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Deal or No Deal? Practical Problems to Consider when Negotiating a LOI for the Purchase of an Aircraft

by | Jun 17, 2020 | Blog

By:      Derek Bloom, Of Counsel
            Marks & Sokolov, LLC
            Kuznetsky Most, 21/5
            Entrance 1, Suite 612
            Moscow, 107996, Russian Federation
            Ph: +7-916-282-0182
            Ph: +1-202-230-9443
            www.marks-sokolov.com

June 17, 2020

________________________________________________________________

It is good to hear happy stories about the closing of smoothly conducted transactions. Perhaps there is more to be learned, however, from unhappy stories about failed transactions; the ones that end in litigation.

Many known and unknown factors go into a transaction between strangers to buy and sell an aircraft. These strangers are represented by additional strangers, the brokers and title service and escrow companies. The parties have conflicting objectives, obtaining a high price or a low price. Brokers seek exclusive listings and, together with sellers, nonrefundable deposits and, sometimes, other compensation. Purchasers seek to retain control over their deposits. They view deposits as down payments on a purchase price, not as potential windfalls for the other parties. Escrow companies learn from disputes they are sometimes drawn into, and periodically update their terms and conditions in an effort to avoid liability.

There are recurring disputes in aircraft-related transactions that give rise to litigation. These disputes, in turn, afford lessons to be learned by all parties. Most litigation results in settlements, but frequently only after the parties have incurred heavy disappointments, unwelcome costs, and lengthy delays. In the case studies below, purchasers are referred to as “Purchasers”, sellers, as “Sellers”, escrow agents as “Escrow Company,” and no actual parties are identified. Letters of Intent are “LOIs”, and Aircraft Purchase and Sale Agreements are “APAs.”

The disputes most often concern the ownership of deposits. Purchasers discover that their sizable down payments are caught up in a maze of competing claims. The “ownership right” to their money is unexpectedly in question in a game they did not realize they were playing, subjecting them to traps of which they were unaware, or which they had discounted.

The resulting court filings contain allegations of improper conduct and practices that follow certain patterns. There are regularly allegations of undisclosed conflicts of interest, bad faith, and breaches of fiduciary duties. Conspiracies to commit fraud are also alleged. Signature pages are presented without adequate explanation of what has been changed in the text of a document. Often, the undisclosed edits convert deposits from refundable to nonrefundable.

Many cases also involve undisclosed back-to-back sales of multi-million-dollar aircraft, featuring undisclosed profits earned by middlemen, in addition to agreed agency fees. Purchasers discover they overpaid by hundreds of thousands, if not millions of dollars. There are allegations of abuse of the trust of Sellers by trusted persons who purchase an aircraft only to immediately resell the aircraft in a transaction undisclosed to the original seller for vast sums more than what the trusted person paid the seller.

Purchasers and Sellers are also sometimes duped into agreeing to the arbitration of disputes with ghost companies in faraway jurisdictions and under foreign law. In such cases, the cost of seeking to obtain justice and retain a deposit may be so high that a party’s best option is to forfeit a large sum of money in a settlement rather than to incur costs, uncertainties and delays.

The following “lessons learned” are based on actual cases. In each instance, ask yourself, if you were the Purchaser, and you saw this potential “train wreck” coming, what provisions would you have included in the letter of intent to try to avoid such a result.

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