![]() |
||||||||||||||||||||||||||||||
July 2006 |
BUSINESS
LEASING NEWS | |||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||
|
Welcome to the July 2006 edition of Business Leasing News (BLN). About BLN: Founded in January 2002, this monthly e-newsletter primarily focuses on leasing and financing of personal property and mixed property facilities. BLN provides timely, concise information and analysis backed by supporting research. BLN’s mission is to provide leasing and financing strategies for your success From: David G. Mayer, a partner at the law firm of Patton Boggs LLP. David is a member of the firm's Business Transactions Group. He is the author of the book, Business Leasing for Dummies. BLN derives its simple approach in part from David’s book.
Subscribe for
Free: Sign up to receive BLN's monthly
editions for free! Just click
Subscribe Free. Our subscribers hail
from more than 30 countries and include business, risk management and legal
professionals, government officials and media, among others. Join us today!
| ||||||||||||||||||||||||||||||
|
1. Despite Sky High Fuel Costs, Air Cargo Shipments Continue to Take Off Despite stubbornly high fuel prices, air cargo shipments and related freight-carrying aircraft deliveries and conversions from other types of aircraft continue to grow at an impressive rate. Cargo carried by air in 2003 amounted to 156.5 billion RTKs. Rising at faster rates than passenger traffic, by 2023, air cargo is estimated to reach 518.7 billion RTKs, which means that cargo traffic should more than triple during that 17-year period. *Terms to Know: RTKs refer to revenue ton kilometers, which is one ton of cargo transported per one kilometer. FTKs refer to freight ton kilometers. Cargo carriers commonly use these metrics in relation to the amount of cargo carried by air. A “combi” is an aircraft that carries both passengers and cargo, often with the primary load being cargo. According to the United States (US) Office of Aviation and International Affairs, on average, passenger aircraft carry 39 percent freight, express carriers 32 percent freight, scheduled all-cargo aircraft 24 percent freight and charters 5 percent freight. Non-US airlines carry more than 77 percent of total air cargo (measured in RTKs), which has outpaced the growth rate of scheduled freight of U.S. carriers. The U.S. Department of Transportation anticipates that, in the coming years, the amount of freight transported by air will increase faster than passenger traffic, adding to the growing importance of air cargo. In short, all air carriers together transport billions of tons of cargo each year and their shipments continue to increase. According to one recent study, the: “Air cargo industry is undergoing qualitative change in the present trend of world economy. Cost efficient cargo transportation is essential for promoting trade, creating new market opportunities and improving the productivity of manufacturing industries and agricultural commodities.” See Air Cargo: Engine for Economic Growth and Development – A Case Study of Asian Region, by P. S. Senguttuvan, at p. 4 (Feb. 2006). As another author observed more simply, “. . . transportation of goods by air has become an essential component of contemporary world economy.” See Existing and Emerging Air Cargo Security and Facilitation Issues and Concerns, a segment of a report published by the International Air Cargo Association, at p. 1 (2006). Forecasts for Increasing Numbers of Cargo Aircraft Aircraft manufacturers have, for some time, focused closely on this growing segment of commercial aviation. In its Airbus Global Market Forecast 2004-2023 (Feb. 2005) (Airbus Forecast), Airbus predicted that:
A significant portion of freight is expected to consist of more time-sensitive, high-value and high-tech goods, which have grown fastest among globally-traded commodities. The technology product has contributed to the growth of airfreight and, according to Airbus, has even grown faster than the rate of increase of global trade. See Airbus pages 58-60. Expressing similar views, The Boeing Company forecast in 2005 (Boeing Forecast) said that:
Boeing confirmed its views in its 2006 Market Overview. Presented July 12, 2006, Boeing expects that cargo shipments will grow 6.1 percent per year over the next 20 years. See 2006 Boeing Outlook at a Glimpse. Boeing emphasized that long-haul demand remains strong and that its freighters represent 90 percent of all cargo capacity:
In short, over the next two decades the air cargo business will be one of the most dynamic sectors of commercial aviation, experiencing some expansion in volume of goods shipped and significant increases in deliveries of aircraft used to make those shipments worldwide, with Asia being the leading markets for cargo shipments. Oil Prices: Challenge to Aircraft Profitability and Efficiency Despite these positive developments, the price of oil, which recently surged to record highs above $78 per barrel, has fundamentally altered the economics of using gas-guzzling older cargo planes on many long haul routes. U.S. Representative John Mica (R-FL) issued a statement in February 2006 on the impact of fuel costs on commercial aviation. He observed: “Airlines cannot be profitable when the average price for jet fuel exceeds $70 per barrel, or about $1.67 per gallon. The average price for commercial jet fuel was about $72 per barrel, or $1.81-per-gallon last month (January 2006). The price of commercial jet fuel has more than doubled over the last five years.” Fuel costs have put so much pressure on cargo operators to maintain profit margins that some carriers may accelerate plans to phase out older, less fuel-efficient freighters, such as the 747-200 aircraft. However, Northwest Airlines Cargo stresses that not all 747-200s have the same negative operating economics as experienced by other carriers. As suggested in a recent article:
