Business Leasing and Finance News (BLFN) November/December 2009

FOUNDER'S NOTE
By David G. Mayer

                            Turbulence

It’s hard to get a good idea down. In the past month or so, I have seen clients find and exploit a niche in the marketplace with potential to lift their revenues and their spirits. One bank found a certain underserved transportation equipment segment where it could provide profitable and relatively safe financing. Few other financiers occupied the space. Another client found an opportunistic way to buy distressed assets and “flip” them at an attractive spread. Most other buyers could not structure the transaction to mitigate the risk.What a year 2009 has been – a year of undeniable turbulence in the business world. Though a few businesses have enjoyed a profitable year, many of you have faced challenges the likes of which you have never seen before.

Some of you may have been forced to reinvent your businesses. In too many cases, you may have had to liquidate and/or close your businesses for lack of revenue or overwhelming losses. As a company with employees, you probably have had to cut costs, including headcount, so you would not be swallowed up by your ever present debt, rent and other obligations that drown or at least dampen earnings.

In the finance world, as creditors, you probably have had many customers enter into workouts in the hope that you would throw them a lifeline to survive the economic crisis or at least forebear from closing them down. Current media reports suggest that few lenders have extended lifelines to small businesses or others, especially in the form of debtor in possession (DIP) financing. The U.S. government even took unprecedented steps to save the banking system from imminent collapse – with unknown consequences for the future.

You may have been one of the people laid off despite your great track record, productivity and value to your organization. My heart goes out to you and the many other talented people who have lost their jobs in this recession; and while the worst shedding of jobs may be over, companies still have to address their cost load when balanced against lower business revenues or losses.

As you may know, I am, or at least try to be, an optimist. I have to admit though that this year has been far more challenging than I anticipated. I have had to cover my ears when I heard my heart pounding from doubt or concern about the economy and businesses at risk.

Despite undeniable turbulence in 2009, we have a choice going into year end and the New Year. We can hang our heads in defeat, or we can look forward to a bigger and better 2010, a year of new opportunity, job creation and business restoration. Dare to dream big and believe in the possibilities, for if you do you may join the increasing ranks of those who not only dream big but also achieve big things in 2010.

Thanks for reading this issue of BLFN. Good luck in finishing off 2009 and very Happy Holidays.

1. Top 12 Requirements to Finance Wind Energy Projects

Most lenders and developers prefer or require that a project be at least 100MW or greater to merit the work associated with a financing. This size project could easily cost $175MM or more, depending on the type of turbines. Because of the large amount of capital needed for projects and the cutbacks on loan capacity and risk tolerance, lenders have implemented strict standards to use their limited capital to finance wind projects. Except for re-financing in workouts, lenders will rarely consider any financing other than for the most viable and relatively straight-forward projects. In short, lenders have made the flight to quality and safety. With limited capital, lenders must limit funding to a few qualifying wind projects.

Their standards include and require the following:

1. Accurate wind forecasting with acceptable speed and volume of wind to support projected energy generation, economic assumptions, operations cost, cash flow (including debt repayment) and return on equity.

*Technical Point: Speed is determined by on-site anemometer data or on reference anemometer data from a location nearby to the wind farm, typically gathered at various heights on a tower called a “Met Tower.” One authority described wind energy projections this way: “Once estimates of wind speeds have been made, they can be used to create power curves that estimate the electrical energy that wind turbines would produce at each speed. The resulting forecast, based on both estimates, is a probability-based energy production level for a wind farm. For example, “P99 energy” is the term used for the annual amount of energy predicted to be available at a point of delivery with a probability of 99 percent or greater. “P50 energy” describes the (larger) amount of annual energy expected to be available at a probability of 50 percent or more.” See Regulating Wind Power Into a Dispatchable Resource, by Robert D. Castro, University of Southern California, and Fernando Pardo, Power Magazine (May 15, 2008).

2. Significant “tax equity” investment (30 percent or more). In today’s market, only a dearth of tax equity is now or has been available for more than a year because the economic downturn and banking crisis have impacted the taxable income of the usual investors.

3. Strong credit of power purchasers under a well-drafted power purchase agreement (PPA) that fully commits the power generated by a project to one or more purchasers. Merchant power sales typically will not be counted or accepted by lenders.

