Client Alert. Department of Energy Title XVII Loan Guarantee Program: Key Considerations. Introduction. Overview of the Loan Guarantee Program

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1 Number 840 March 24, 2009 Client Alert Latham & Watkins Finance Department Department of Energy Title XVII Loan Guarantee Program: Key Considerations While ARRA 2009 expanded the Loan Guarantee Program to include projects involving commercial clean energy technologies and appropriated $6 billion to pay the costs of the guarantees, it has not provided a detailed mechanism for DOE to resolve most of the pressing problems facing the existing program. Introduction In Title XVII of the Energy Policy Act of 2005 (EPAct 2005), Congress established a loan guarantee program (the Loan Guarantee Program) administered by the US Department of Energy (DOE or the Department) to catalyze muchneeded investment in certain clean energy projects. To date, the Loan Guarantee Program has been granted a total of $42.5 billion in loan guarantee authority. On March 20, DOE entered into its first conditional commitment to issue a $535 million loan guarantee to Solyndra, Inc. 1, to support the company s construction of a cylindrical solar photovoltaic panel manufacturing facility in California. DOE has not, however, finalized a single guarantee under the Loan Guarantee Program. In addition, The American Recovery and Reinvestment Act of 2009 (ARRA 2009) expanded the scope of the Loan Guarantee Program to include other categories of eligible projects, and appropriated $6 billion to pay the costs of guaranteed loans made to certain eligible projects under a temporary program. This Client Alert describes the Loan Guarantee Program as it currently is being implemented by the Department, and the ARRA 2009 provisions related to the program, as well as several challenging aspects of the program that potential applicants should consider. Overview of the Loan Guarantee Program Title XVII of the EPAct 2005 authorized the DOE to issue loan guarantees for projects that: 1) avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases; 2) will be constructed and operated in the US; 3) employ technologies, defined as New or Significantly Improved Technologies, that: a) are concerned with the production, consumption or transportation of energy; b) are not Commercial Technologies a technology that has been in use in at least three commercial projects in the US for at least five years in each such project, measured from the in-service date; c) either (i) have only recently been developed, discovered or learned or (ii) involve or constitute one or more meaningful improvements in productivity or value as compared to Commercial Technologies in the US; Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy and an affiliated partnership conducting the practice in Hong Kong. Under New York s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY , Phone: Copyright 2009 Latham & Watkins. All Rights Reserved.

2 d) have the potential to be replicated in other commercial projects in the US; and e) are or are likely to be available in the US for further commercial application; and 4) are not research, development or demonstration projects. The principal objectives of the Loan Guarantee Program are to (1) facilitate the introduction of new or significantly improved energy technologies with a high probability of commercial success into the marketplace, and (2) achieve significant environmental benefits. DOE currently implements the Loan Guarantee Program by issuing solicitations. Beginning in August 2006, five such solicitations have been issued for various categories of projects: advanced nuclear power facilities, advanced front-end nuclear facilities, innovative clean coal facilities, and a wide variety of energy efficiency, renewable energy, and advanced transmission and distribution technologies projects. Current Program Rules and Requirements Basic Structure Loan guarantees under the Loan Guarantee Program are available to support loans to pay certain Project Costs for eligible projects. Project Costs are costs, including escalations and contingencies, incurred by a borrower that are necessary, reasonable, customary and directly related to the construction, commissioning and start-up of eligible projects. 2 Among certain other ineligible expenses, DOE will not guarantee a loan to cover expenses that it determines are excessive or not directly required to carry out the project (including the cost of hedging instruments); borrowerpaid fees and expenses associated with the Loan Guarantee Program including the Credit Subsidy Cost (which is defined later in this Alert); and expenses incurred after start-up and commissioning of the project but prior to the project s in-service date. 3 Projects for which guarantees are sought must be structured in the following way: Loan guarantees may only support loans in amounts up to 80 percent of an eligible project s total Project Costs, and the project sponsor is required to make a significant equity contribution to the project. The loans must be made by the Federal Financing Bank or other Eligible Lenders under the DOE s implementing regulations. If the applicant seeks a guarantee for 100 percent of its total debt obligation, the applicant must obtain the underlying loan from the Federal Financing Bank. The loans must mature on