See Rising oil prices are upending the operating economics of trans-Pacific carriers - and their customer, Air Cargo World Online (June 2006). It seems inevitable that changes in cargo fleets will occur at a more rapid pace to cope with persistently high oil prices. For example, Polar Air Cargo, Japan Airlines, Nippon Cargo Airlines, MASKargo and Northwest Airlines have considered, and Polar Air Cargo has decided, to use aircraft other than their 747-200s to carry their Asian bound cargo. The Financing and Leasing Opportunity According to the Boeing Forecast, since 2001, the overall worldwide freighter fleet has remained relatively constant in number, but during the period from now until 2023, Boeing expects capacity to increase in parallel to the tripling traffic levels, with fleet size increasing from 1,766 in 2003 to 3,456 in 2023. Medium wide body and large cargo aircraft will lead fleet additions, according to Boeing, growing from an overall share of 44 percent to 60 percent as traffic continues to build on long-haul, international trade lanes. In the Airbus Forecast, Airbus predicted a freighter fleet segmentation as follows:
Airbus predicts the cargo market will acquire more large aircraft, achieve higher utilization and increase load factors, with the freighter fleet estimated to grow by 140 percent. Airbus expects the current active cargo fleet of 1,506 jet aircraft to rise to 3,616 by 2023. Of the 3,139 deliveries, 727 units, or 23 percent, will be new factory-built freighters. The other 2,412 aircraft will be passenger or other aircraft converted to freighters. Airbus values newly-built deliveries at $129 billion in 2004 dollars during this period. *Opportunity Point: As a consequence of this growth in the cargo business, financing and leasing companies should find numerous opportunities to purchase new and converted cargo aircraft. For lessors, you will be able to purchase and lease or leaseback these aircraft in domestic, cross-border and international transactions. For lenders and financing lessors, you should also find cargo aircraft can provide significant collateral value for loans or financing leases. Because these cargo aircraft can have long useful lives of more than 25 years, lessors should have potential opportunities to realize residual value on sales of other dispositions of these aircraft. As the world’s demand for cargo capacity triples over the next 17 to 20 years, air freighter carriers will show increasing market dominance in moving all types of cargo faster and more efficiently around the globe. Oil prices have risen sky high, with little or no relief expected for the foreseeable future. As a result, the replacement cycle for older, less fuel-efficient aircraft could, and likely should, accelerate, creating many new financing and leasing opportunities over the next two decades. Consistent with the accelerated replacement process, Travis Hamilton of SkyCargo Solutions commented that:
*Warning: Financing and leasing cargo aircraft differs significantly from any other type of commercial aircraft. Documentation takes into account unique differences ranging from maintenance practices to regulatory compliance. Pricing the purchase or setting residual value of a cargo or combi aircraft, when considered alone or subject to a lease, create significantly different economics and values. Find the right market participants, lawyers and appraisers who understand cargo aircraft to avoid significant business and/or legal errors in related deals. The business of moving and financing cargo by air is capital intensive, global and challenging. However, the future of this worldwide business seems clear and positive. Air cargo shipments will continue to climb to new heights with benefits for consumers, lessors, lenders, owners and operators alike. The next two decades will provide many opportunities for those who understand this dynamic business segment and have the foresight to close deals with an eye on the future. 