Capital Markets & Finance

GENERAL

With attorneys who have worked for many years representing various parties on some of the most complex capital markets and financing transactions in some of the most demanding environments, Burgher Gray takes pride in the depth and breadth of experience of its finance attorneys and their resulting ability to advise clients on the most sophisticated financing transactions. Our attorneys possess a broad range of experience counseling issuers, investors, placement agents, underwriters, borrowers, lenders, credit enhancers, rating agencies and other transaction parties with respect to a wide variety of public and private securities offerings and lending transactions involving various forms of equity and debt instruments, including combination securities, super senior notes, variable funding notes, convertible notes, common stock, preferred stock, options and warrants. Our experience representing various parties in financing transactions enables us to understand and give appropriate focus to the unique concerns and perspectives of each transaction party. So whether you are an issuer or borrower looking to raise funds, or an investor, lender, underwriter or placement agent looking to provide or assist with raising such funds, or a credit enhancer looking to improve transaction execution and efficiency, Burgher Gray finance attorneys are well suited to assist with your legal needs. Having executed hundreds of capital markets transactions, we understand the need for, and have the experience necessary to ensure, efficiency in capital markets transaction execution.

Burgher Gray finance attorneys collectively have over 100 years of capital markets and finance experience, having honed their legal skills at large corporate law firms, in-house legal departments and governmental agencies. Our attorneys have collectively represented clients with respect to various public and private debt and equity capital market and non-capital market transactions with an aggregate face value of well over $100 billion. Such transactions include public and private offerings of asset-backed securities, including Rule 144A, Section 4(a)(2) and Regulation D private placements, mezzanine financings, warehouse financings, asset-based lending transactions, real estate financings, credit restructuring transactions, and municipal finance transactions, as well as preferred equity investments and venture capital round financings, among others. Our attorneys advise on all aspects of financing transactions, including structure, securities law compliance, negotiation, documentation and execution.

FINANCIAL SERVICES/FINANCIAL INSTITUTIONS

With significant portion of its client base comprising financial services companies, including, without limitation, large global banking institutions, life insurance companies, financial guaranty insurance companies, community banks, finance companies, asset managers, securitization issuers and sponsors, and alternative investment funds, among others, Burgher Gray has a very active financial institutions practice and a wealth of experience gained from representing such clients in four general areas: (i) structured finance and derivatives, (ii) commercial finance, (iii) consumer finance, and (iv) litigation/bankruptcy.

  • In the structured finance, securitization and derivatives area, our attorneys have represented financial services companies in various capacities, including as investors, issuers, underwriters, initial purchasers, lenders, trustees, asset servicers, transaction sponsors, asset sellers/purchasers, rating agencies, and credit/liquidity support providers, among others, including in transactions secured by a variety of assets, such as consumer credit receivables (e.g., residential mortgage loans, credit card receivables, student loans, auto loans and leases), commercial and industrial loans, high yield bonds, commercial mortgage loans and structured products. We have also represented many different stakeholders in various workout transactions involving structured products and credit derivatives (including large portfolios of credit default swaps).
  • In the commercial finance space, our attorneys have represented banks, life insurance companies, hedge funds and other financial services companies in connection with the origination, workout and collection of mortgage loans, commercial and industrial loans and other credits, including bankruptcy and pre-bankruptcy workouts.
  • Similarly, in the consumer finance arena, we have represented consumer finance providers and related persons in context of (i) the development of risk management and compliance policies and procedures related to the extension of consumer credit, (ii) origination and workout of consumer credit, including residential home loans, auto leases, and credit cards, (iii) responding to escalated consumer concerns, and (iv) handling regulatory inquiries related to consumer credit complaints
  • Our experience is as broad as our transaction financial services transactional footprint, including breach of contract, loan and collateral enforcement, bankruptcy litigation, appearances before regulatory and judicial tribunals to defend against regulatory enforcement actions, and investigations by regulatory agencies.

