CrunchedCredit : Capital Markets Finance and Real Estate Attorneys

We’ve been writing a lot recently about the likelihood that European banks and, to a lesser extent, U.S. banks would be strongly incented to sell assets to improve capital ratios. We had a client briefing in New York on the Eurobank crisis a few weeks ago. We brought together our North American and European regulatory and transactional counsel to cover a wide range of issues from the sale of assets to rescue capital. We had a lively conversation on the panel and with the audience about asset sales. It was pretty clear to one and all that if assets are not disintermediated, bankers will be defenestrated. Given the choice, we are pretty sure the banks will sell assets.

De-risking of banks’ balance sheets might be less than terrific macroeconomic policy at a time when economic activity is weak and could be very bad if it touches off a powerful credit contraction and a descent into a continent full of zombie banks. That’s bad. But, always look on the bright side of life, in a Life of Brian sort of way. In the short to medium run, the velocity of transactional activity around financial assets will go up. Indeed, we have been very busy since mid-year buying, selling or financing pools of loans bereft of the love of the bank who made ‘em.

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While Europe is sorting through Dexia’s assets, it is worth exploring Dexia’s fall in light of Basel III. As mentioned here previously, Dexia had been reporting Tier I capital of roughly 10%. Well done! That would clearly meet the proposed capital requirements to be phased in over the next year. So what went wrong?

Dexia had pursued a strategy of aiming to be the largest player in municipal financing. It owned gobs of sovereign debt. Down-grades and write-downs of that sovereign debt have now left Dexia well short of its Tier I capital requirements (to the tune of 1.7 billion Euros).

This is hardly a man bites dog story. The Gnomes of Basel, and pretty much everyone else, misjudged the perceived credit risks of sovereign debt. Basel I (and, to be honest, II and III) encouraged the holding of sovereign debt by assigning the lowest risk-weight to such assets, meaning a reduced capital requirement. So, the banks bulked up and then: Off the cliff we all go! Is there still a warm glow of knowing one had met international norms?

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The other week, I was musing in this blog about the likelihood of more AIB and Bank of Ireland type auctions of U.S. Dollar denominated assets by European banks. In the Wall Street Journal, on Friday, September 23rd, the headline was “Banks in France Cut Dollar Loans”. The article focuses on two of France’s biggest banks, BNP Paribas and Société Générale, jettisoning U.S. Dollar denominated assets.

And then, the news about Dexia broke on October 10th. Dexia is a huge French-Belgian bank, though with a lesser profile here in the States than its more famous Parisian and Brussels-based sisters. The French, Belgian and Luxembourgian governments immediately swooped in to guarantee deposits and provide credit support and began chitchatting about a good-bank, bad-bank fix. The reaction in the markets has been curiously muted. Dexia is huge. Its reported balance sheet is more than 500 billion euros. (And, of course, Dexia had been reporting Tier 1 capital of 10% a couple of months ago. How’d that happen? But that’s a different story.)

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Returning from a Labor Day weekend spent cleaning up after Irene, here are some notes as I clean out the desk drawer of Summer 2011: 

• I spent the first week of August with my family on Martha’s Vineyard as the Dow Jones lost 1000 points, bond spreads blew out, securitized lending ground to a halt and the United States lost its triple-A credit rating. Past that, it seems the market held things together pretty well in my absence.
• Not altogether unsurprising, but still notable that during the trading days following the U.S. downgrade, treasury yields decreased, leaving some doomsday investors scratching their heads. Of course, the thing about betting on the end of the world is that you can only be right once.
• The third week of August saw the release of almost simultaneous reports that residential mortgage interest rates hit all-time lows and residential mortgage applications hit 15-year lows.
• Meanwhile, the FHFA is suing 17 or so of the nation’s largest banks for billions in losses incurred during pre-bubble subprime securitizations. Many analysts are asking when (if?) the U.S. will stop punishing banks.

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What the hell is going on here? I’ve got a business to run, and it’s really annoying that I can’t sort out whether we’re in the early stages of recovery or on the cusp of another train wreck. When Dad taught me to drive, he had to keep saying “Don’t look at where you are but where you’re going.” Good advice. Yet only as long as I look at the road right in front of me do I feel OK. If my eyes wander to the horizon, I get really itchy.

