January 20, 2017

President Trump, the Ex-Im Bank and Aircraft Finance

Holland & Knight Alert
John F. Pritchard

The Export-Import Bank of the United States has been embroiled in a considerable amount of political controversy in recent years. Created in 1934 by a presidential executive order to finance and facilitate the export of U.S. goods and services, the Ex-Im Bank's Congressional authorization lapsed on July 1, 2015. As a result, although the bank remained able to manage its existing loan portfolio it could not engage in new business. On Nov. 5, 2015, through the use of a rarely used discharge petition procedure in the U.S. Congress, the Ex-Im Bank was reauthorized until September 2019. However, at the same time, the Senate Committee on Banking, Housing and Urban Affairs led by Sen. Richard Shelby (R-Ala.) – the same committee that had held up the bank's reauthorization – then refused to confirm the White House's nominee for the bank's third directorship. With three (of five) directors needed for a quorum, the Ex-Im Bank was left unable to authorize new commitments for transactions with a term of greater than seven years or in excess of $10 million – a limit that effectively rules out new financings for high-value assets such as commercial aircraft. The Ex-Im Bank could continue to complete existing commitments and has been closing those deals.

The new Senate configuration means that a new chairman – Sen. Mike Crapo (R-Idaho) – will be in charge of the Senate banking committee. It is considered more likely, but not certain, that a nominee for the bank's third directorship who is acceptable to the committee could finally be approved. Now that a new president has been elected, notwithstanding that outgoing President Barack Obama reappointed the prior appointee for director, it will be up to President Donald Trump to decide whether to appoint a new third director, which is not likely to be at the top of his agenda of many appointments. It is not clear whether he will appoint a director soon or appoint one that is pro-Ex-Im Bank given his track record already of appointing critics of different government programs. It has been argued that if Trump wishes to promote new jobs, the Ex-Im Bank appointment is low-hanging fruit. In fact, the Ex-Im Bank would prefer that he appoint all three directors needed to make up a full five-person board which Ex-Im Bank has usually had in order to keep its business moving at a rapid pace. There are certainly foreign airlines who would like to apply for new commitments if they become available.

However, if there were ever a period in which a quieter Ex-Im Bank confined to smaller exports and to completing existing commitments could have a lesser impact for the aircraft manufacturing industry in the United States ­– especially Boeing – this is it. At the same time that the Ex-Im Bank has been sidelined, the European export credit agencies (ECAs) that support Airbus, Boeing's archrival, have also been offline but for other reasons. This will not always continue. If either the European ECAs become fully active again or if there is any type of airline industry downturn, aircraft financing and support for U.S. manufacturers could become much harder to obtain and the Ex-Im Bank would become critical. As it is, during the early days in which there was no reauthorization, Boeing lost some orders to Airbus as a result of not being able to access Ex-Im Bank guaranteed financing.

It is hoped that in the newly elected Congress this logjam will be broken if Trump appoints a third director, and hopefully two others, and Ex-Im Bank will be back in full operation. 


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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