the earlier of 30 years or 90 percent of the project s useful life. DOE must have a first priority security interest in all project assets. Other than for projects under the temporary program described later in this Alert, the borrower must pay the Credit Subsidy Cost of the guarantee, which is calculated as the net present value of estimated (a) payments by the government to cover defaults, delinquencies and other payments; and (b) payments to the government including origination and other fees, penalties and recoveries (all as discounted to the point of disbursement), and all administrative fees related to issuing the guarantee. Application Process Given the difficulties DOE has faced with respect to the Loan Guarantee Program, the implementing regulations may be revised in the near term. However, the current application process offers some insight into how DOE may implement the Loan Guarantee Program in the future as well as how it will implement the temporary program 2 Number 840 March 24, 2009

3 described later in this Alert. Under the existing implementing regulations, a project sponsor may submit an application if the project is physically located in the US or its territories, and the project meets the applicable eligibility criteria. Applications currently are accepted solely through the solicitation process. Only one application may be submitted per project using a particular technology. Twentyfive percent of the non-refundable application fee must be submitted with each application. 4 DOE performs a full technical and financial review of applications that pass an initial completeness screening. Independent consultants and outside counsel may assist the Department to perform the due diligence required, and applicants are required to pay all of the attendant fees and expenses. Applicants must also remit the remaining 75 percent of the application fee immediately prior to the initiation of the technical and financial review. If, after the technical and financial review, DOE believes an applicant s project to be suitable for a guarantee, DOE and the applicant would then negotiate a term sheet. DOE is not obligated to issue the guarantee, however, until financial closing on the Loan Guarantee Agreement (the interim period between finalization of the term sheet and financial closing is known as a conditional commitment ). Prior to financial closing, an applicant must pay the Credit Subsidy Cost in full and satisfy any other conditions precedent imposed by DOE. 5 The amount of time required to obtain a loan guarantee is uncertain. DOE Secretary Steven Chu, however, recently stated that DOE plans to begin issuing guarantees to applicants from past solicitations by late April or early May DOE s recent conditional commitment to issue a $535 million loan guarantee to Solyndra, Inc., an applicant from a pre-solicitation issued in 2006, may be an attempt to signal that DOE is moving forward to try to meet Secretary Chu s stated goals. The Department also has indicated that it may begin to accept applications on a rolling basis, rather than through solicitations, to speed the review process. However, further delays may occur, as at this point in time DOE does not appear to have put in place a process for issuing guarantees in any programmatic way. Application Requirements An applicant must submit a significant amount of information in order to apply for a loan guarantee. In fact, some recent applicants have submitted as many 1,000 pages of information to try to obtain a guarantee. 7 The various informational requirements can be broken into four general categories: project description; potential bankability; prospects for repayment of the debt obligation; and creditworthiness of the applicant. First, an applicant must provide a detailed description of the project, including descriptions of all Project Costs, all parties providing any engineering, procurement, construction, operations and/or maintenance, including component suppliers, and all material permits required to proceed. Independent engineer s reports, environmental assessments, real property appraisals, material contracts (in draft or execution form) and legal opinions must also be submitted. Second, an applicant must submit market analyses, business plans and financial models, including pro forma balance sheets and income and cash flow statements for the proposed term of the guarantee, to allow DOE to assess the project s bankability. Third, an applicant must submit a description of the sources and uses of debt and equity, a list of assets to be used as collateral for the debt obligation, and a preliminary credit assessment for the project from a nationally recognized 3 Number 840 March 24, 2009

