legal

Charter operators will have up to three years to implement a proactive safety system.

Certain aircraft manufacturers and Part 135 on-demand charter and commuter operators will need to implement a safety management system (SMS) in the coming years, according to much-anticipated FAA final rules expanding FAR Part 5 requirements. Depending on the operation type, the rules require those affected to have an SMS implemented in one to three years. However, less restrictive provisions apply to single-pilot organizations.

According to the agency, the rules currently cover approximately 1,848 Part 135 operators, 694 air tour operators, and 65 Part 21 design or production certificate holders (15 of which are already implementing SMS under the FAA’s voluntary program). Additionally, there are 715 letters of authorization (LOA) for Part 91 holders approved to conduct air tours that are required to implement an SMS—362 of these LOA holders have only one aircraft.

“Requiring more aviation organizations to implement a proactive approach to managing safety will prevent accidents and save lives,” said FAA Administrator Mike Whitaker. He noted that the rules also require those who have an SMS to share hazard information with other aviation organizations “so they can work collaboratively to identify and address potential safety issues.”

Read full article here.

This article was written by AIN contributor Gordon Gilbert and published in AIN on April 23, 2024.

Piercing the veil isn't as difficult as many LLC owners assume.

My clients usually plan to use a limited liability company to own their aircraft, assuming the LLC will protect them from personal liability. Yet they often do not realize that an LLC is far from a bulletproof shield.

Although LLCs can provide barriers to private third-party claims against their owners, the reality is that certain claimants may cut through an LLC to reach the personal assets of the owner/members and other related parties. Perhaps more concerning, the U.S. government has regulatory and statutory authority that may extend personal liability to more individuals and entities than just owners, including their officers, directors, managers, pilots, and aircraft operators.

This personal liability exposure may come from three or more directions. First, third parties—including those who, for example, make claims for breach of contract, personal injury, or wrongful death—may try to “pierce the corporate veil” to reach into the pockets of LLC owners and others to pay for their claims.

Second, the FAA and the Department of Transportation can tag LLCs, LLC owners and managers, pilots, and others under the Federal Aviation Regulations (FARs) and federal statutes.

Third, the Financial Crimes Enforcement Network (FinCEN), a division of the U.S. Treasury Department, acting under the new Corporate Transparency Act (CTA), has few limits in pursuing wrongdoers under the CTA.

Read full article here

This article was written by NAFA member David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, and originally published by AIN on May 10, 2024.

Due diligence is the responsibility of everyone involved in a transaction. No matter what part of the deal you are part of, it’s your job to watch out for red flags, evaluate them and address them to ensure you, your customer and your company can mitigate potential risk.

NAFA’s latest webinar provided essential knowledge to identify potential risks and red flags associated with bad actors in aircraft transactions. When you watch this webinar, you will learn:

• The reality of compliance risks in general aviation transactions, including real-world examples. 
   
• Red Flags to Watch For: Learn how to spot warning signs that could indicate involvement with drug smuggling, money laundering, or improperly imported/exported aircraft.
   
• Protecting Yourself: We'll explore the steps you should take if you encounter a red flag during a transaction.
   
• Due Diligence Demystified: Discover how to conduct effective due diligence, determine the appropriate level of investigation, and understand your exposure as a seller, buyer, or broker.
   
• The Power of Beneficial Ownership: We'll explain why identifying the true owner(s) of an aircraft is crucial and how hidden ownership structures can be used to mask risk.

This webinar is perfect for:

• Aircraft buyers and sellers
• Aviation brokers and intermediaries
• Lenders and financiers involved in aircraft transactions

Don't miss this opportunity to gain valuable insights and protect yourself from costly mistakes! 

 Click here to watch webinar

NAFA thanks our webinar sponsors TVPX and Holland & Knight.  

This NAFA webinar aired on May 2, 2024.

Critical to understand and comply with the new law despite its challenges and invasiveness.

Since January 1, millions of small entities have been required to report sensitive personal information to the U.S. government like never before. These entities include limited liability companies (LLCs) and trusts that often hold title to aircraft for their sole, ultimate beneficial owners (UBOs).

The Corporate Transparency Act (CTA) is the disclosure law, and the Department of the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) is the chief enforcer. This law imposes potentially significant civil and criminal penalties for the failure or refusal to correctly and timely report all required information. Importantly, the CTA intersects with aviation regulations that may compound penalties.

Did the CTA Veer Off Course?

The reporting obligation was clear until March 1, when an Alabama federal district court in the case of National Small Business United v. Yellen (National) decided that the CTA was unconstitutional. The court halted the Department of the Treasury and FinCEN from enforcing the CTA against the National plaintiffs. In a press release on March 4, FinCEN stated that “the government will not currently enforce the CTA against the plaintiffs.”

Because National seems to apply only to the plaintiffs, UBOs and covered entities may decide on a “better to be safe than sorry” approach. To make that decision and avoid violations of the law, it is critical to understand the technical CTA rules and how to comply with them.