*Term to Know: “Merchant” power sales refer to that portion of the electrical energy sales derived from short-term contracts and/or spot market prices. The resulting price risk is typically hedged over a five- to ten-year period in financial transactions with such hedge providers. See 2008 Wind Technologies Market Report, U.S. Department of Energy (2008) at page 24.

4. Higher loan spreads over the cost of funds of lenders plus upfront fees to meet required earnings for the lenders. For example, lenders may charge 300 basis points or more over their cost of funds plus 2.50 percent or more in upfront fees (dependent on the lender and the transaction).

5. Typical project finance structures with minimal complexity known to and well understood by experienced project lenders.

6. Confirmed qualification to receive, or actual receipt of, the 30 percent cash grant from the U.S. Treasury (Cash Grant) in lieu of claiming the investment tax credits (ITC) under the stimulus law, known as the American Recovery and Reinvestment Act of 2009 (ARRA).

*Tip: The Cash Grant is assignable to lenders and other third parties upon satisfaction of certain procedures. It has already become essential to structuring and closing financings. Evaluate the Cash Grant and the optimal timing to apply for and use the Cash Grant in your transaction.

ARRA significantly changes the cash and tax equity landscape by allowing a taxpayer to claim a 30 percent ITC under section 48(a)(5) in lieu of the production tax credit (PTC) or to receive a Cash Grant. The Cash Grant equals the amount of the ITC, which the taxpayer can claim in lieu of the PTC. See IRC § 48(d)(3)(A).

*Term to Know: Section 45 of the Internal Revenue Code of 1986, as amended (IRC), sets forth the law with respect to the PTC. As described by AWEA, the PTC refers to “an income tax credit . . . allowed for the production of electricity from qualified wind energy facilities. . . . The current value of the credit is 2.1 cents/kilowatt-hour of electricity produced.” ARRA extends the PTC through December 31, 2012. For more, see AWEA on PTC.

7. Reliable construction companies and subcontractors with construction contracts or engineering, procurement and construction contracts (EPC) with substantial liquidated damage penalties for delays in, or other problems with, completion and operation of the wind farm, taking into account views, shadows of blades and noise from turbines to nearby homes or other neighboring properties. The design and construction should “maximize energy production, minimize capital and operating costs, and stay within the constraints imposed by the site.” See Wind Farm Design: Planning, Research and Commissioning, Renewable Energy World.com (April 2, 2009).

8. Dependable turbines right-sized and commercially proven, including wind turbine technology, warranties of two to five years covering lost revenues (including downtime to correct faults), service, repairs and replacement, guaranteed capacity (35-40 percent) and availability (typically 97 percent or more after six month commissioning period at of 80-90 percent) under the supplier’s purchase contracts. See Wind Farm Design: Planning, Research and Commissioning, Renewable Energy World.com (April 2, 2009).

9. Experienced management teams with a long track record for completing and operating viable wind projects. No new or inexperienced developers will be accepted or even considered in most cases.

10. Nearby interconnection to the energy grid with adequate transmission capacity to load centers (a very challenging issue in Texas).

*Technical Point: The “POC is the point at which responsibility for ownership and operation of the electrical system passes from the wind farm to the electricity network operator.“ See Wind Farm Design: Planning, Research and Commissioning, Renewable Energy World.com (April 2, 2009).

11. Experienced operations and maintenance (O&M) company, with good credit and track record, known to the lenders and well-regarded in the wind energy industry for maintaining and operating wind farms with a high degree of reliability and optimal energy generation (subject, of course, to wind speeds and other factors unrelated to the O&M company).

12. Acceptable land rights (easements, lease term and royalty costs, payable to land owner), permits and approvals and other due diligence.

*Insight Point: Limited capital lenders tend to work within “clubs” of other lenders whom they know and with whom they have financed other projects. Lenders generally must have a record of closing and funding projects in coordination and cooperation with the other lenders, including the lead “book-runner,” administrative agent and security agent. Lenders prefer to work with well-known developers with whom they have previously closed transactions and have a shot at winning more business when the market improves.