4 rating agency if the estimated Project Costs exceed $25 million. If the applicant plans to obtain the guaranteed loan from a financial institution other than the Federal Financing Bank, the applicant also must include information regarding such financial institution and why it qualifies as an Eligible Lender under the implementing regulations. Finally, financial statements for as many of the past three years as are available must be submitted, as well as a credit history for the applicant and any party who owns or controls a 5 percent or greater interest in the project or the applicant must be submitted. In general, the application requirements are detailed and extensive, and many applicants have found them to require information beyond what DOE may need to provide the loan guarantee. Selection Criteria DOE evaluates the technical and programmatic aspects of each project as well as the creditworthiness of the project and applicant in order to choose likely awardees, including (a) technical relevance and merit; (b) applicant capabilities, technical approach and work plan; (c) environmental and energy security benefits, construction factors, and legal and regulatory factors; and (d) creditworthiness of the applicant. DOE appears to rank projects across these categories as compared to other, similarly situated projects for which applications have been submitted and as compared to projects and/or technologies already being used in the marketplace. It also appears that DOE focuses significantly on the creditworthiness of the applicant. In several past solicitations, DOE has based as much as 50 percent (30 percent in the most recent solicitation) of its decision on the project sponsor s or applicant s creditworthiness. Greater weight also is given to projects which are applying for a guarantee that is a smaller percentage of debt and of total Project Costs, all else being equal. ARRA 2009 Establishes a Loan Guarantee Program for Shovel-Ready Projects ARRA 2009 did not provide any additional loan guarantee authority to DOE with respect to the original Loan Guarantee Program or extend its current authority (which is set to expire on September 30, 2009). It did, however, establish a new loan guarantee program for certain eligible, shovel-ready projects (the Temporary Program), and ARRA 2009 appropriated $6 billion to cover the costs of guarantees (including administrative expenses and, importantly, the Credit Subsidy Cost) for the new program. Congress expects that the Temporary Program may support at least $60 billion in loans for qualifying projects, although the Administration has suggested that the financing activity resulting from the $6 billion appropriation could be significantly higher. Projects that will commence construction prior to September 30, 2011 are eligible for a guarantee under the Temporary Program if they fit into one of the following three categories: (i) renewable energy systems, including incremental hydropower, that generate electricity; (ii) electric power transmission systems, including upgrading and reconductoring projects; and (iii) leading edge biofuel projects 8 that will use technologies performing at the pilot or demonstration scale that [DOE] determines are likely to become commercial technologies and will produce transportation fuels that substantially reduce life-cycle greenhouse gas emissions compared to other transportation fuels. 9 Consistent with the broader goals of ARRA 2009, the Temporary Program is designed to facilitate financing for shovel-ready renewable energy projects employing commercially demonstrated technologies (as opposed to new or significantly improved technologies that are eligible under the original Loan Guarantee 4 Number 840 March 24, 2009

5 Program). 10 DOE s loan guarantee authority under the Temporary Program expires on September 30, Shortly after the ARRA 2009 was enacted, DOE announced what it called a sweeping reorganization to facilitate and expedite the issuing of guarantees under both the original Loan Guarantee Program and the Temporary Program. Specifically, Secretary Chu announced that: New applications will be reviewed on a rolling basis rather than by solicitation; Application forms will be streamlined and simplified; Certain applicants may have the opportunity to pay application fees at closing rather than prior to technical and financial review; The Credit Subsidy Cost will be restructured to be payable incrementally over the life of the loan rather than at closing (presumably where not paid with the $6 billion appropriation as described previously); Additional staff will be hired to assist with application processing; and A Web site will be created to increase transparency and help applicants through the process. 11 In addition, Secretary Chu recently announced that DOE plans to begin offering guarantees under the Temporary Program in early summer of 2009 and to utilize fully 70 percent of its $6 billion appropriation from the ARRA 2009 by the end of At this time, it is unclear whether DOE will implement the Temporary Program under the existing regulations or develop new regulations specific to the Temporary Program. DOE could seek to implement the Temporary Program under the existing regulations, with revisions to accommodate certain aspects of the new program. Recent public comments by Secretary Chu also suggest that DOE may revise the existing regulations to expedite the application process and ensure that funds are expended more quickly under both the original Loan Guarantee Program and the Temporary Program. However, DOE may determine that revising the existing regulations could require the use of public notice and comment rulemaking, which could hinder timely implementation of the Temporary Program and further delay issuance of guarantees under the original Loan Guarantee Program. Therefore, prospective applicants should consider the following challenges inherent in the current implementing regulations: Certain Financing Structures Not Supported Under the Loan Guarantee Program