CTA Target Individuals and Entities

Unless exempt, the CTA imposes the obligation on “reporting companies” to submit to FinCEN “information about the reporting company [and] beneficial owner information” (BOI) for each “beneficial owner” of the reporting company plus information about the “company applicants.” Let’s unpack these elements that together sum up the CTA’s process and affected parties.

Read full article here

This article was originally published in AIN by David G. Mayer, AIN Contributor and Partner at Shackelford, Bowen, McKinley & Norton, LLP, on March 8, 2024.

Critical to understand and comply with the new law despite its challenges and invasiveness.

Since January 1, millions of small entities have been required to report sensitive personal information to the U.S. government like never before. These entities include limited liability companies (LLCs) and trusts that often hold title to aircraft for their sole, ultimate beneficial owners (UBOs).

The Corporate Transparency Act (CTA) is the disclosure law, and the Department of the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) is the chief enforcer. This law imposes potentially significant civil and criminal penalties for the failure or refusal to correctly and timely report all required information. Importantly, the CTA intersects with aviation regulations that may compound penalties.

Did the CTA Veer Off Course?

The reporting obligation was clear until March 1, when an Alabama federal district court in the case of National Small Business United v. Yellen (National) decided that the CTA was unconstitutional. The court halted the Department of the Treasury and FinCEN from enforcing the CTA against the National plaintiffs. In a press release on March 4, FinCEN stated that “the government will not currently enforce the CTA against the plaintiffs.”

Because National seems to apply only to the plaintiffs, UBOs and covered entities may decide on a “better to be safe than sorry” approach. To make that decision and avoid violations of the law, it is critical to understand the technical CTA rules and how to comply with them.

View rest of article here

This article was originally published by David G. Mayer, Shackelford Law, in AIN on March 8, 2024.

FOR IMMEDIATE RELEASE:   February 22, 2024 

Contact: Tracey Cheek    
tlc@NAFA.aero    
405.850.1292    

Melissa Wier 
Marketing Manager 
melissaweir@mvalaw.com   
704.331.2419  

NAFA Welcomes New Member: Moore & Van Allen, PLLC 

The National Aircraft Finance Association (NAFA) welcomes Moore & Van Allen, PLLC (MVA), a leading law firm with a dedicated aviation finance practice. MVA's team of over 400 attorneys brings extensive experience in complex aircraft financing transactions, including cross-border deals and structured financing for high-value assets. 

“NAFA members form a network of aviation finance services who diligently and competently operate with integrity and objectivity throughout the world,” said Ed Medici, NAFA President. “We’re excited to welcome Moore & Van Allen to our growing organization. Their services enhance NAFA’s available offerings, and we support their services to advance our members.” 

MVA's extensive experience in facilitating aircraft financing transactions will directly benefit NAFA members by providing access to invaluable legal expertise in navigating the intricacies of these transactions.  

About Moore & Van Allen, PLLC: 
An unwavering focus on their clients has led to steady growth as one of the largest law firms in the Southeast. Over 400 lawyers and professionals in over 90 areas of focus represent clients across the country and around the globe, including Blue-chip Fortune 500 organizations, financial services leaders, domestic and global manufacturers, retailers, individuals, and healthcare and technology companies. MVA clients benefit from a strategic, innovative approach to significant business transactions, complicated legal issues and difficult disputes. 

MVA’s value is rooted in the experience gained over seven decades. Nationally recognized, culturally inclusive and community-spirited, they understand that success for their clients comes from investing in the strength of ideas and the power of collaboration.

To learn more about Moore & Van Allen, PLLC, visit mvalaw.com  

About NAFA:   
The National Aircraft Finance Association (NAFA) is a professional association that has been promoting the general welfare of aircraft finance for 50 years. Our network of members is comprised of lenders and product service providers who work together to finance general and business aviation aircraft. NAFA sets the standard for best practices in aviation finance by educating its members on the most up-to-date industry trends and best practices. Government legislation, market influences and industry insights allow member companies to provide the highest quality services the industry has to offer. To add your company to our world-class network of the best in aircraft finance, sign up at https://www.nafa.aero. 

FOR IMMEDIATE RELEASE:  February 15, 2024 

Contact: Tracey Cheek   
tlc@NAFA.aero   
405.850.1292   
  

Terry A. Shulsky
Shareholder 
terry.shulsky@bipc.com  
412.392.2091 

NAFA Welcomes New Member: Buchanan Ingersoll & Rooney PC 
 

The National Aircraft Finance Association (NAFA) is thrilled to welcome Buchanan Ingersoll & Rooney PC, a full-service national law firm providing industry-leading legal, business, and regulatory advice, to its esteemed network of aviation professionals. With 450 attorneys and government relations professionals across sixteen offices, Buchanan provides legal services in aviation finance and leasing, corporate finance, banking, bankruptcy, creditors’ rights, litigation, tax, intellectual property, and other practices whenever needed. 