The lead lenders and agents share views of a transaction that coalesce into acceptable terms and conditions to be met by a project borrower and to be accepted by the other club lenders. Although the list of 12 requirements above may seem lengthy and burdensome, few lenders today will take risks without mitigating or even trying to eliminate them. The real question is not whether the lenders will impose a list of requirements on the borrower/project, but how long the list will be to secure funding of a wind energy project.

Thanks to Bill Bosco, President of Leasing 101, for his review and editing of the accounting aspects of this article and to George Schutzer, Co-Chair of the Tax Group at Patton Boggs LLP, for his review of the tax portions of this article.

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2. Shari’ah Compliant Transactions Slowly Take Hold in U.S.

As the world’s economy starts to recover from one of the worst recessions in the last 50 years, investors worldwide have begun to invest risk capital in Shari’ah compliant transactions.

*Term to Know: Shari’ah is the Arabic word for Islamic law, and for observant Muslims, Shari’ah governs basically all aspects of life. Shari’ah is drawn primarily from the Koran (the text of God’s words to the prophet Mohammad) and the Sunnah that is the “Way” for how observant Muslims should live.

Permissible Transactions for U.S. Financial Institutions under Shari’ah Law

Based upon Shari’ah, Islamic societies and scholars have identified a set of transactions that are permissible (halal). Conversely, Shari’ah treats certain types of transactions as impermissible (haram) such as charging interest; trading in certain items such as pork, alcohol or pornography; or engaging in excessively risky activities such as gambling.

During the last 40 years, companies have made efforts to expand the breadth of transactional tools and structures that comply with Shari’ah. Despite this lengthy period, institutions are still pioneering new combinations of such tools and structures. As there is no central global sanctioning body for determining whether a transaction is Shari’ah compliant, every deal is judged individually. To facilitate this determination, the organizer or arranger of the deal ensures that the parties consult independent advisory boards to judge whether a particular transaction is compliant with Shari’ah.

A number of U.S. institutions (both banks and commercial lenders) have participated in Shari’ah-compliant deals and have utilized a single-purpose entity as part of the structure of the transactions. Even though my example is of an asset-based loan, cash flow senior financings and mezzanine financings can easily be modified to become Shari’ah-compliant. This structure allows, for example, a light manufacturing company (Operator) that was owned by financial buyers (Equity Sponsor) to access Western credit markets without offending the Equity Sponsor’s religious convictions.

Example and Explanation of a Real Deal

Shari’ah compliant deals often contain many moving parts. Although the following asset-based lending transaction describes steps to close and fund in sequence, in practice, all of the parties consummate the steps concurrently:

• The operator of the light manufacturing business (Operator) sets up a single-purpose entity as the borrower (Borrower). Borrower is (a) separately owned by an independent trust company, (b) separately operated by an independent board of directors and (c) bankruptcy remote in accordance with applicable U.S. laws.
• Operator sells substantially all of its assets to Borrower. 
• Borrower leases back these assets to Operator, so that Operator continues to conduct the same light manufacturing it did prior to the sale-leaseback.

*Technical Point: The sale-leaseback uses a permitted form of leasing (called an “ijara”) under Shari’ah that is very similar to a Western lease. Accordingly, for the Equity Sponsor the transaction is clearly permitted by its religious tenets.

If ever required to unravel the sale-leaseback, Borrower gave Operator a put option on the leased assets. The lease payments for the leaseback would be paid by Operator from the cash flow generated from its operations as a light manufacturer. Also, this payment obligation from Operator to Borrower is secured by a lien on, and security interest in, the assets of Operator. Collateral includes the proceeds of the accounts receivable generated in its manufacturing operations, a collateral assignment of all material contracts and a stock pledge of Operator and all of its affiliates and subsidiaries.

A U.S. lender (Lender) makes an asset-based term loan to Borrower as part of a total credit facility secured by the then-available potential collateral.

Because Borrower is neither owned nor managed by the Equity Sponsor, the Shari’ah board typically determines that there is no issue with Borrower entering into a traditional lending arrangement despite the fact it is a party to a lease arrangement with Operator. Lender’s collateral package consists of a blanket lien on all of the assets of Borrower (including the sale-leaseback assets), a stock pledge of Borrower and an outright assignment of the lien and security interest Borrower took in Operator’s assets as security to ensure Operator’s continued payments under the sale-leaseback arrangement. Additionally, Borrower irrevocably designates Lender as the one to determine whether the put option should be exercised.