s implementing regulations, guarantees are available solely to support loans and other debt obligations. Financing structures in the renewable energy sector in recent years largely have been equity-driven, with passive investors taking advantage of the renewable energy tax credits available to such projects. Three examples of such structures are the sale-leaseback, lease pass-through and partnership flip financing structures. In the current financial climate, equity investors tax appetites are significantly lower, thus there is a lower incentive for such equity investors to enter into these transactions and provide much-needed funding to the sector. Under the current regulations, the equity portion of such financing structures is not eligible for support under the Loan Guarantee Program, and the complexity of these structures makes it challenging to incorporate even the debt portion into the Loan Guarantee Program. DOE staff has suggested that issuing guarantees for these types of transactions will be difficult to implement. Extensive Application Requirements The existing application process is costly and extensive. One hundred percent of 5 Number 840 March 24, 2009

6 the application fee must be paid before DOE even begins the technical and financial review of an application. This application fee is non-refundable, can be significant and must be paid without any sense of whether an applicant would succeed in obtaining a DOE loan guarantee. DOE filing requirements are extensive, and in some instances, arguably unnecessary. For example, DOE requires projects with estimated costs in excess of $25 million to submit a preliminary credit assessment from a nationally recognized rating agency that assigns a rating to the project without the loan guarantee. Acquiring this rating is costly and time consuming for the applicant and may not necessarily provide useful information to DOE because ratings for projects in need of a loan guarantee (i.e., not tested in the financial markets) will be highly dependent on the existence or non-existence of the guarantee. Perhaps a less rigid and formal assessment by an investment bank or similar entity would be more useful. The existing application requirements also include other documents that are not generally available at the stage an application is submitted, including commitment letters from potential debt and equity providers, closing checklists and certified appraisals for real property. All of this is complicated by the fact that DOE currently administers the program by issuing solicitations, rather than on a rolling basis. Solicitations have only allowed project sponsors to submit applications in relatively short windows of time. For instance, applicants in the most recent solicitation originally had just two months to compile and submit their applications. While the deadline subsequently was extended by two months, giving applicants a total of four months, the sheer volume of information required to be submitted and the significant costs required to be paid in such a short time nonetheless made it difficult for some applicants to participate in the program. DOE recently announced plans to allow at least some applicants to submit applications on a rolling basis, rather than by solicitation. Some sources have indicated, however, that this reform might only apply to applications for loan guarantees below a certain dollar threshold. 13 Credit Subsidy Cost: An Uncertain, Potentially Significant Cost DOE statutorily must receive the Credit Subsidy Cost either from congressional appropriation or from the applicant. Other than with respect to the Temporary Program as described previously, no such appropriations have materialized with respect to the Loan Guarantee Program. In addition, in its recently introduced appropriations bill for FY 2009, Congress specifically states that no appropriations are available to pay the subsidy cost of any guarantees issued by DOE under the proposed $47 billion in additional loan guarantee authority. 14 Applicants outside of the Temporary Program, therefore, currently must pay the Credit Subsidy Cost, separate and apart from the application fee, prior to financial close. Note that the Credit Subsidy Cost is not an eligible Project Cost and thus cannot simply be rolled back into the amount for which applicants seek a guarantee. The Office of Management and Budget (OMB) calculates the Credit Subsidy Cost using a proprietary financial model that takes into account the project s financial and business plan, the creditworthiness of the applicant and the terms and conditions of the guarantee under negotiation. Neither OMB nor DOE has made its model public. Moreover, DOE first provides an applicant with an estimated Credit Subsidy Cost amount only when it provides the term sheet months after the applicant submitted its application and after the applicant has paid the full application fee. ARRA 2009 appropriated $6 billion to cover the Credit Subsidy Cost 6 Number 840 March 24, 2009