“Buchanan Ingersoll & Rooney joining NAFA is a step forward in advancing our mission to improve and facilitate the financing process to support aircraft buyers,” said Ed Medici, NAFA President. We welcome them to our growing organization and enhancing opportunities for all our members.”  
 

About Buchanan Ingersoll & Rooney PC: 
Buchanan attorneys have found solutions that work for their aviation finance and leasing clients in the commercial, business, and private aviation industries for over 30 years. Buchanan enforces their client’s rights under the Uniform Commercial Code to recover and dispose of aircraft, helicopters, commercial aircraft engines and aircraft engine parts, components, tooling, equipment, and machinery used by Maintenance, Repair, and Overhaul (MRO) service providers in the aviation sector.  Buchanan can provide the same high level aviation collateral recovery and disposition services to NAFA members. 

Their depth means they can also support NAFA members by drafting and negotiating documentation with respect to aviation loans, leases, acquisitions, and sales. The result is a highly nimble, hands-on team with forward-thinking creativity and unique, problem-solving ideas to knock down barriers, drive regional competitive advantage, minimize risk and achieve results. 

To learn more about Buchanan Ingersoll & Rooney PC, visit Buchanan Ingersoll & Rooney PC (bipc.com) 
 

About NAFA:   
The National Aircraft Finance Association (NAFA) is a professional association that has been promoting the general welfare of aircraft finance for 50 years. Our network of members is comprised of lenders and product service providers who work together to finance general and business aviation aircraft. NAFA sets the standard for best practices in aviation finance by educating its members on the most up-to-date industry trends and best practices. Government legislation, market influences and industry insights allow member companies to provide the highest quality services the industry has to offer. To add your company to our world-class network of the best in aircraft finance, sign up at https://www.nafa.aero. 

Maintaining transaction integrity is an important part of our role in aircraft transactions, and doing our due diligence on our customers is critical to minimizing risk and maintaining compliance with all our regulators. In our recent webinar, sponsored by TVPX, NAFA members Laura Martino and David Hernandez dig into due diligence and how you can mitigate risk by understanding your regulatory bodies and how to protect yourself and your company. 

So who are the regulators, what are the guidelines, and how do you ensure your transactions are compliant? Of course, you have the Federal Aviation Administration (FAA) and U.S. Department of Transportation (DOT), but you also need to be compliant with the Office of Foreign Asset Control (OFAC), the Financial Crimes Enforcement Network (FinCEN), the Securities Exchange Commission (SEC), the U.S. Department of Justice (DOJ) and more. Noncompliance with any of these regulators can lead to fines, reputational damage, debarment, disgorgement, criminal charges, suspension or denial of import/exports, seizure of assets, and more. 

Here, we'll shed light on some key U.S. regulators. Understanding their mandates and potential risks can help you minimize risk in your aircraft transactions. 

1. OFAC: Enforcing Economic Sanctions 

OFAC, nested within the U.S. Treasury Department, enforces economic sanctions against individuals and countries deemed threats to national security or foreign policy. These sanctions restrict U.S. dealings with entities in adversary states, or involved in terrorism, drug trafficking, and other illicit activities. 

Key points to remember: 

• Relevant Legislation: Trading with the Enemy Act, International Emergency Economic Powers Act 
• Focus Areas: 
  • Country-based sanctions: Cuba, Iran, North Korea, Syria, Crimea, Russia 
  • List-based sanctions: Specially Designated Nationals (SDNs) like individuals or groups linked to terrorism or drug cartels 
• Your potential areas of risk: 
  • Strict liability: Unintentional mistakes or omissions can lead to penalties 
  • Secondary sanctions: companies that are sanctioned because they do business with a state adversary 
  • Sanction evaders: non-US companies that we currently do business with that may ignore U.S. sanctions and then later become SDN 

Resources:  

• OFAC Website 
• Trading with the Enemy Act 
• International Emergency Economic Powers Act 

2. Financial Crimes Enforcement Network 

FinCEN, also under the U.S. Treasury Department, combats money laundering, terrorist financing, and other financial crimes. It ensures the U.S. financial system's integrity by preventing illegal funds from entering it.  

Key points to remember: 

• Relevant Legislation: Bank Secrecy Act, Money Laundering Control Act, U.S. Patriot Act, Corporate Transparency Act 
• Focus Areas: 
  • Money laundering: the use of transactions to obscure the origin of ill-gotten gains 
  • Terrorist financing: money funding terrorist activities and entities 
  • Customer Identification Programs: ensuring covered financial institutions have robust programs identifying and verifying customers  
• Your potential areas of risk: 
  • Partial owners of a company: identity the ultimate beneficial owner (UBO) of a company to determine risk of illicit activity 
  • Accepting laundered money or participating in transactions that launder money 

Resources: 

• FinCEN Website
• Bank Secrecy Act 
• Money Laundering Control Act 
• U.S. Patriot Act 
• Corporate Transparency Act 

3. Securities Exchange Commission and Department of Justice 

The SEC and DOJ share responsibility for enforcing anti-bribery laws, specifically the Foreign Corrupt Practices Act (FCPA). This act prohibits bribing foreign officials to gain business advantages. 