Lastly, the lease agreement and the loan agreement were cross-defaulted to each other permitting Lender to exercise Borrower’s rights under the lease in the event of a default under the loan agreement with Borrower.

Cash Flow and Collateral – a New Twist under Ancient Law

To describe the transaction another way by following the money:

Borrower uses the proceeds of the loan from Lender to purchase the assets of Operator. Operator leases those assets back from Borrower creating a rent obligation by Operator. Borrower uses the lease payments to pay principal and interest on the term loan from Lender.

Analyzing the collateral package, Lender receives a blanket lien on all assets of Borrower and at least one way to sell the stock of Operator in the event the loan goes into default. The loan agreement with Borrower includes a typical set of affirmative and negative covenants, representations and warranties and prepayment events that have long been considered “market” in a traditional Western loan agreement. Lender in this structure still has the ability to foreclose on the assets whether owned by Operator or Borrower, or to foreclose on the stock of either Borrower or Operator, as necessary.

Accordingly, the only increased and unique risk that a lender faces with this Shari’ah-compliant structure is that a court might not understand, or might ignore, the concurrent nature of all of the transactions and then analyze this structure as only a lease or as only a loan. Lender mitigates its risk requiring typical asset-based lending protections as a secured creditor of Borrower, including taking an assignment of lease payment rights and other rights under the lease documents.

*Warning: You should keep in mind that Shari’ah compliant deals generate complicated factors such as negotiating and documenting a back-to-back transaction as described above. In addition, the parties must determine whether the transactions comply with Shari’ah, which in the U.S. market is anything but traditional legal analysis.

A talented few financial institutions and law firms have completed transactions that comply with Shari’ah. As the market grows in its understanding of the interaction of Shari’ah and U.S. law, the number of transactions should increase. However, the complications have so far slowed the growth of Shari’ah-compliant deals, even though organizations such as the Accounting and Auditing Organization for Islamic Financial Institutions make efforts to mitigate these risks through standardization of principles and criteria.

Thanks to Eric White for writing this article. Eric is a partner in the Corporate Finance Practice Group of Patton Boggs LLP, and is located in the Dallas Office.

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3. As Honest Services Fraud Charges Expand, Will Financiers Unexpectedly Become Criminals?

Fraud in business and finance transactions persists through the troubled economy. Fraud may occur when financiers defraud their customers and/or conversely when customers defraud their financiers. The behaviors may not just breach agreements, they may also attract unexpected criminal charges.

New Task Force, New Scrutiny on Fraud in Financial Institutions

Fraudulent behavior faces intensifying scrutiny as clearly demonstrated on November 17, 2009 when President Obama established an interagency Financial Fraud Enforcement Task Force (Task Force). The President charged the Task Force to:

Provide advice to the Attorney General for the investigation and prosecution of cases of bank, mortgage, loan, and lending fraud; securities and commodities fraud; retirement plan fraud; mail and wire fraud; tax crimes; money laundering; False Claims Act violations; unfair competition; discrimination; and other financial crimes and violations (hereinafter financial crimes and violations), when such cases are determined by the Attorney General, for purposes of this order, to be significant.

The proverbial alphabet soup of agencies will follow the lead of the Justice Department in the pursuit and prosecution of financial industry wrongdoers – generally, it appears, in U.S. financial banks.

Honest Services Fraud – An Old Weapon, a New Danger

While the Task Force moves into action, prosecutors can use, and have used, an older, ill-defined and powerful tool to redress allegedly criminal acts of either financiers/creditors and/or their debtors. Commonly referred to as the “Honest Services Fraud” doctrine (HSF), the application of HSF may turn a seemingly innocent or immaterial mistake or action by a financier, such as a lender or lessor or their debtors, into the reason for a jail sentence. HSF seems to be divided into fraud by private citizens and fraud by public servants.

HSF, which is composed of 28 words, has spawned high-profile convictions and/or prosecutions, Supreme Court confrontations and business controversy. Though most commentators express negative views of HSF, the meaning and scope of the doctrine remain elusive. See The Fraud of Honest-Services Fraud, Huffington Post (June 22, 2009).