STRUCTURED FINANCE/SECURITIZATION

With over 50 years of combined structured finance and securitization experience, Burgher Gray attorneys have represented issuers, underwriters, placement agents, collateral managers/investment advisors, institutional investors, servicers, sponsors, liquidity providers, credit enhancers and rating agencies on hundreds of structured finance and securitization transactions involving a variety of assets, public and private  securities offerings, and a variety of transaction types. Familiar asset classes include, among others, residential mortgage loans (performing and non-performing, agency and non-agency, VA, FHA and RHS), commercial mortgage loans, commercial and industrial loans (including leveraged loans), credit card receivables, automobile loans, student loans, micro ticket leases, ABS securities, residential mortgage backed securities and commercial mortgage backed securities.

STRUCTURED PRODUCTS AND DERIVATIVES

Burgher Gray attorneys have extensive experience representing issuers, investment and commercial banks, hedge funds, collateral managers/investment advisers, financial guaranty insurance companies and others in connection with a wide variety of structured products and derivatives transactions. Our experience includes the documentation, closing and remediation of over-the-counter derivatives transactions involving credit-linked notes, equity-linked notes, credit default swaps, total return swaps, basis swaps, interest rate swaps, currency swaps and other complex credit and equity derivatives transactions. We are experienced with ISDA documentation, including the drafting and negotiating ISDA schedules, confirmations and credit support documentation. In connection with our representation of underwriters/placement agents and asset managers and investors in structured finance and securitization transactions, Burgher Gray we have regularly negotiated and documented derivatives transactions. We also regularly advise clients in connection with their efforts to understand and quantify their exposures under various bespoke credit default swap transactions as well as in connection with their efforts to reduce or otherwise remediate credit derivative exposure.

PUBLIC FINANCE

Burgher Gray attorneys represent issuers, beneficiaries, underwriter’s and other transaction parties in the issuance of taxable and tax-exempt bonds the capacities of bond counsel, underwriter counsel, disclosure counsel, special counsel and bank counsel. We shepherd transactions from due diligence to closing, including negotiating, structuring and drafting agreements; drafting and filing ancillary documents; representing the client in engagements with third parties; and otherwise managing and ensuring the optimal execution of each transaction. Burgher Gray attorneys have represented state and municipal issuers with respect to the issuance of revenue bonds and general obligation bonds. One member of the firm previously worked as an investment banker for a housing finance group of a leading investment bank. Our experience as counsel in connection with the structuring and issuance of over $100 billion in structured finance securities and derivative products, uniquely enhances Burgher Gray’s ability to advise public issuers on a variety of matters relating to their financing requirements.

BANK LENDING AND INSTITUTIONAL INVESTING

Our lawyers have represented both borrowers and lenders in bilateral and syndicated lending transactions, including debt private placements andasset-based lending transactions. We are experienced with LSTA, ACIC and other documentation standards, and with negotiating and documenting various types of collateral and inter-creditor arrangements and credit facilities, including term, revolver, delayed draw, letter of credit and warehousing facilities. We also regularly represent bank lenders in connection with the origination of secured commercial and industrial loan.

In addition to the restructuring of existing credit terms, our distressed debt experience includes representing investors, sellers and brokers in purchases, sales and other transactions in the secondary market. In addition to drafting and negotiating related transaction documents, we review and analyze underlying transaction documents and collateral and debt structures and advise on related federal income tax and bankruptcy issues. Our substantive legal experience combined with our practical business approach ensures that we provide advice and devise transaction structures that efficiently achieve our clients’ goals.

FINANCIAL MARKET REGULATORY COMPLIANCE

Federal legislation has been enacted to deal with the recent financial crisis, including the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Housing and Economic Recovery Act of 2008. A number of programs and regulations affecting bank and non-bank financial institutions and other players in the financial services industry have been enacted pursuant to such laws, including the Volker Rule (Section 13 of the Bank Holding Company Act) and Risk Retention Rule (Section 15G of the Securities Exchange Act of 1934), and many more are still to come as regulators wade through thorny issues raised by applicable legislative mandates. Based on our considerable experience in representing financial services institutions, including in connection with securitization and structured finance transactions, and our familiarity with the financial products, transactions and practices that are the subject of much of the actual and prospective laws and regulations, we are well positioned to provide timely and strategic advice regarding the impact of such laws, regulations and programs.