Key points to remember: 

• Relevant Legislation: U.S. Foreign Corrupt Practices Act (FCPA) 
• Focus Areas:
  • Third-party intermediaries: Using them for improper payments can violate the FCPA. 
  • Gifts to politically exposed persons (PEPs): Offering excessive gifts to PEPs can be seen as bribery. 
  • Lack of internal controls: Inadequate oversight can increase bribery risks. 
• Your potential areas of risk:
  • Inappropriate gifts to clients/customers that could be considered bribery. 
  • Strict liability: Unintentional mistakes or omissions can lead to penalties.

Resources: 

• SEC website 
• Foreign Corrupt Practices Act 

4. Bureau of Industry and Security 

The Bureau of Industry and Security (BIS), under the Department of Commerce, regulates the export of sensitive goods and technologies to safeguard national security and foreign policy interests. This involves managing the Export Control List (ECL) and enforcing the International Traffic in Arms Regulations (ITAR). 

Key points to remember: 

• Relevant legislation: Export Control Reform Act (ECRA), Export Administration Act (EAA), International Emergency Economic Powers Act (IEEPA) 
• Focus areas: 
  • Export licensing for controlled items on the ECL, categorized by industry and potential military or dual-use applications. 
  • Enforcing ITAR, which regulates the export of defense articles and services. 
• Noncompliance risks:  
  • Civil and criminal penalties 
  • Export denial 
  • Seizure of goods 
  • Reputational damage 

Resources: 

• BIS Website  
• Export Control Reform Act 
• Export Administration Act 

5. Federal Aviation Administration/Department of Transportation 

The Federal Aviation Administration (FAA), under the Department of Transportation (DOT), plays a crucial role in regulating air travel and ensuring the safety of our nation's airspace. They establish and enforce various regulations for aircraft operations, pilot licensing, maintenance standards, and airport safety, among others. 

Key points to remember: 

• Relevant legislation: Federal Aviation Act of 1958, various amendments and regulations 
• Focus Areas:
  • Aviation safety: Setting and enforcing safety standards for aircraft design, operation, and maintenance. 
  • Pilot licensing and training: Establishing requirements for pilot certification and conducting training programs. 
  • Air traffic control (ATC): Managing the flow of air traffic to ensure safe and efficient movement of aircraft. 
  • Airport safety: Overseeing airport safety standards and inspections. 
  • Consumer protection: Enforcing regulations regarding airline marketing, baggage handling, and passenger rights. 
• Noncompliance risks: 
  • Civil and criminal penalties for individuals and companies 
  • Grounding of aircraft 
  • License suspension or revocation 
  • Reputational damage 
  • Potential for accidents and loss of life 

Resources: 

• FAA Website 
• Department of Transportation Website 

6. U.S. Customs and Border Protection 

Customs and Border Protection (CBP), within the Department of Homeland Security, plays a crucial role in securing U.S. borders and facilitating legitimate trade. They enforce various regulations related to imports and exports, including anti-dumping and countervailing duties.  

Key points to remember: 

• Relevant Legislation: Tariff Act of 1930, Trade Facilitation and Trade Enforcement Act of 2015, various trade agreements with specific countries 
• Focus Areas: 
  • Enforcing import and export laws and regulations. 
  • Collecting customs duties and taxes. 
  • Preventing the entry of illegal goods and people. 
  • Facilitating legitimate trade and travel. 
• Your potential areas of risk:  
  • Misclassification or failure to declare goods 
  • Incomplete or inaccurate documentation 
  • Sanctions violations 
  • Improper or missing licenses/permits 

Resources: 

• CBP Website 
• Tariff Act of 1930 
• Trade Facilitation and Trade Enforcement Act of 2015 

7. State DDC - ITAR 

The Directorate of Defense Trade Controls (DDTC), part of the State Department, implements the International Traffic in Arms Regulations (ITAR) alongside BIS. ITAR governs the export, import, and brokerage of defense articles and services. 

Key points to remember: 

• Relevant legislation: International Traffic in Arms Regulations; The Export Administration Act; The Arms Export Control Act; The International Emergency Economic Powers Act 
• Focus areas: 
  • Licensing the export, import, and brokerage of defense articles and services. 
  • Registering companies involved in ITAR-controlled activities. 
  • Technical assistance agreements related to defense articles. 
• Your potential areas of risk: 
  • Failing to register  
  • Lack of technical data licenses or uncontrolled technical data 
  • Inadequate foreign disclosure management 
  • Improper recordkeeping and documentation 
  • Not vetting third-party vendors 
  • Changing regulations 

Resources: 

• DDTC Website 
• ITAR Basics 
• Arms Export Control Act  

How to mitigate risk 

Following compliance guidelines of all regulators is a critical piece of ensuring transaction integrity. Thorough and proper due diligence is your responsibility and the most effective way to minimize risk and ensure your business only engages in ethical and transparent transactions.  