7 for projects eligible to receive loan guarantees under the Temporary Program, but did not appropriate any such funds for existing loan guarantee applicants. DOE recently announced plans to restructure the Credit Subsidy Cost for some applicants under the original program, such that the Credit Subsidy Cost would be payable over the life of the loan rather than in a lump sum at closing. It is unclear, however, whether this reform will be implemented on a case-by-case basis, apply to all applicants seeking guarantees below a certain threshold, or apply to all applicants generally. Intercreditor and Collateral Issues During the process of developing regulations to implement the Loan Guarantee Program, many commenters stressed the need to be able to separate, or strip, the non-guaranteed portion of the loan from the guaranteed portion in order to finance a project with multiple tranches of pari passu debt as is customary in project financing structures. This ability traditionally has been important for projects with significant construction costs that will exceed the likely capacity of the Loan Guarantee Program e.g., nuclear power facilities. While the existing implementing regulations allow for sharing of collateral proceeds on a pari passu basis with other lenders, DOE statutorily retains superior control with respect to decisions regarding dispositions of project assets. The preamble to the regulations states that DOE retains as a superior right the ability, even over the objections of other parties, to decide against the liquidation of project assets and instead to complete construction of the project, subject to appropriations, or to sell an incomplete project to an entity that will complete the project. 15 Therefore, if a project applicant seeks a guarantee for, e.g., 75 percent of the total debt obligation, the lender providing the remaining 25 percent of the debt financing must agree to subordinate at least some of its collateral rights to the US government. This structure is certainly different from that utilized in customary project financings, including those involving government agency lenders like the Overseas Private Investment Corporation (OPIC) and US Export-Import Bank (USEXIM), and may be less attractive for lenders that would otherwise be interested in financing projects side-by-side with DOE. We expect that the intercreditor tensions caused by this aspect of the regulations may encourage applicants to try to seek DOE guarantees for 100 percent of the debt obligation (even though DOE views more favorably those applicants who seek guarantees for lower percentages of the total debt and even originally drafted the regulation to allow for guarantees of no more than 90 percent of the total debt). This may result in greater borrowing from the Federal Financing Bank, rather than obtaining diversification with other lenders. The existing regulations also prohibit that the non-guaranteed portion of the loan from being repaid on a shorter amortization schedule than the guaranteed portion. The regulations allow the guaranteed portion to be amortized over a period of up to the shorter of 30 years or 90 percent of the projected useful life of the project s major physical assets. Being able to amortize the guaranteed portion of the loan over 30 years certainly would be beneficial to the economics of many projects. However, these projects may often require a non-guaranteed tranche in order to fund all project costs, either because of the size of the project or the fact that certain costs may not be eligible under the Loan Guarantee Program or may have to be funded prior to the issuance of a loan guarantee. Many funding sources either cannot lend on a 30-year basis because of internal policies (e.g., certain export credit agencies) or will not lend on such basis on commercially reasonable terms. 7 Number 840 March 24, 2009

8 Thus, the applicant may have to either obtain the guaranteed portion of the loan with a shorter maturity, potentially impairing the project s economics, or be limited in the sources it can tap to fund project costs not covered by the guaranteed portion. The implementing regulations require that DOE have a first priority security interest in all project assets, which is consistent with typical project financing structures. However, the regulations also require that the collateral package include other collateral or surety, including non-project related assets, determined by DOE to be necessary to ensure repayment. In addition, applicants to date have experienced requests from DOE for undertakings akin to sponsor guarantees. Expanding the collateral and other support requirements beyond the project assets removes the non-recourse benefit of project financing to the sponsors and may create uncertainty for the sponsors as to how much of their balance sheet they will need to put on the line in order to obtain a loan guarantee. Significant Cash Equity Contributions Required The regulations state that the face value of the debt guaranteed by DOE may not exceed 80 percent of the total project costs. Though the Department declined in the final regulations to set a fixed, numerical minimum equity contribution (the draft regulations originally required a 20 percent equity contribution), DOE nonetheless requires a significant equity investment and provides that such equity must be in cash. While DOE does not specify what amount it would deem to be significant, DOE stated in the most recent solicitation that projects with comparatively higher levels of equity commitments will be viewed more favorably than projects with lower levels of equity commitments. Several portions of the application require demonstration of the project sponsor s current ability to provide