issue”; it’s the commercial basis of the deal.  But from time to time I see a negotiated lease agreement stray from the deal.  If the lessee wants anything other than LLP price in the reimbursement, then the LLP rate needs to go up.

What Does Life Mean?

I’m just going to touch on this last issue, because it is a big topic.  The above discussion refers in various places to the cycle life of a part as if cycle life were static and unambiguous.  But this not the case.  For example:

  1. Engine manufacturers sometimes extend the cycle life of a part already in service– for example, because operational experience has shown that the part will last longer.
  2. Engine manufacturers may assign different LLP cycle lives to different operators based on each operator’s profile (geographic location, routes, etc.).
  3. Engine manufacturer’s may guarantee a longer life of an LLP than the current cycle life (because the engine manufacturer expects the cycle life will be extended before the current cycle life is used).
  4. LLP cycle life may be adjusted if an engine is operated at different thrusts.

For the lawyer drafting the LLP reserve provisions in a lease agreement, all of the above should be considered while drafting.  I’ll try to come back at a later date for a full discussion of this last issue.  In the meantime, caveat advocatus.

 

Who Bears the Risk of Loss in Value After an Aircraft is Damaged?

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Every lessor has horrifying examples of heavy damage to one or more of its aircraft—the tail strike on takeoff, the hard landing, the landing with the landing gear retracted, the exploding grenade perforating the fuselage, the aircraft leaving the runway and sinking in the mud, etc. Whether the damage constitutes a “total loss” of the aircraft for insurance purposes is often clear, and where not clear the lessor, the operator and the underwriters will negotiate to determine whether to attempt repair or declare a total loss. In these negotiations, the underwriters will generally favor repair (because it is cheaper than paying out the aircraft agreed value) and the lessor will favor declaring total loss (because it wants to receive the agreed value, which is usually in excess of the lessor’s book value). The oft quoted full of thumb is that if the expected cost of repair will exceed 75% of agreed value, then the underwriters will declare a total loss.

In those cases where the aircraft is repaired after heavy damage the airframe manufacturer will be involved in the repair planning and often will perform or manage the repair, and the airframe manufacturer will, at least as a practical matter, be the final arbiter of whether the repair was successful—that is, that the aircraft is airworthy and can be returned to service. But even after a successful repair, the aircraft re-sale value and re-lease value will be less than if the aircraft had not suffered the damage in the first place. Whether the values should be less will depend on the damage and the repair, but in the real world aircraft market an aircraft that has had substantial damage will always suffer a loss in re-sale and re-lease values.

Who should bear this loss in value?

The insurers will, correctly, point out that their only obligation is to pay for the repair.

The lessee will, maybe correctly, point out that its only obligations are to repair the aircraft in accordance with the terms of the lease (which usually provide that all repairs will be performed in accordance with the structural repair manual or otherwise as approved by the airframe manufacturer) and return the aircraft in the required return condition.

It’s at this point that the lessor’s lawyers will be closely reviewing the lease documents for a provision putting the burden of the loss in value on the lessee–which in all fairness is where it belongs. The first stops will be the damage repair provisions and return conditions. Maybe the lawyers will find something–it’ll vary lease to lease.

The next stop will be the general indemnity, which in almost all leases will provide that the lessee will indemnify the lessor for “losses” incurred in connection with the “operation” of the aircraft. The lawyers should also carefully review the exceptions to the general indemnity–an exception for “loss in market value” is a not uncommon exception. Even if the general indemnity looks like it applies, the lessee is certain to argue that its only obligation is to repair the damage in accordance with the lease documents’ damage and repair provisions, and these provisions trump the general indemnity–in other words, the lessor shouldn’t be able to make a claim under the general indemnity where the lessee has fully performed under the specific provisions of the lease documents.

The safest approach is to deal with the issue clearly and expressly in the damage and repair provisions, but you can expect some push back from the lessee during the lease negotiations.