• Read and understand the legislation related to aircraft transactions 
• Know your customer: thoroughly investigate their identity and affiliations before and throughout a business relationship 
• Understand the true ownership of the companies you work with, and the source of their wealth  
• Keep tabs on that company’s dealings that could potentially lead to sanctions or be connected to money laundering or other financial crimes 
• Have a robust compliance and training program 
• Walk away from a bad deal 
• Seek professional guidance 
• Build sanction-related language into your contracts  

By understanding these key regulators and their areas of focus, you can navigate the compliance landscape with greater confidence and protect your business from unnecessary risks. This blog is for informational purposes only and should not be considered legal advice. Always consult with qualified legal and compliance professionals for specific guidance. 

NAFA is committed to raising awareness and providing education to support transaction integrity in the industry and preventing fraud. Stay tuned for more webinars, articles and opportunities for you to learn more or get involved. Share these resources with your friends and colleagues and help ensure we all can do business as safely and transparently as possible.  

This article was published by NAFA on February 12, 2024.

On Tuesday, January 16th, 2024 top lawmakers on the Senate and House tax writing committees announced a deal on a wide range of tax issues, including several business deductions facing possible phase down or sunset. Significant to the business aviation industry, the Act specifically extends 100% bonus depreciation.

The legislation, dubbed the Tax Relief for American Families and Workers Act of 2024, extends 100% bonus depreciation for eligible qualified property for qualified property placed in service after December 31, 2022, and before January 1, 2026 (January 1, 2027, for longer production period property and certain aircraft [1].) This change may directly impact 2023 filings, removing the 20% phase-down in the current law [2].

Taking bonus depreciation for a general aviation aircraft requires that the aircraft be used predominately in furtherance of the business activity, be placed in service in the tax year at issue, and that appropriate listed property books and records be maintained. Business form and type, ownership structure, and the nature of the business use may all impact bonus eligibility [3].

While passage remains uncertain, prominent Party leaders from both parties have publicly endorsed the agreement. They face a tight deadline to implement any changes to the tax code with the 2023 tax filing season beginning on Jan. 29.

Read full article here

This article was originally published by NAFA member, Suzanne Meiners-Levy, Partner, at Advocate Consulting Legal Group, PLLC, on January 18, 2024.

FOR IMMEDIATE RELEASE:  February 5, 2024

Contact:  Tracey Cheek
tlc@nafa.aero
405.850.1292

Rhonda Maggiacomo
Partner
Rhonda.Maggiacomo@lewisbrisbois.com
Office:  401.406.3321

NAFA Welcomes New Member: Lewis Brisbois Bisgaard & Smith LLP

National Aircraft Finance Association (NAFA) is pleased to announce that Lewis Brisbois Bisgaard & Smith LLP has recently joined its network of aviation professionals. Lewis Brisbois’ experienced Business Aviation Practice serves as a strategic client partner with a comprehensive understanding of the federal regulatory and business matters surrounding the financing, acquisition, and operation of business aircraft. 

“Lewis Brisbois Bisgaard & Smith LLP joining NAFA is a step forward in advancing our mission to improve and facilitate the financing process to support aircraft buyers,” said Ed Medici, NAFA President. We welcome Lewis Brisbois to our growing organization and enhancing opportunities for all our members.”  

 
About Lewis Brisbois Bisgaard & Smith, LLP:  
Lewis Brisbois is actively engaged in the representation of clients in more than 40 different practice areas with a multitude of sub-specialties associated with each practice area including an experienced Business Aviation Practice Group. The firm serves as a strategic client partner with a comprehensive understanding of the federal regulatory and business matters surrounding the financing, acquisition, and operation of business aircraft from structuring complex transactions (including drafting and negotiating corporate aircraft purchase and sale agreements) to understanding the intricacies of aircraft financing agreements and reducing liability exposure while capitalizing on both federal and state tax planning options. 

Lewis Brisbois’ Business Aviation Practice group has experience assisting Fortune 500 companies, large international corporations, ultra-high net-worth clients, and family offices with all aspects of aviation financing for large long-range business jets, commercial aircraft, helicopters, and aircraft engines, including structuring, documenting, negotiating and syndicating aircraft financing transactions for various types of finance structures. 

To learn more about Lewis Brisbois Bisgaard & Smith LLP, visit https://lewisbrisbois.com.  

  
About NAFA:   
The National Aircraft Finance Association (NAFA) is a professional association that has been promoting the general welfare of aircraft finance for 50 years. Our network of members is comprised of lenders and product service providers who work together to finance general and business aviation aircraft. NAFA sets the standard for best practices in aviation finance by educating its members on the most up-to-date industry trends and best practices. Government legislation, market influences and industry insights allow member companies to provide the highest quality services the industry has to offer. To add your company to our world-class network of the best in aircraft finance, sign up at https://www.nafa.aero. 