We have worked on numerous comment letters and other matters with respect to significant issues before the SEC, and provide strategic, interpretive, transaction and liability management advice related to registered securities offerings under the Securities Act, Exchange Act disclosure filings and SEC rulemaking. Additionally, we assist clients in drafting SEC reporting documents and proxy statements, and meeting ongoing disclosure obligations, including compliance with Sarbanes-Oxley and Regulation FD.

Burgher Gray attorneys have counseled clients on day-to-day portfolio management with respect to issues that arise under the Investment Company Act of 1940 and the Investment Advisers Act of 1940, including available exemptions from investment company registration requirements, advice with respect to performance and advertising issues, distribution and revenue sharing arrangements, performance fees, and other compliance matters such as brokerage and portfolio trading practices and pricing and liquidity of portfolio positions. Our lawyers also advise broker-dealers on privacy and order handling rules, sales practices and advertising rules and numerous other matters relevant to broker dealers.

Representative Transactions

STRUCTURED FINANCE AND SECURITIZATION

Collateralized Debt/Loan Obligations
  • Represented strategic investors in in connection with the structuring, negotiation and documentation of CLO transactions
  • Represented CLO issuers in connection with the repackaging of various tranches of CLO securities in to combination notes issued by such issuers
  • Represented strategic CLO investors in connection with the Volkerization of CLO transactions in which they invested
  • Represented credit provider in connection with the financing of CLO risk retention by collateral manager of CLO transaction
  • Represented financial guaranty insurer in connection with its remediation of a portfolio of credit default swaps referencing CDO securities and municipal bond issuers
  • Represented underwriter/warehouse lender in the establishment and subsequent restructuring of a $1.2 billion warehouse financing facility secured by portfolio of cash and synthetic ABS CDO securities
  • Represented various underwriters/initial purchasers and collateral managers in structuring, negotiating and documenting numerous cash, synthetic and hybrid ABS CDO transactions ranging from $250,000,000 to over $2,000,000,000
  • Represented collateral managers in ongoing administration of managed middle market CLO and CDO transactions, including workout of defaulted assets, ranging from $250,000,000 to $1,500,000,000
  • Represented various underwriters/initial purchasers as deal counsel in structuring, negotiating and documenting numerous CLO transactions (market value and cash flow) ranging from approximately $250,000,000 to $1,500,000,000 (including middle market leveraged loans)
  • Represented various asset managers in structuring, negotiating and documenting several CLO and CDO warehouse financing facilities ranging from   $400,000,000 market value CLO transaction
  • Represented various investment banks, asset managers and CDO/CLO equity investors in connection with review and analysis and amendment of existing CDO/CLO documentation in light of adverse market conditions created by the recent credit and financial crises
  • Represented lender/CLO asset manager in connection with the origination of middle market commercial loans for ultimate disposition through CLO term securitization
  • Represented Standard and Poor’s in legal analysis of CDO’s and CLO’s in connection with its issuance of ratings on the related securities
  • Represented placement agent/initial purchaser in connection with issuance of $300,000,000 privately placed CDO notes, including a super senior variable funding note, and preferred shares backed by pool of cash and synthetic ABS securities
  • Represented underwriter in connection with issuance of $600,000,000 privately placed unrated CLO notes backed by a portfolio of leveraged loans
  •  Represented underwriters and issuers in connection with the issuance of asset backed securities (ABS)—including aircraft leases, automobile loans, credit cards receivables, micro ticket leases, retail installment sales contracts, student loans, trade receivables, ABS, and trust preferred securities
Mortgage Backed Securities Transactions
  • Represented the Federal Deposit Insurance Corp. (FDIC) in connection with the issuance of $298, 000,000 senior/subordinated notes by FDIC 2011 N-1 Trust, backed by a portfolio of non-performing residential mortgage loans (including FHA, VA and RHS loans) and REO properties owned by the FDIC in its capacity as receiver of several failed financial institutions
  • Represented FDIC in connection with the issuance of $160,225,000 FDIC Guaranteed Notes 2010-S3 Senior A issued by the FDIC Guaranteed Notes Trust 2010-S3 and backed by a portfolio of residential mortgage backed securities