Broadly stated, 18 U.S.C. 1346 provides that officeholders and employees owe a duty to act only in the best interests of their constituents and employers. Deceptively simple, but potentially dangerous to the conduct of business, the statute provides:

Sec. 1346. Definition of "scheme or artifice to defraud"

STATUTE:

For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services

As one article explained:

A 1988 revision to the Federal Wire and Mail Fraud Statute makes it a crime to undertake a "scheme or artifice to deprive another of the intangible right of honest services" — in other words, the standards of upright behavior that one is entitled to expect of business people and public officials. In recent years, that law has been used to help convict some very visible defendants, including the Washington lobbyist Jack Abramoff and California Representative Randy (Duke) Cunningham. See Skilling's Enron Appeal: Is 'Honest Services Fraud' a Bogus Charge? By Richard Lacayo, Time/CNN Online (Oct. 23, 2009).

In Sorich et al. v. U.S., U.S. Supreme Court Case 08-410 (decided 2-23-2009), 129 S.Ct. 1308, the litigants provided the Supreme Court with the opportunity to hear the dispute regarding the scope of HSF, but the Supreme Court denied certiorari. In a blistering dissent to the denial of certiorari, Justice Scalia asserted that, if invoked, the HSF could “impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries.” He stated in protest:

If the “honest services” theory…is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer. Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.
…
In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.

It is unsettling that no one knows the outside boundaries of the HSF. However, it now appears that the application of HSF will be tested in the next several months after the Supreme Court agreed to decide whether and to what extent private sector conduct can be prosecuted under 18 U.S.C. § 1346 in two different contexts. The outcome of these cases, which involve Jeff Skilling and Conrad Black, may narrow, clarify and limit HSF use on public officials, an area which has been the focus of the Justice department for decades under different theories of prosecution. For now the HSF issues remain in limbo.

*Tip: If you serve as a bank officer or a fiduciary, or as a borrower or debtor, you should continuously evaluate your actions and consider increasing your efforts to be aware of and comply with regulations and agreements that affect or bind you or your organization. Your attentiveness to detail may allow you to avoid even a risk of falling within the HSF trap or other bank-related provisions of the federal criminal code.

More Questions than Answers

To what extent can the financial services industry anticipate the application of HSF to the conduct of its officers and fiduciaries? With the advent of the Task Force, will the Justice Department use this tool against alleged violators?

In the leasing context, if a lessee rents equipment under a true lease, but sells the equipment to a third party without the lessor’s involvement, can the lessor urge the local prosecutor to use HSF against the lessee?

If a bank is considering a loan application of a customer but a loan officer with a grudge against the customer vetoes the deal without justification, thus inflicting a significant opportunity cost on the borrower, can the customer ask a prosecutor to pursue the loan officer (or even the bank) under HSF?

Consider this example of what would normally be a garden variety civil fraud case: A debtor is paid for sales of his inventory, which is collateral for a secured loan, but the debtor redirects the cash into his pocket. Can the lender, directly or indirectly, use HSF to punish the debtor? If a vendor receives a payment for equipment that it reported as delivered but never delivered the equipment to its customer and kept the funds, can a prosecutor use HSF as a remedy in lieu of a lessor’s lawsuit?

*Insight Point: The threat that the Department of Justice will pursue a routine civil transaction with HSF is more imagined than real world.

These situations are not uncommon in the marketplace and almost certainly will continue to occur. The question that has arisen is: can a victim secure a criminal prosecution in lieu of or in addition to making a civil claim?

*Warning: Justice Scalia expressed in the clearest terms that the application and reach of HSF is like painting on a canvas without borders. As a debtor or a creditor ask yourself whether offensive or questionable behavior that may fall within the fuzzy scope of HSF is worth the risk that a prosecutor could turn you into a criminal and permanently alter your personal and professional life?

Frustration and Danger Abound

Any financial services debtor or creditor could be painted with the HSF brush. The frustration and financial chaos that resulted in the creation of the Task Force may extend to prosecutors near you. Financiers and their customers should understand the potentially dire consequences of any kind of artifice or even shady behavior in business. Amid the fragile economy, the credit crisis and wide ranging fraud, any prosecutor could rely on HSF, in the absence of other legal tools, to snag private entities or persons for fraud, not unlike the way the FBI ultimately used charges of tax evasion to bring Al Capone to justice in Chicago. In the current economic and business environment, allegations of fraud may be more threatening and real than ever before.