Cash might be king, but financing still often makes the most sense for business aircraft purchases.

It is hardly a secret that the U.S. Federal Reserve Bank has cranked up the federal funds rate to tame inflation. These rate moves, which raised interest costs, spared no industry, including aircraft lending and leasing. Then, the Fed signaled last month that it might cut the federal funds rate a few times in 2024, setting off rampant speculation of when and how many rate cuts might occur.

Did the Fed announcement mean that aircraft lenders and lessors (financiers) can expect aircraft lending and leasing transactions to take off? No one knows, but even if rate cuts occur and financing shows the potential to soar to new heights, continuing challenges abound for financiers.

The notion that “cash is king” resonates with buyers, and cash still dominates the way many buyers purchase aircraft despite sensible reasons to finance aircraft purchases. Although aircraft lenders seem mostly past the 2023 regional banking crisis, many banks have imposed stricter lending standards, increased loan pricing, experienced heightened regulatory scrutiny, and constricted available funds for aircraft lending.

As a consequence, some lenders will not or cannot seriously entertain aircraft lending transactions without a stellar creditworthy borrower, a bulletproof guaranty, or a strategy to win the purchaser’s business at a higher but acceptable risk.

Read full article here

This article was written by NAFA member David G. Mayer, Partner at Shackelford, Bowen, McKinley & Norton, and originally published by AINsight on January 12, 2024.

So, your client has set their sights on acquiring an aircraft. Now, it's time to take the necessary steps to protect your interests in the aircraft to secure the loan. This article will delve into the intricacies of perfecting a lien with the Federal Aviation Administration Aircraft Registry (FAA) to ensure lenders secure their interests in aviation assets.  

Importance of perfecting a lien 

Perfecting a lien is essential for lenders looking to secure their interests in an aircraft used as collateral for a loan. In layman’s terms, “perfecting” the lien will normally establish the lender’s priority in the collateral for purposes of bankruptcy and as to other lienholders or parties claiming an interest in the collateral. As a practical matter, properly perfecting the lien may also play an important role during the selling and buying process as it places parties on notice of the lender’s interest. Potential buyers will almost always conduct title searches and will require the lender’s interest be released prior to or simultaneous with their purchase of the aircraft. 

What is perfecting a lien? 

Perfecting a lien involves filing the necessary documents with the proper authorities to establish a legally binding security interest in an asset. In the aviation world, this process is crucial when an aircraft is collateral for a loan and will normally involve filing or registering the interests as required under the Uniform Commercial Code, the FAA and the International Registry.   

A lien may be perfected with the FAA if the lien covers airframes registered with the FAA, engines having at least 550 rated takeoff horsepower, propellers capable of absorbing at least 750 rated takeoff shaft horsepower and spare parts maintained by or on behalf of certain United States air carriers. However, lenders should also understand the intricacies of protecting their security interests outside this scope that still involves the aircraft, such as insurance and aviation management programs. 

Understanding your rights under the law

A lender will need to consider many laws in connection with a loan transaction involving an aircraft. Relevant local state laws where the parties are situated or the collateral located may be applicable to the creation of the contractual rights and obligations of the parties, including the Uniform Commercial Code (UCC). Under the UCC, aircraft are treated as personal property and security interests in aircraft are generally formed under Article 9 of the UCC. By virtue of the doctrine of preemption, United States federal laws such as Title 49 United States Code Chapter 441 – Registration and Recordation of Aircraft (Chapter 441) and Title 11 United States Code - United States Bankruptcy Code will preempt where it conflicts. There are also international laws that preempt both local state law and federal law, such as the Cape Town Convention, the Convention on International Recognition of Rights in Aircraft and others. Understanding these legal frameworks is important when preparing documents for filing with the FAA. 

How to perfect an aircraft lien with the FAA 

The FAA is mandated by Chapter 441 to establish a recording place and system for documents that affect an interest in aircraft, including aircraft mortgage and security agreements and collateral assignments of aircraft leases. To complete the loan package, it is essential to compile documents that adhere to the requirements of Chapter 441 as well as parts 47 and 49 of the Federal Aviation Regulations, ensuring their successful filing with the FAA during the closing process. 

Because the FAA is the primary repository for recording security agreements and leases related to aircraft, filing documents such as bills of sale, lease terminations and security agreements with the FAA is important for perfecting an aircraft lien. Timely filing is vital, as the FAA is experiencing backlogs in its registry. 

Unless they qualify for expedited treatment, documents filed with the FAA are primarily worked in order of receipt. A document filed with the FAA is not instantly reviewed, processed and recorded; rather, the particular document is scanned and indexed after filling and then placed in a queue for processing. The documents will not appear in the official record immediately after filing, but only after the documents are reviewed, processed and eventually recorded or accepted by an FAA examiner. Nevertheless, the Federal Aviation Regulations explicitly state that perfection relates to the date and time the document was filed, not when it was recorded. So, even though the filed documents have not been reviewed or recorded, your perfection relates to the date and time the documents were filed with the FAA. 