This recovery feels very brittle. Oh, sure, transactional activity is way up. If Dechert’s practice is the first derivative of the broader capital markets (and I think it is), then things have been getting progressively more robust for the better part of a year now. We’re growing, we’re hiring, deals are coming in at a goodly pace. Yet, everyone I know with the slightest capacity for reflection is touchy, to say the least.

So let’s do a S.W.O.T. analysis of where we sit.

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As the CMBS market begins to get its feet underneath it, a number of folks have begun to pine for the public markets. Since 2009, every CMBS deal has been issued as a 144A (or otherwise privately placed). The public market is beginning to feel like a memory. While there seems to have been relatively robust demand for product, a number of bankers say that demand is still somewhat constrained in the 144A institutional market place. They fondly remember the benefits of the public market: liquidity, better pricing, a wider investor pool. As the market rebounds, these bankers suggest that it may be time to dust off the shelves.

And so we thought it would be useful to revisit that bid and ask. For this purpose, we’ll assume that the hypothetical banker is right and that there are significant benefits to be obtained by reanimation of the public deal zombie. That’s the bid.

Here’s the ask. First, there’s that pesky little liability issue. The liability exposure for bankers and sponsors in the 144A market is less than in a public (registered) deal. No liability under Sections 11 and 12 of the Securities Act. That liability is generally pretty absolute (as to non-expertized info) subject only to a diligence defense. Liability in the private market is limited to 10b-5. The need to prove scienter and reliance in a 10b-5 action is a significant burden for an aggrieved investor. The difference in exposure to liability is a distinction not to be sniffed at. Yes, of course we always mean to get the disclosure right. But the underlying assets are complex and there’s an undeniable hunger among the plaintiffs’ bar to “discover” disclosure defects where honest folks, acting in good faith, thought adequate disclosure had been made. (Note also how much more ominous the enhanced liability exposure in public deals will be after FinReg and its progeny become law. As disclosure gets more complex and elaborate, the opportunities to stumble into liability grow exponentially.)

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Near the epicenter of the late unpleasantness was that wonder of complex engineering, the CRE CDO. It has been blamed for near everything that went wrong or was wrong in the commercial real estate space. It probably is responsible for the winters of 2010 and 2011.

The CRE CDO, as it was initially designed, was an on-balance sheet term financing facility which was designed to be free of the vicissitudes of traditional bank warehousing restrictions and, of course, the dread mark to market of the repo market. The transactions were often dynamic and had substantial term, often up to 7 years. Whole loans (as well as other stuff) which met the elaborate and complex (more on this later) eligibility criteria could be financed on a rolling basis with the proceeds from the disposition of assets reinvested for a substantial portion of the term. CRE CDO paper was customarily rated. The average cost of funds was substantially lower than what could be obtained on a straight bank facility. 

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Although there is renewed optimism for a vibrant CRE lending market in 2011 (or at least a significantly better market than the prior 3 years), many lenders and servicers continue to face challenges in dealing with delinquent or defaulted commercial mortgage and mezzanine loans (whether held on balance-sheet or securitized). The volume of these “scratch and dent” assets are expected to increase this year and are responsible for continued misfortune by masking positive returns and causing realized losses. Despite this misfortune and the associated headaches, there is appetite in the industry to acquire or aggregate large portfolios of these loans on the cheap, and make a buck or two in the process of restructuring the loans or exercising remedies.

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While perhaps akin to stories of sixteen foot gators in the New York sewer system, I have heard that there is a physiological basis for suppressing the more painful memories of childbirth which is the species’ way of ensuring that couples have more than one child. Perhaps a similar thing is affecting investors and market participants to allow animal spirits to be rekindled this January.

Oh, I think it’s fair to say that there were precious few animal spirits in January ’08 and ’09 and we were all a bit fluttery at the beginning of 2010, but I think we’ve put the worst memories of the last 3 years’ unpleasantness behind us and appear intent on enjoying the delightful frisson of booming times once again.
 

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Leading with the good news, the commercial mortgage finance market is back and growing at a brisk pace.  From a few standalones in the fourth quarter of 2009, we’ve gotten to a remarkable place.  Even during the first half of 2010, while lenders were hesitantly starting to lend, precious few lenders actually had real balance sheet availability for securitization.  That changed.  We’re back!  

Almost as soon as these markets began to function again, complaints about the quality of the loans began to bubble up.  OK, LTVs remain modest and, broadly, we’re not  underwriting pro forma income, but structural rigor and simplicity did not long endure.  Give me a break.  The joke has always been that our business had a seven year cycle and five year memories so that once in every cycle we’d recapitulate the errors of the last.  But five months?