Thanks to S. Cass Weiland for editing this article. Cass is a senior litigation partner in the Litigation and Dispute Resolution Group in the Dallas office of Patton Boggs LLP.

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4. Finance 101: What is a “Turnaround?"

In its simplest meaning, a turnaround is the action or process of identify operating and financial problems of a company and to revitalize or reorganize its operations to improve its performance or achieve or increase profitability. Turnaround management firms or other organizations with restructuring experts may assist either a flailing or failing company.

Even though the method of accomplishing a turnaround is likely to be as unique as the company, turnaround professionals typically evaluate certain fundamental elements in each project. The experts assess the root problems of the subject company in depth and establish and apply metrics to evaluate whether a portion of a company should be altered, sold or closed. They also establish standards for future performance based on industry and other appropriate criteria. This approach should not only consider revised strategies but also the future potential of industries in which the company participates. See Analyzing Profitability in a Turnaround, Capital Eyes, Bank of America Business Capital (Nov. – Dec. 2009).

These experts should stabilize the distressed company as quickly as possible. This effort may require them to replace or assume management in whole or in part. They typically attempt to maximize cash flow or minimize losses by improving operations and renegotiating debt arrangements. Amid crisis containment work that may be required, the experts should quickly formulate, assess and implement a turnaround strategy and plan. If necessary, they may use bankruptcy as a vehicle to accomplish the objectives of the distressed company. To save a company, the turnaround team may sell some or substantially all of the company’s assets or even the entire company itself, to increase cash flow, reduce debt and/or allow the company time to recover from the financial malaise.

*Tip: As a company or creditor involved in a turnaround, you should use caution to hire a knowledgeable and experienced turnaround expert. Not all firms can deliver the same services for every business. The proposed experts should offer services based on industry experience specific to the subject company. See Tools for a Company Turnaround, All Business (Aug. 2003). Check credentials, consult other clients and inquire of associations and competitive firms about the capabilities of the turnaround experts. You should not only trust the individuals who execute the turnaround; you should also assure that their organizations have the resources to support their turnaround effort.

Each expert will take his own approach to the ultimate objectives established by creditors and the subject company. The best result in the worst case scenario is to stem the tide of red ink and turn the distressed company from a lost cause into a profitable survivor. Alternatively, for the lackluster company, improving profitability and return on investment usually drives the turnaround. In today’s economy, the outcome in either case is far easier to describe than it is to accomplish.

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About Patton Boggs LLP; PB Capital Resource Center; Publications, Speeches and Radio Interviews; Upcoming Speeches

About Patton Boggs

Patton Boggs LLP is a law firm of approximately 600 attorneys and other professionals located in Washington DC, Northern Virginia, New Jersey, New York, Dallas, Denver, Anchorage and internationally in Abu Dhabi, United Arab Emirates and Doha, Qatar.

Patton Boggs has major practice areas in business, intellectual property, public policy and Litigation. These areas are composed of many practice groups designed specifically to meet client needs and the trends in developing legal markets. David G. Mayer often focuses on capital equipment and facility financing and development in energy, transportation, infrastructure, aviation and technology transactions, workouts and litigation.

The firm provides a broad array of skills in domestic and international business transactions, including equipment finance and leasing, corporate finance, secured transactions, syndications, mezzanine finance, aviation and transactions law, federal leasing, project finance, real estate, health care, pharmaceuticals, technology transactions and public policy work.

The equipment finance practice at Patton Boggs regularly involves the buying, selling, financing and leasing of personal property of all kinds, including business aircraft, energy facilities, power plants (including wind farms and other renewable energy facilities) and technology and health care assets.

When these transactions encounter defaults or other disputes, Patton Boggs responds with a team of business transaction lawyers, who have extensive restructuring and workout experience, litigators, who manage court actions and alternative dispute resolution proceeding, and bankruptcy lawyers, who assist in restructuring transactions, handle workouts, advise on potential bankruptcy filings and litigate and otherwise participate in the entire bankruptcy process.