However, an FAA examiner may reject aircraft documentation for several reasons, and the documentation may have to be refiled; for example, if the document is not properly executed, the serial number is off by one letter or number, there are missing pages, etc. If rejected, the filing must be resubmitted, and the lienholder's rights may not be properly secured.   

Recognizing the critical nature of promptly perfecting a security interest, it is imperative to approach this process with thorough preparation and precise execution. The potential repercussions of any misstep can be significant. So, engaging the services of an experienced aviation professional is important to guarantee the correct and proper filing of aircraft documentation with the FAA. 

Off-Record Matters 

Since the FAA only records certain types of conveyances, lenders should be aware of any off-record matters not shown on the FAA records that may affect the aircraft's title. For example, a mechanic can claim an interest on an aircraft for unpaid repair or service work by virtue of a mechanic’s lien. Many states have a statute providing service providers a possessory lien and, in some instances, a non-possessory lien on an aircraft they're working on in return for unpaid services. Here, state laws might overrule the FAA-perfected security interest in certain circumstances. 

Another common off-record matter to consider is insurance. Lenders should ensure they are specifically named as a loss payee on the whole policy and have direct coverage. 

Additional considerations for lenders 

As part of perfecting their security interest in the aircraft, prudent lenders should also ensure the aircraft is properly registered, which means the registration applicant must qualify to register the Aircraft. The FAA requires the aircraft be registered in the name of its actual owner and not a nominee. A registered owner must be a "Citizen of the U.S." or a non-citizen corporation (not a limited liability company or partnership) when the aircraft is "Based and Primarily Used" in the U.S. 

The qualifications of a "Citizen of the U.S." under 49 USC §40102(a)(15) include:  

• An Individual 

• Partnerships Made up of Individual U.S. Citizens 

• Certain Corporations and Associations that meet the criteria outlined at 49 USC §40102(a)(15),   

Under 49 USC §40102(a)(15), a corporation or association must be:  

• Organized Under the Laws of the U.S. or a State, the District of Columbia, or a Territory or Possession of the U.S.; 

• The President must be an individual Citizen of the U.S.; 

• At Least Two-Thirds of (i) the Board of Directors and (ii) the Other Managing Officers are Citizens of the U.S.; 

• At Least 75% of the Voting Interest Is Owned or Controlled by Citizens of the U.S.; 

• The entity must be under the actual control of Citizens of the U.S; 

The requirements for a non-citizen corporation to be considered based and primarily used in the United States are set out in FAR 47.9. 

 Conclusion 

Perfecting an aircraft lien with the FAA is a meticulous process, and its importance cannot be overstated. Lenders must navigate a complex web of legal requirements, filing procedures and potential pitfalls. Seeking the help of aviation professionals is recommended to ensure a smooth and correct filing process, ultimately safeguarding lenders' interests in the dynamic world of aviation finance. 

Many thanks to Scott McCreary, Aviation Group Practice Group Leader at McAfee & Taft, for his contribution to this article.  

Letters of Intent are common in pre-owned business aircraft transactions, enabling buyers and sellers to outline the broad terms of a deal. As simple as they sound, there are many potential errors for buyers to avoid, as Gerrard Cowan highlights.

Essentially, a Letter of Intent (LOI) offers the potential for a meeting of the minds between sellers and buyers on the major commercial terms of an aircraft transaction. Though it is typically non-binding, it is important to get your LOI right – for good reason…

A good Letter of Intent sets an expectation that the parties will negotiate exclusively and in good faith with each other to try to reach the terms of a definitive aircraft purchase agreement, explains Jonathan M. Epstein, a Partner at law firm Holland & Knight.

Ideally, the LOI is a relatively short document of two to three pages, written in plain English and covering a range of details. At the most basic level, it should set the purchase price and require a refundable good faith deposit to be placed with an agreed escrow agent, Epstein says.

Additionally, the agreement should define whether the transaction will be a ‘hard deal’, meaning that after signing the purchase agreement the buyer can only reject the aircraft for limited reasons (such as the discovery of material damage history), or alternatively a ‘soft deal’ where the buyer can reject the aircraft after the inspection without cause.

The LOI will also identify the general scope of the pre-purchase inspection and test flight, and set forth the condition that the aircraft must be in to accept delivery – for example, with “all systems functioning normally, current on all maintenance with no extensions, no material damage history, etc,” Epstein illustrates.

On top of these requirements, it may address who will pay for ferry and test flights, as well as any unique issue that may   the deal if not negotiated up front. It should expressly state that the LOI is non-binding, except for binding confidentiality provisions, and that it expires if it is not executed by a certain date, though providing for some exclusivity until terminated.

Finally, it is important that LOIs contain ‘know your customer’ language, Epstein says, particularly in international deals, requiring the counterparty to identify their beneficial ownership.

Read full article here

This article was originally published by AvBuyer on January 8, 2024.