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I’m writing from Pennsylvania Station on a particularly bad day for our national rail service (Amtrak) – apparently the heavy rains and gusts wreaked havoc with electrical wires running both North and South, delaying (or cancelling) every Acela, Keystone, Silver Meteor, Silver Star and Vermonter scheduled to leave our country’s busiest transport hub. The (woefully underrated) holiday movie Love Actually opens with Hugh Grant’s musing that when faced with the general gloominess of the world he considers the smiles of arriving Heathrow passengers as they greet their waiting loved ones. On this first day of December and first night of Hanukkah, however, I’m fearful that Mr. Grant would be sorely disappointed in the zeitgeist of the half-million or so travelers looking to depart for Stamford and Boston, Philadelphia and DC and the balance of the Northeast Corridor.

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 With Thanksgiving upon us and the holiday season in full swing, we here at CrunchedCredit.com would like to present our “Golden Turkeys”, noting certain special contributions to the ongoing resurrection of the Commercial Real Estate Finance industry.

The Golden Turkey for the Best Self-Inflicted Wound: FASB

Hands down, this goes to the Financial Accounting Standards Board. We don't know whether to give top honors to FAS 166 and 167 dealing with the transfer of financial assets or the new Fair Value Accounting Rules. But in any event, in a series of changes which certainly must have made more sense to academic accounting communities and to the financial markets and investors for which these little regulatory gems were designed, for reasons which remain curious even now, they've imported enormous financial volatility and burdened the balance sheets of financial institutions with assets they don't own and liabilities for which they have no contractual liability in the middle of the greatest financial correction in modern memory. At least we changed the rules of the game, we drop a giant pro-cyclical engine into the balance sheet, stir in a little FinReg, and, Viola! -- chaos. We could have hoped someone with regulatory gravitas could have stood up and said, "What are you thinkin'?" And now for a second heaping of goodness, FASB is considering expanding Fair Value to all financial assets, which will produce even more volatility onto the balance sheets of financial institutions. Oh, and have we mentioned Lease Accounting? If FASB has their way, all leases will be treated as capital leases. we can't even begin to tell you how bad that is. FASB, the winner in this category, hands down.

The Golden Turkey Award for Best Regulatory Knifefight: FDIC

This award goes to the FDIC. This late, lamented Congress began spinning the tale that the absence of skin in the game caused the capital meltdown over the past three years, and, in large measure, through sheer undisputed resolution, it has become received wisdom. (There must be a Golden Turkey for that itself, isn't there?) So the SEC begins a regulatory initiative to impose skin in the game requirements for use of a shelf in a publicly registered transaction. Good enough, and then the Congressional locomotive comes through and skin in the game becomes a part of Dodd-Frank. Under Dodd-Frank, all the relevant banking regulatory agencies and the SEC are directed to engage in joint rulemaking on skin in the game. In the middle of all this, the FDIC publishes its new securitization Safe Harbor, which contains a completely freestanding and independent skin in the game provision. Oh, sure, the Reg which is in final form is applicable as of January 1, 2011, has an auto-conform provision that the Dodd-Frank skin in the game provisions won't be law for two years, so we have, irrespective of the FDIC imposing its own set of conflicts rules on a certain sector of the securitization market, face a specific direction to engage in joint rulemaking. What the banking regulatory community thinks about this one can make the other members of the bank regulatory community and the Federal Reserve think about this one can only imagine. We suspect the SEC might be a bit pouty too.

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Last Thursday - an archetypal rainy and windswept late October afternoon in New England (think orange and red leaves underfoot, Finny and Gene walking to class, etc., etc.) - I attended the annual Symposium offered by the Real Estate Council of Boston College . In attendance, perhaps one hundred and fifty lenders, developers, investors, lawyers, brokers, professors and priests. As someone that participates in a fair number of these things, I can't say enough good things about the quality of the presentation coordinated by Cushman's Rob Griffin and the balance of TREC members. Even the welcoming remarks - in this case by BC President Fr. William Leahy, S.J. - included a thoughtful recognition of the state of the CRE market (having, in the past 5 years, acquired more than 50 acres of prime real estate, commenced construction of a massive new academic building and committed the bulk of a $1.5b capital campaign to the construction of student housing, it's clear this guy knows his way around a performance bond). His take - buy, never sell (not terribly surprising given his Boss' investment horizon). 
 