  • Represented FDIC in connection with $135,700,000 FDIC Guaranteed Notes 2010-S4 Senior A issued by the FDIC Guaranteed Notes Trust 2010-S4 and backed by a portfolio of residential mortgage backed securities
  • Represented FDIC in connection with $679,200,000 FDIC Guaranteed Notes 2010-C1 Senior A issued by the FDIC Guaranteed Notes Trust 2010-C1 and backed by a portfolio of commercial mortgage backed securities
  • Represented underwriters, sponsors and issuers in connection with the issuance of residential mortgage backed securities (RMBS)—conventional and unconventional, performing and non-performing (including REOs), agency and private label, VA, FHA and RHS
  • Represented underwriters, sponsors and issuers in connection with the issuance of Commercial mortgage backed securities (CMBS)
  • Represented underwriter/arranger in structuring, negotiating and documenting on-balance sheet securitization of an approximately $6,000,000,000 portfolio of mortgages, with the highest rated tranches of securities being retained and pledged by the sponsoring bank to the federal reserve and the mezzanine tranches of which were “sold’ to underwriter via credit default swaps
  • Represented major investment bank sponsor/underwriter from 2000 to 2007 in negotiating and structuring numerous whole-loan purchases and effecting numerous subsequent public and private offerings of mortgage pass-through certificates through securitization transactions utilizing various structures, including agency and non-agency credit enhancements
  • Represented issuer/sponsor in connection with its Residential Mortgage Securities Funding 2008 Program, Series 1 through 7
  • Represented iStar Asset Receivables Trust Collateralized Mortgage Bonds, Series 2002-1 and Series 2003-1.Represented credit various providers in connection with the establishment of numerous residential mortgage warehousing facilities, including commercial paper facilities
Asset-Backed Securities And Derivatives Transactions
  • Represented borrower in connection with a structured asset-based Mezzanine Secured Credit Facility backed by micro-ticket leases, with Goldman Sachs as senior lender
  • Represented FDIC, as receiver of Advanta Bank Corp, in connection with the sale of the transferor interest in the Advanta Business Card Master Trust (face amount $664 million) and non-securitized business card receivables (face amount $15 million) originated by Advanta Bank Corp.
  • Represented underwriter/letter of credit provider bank in connection with issuance of Vermont Student Assistance Corporation Education Revenue Bonds, Senior Series 2008A-1, tax exempt variable rate demand bonds, structured to take advantage of the DOE liquidity put/participation programs as an exit strategy
  • Represented financial guaranty insurer in connection with its remediation of a portfolio of credit default swaps referencing CDO securities and municipal bond issuers
  • Represent bank counterparties in negotiating and documenting bespoke credit and equity derivative transactions on a portfolio and single name bases
  • Represented private equity fund in negotiating, structuring and documenting the non-recourse re-financing of a portfolio of multifamily mortgage loans and related assets in the form of a $50,000,000 preferred equity investment by strategic investor
  • Represented Issuer/Sponsor in connection with issuance of $900,000,000 of Floating Rate Notes backed, by a revolving portfolio of credit card receivables under the Target Credit Card Owner Trust program
  • Represented warehouse lender in connection with the establishment of the Drivetime Auto-Loan Warehouse Facility
  • Represented dealer syndicate in connection with the issuance of securities under the PRICOA Global Funding I program, a $3,000,000,000 Global Medium Term Note Program administered by Prudential and backed by a series of insurance funding contracts issued by Prudential
  • Represented dealer syndicate in connection with the issuance of securities under the Nationwide Life Global Funding program, a $5,000,000,000 Global Medium Term Note Program administered by Nationwide and backed by a series of insurance funding contracts issued by Nationwide
  • Represented dealer syndicate in connection with the issuance of securities under the Metropolitan Life Global Funding program, a $10,000,000,000 Global Medium Term Note Program administered by Met Life and backed by a series of insurance funding contracts issued by Nationwide
  • Represent underwriter/arranger in structuring, negotiating and documenting terms of offering for the sale of $500,000,000 initial equity securities in newly formed onshore/offshore hedge funds established to invest in CLO equity of transactions to be sponsored and managed by related asset manager