FOR IMMEDIATE RELEASE: January 9, 2024    

Contact: Tracey Cheek 
tlc@nafa.aero  
405.850.1292  

Bob Kalsu  
Shareholder/Director, Oklahoma City and Dallas 
Bob.kalsu@crowedunlevy.com  
405.239.6622 
Dallas: 214.420.2163 

NAFA Welcomes New Member: Crowe & Dunlevy  

National Aircraft Finance Association (NAFA) is pleased to announce that Crowe & Dunlevy has recently joined its network of aviation professionals. With over 120 years of experience, Crowe & Dunlevy offers comprehensive transactional and litigation services from early mediation to alternative dispute resolution.  

“NAFA members facilitate the financing of general and business aviation aircraft on a global scale,” said Ed Medici, NAFA President. “We welcome and support Crowe & Dunlevy’s services that play a role in advancing the interests of NAFA members within the aviation industry.”  

About Crowe & Dunlevy: 
Crowe & Dunlevy has served the legal community in aviation counsel for more than 50 years.  

The Crowe & Dunlevy Aviation & Commercial Space Practice Group boasts broad experience and knowledge, representing a notable client list in the aviation industry, including international air cargo carriers and airlines, domestic and international aircraft/helicopter manufacturers, internationally recognized lending institutions and operating lessors, fractional interest programs, corporate fleet flight departments and corporate and individual aircraft sellers and purchasers.   

The team of attorneys, paralegals and staff members has extensive experience in various aviation transactions, allowing them to proactively avoid potential transaction delays and provide valuable insight to clients. The aviation attorneys offer services such as advising on FAA regulations, issuing title and lien perfection opinions, negotiating purchase documentation and litigating disputes related to aircraft ownership.     

In addition, Crowe & Dunlevy is the exclusive member firm in Oklahoma for LexMundi, the world’s leading network of independent law firms. Through Lex Mundi Equisphere, member firms are connected via lean processes and adaptive technology to deliver consistently high-quality solutions across borders, industries and markets. 

For more information, visit crowedunlevy.com. 

About NAFA:  
The National Aircraft Finance Association (NAFA) is a professional association that has been promoting the general welfare of aircraft finance for 50 years. Our network of members is comprised of lenders and product service providers who work together to finance general and business aviation aircraft. NAFA sets the standard for best practices in aviation finance by educating its members on the most up-to-date industry trends and best practices. Government legislation, market influences and industry insights allow member companies to provide the highest quality services the industry has to offer. 

FOR IMMEDIATE RELEASE: October 23, 2023                                

Contact: Tracey Cheek
tlc@nafa.aero
405.850.1292  

Vicky Boladian, Esq.
280 S. Beverly Drive, Suite 505
Beverly Hills, CA 90212
310-218-1972 
vboladian@boladianlaw.com 
https://www.boladianlaw.com 
  

NAFA Welcomes New Member: Boladian Aviation Law Group 

National Aircraft Finance Association (NAFA) is pleased to announce that Boladian Aviation Law Group has recently joined its network of aviation professionals. Boladian Aviation Law Group is a boutique aviation law firm specializing in legal and tax-related aircraft issues. 

“NAFA members form a network of aviation finance services who diligently and competently operate with integrity and objectivity throughout the world,” said Ed Medici, NAFA President. “We’re excited to welcome Boladian Aviation Group to our growing organization. Their services enhance NAFA’s available offerings, and we support their services to advance our members.” 

About Boladian Aviation Law Group:  
Boladian Aviation Law Group, led by President Vicky Boladian, offers pre- and post-acquisition tax services involving aircraft. The team has successfully guided thousands of purchasers with multi-state sales and use tax mitigation, property tax issues and federal and state tax matters.   

In her 25 years as a practicing attorney, Vicky Boladian has developed a strong knowledge of the complex field of tax law. Since 2008, she has used this knowledge in guiding aircraft-owning clients through multi-state sales and use tax exemptions, property tax valuations and appeals, federal excise tax compliance and federal and state income tax audit representation.  

Ms. Boladian has spoken on aviation tax issues to various organizations, including the National Business Aviation Association (“NBAA”) and Helicopter Association International. She is a member of the NBAA Tax Committee. The Southern California Super Lawyers selected Ms. Boladian as one of the top attorneys in the Southern California region from 2014 to 2023, and she was named to the Top 50 Women Lawyers in that area for several years. The Chambers & Partners High Net Worth Guide ranked her as one of the top aviation attorneys worldwide. 

For more information about the Boladian Aviation Law Group, visit https://www.boladianlaw.com/. 

About NAFA:    
The National Aircraft Finance Association (NAFA) is a professional association that has been promoting the general welfare of aircraft finance for 50 years. Our network of members is comprised of lenders and product service providers who work together to finance general and business aviation aircraft. NAFA sets the standard for best practices in aviation finance by educating its members on the most up-to-date industry trends and best practices. Government legislation, market influences and industry insights allow member companies to provide the highest quality services the industry has to offer.