2. International Registry Is Flying High After Four Months of Operation Few people knew the name of the “International Registry” (IR) on March 1, 2006, when its functions “went live” at its new home in Dublin, Ireland. Today, over 3,500 registry users and thousands of others know the IR as the creation of The Cape Town Convention on International Interests in Mobile Equipment (CT) and the related Aircraft Protocol (Protocol). The IR encountered a surprise in the initial months of operation. Four times the number of users registered in that period than the IR anticipated for the entire first year. See Aircraft equipment registry exceeds expectations, TravelDailyNews (July 04, 2006). The IR provides a fully electronic registry available 24 hours per day to registered users throughout the world. Its registrations give notice of interest in or rights to an “aircraft object,” including airframes, engines and helicopters of a given size or capacity. The IR provides a central registry for any transaction creating or providing for an international interest in aircraft objects or involving registrable interests or rights in aircraft such as a sale of an interest or a fractional share of an aircraft. See Aviation finance will take flight under Cape Town Treaty, by David G. Mayer, Ft. Worth Press (Feb. 13, 2006). CT also establishes comprehensive laws that must be respected by each ratifying country (Contracting State). Only ten countries have become Contracting States so far, with Angola being the most recent addition on April 30, 2006. To date, the United States and Ireland represent the two significant registries for aircraft transactions subject to Cape Town. Despite its complexities, CT has already begun to facilitate buying, selling, leasing and financing aircraft by allowing for notice of and collateral security in aircraft that enhance lender’s and lessor’s rights, remedies and collateral realization potential. Cape Town Convention: Complex Questions and Significant Opportunities, by David G. Mayer and Frank L. Polk, LJN’s Leasing Newsletter (Oct. 2005). CT also allows the transaction participants to invoke and incorporate concepts for secured transactions, leases, title reservation and other types of transactions that create uniformity and predictability for any Contracting State *Tip: Many industry veterans have complained about the lack of value added by CT, high registration fees and slow registration process in transactions. Nonetheless, some of the more savvy players have found ways to strengthen their transactions with sound, if not unique, structures and advance planning of registration through prospective international interests registrations. Aviareto Limited, a joint venture between the Irish government and SITA, manages the IR. SITA is an IT and communications solutions company in the air transport industry. As the IR has grown, so too has its staff with the notable hires recently of Niall Greene, as Managing Director, and Rob Cowan. Niall Greene joined Aviareto bringing a strong track record in both general management and public affairs and in the air transport sector in particular. He gained his extensive experience at Aer Lingus, GPA Group and with GE Capital Aviation Services, where he was Managing Director and Senior Vice President of Business Development. Rob Cowan joined as Head of Operations. He is responsible for all aspects of systems operation and security. Rob joins Aviareto from the Irish Aviation Authority, the safety regulator and provider of air navigation services. See Aviareto board makes two executive appointments, TravelDailyNews The IR still has many challenges to overcome. For example, it still must find solutions to the demand of registry users for accurately describing and registering fractional shares in aircraft. Yet, for all the little hassles, the IR has come on strong, and based upon its initial four months, it looks promising for a smooth ascension in its operations and service capabilities. 3. FASB Takes Aim at Off-Balance Sheet Leasing If you knew that an earthquake was about strike, would you do your best to prepare for it? For the leasing industry, an earthquake is expected to hit lease accounting. Although the industry is preparing to respond, it will have no choice but to deal with the aftershocks of change. On May 4, Robert H. Herz, Chairman of the Financial Accounting Standards Board (FASB), confirmed at the Fifth Annual Financial Reporting Conference in New York, that FASB has already started an active review (informally) of FASB Statement No. 13—the basic lease accounting standard. *Remember: This is not the first time that an alarm has been sounded over lease accounting. To date, few, if any, important changes have occurred in the last two years. See Is Off-Balance Sheet Leasing on Its Last Legs?, Business Leasing News (Oct. 2004); Off-Balance Sheet Leasing: Is the End in Sight?, The Monitor (Jan. 2005).Two Major Actions by FASB on Lease Accounting FASB has announced the two actions it will take regarding lease accounting. First, on July 13, 2006, FASB issued a FASB Staff Position (FSP). Titled “Accounting for a Change or Projected Change in the Timing of Cash Flows Relating to Income Taxes Generated by a Leveraged Lease Transaction amends FASB Statement No. 13, Accounting for Leases” (FSP), FSP FAS 13-2 applies to all transactions classified as leveraged leases in accordance with FASB Statement No. 13, not just lease-in, lease out deals. *Action Item: The guidance is effective for fiscal years beginning after December 15, 2006. Originally, FASB decided to make the FSP effective as of the end of the fiscal year ending after December 15, 2005. This FSP will cause lessors that have investments