  • Represented sponsor/issuer in connection with establishment of and issuances under $20,000,000,000 multi-currency MTN program, backed by various assets (primarily ABS CDO collateral)
  • Represented sponsor/issuer in connection with Various Commercial Paper Liquidity Facilities, including Euro Commercial Paper Program
  • Represented the underwriter in connection with issuance of Carlyle High Yield Partners, L.P. Limited Partnership Interests and Participating Shares
  • Represented bond insurer in connection with the establishment of the Marlin Equipment Leasing Receivables Warehouse Facility and issuance of Series 2000-A Note thereunder
  • Represented bond insurer in connection with the issuance by MFN Auto Receivables Trust 2001-A and MFN Auto Receivables Trust 2002-A of certain Automobile Receivables-Backed Notes
Public Finance and Community Development
  • Represented the Dormitory Authority of the State of New York, as co-bond counsel, on multiple personal income tax revenue bond issuances
  • Represented Howard Road Academy Public Charter School, Inc. in connection with the District of Columbia’s issuance of revenue bonds for the school’s benefit
  • Represented Paramount Development LLC in connection with the negotiation and drafting of a real estate development joint venture agreement regarding the acquisition and mixed-use development of a 1.3 acre lot in Washington, D.C. that will entail a 131,000 square foot office space, 16,000 square feet of retail space and a separate 60,000 square foot residential building
  • Represented Paramount Development LLC in connection with the acquisition of an ownership interest in the master development entity (and subsequent negotiation and drafting of such entity’s LLC operating agreement) of the $1.5 billion Southwest Waterfront Redevelopment Project that features approximately 2.4 million square feet of mixed-use development, in addition to 300 marina slips and a 2,500 car below-grade parking garage
  • Represented letter of credit and liquidity support provider in connection with issuance by the Vermont Student Assistance Corp of $150,000,000 of variable rate demand funding tax exempt b bonds backed by a portfolio of FFELP student loans
  • Represented Red Dove Partners LLC in connection with the acquisition of a 10.3 acre parcel of raw land in Prince Georges County, Maryland in connection with the proposed $44 million development of a moderate density, multi-family, mixed-income housing development consisting of approximately 250 units
  • Represented Red Dove Partners LLC in connection with the acquisition of a majority ownership interest in the master development entity of a $5 million development of short-term rental luxury villa apartments in the Peterborg and Wintberg Peak neighborhoods in St. Thomas, U.S. Virgin Islands
  • Served as underwriter’s counsel in connection with the City of Denver’s issuance of certificates of participation for the construction of a justice center
  • Served as bond counsel for the Colorado Education and Cultural Facilities Authority in its issuance of several charter school construction revenue bonds throughout Colorado.
  • Represented various underwriters in the issuance of several general obligation bonds for the construction of several metropolitan districts throughout Colorado
  • Represented the National Capital Revitalization Corporation in connection with the disposition of its Southwest Waterfront properties to the Anacostia Waterfront Corporation in exchange for $25 million in cash and $24.5 million worth of other properties
  • Represented the RLA Revitalization Corporation in connection with the establishment of a $400,000 CDBG loan facility to the Union Temple Community Development Corporation and CEMI-Ridgecrest for the construction of the Walter E. Washington Community Center in Southeast Washington, D.C.
  • Represented the RLA Revitalization Corporation in connection with the establishment of a $350,000 loan facility to the Marshall Heights Community Development Corporation for the purchase of land in Southeast, Washington, D.C. to spur economic development
Banking
  • Regularly represent bank lenders in connection with the origination of secured commercial and industrial loans
  • Represented insurance company lender in connection with the establishment of $500 million commercial real estate warehouse credit facility
  • Represented Sunbeam Corporation in the arrangement of a $1.4 billion credit facility in connection with the acquisition of The Coleman Company, Inc., Signature Brands, Inc. and First Alert, Inc.
  • Represented Sithe Energies, Inc. in the refinancing of its $500 million senior secured revolving credit facility.
  • Represented Pacalta Resources Ltd. in connection with the amendment and restatement of the credit agreement governing the company’s $50 million senior secured revolving credit facility.

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