the needed cash equity (e.g., equity commitment letter, credit history, audited financial statements). This approach may not be favorable for applicants that are small companies without significant cash on hand. These applicants, especially those submitting applications for much-needed renewable energy projects, may prefer to fund the required equity through tax credits (e.g., the investment tax credit for solar projects), equity sales to tax-incentivized investors, contribution of existing tangible assets or intellectual property and other structures generally accepted in the relevant industry. Conclusion The Loan Guarantee Program has been hailed, at least in theory, as the greatest energy policy achievement in modern American history since the creation of the Strategic Petroleum Reserve within the Energy Policy and Conservation Act of The program in practice, however, has been described in less glowing terms: painfully slow, with an unacceptable rate of progress, stemming from institutional barriers, organizational intransigence, and bureaucratic dysfunction. 17 While ARRA 2009 expanded the Loan Guarantee Program to include projects involving commercial clean energy technologies and appropriated $6 billion to pay the costs of the guarantees, it has not provided a detailed mechanism for DOE to resolve most of the pressing problems facing the existing program. Moreover, Congress inaction in the ARRA 2009 with respect to the original Loan Guarantee Program may be a signal that Congress has serious intentions about creating a quasi-governmental clean energy bank (modeled on the OPIC and/or USEXIM) outside the Department to employ various financial tools, including but not limited to loan guarantees, to accelerate and scale capital formation for clean, domestic energy projects Number 840 March 24, 2009

9 In fact, a discussion draft of such a proposed bill recently was circulated in the Senate, for possible inclusion in a broader energy bill due to pass through the Senate Energy and Natural Resources Committee in the next few weeks. Whether it does so within the confines of the existing loan guarantee programs or by creating a new institution, DOE has the ability to remedy certain of the issues impeding its issuance of loan guarantees, and time will tell whether Secretary Chu and the DOE will succeed in quickly and effectively implementing these mechanisms so that the DOE loan guarantee programs can proceed efficiently to achieve the goals Congress established for DOE in EPAct 2005 and ARRA Endnotes 1 Latham & Watkins represented Goldman Sachs as Financial Advisor to Solyndra, Inc. 2 Loan Guarantees for Projects that Employ Innovative Technologies; Final Rule, 10 C.F.R (2007) C.F.R (c). 4 Application fees for individual solicitations differ greatly. For example, in the solicitation for advanced nuclear facilities, the non-refundable application fee was $800,000. The application fee under the most recent solicitation ranged from $75,000 to $125,000, with the highest fee reserved for projects seeking loan guarantees for energy efficiency, renewable energy, and advanced transmission and distribution technology projects in excess of $500 million. 5 DOE is statutorily obligated to receive the Credit Subsidy Cost either from congressional appropriation or from the applicant. Except with respect to the temporary loan guarantee program under ARRA 2009, no such appropriations have materialized; therefore, in all solicitations to date, applicants must pay the Credit Subsidy Cost, which is separate from any application fee, to obtain the loan guarantee. 6 Department of Energy, DOE Secretary Chu Announces Changes to Expedite Economic Recovery Funding, Feb. 19, 2009, energy.gov/news2009/6934.htm. 7 Steven Mufson, US Offers $535 Million Loan Toward Solar Energy Plant, Washington Post, D6 (Mar. 21, 2009). 8 Note that funding for guarantees for leading edge biofuels projects is capped at $500 million. 9 H.R. 1, 111th Congress (2009). 10 Department of Energy, DOE Secretary Chu Announces Changes to Expedite Economic Recovery Funding, Feb. 19, 2009, energy.gov/news2009/6934.htm. 11 Id. 12 Id. 13 See, e.g., Platts Electric Power Daily, Chu: DOE Hopes to Approve Loan Guarantees by April or May (Feb. 19, 2009). 14 H.R. 1105, 111th Cong. (2009). 15 Loan Guarantees for Projects That Employ Innovative Technologies; Final Rule, 10 C.F.R. 609 (2007). 16 Full Committee Hearing: To Receive Testimony on the Current State of the Department of Energy Loan Guarantee Program, 111th Cong. (Feb. 12, 2009) (statement of Kevin Book, Senior Vice President, Energy Policy, Oil & Alternative Energy, Friedman, Billings, Ramsey & Co., Inc.). 17 Full Committee Hearing: To Receive Testimony on the Current State of the Department of Energy Loan Guarantee Program, 111th Cong. (Feb. 12, 2009) (statement of The Honorable Alexander Andy Karsner, Distinguished Fellow, Council on Competitiveness). 18 Id. If you have any questions about this Client Alert, please contact one of the authors listed below or the Latham attorney with whom you normally consult: Jennifer F. Massouh jennifer.massouh@lw.com New York/London Chip D. Cannon chip.cannon@lw.com Washington, D.C. Suzanne M. Logan suzanne.logan@lw.com Washington, D.C. David L. Schwartz david.schwartz@lw.com Washington, D.C. 9 Number 840 March 24, 2009

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