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PB CAPITAL RESOURCE CENTER

• Capital Markets Web site– PB Capital Markets is the firm’s dedicated Web site offering current political news and in-depth analysis of the most important legislation pertaining to the crisis in the financial services and banking industries today. Click on Capital Markets.
• Capital Thinking Magazine – For insightful interviews with business and political leaders and more in-depth information on business, finance, politics and the law, pick up a copy of Patton Boggs’ Capital Thinking magazine. Published quarterly, Capital Thinking features articles from top business and legal minds providing readers with actionable tips on timely topics.
• Capital Thinking Podcasts and Internet Radio Show – PB Partner Kevin O’Neill hosts both a weekly podcast series and a weekly Internet radio show that delivers the latest news and insight into policy, law and politics in Washington. The PB podcast series is updated every Monday and is available on the firm’s Web site and iTunes. Capital Thinking, Patton Boggs’ weekly Internet radio show, airs live every Thursday at 12:00 noon EST and 9:00 a.m. PST on VoiceAmerica Business network. Top guests, including politicians, business leaders, public policy advisors and PB partners, join Kevin to discuss how legislation and business developments raise a wide array of pressing issues in the United States.
• Patton Boggs Social Media - Follow Patton Boggs' recent coverage on Facebook and Twitter.

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Upcoming Speeches

“Base Gas Hedging and Structuring Base Gas Leases” – Platts’ Gas Storage Outlook, 8th Annual, January 13-14, 2010, Hilton Americas, Houston, Texas.

17^th Annual Aircraft Registry Forum, Ritz-Carlton, Ft. Lauderdale, FL. Panel: “The Shift to Leases: Negotiating the Lease Agreement”, Monday, February 22, 2010, 2:00 p.m. to 3:00 p.m.

Publications, Speeches and Radio Interviews

The following is a partial list of articles written or co-authored by David G. Mayer and a mention of radio show appearances by David G. Mayer:

Capital Thinking Internet Radio (Patton Boggs podcast), with host Kevin O’Neill: Interview of Ed Bolen, president and CEO of the National Business Aviation Association and David G. Mayer, Patton Boggs partner, July 30, 2009, regarding the significant challenges and trends in business aviation (BA) today.

Capital Thinking Internet Radio (Patton Boggs Podcast), with host Kevin O’Neill: Interview of David G. Mayer on March 12, 2009 regarding trends in financing and development of natural gas storage facilities. To listen to the interview, click on Mayer Interview.

A Test of the Cape Town Convention: Useful Tool in Debtor Insolvencies and Defaults or a Trap for the Unwary, David G. Mayer and Frank Polk, Corporate Rescue and Insolvency Magazine, Vol. 2.5 (Oct. 2009).

U.S. Court of Appeals Upholds Graves Amendment in Garcia v. Vanguard, by Connie Ariagno and David G. Mayer, with the assistance of Tyson Wanjura, LNJ Leasing Newsletter (Dec. 2008). To listen to the interview, click on Bolen & Mayer Interview.

Unique Pad Gas Lease Supports Project Financing and Development of Gas Storage Facility in U.S., by David G. Mayer (with Fortis Capital Corp.), Asset-Based Lending Review, Financier Worldwide (Nov. 2006).

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Thanks to BLFN’s Team

I would like to thank BLFN’s team at Patton Boggs LLP. The team includes Tyson Wanjura, an associate in Dallas and the Patton Boggs staff: our marketing writers Jennifer Becker and Gina Cimarelli, our marketing manager Mark Holub, our project manager Melissa Green, Penny Utley, our subscription coordinator and our designer Winston Jackson. Thanks also to Douglas C. Boggs, a Business Group/Securities partner and Web site reviewer for BLFN, and our Chief Marketing Officer Mary Kimber, for assisting BLFN through our firm’s editing, design and posting process.

All the best,

David

David G. Mayer
Founder: Business Leasing and Finance News
(formerly Business Leasing News)
Partner: Patton Boggs LLP
2001 Ross Avenue
Suite 3000
Dallas, Texas 75201
(214) 758-1545 (phone)
(214) 758-1550 (fax)
E-Mail: dmayer@pattonboggs.com

© David G. Mayer 2009

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