in leveraged leases to review them for possible adjustment if assumptions have changed that would trigger a rerun under the new guidance in the FSP. The FSB amends FASB Statement No. 13. It requires leveraged lease accounting to reflect a change in the timing of cash flows relating to income taxes generated by a leveraged lease. The guidance would be set out in revised paragraph 46 of Statement 13. It requires the expected timing of income tax cash flows generated by a leveraged lease transaction to be reviewed annually or more frequently if events or changes in circumstances indicate that a change in timing will occur and stick. *Technical Point: In any annual or more frequent review of a leveraged lease transaction, the timing and the amount of cash flows must be evaluated and earnings re-run if the (a) estimated residual value declines that are judged to be other than temporary, or (b) revision of another important assumption changes the estimated total net income from the lease, or (c) expected timing of the income tax cash flows is revised. The consequence is that the rate of return and the allocation of income to positive investment years will have to be recalculated from the inception of the lease following the method described in paragraph 44 of FASB Statement No. 13. In other words, the original accounting for a leveraged lease would be subject to (downward) change despite the valid and supportable assumptions made when the parties originally entered into the transaction. The second crucial action will be a comprehensive overhaul of FASB Statement No. 13. Although the revision of FASB Statement No. 13 may take two years or longer, little doubt exists as to its eventual outcome. FASB is expected to shift away from the risks and rewards model in FASB Statement No. 13, which now permits off-balance sheet treatment of many leases, to an assets and liabilities model. The impact would be to put most leases in the future and an estimated $400 billion of existing leases on a lessee’s balance sheet. This change would virtually wipe out the age-old concept that operating leases should be treated as an expense and only reported in the footnotes of a lessee’s financial statements. See Up for Overhaul: Lease Accounting, Rule Makers Aim to Rein In Off-the-Books Approaches, Possibly Exposing Billions, by David Reilly, The Wall Street Journal, Outside Audit Section (July 18, 2006).*Tip: Europe lives with IASB principles-based rules under the International Accounting Standards Board (IASB), which although premised on a risks and rewards framework, do not allow operating lease treatment for TRAC leases and synthetic leases. The IASB principles also have no “bright line” classification tests like FASB Statement No. 13. Nonetheless, Europe’s leasing business hit record volume last year. See As Europe Surpasses U.S. in Leasing Volume, Are U.S. Lessors Missing the Boat?, Business Leasing News (May 2006). The European situation suggests that, even if a major change occurs in lease accounting, leasing will not come to a screeching halt. Leasing offers many advantages, such as 100 percent financing, transfer of risk, tax affected finance rates, service and convenience that other financing does not. Prepare for Change Little doubt exists that the leasing industry is about to undergo major changes in the accounting rules, the same rules that provided billions of dollars of accounting benefits in a host of off-balance sheet transactions. As the 2006 Industry Futures Report clearly infers, if not emphatically states, the industry participants must anticipate change and adapt their businesses to the emerging profile of the leasing business. See IFC Report Questions the Future of Leasing, Business Leasing News (April 2006). The future belongs to those who adapt to change, including the shifting business models and lease products that rely on accounting treatment under FASB Statement No. 13. Change of this importance will be hard for the leasing industry to absorb, but the leasing industry has shown its resilience, creativity and determination over three decades of modern leasing. If FASB acts as planned in making changes to lease accounting, the leasing industry will face a real stress test to show what it can do under a new accounting regime. Thanks to Bill Bosco for editing this article. Bill is a dean in the leasing industry and is consulting as the principal of “Leasing 101.” 