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Somehow, particularly this year, the fact that election eve and All Hallow's Eve arrive but three days apart seems so compellingly appropriate.  Both are scary and both involve an awful lot of people pretending to be something they're not.  But elections are supposed to have consequences while Halloween does not.  So let’s test that.  Does this election matter for CRE finance?  Or, how many treats and tricks did this election cycle have to offer?

As I write, the election is in the history books.   A resounding Republican victory in the House, while the Ds held on to the Senate by a smidge.  We hear the term game changer tossed around a lot, but will this indeed be a game changer for CRE finance?

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A recent Boston Magazine piece on Jack Connors (co-founder of Hill Holliday, Boston College alum and heir to the late Ted Kennedy’s position as city patriarch) noted, quite rightly, that the Hub is somewhat unique among major American cities in that no single industry dominates its cultural identity. In New York, Wall Street is (still) king. DC is lobbyists and Senate Bean Soup. Houston – oil; Los Angeles – alcohol monitoring ankle bracelets. (Not quite over the Lakers yet.) But Boston’s a bit odd - an amalgam of students, doctors, mutual fund managers, Democratic politicians and Democratic mobsters.

And let’s add commercial real estate to the list, as Boston may be among the first metro-areas to awaken from the malaise that has defined commercial real estate for recent memory. Last week - only days after announcing its acquisition of Bay Colony Corporate Center (a story covered here) - Boston Properties announced that it had come to agreement on the acquisition of the Hancock Tower, for $930 million, a stunning conclusion to a distressed-debt success story and the beginning of what some brokers are citing as evidence of a resurgence in demand for trophy office buildings. To give you a sense of the marketing and sale process, Rob Griffen of Cushman and Wakefield (Boston College, ’80) told the Globe that the bidding was “as fierce as anything [he’d] ever handled during [his] 30 years in this business.”
 

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Why not be optimistic about 2011? Admittedly, those who know me say that if I’m deeply pessimistic it’s time to buy guns, gold and canned food and dig a hole. But why not be optimistic about next year? Let’s tout it up.

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Two weeks ago, As the World Turns – a CBS soap opera documenting the lives of the inhabitants of the fictional town of Oakdale, Illinois – ended a 54 year run on daytime television. A shorter-tenured, but nonetheless compelling, local epic aired this week as Boston Properties announced that it had emerged from a bidding war to secure the Bay Colony Corporate Center – perhaps the premier office campus in New England – for a price of approximately $185 million (inclusive of assumed debt). As a real estate finance attorney in Boston, it’s a property I have fielded a lot of calls about. And, although missing the ubiquitous case of amnesia, it’s a story that would have made the good people of Oakdale proud.

The story of Bay Colony, corporate center, begins with its construction (on the former site of a pig farm along the Cambridge reservoir) at the height of the tech bubble. Located along Boston’s Route 128 tech corridor, the site comprises almost a million square feet of space on 58 acres, with 3,000 parking spaces to accommodate a rent roll that has listed a who’s who of Hub-area tech, venture capital and telecomm tenants. In fact, the sheer number of resident venture firms over the years - Advanced Technology Ventures, Charles River Ventures, Cedar Fund, Ironside Ventures, JAFCO Ventures, Longworth Venture Partners, Matrix Partners, Northbridge Venture Partners and Polaris Ventures Partners, to name a few – contributed to the property’s legendary status among entrepreneurs looking for investment dollars. A single workday onsite could yield three pitches.

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Last week, the Supreme Court of the State of New York handed down a decision in the battle between CWCapital, representing the senior mortgage debt as special servicer, and Pershing’s andWinthrop’s joint venture, who recently bought the mezz debt in this transaction at a deep discount.  Everyone knows what’s going on here.  The mezz debt was bought as a lever to attempt to get control of the property through, or in the shadow of, bankruptcy.  A successful workout would, by definition, compromise the senior debt.  To prevent that, CW sought injunctive relief to prevent the foreclosure of the mezz debt and they got it.  Unless this is reversed, it’s game over for the mezz because the foreclosure of the mortgage debt is coming up very soon. 

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Covered bond legislation is once again a hot topic on Capitol Hill. Representative Scott Garrett (R-NJ) co-sponsored the latest iteration of his proposed legislation (United States Covered Bond Act of 2010 or H.R. 5823 (pdf)) along with Representatives Kanjorski (D-NJ) and Bachus (R-AL). The House Financial Services Committee recently voted in favor of reporting H.R. 5823 to the full House of Representatives for consideration, which hopefully will be taken up for a vote this fall shortly after the August recess.

