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Corporate entities often turn to asset-based lending (ABL) as a strategic way to fund acquisitions, reduce capital volatility inherent in cash flow structures, or simply to accelerate growth. Secured by company assets, this alternative path to cash flow financing has historically followed the same process: companies choose a lending institution based on the most attractive deal structure, accept its deal terms, and undergo a field exam and asset appraisal to determine the appropriate borrowing terms.

The increase in loan and lease defaults in the wake of COVID-19 has brought to the forefront numerous legal defenses by borrowers and tenants, such as force majeure, impossibility, and frustration of purpose.  Force majeure allows a party to suspend or terminate their obligations when certain circumstances beyond their control arise.  Impossibility applies when the destruction of the subject matter of the contract or the means of performance makes contract compliance objectively impossible.  Frustration of purpose applies when a change in circumstances makes one party’s performance virtually worthless to the other.  The decision whether to permit these defenses boils down to allocation of risk, specifically (i) who should bear the risk of unforeseen circumstances, such as the pandemic; and (ii) does the governing contract address the allocation of risk?

The European Union’s recent passage of its Sustainability Financial Disclosure Regulation marks yet another milestone in the progression of environmental, social and governance matters. This article will review this regulation and related ESG disclosure requirements, together with other notable ESG developments, and discuss their impact on middle-market lenders.

Bantry Bay Capital Limited (“Bantry Bay” or the “Company”), the specialist lender, has established a joint venture partnership with funds advised by Elliott Advisors (UK) Limited and its affiliates (together “Elliott”). Elliott Advisors (UK) Limited is an affiliate of Elliott investment Management, L.P., the global fund manager with approximately $41.8 billion in assets under management.

U.S. Bank announced that John Freeman has been added to the Asset-Based Finance (ABF) team to head the group’s Corporate Client West and Southwest Originations.  Based in Los Angeles, Freeman brings more than 25 years of Asset-Based Lending experience with an extensive background in Credit, Restructuring, and Originations.  John will be responsible for providing asset-based solutions to companies, intermediaries and financial sponsors.

Tim Knight is the vice president and senior managing partner with ThinkingAhead, where he is responsible for operations, training and recruiting for the firm. He also leads the partner group that heads up the firm’s Commercial Banking and Commercial Finance, Legal, Life Sciences and Security/Physical infrastructure search practices.

This is Tim’s 25^th year in executive search. Prior to joining ThinkingAhead, he was with Southwestern Advantage as a District Sales Manager recruiting and training salespeople. Including his college summers, Tim has been with Southwestern Family of Companies for 35 years. In his 24 years with ThinkingAhead, he has personally filled over 400 engagements for clients and his teams over 2300 professionals placed with client companies and is the all team leader in personal production for ThinkingAhead.

In response to the newly passed Paycheck Protection Program Flexibility Act, SFNet issued a letter to Treasury Secretary Mnuchin, SBA Administrator Carranza and Members of Congress reiterating its calls to make secured lenders and factors eligible as borrowers under the Paycheck Protection Program Interim Final Rule, noting that these institutions ”who are a critical conduit of capital flows for our economy are now facing material economic hardship, not only from reduced economic activity, but by the displacement of revenue streams due to the success of PPP!”

Andy McGhee is vice chairman of White Oak Commercial Finance (White Oak), an affiliate of White Oak Global Advisors, LLC, and leads the firm’s lender finance business. He has over 30 years of experience in the lending business, most recently managing a multi-billion-dollar loan portfolio as the CEO of AloStar Capital Finance. In 2011, McGhee co-founded AloStar Capital Finance by acquiring a failed bank in Birmingham, AL.

At the time of its sale in 2017, AloStar had committed more than $3 billion to middle-market companies. McGhee has also served in various leadership roles covering asset-based lending (ABL) at SunTrust, Citicorp, Bank South and Bank of America. McGhee sits on the board of directors for Piedmont Hospital in Atlanta and is an Elder at Peachtree Presbyterian Church. He holds a B.A. in economics from the University of Georgia.

The data in this Annual Factoring Industry Survey presents results from a period that now seems like a distant memory. Sitting down to write commentary was very challenging. Commenting on the past year seemed moot; and attempting to correlate or speculate on the future of our industry seems a fools’ errand.

One thing to keep in mind is that receivables factoring is a an “all-seasons competitor” in the world of finance.  Factoring is a product that has been around for hundreds, if not thousands, of years, and so I am confident that it, like our economy, will weather the current stormy global conditions stemming from the pandemic. In fact, it is more likely that the industry will grow and thrive during this time of stress and uncertainty. The very design and nature of accounts receivable factoring is ideally suited for providing liquidity to businesses in times of financial, operational stress and uneven cash flow.

BDO USA, LLP announced that Brent Worthy recently joined the firm’s Business Restructuring and Turnaround Services practice, with a primary focus on covering the Southwest regional markets. Worthy, a seasoned leader in the management consulting space, has more than 15 years of experience creating and preserving value for organizations through corporate restructuring, M&A strategy and execution, and digital finance transformation.

Under Section 1106 of the CARES Act, Paycheck Protection Program (“PPP”) loans can be forgiven, in whole or part, under certain conditions.  The SBA has continued to release guidance with respect to the lender review process for loan forgiveness applications, most recently in the form of an Interim Final Rule published May 22, 2020. 

This new rule, the SBA Loan Review Procedures and Related Borrower and Lender Responsibilities (“Loan Review Process IFR”), provides important additional guidance with respect to a lender’s responsibilities for processing loan forgiveness applications in a timely and compliant manner.  The rule also describes the circumstances under which a lender may lose its processing fee, and potentially, the loan guaranty. 

While further guidance is expected, the Loan Review IFR outlines the general process for submission and processing of the loan forgiveness applications.

ForwardLine Financial, a leading provider of financing to small businesses, secures new credit facility from Ares Management.

ForwardLine Financial, a leading direct lender of small business loans, announced today that it has secured a new senior credit facility from funds managed by the Alternative Credit strategy of Ares Management. As part of this announcement, the company also shared that it has raised additional capital from Five Oceans Capital, a long-term investor in the company.

CIT Group Inc. (NYSE: CIT) today announced that CIT Northbridge Credit, as advised by CIT Asset Management LLC, served as sole lead arranger on a $45 million senior secured credit facility for MVP Payroll Financing LLC.

Based in Chandler, Arizona, MVP Payroll Financing provides business clients with staffing and administrative solutions covering human resources, payroll, workers’ compensation and more.

CIT Group Inc. (NYSE: CIT) today announced that its Asset-Based Lending business, working in conjunction with its Sponsor Finance group, served as lead arranger on senior secured credit facility for von Drehle Corporation, a leading maker of high quality paper towel, tissue and dispensing products.

von Drehle, headquartered in Hickory, North Carolina, used the proceeds to refinance debt and for general corporate purposes.