4. Leasing 101: What Is “Open Source Software”? Open source software (OSS) refers to computer software that one or more developers makes openly available to users, subject to an open source license, to read, change, enhance, and build into new versions of software incorporating their changes. Typically, additional rights under the license allow the users to redistribute the modified or unmodified software to others. See GNU General Public License (GPL), Free Software Foundation. The goal of OSS is to make the software more understandable, reproducible, modifiable, and hopefully publicly accessible to other users, thereby increasing its functionality and widespread desirability for use by others. Some well-known OSS products include Linux® and Netscape® computer software products. In contrast, closed source software (CSS) is software that is developed through traditional methods by employed software engineers at large corporations. Its use is then licensed to users who pay a license fee that is typically based on the number of licenses of the CSS to be used. Some proclaim that OSS developed software is superior to CSS because it is tested and developed amongst a community of diverse users possessing diverse backgrounds and skill levels operating on diverse platforms, thus bugs and flaws are more readily spotted and corrected. While others say that access to the source code of OSS enables bad actors to exploit the bugs and flaws to their benefit. Various business models and strategies have evolved for using and developing OSS, making such use and development increasingly valuable as recognized by one author over two years ago:
See Seven open source business strategies for competitive advantage, IT Manager’s Journal, by John Koenig (May 14, 2004). *Tip: Each user should consider certain precautions when using OSS. For example, users should:
With the success and growing use of OSS, open source issues continue to gain significant prominence among technology companies. To keep apprised of the developments and issues related to OSS, technology experts have gathered to discuss the importance and use of OSS and will meet again this summer at OSCON, the Open Source Convention, July 24-28, 2006. In addition, the OSS industry has also developed blogs to interchange ideas and opportunities on open source issues. See ZDNet’s Blog. OSS plays an increasingly significant role in technology with associated business advantages and risks. Some experts think that OSS is a legal minefield while others disagree. In any case, managing and using OSS requires astute professionals who understand OSS within the limits of the law and applicable licenses. See Sun: Open source is about self-interest, CNET News.com (June 28, 2006) Thanks to Craig Belair of our Intellectual Property Group for editing this article. Patton Boggs LLP is a law firm of more than 450 lawyers located throughout the United States and internationally in Doha, Qatar. Patton Boggs most recently added offices in the New York metropolitan area. The firm has done business in over 70 countries during its almost half a century of operation, and increasingly focuses on such dynamic markets as India, China, Brazil and Western Europe in business and public policy matters. Patton Boggs has organized itself into four major practice areas: Business Transactions, Intellectual Property, Public Policy and Litigation. These groups are composed of many practice groups designed specifically to meet client needs and developing markets. I often focus on aviation, energy, infrastructure, transportation, facilities and technology matters as a member of the 120-member Business Transactions Group. The firm provides a broad array of skills in domestic and international business transactions. BLN covers a small part of the skills available at the firm. These capabilities include equipment finance and leasing, corporate finance, secured transactions, syndications, mezzanine finance, enhanced use and other federal leasing, project finance, real estate, healthcare, pharmaceuticals and technology transactions and public policy work. We devote a significant part of our time to wind power, cogeneration and oil and gas matters worldwide. We also address related creditors’ rights/bankruptcy in structuring transactions and resolving troubled credits. We assist our clients with buying, selling, financing, and leasing real and personal property, including business and commercial aircraft, energy assets, facilities, vehicles, production equipment, technology hardware and software, and health care equipment as well as highways and other infrastructure projects. We have specific teams for aviation, infrastructure/power, healthcare, federal leasing/finance/marketing, municipal leasing/finance, and international transactions by region or country. We provide extensive, and newly expanded, litigation resources with the addition of high-profile litigators in our New Jersey office. You are welcome to call me at 214.758.1545 or e-mail me at dmayer@pattonboggs.com. We value your contact with us on any topic, including questions arising from BLN articles or about our law practice. Recent Publications The following is representative of recent works by David G. Mayer:
Thanks to BLN’s Team I would like to thank BLN's team at Patton Boggs LLP. The team includes J. Atwood Jeter, a senior associate in the firm's real estate and wind energy groups, Patton Boggs staff editors, Paul Dumansky, Adrian Nicole McCoy and Michelle Steckel, as well as our lead designer, Winston Jackson. Claire Campbell, our Chief Librarian in Dallas, keeps BLN going with much appreciated research assistance. Thanks also to Douglas C. Boggs, a Business Transactions/Securities partner and Managing Partner of our Northern Virginia office and website reviewer for BLN, and our Marketing Chief, Mary Kimber, for assisting BLN through our firm's editing, design, and posting process All the best, David
David G. Mayer
| ||||||||||||||||||||||||||||||