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It’s been very difficult to come up with a cohesive theory on what this earnings’ season has meant for the financial sector – and what investors’ reactions could mean for the credit markets. On Wednesday, Morgan Stanley reported earnings of 80 cents a share, crushing analysts estimates and sending its shares up 8% by mid-morning. At the same time, US Bancorp released an earnings report reflecting a 63% quarter-on-quarter increase in profit. Rounding out the morning, Wells Fargo reported an earnings rise of 12% ($0.55 eps vs. an estimate hovering $0.48 eps) and was rewarded with a pre-market rally of close to 5%. Good times.

But these numbers stood in stark contrast to the news a couple of days ago, as Citigroup beat earnings expectations but nonetheless saw its shares price drop. Citi met the bottom line, but missed at the top. The message: investors are increasingly less concerned with bottom line results - something that can be assuaged with cost-cutting and the shifting of one-time charges – and are focusing instead on top line (read: making money). Goldman Sachs did miss and was commensurately punished. But that may not be the whole story – after stripping out the $550m paid to the SEC (something touted as a “win” for the SEC, although it’s clearly a loss for an already slumping credit market), the miss didn’t look nearly as bad. But GS revenues were down 36% - and investors took notice. Conversely, the winners this season tended to be able to demonstrate the ability to grow by getting deals done.

In a lot of ways these greater investor expectations are a positive sign – the market’s appetite is no longer sated by mere survival. But what the investors are demanding now – that the financials go out and spark the credit markets – is a tall task in an environment dominated by high unemployment, continued de-leveraging, and a government policy designed to avoid catastrophe at the expense of generating opportunity. The obstacles to sustained growth being constructed by the government can’t be overstated – something Bank of America shareholders learned when the market departed the stock in droves after an earning report admission that compliance with Dodd-Frank could cost the bank $13 billion. But it could provide incentive for deals to be made (note that US Banc’s increased revenues were reportedly driven by earnings from new loans) and for banks to re-enter lending in greater numbers.
 

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Community banks – long touted as the “next domino to fall” during this late unpleasantness – were expected to be a significant source of distressed assets for savvy investors.  However, many are finding the FDIC Structured Loan Sale Program a long and bumpy road for investment.

Historically, the FDIC operated to separate the wheat (failed banks’ desirable, high-quality assets (i.e. depository bases)) from the chaff (the bad – sometimes very, very bad – loan assets that caused the failure in the first place).  Two decades ago, The Resolution Trust Corporation (RTC) found homes for over $400 billion of assets during the savings-and-loan crisis. This time around, however, the FDIC – holding in excess of $600 billion in distressed assets seized from failed banks – is steering away from outright bad asset sales to thresh out the chaff, opting instead for a policy designed to force would be bank buyers to take the bad with the good.

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Notwithstanding our optimism, it appears that there was not enough support from the Senate side of the reconciliation committee to include the proposed covered bond amendment in the final financial reform bill approved by the reconciliation committee.  However, the support received by the House and some members of the Senate committee indicates that covered bond legislation may, nonetheless, find passage in the near future.

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Earlier this week, Representative Scott Garrett (R-NJ) introduced an amendment to the proposed financial reform legislation that will establish a regulatory framework for a covered bond market in the United States.  The House side of the reconciliation committee quickly passed the measure - the Senate side is now considering it.  This development is welcomed news to a banking industry that has craved a covered bond market for some time now.  For our part, we've been examining covered bond structures since the advent of the credit crises as our clients continued to try to devise a workable structure, so we're very excited by this development. 

Covered bonds, which have been part of the European financing vernacular for over 200 years, function as a cross between an unsecured corporate bond and an asset-backed security.  Typically, a financial institution will issue a direct-recourse bond which is also secured by a specified pool of assets that remain on the financial institution's balance sheet.  These are attractive to investors for many reasons, most important of which is that the investor has recourse to a specified pool of assets in the event the financial institution becomes insolvent, unlike typical unsecured corporate bonds that depend solely on the issuer's credit.

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The Senate reconvened reconciliation hearings at noon today with a deal brokered yesterday to place the new financial watchdog agency within the auspices of the Federal Reserve, rather than establishing an independent agency.  This compromise by Congressional Democrats - which is engendering strong opposition from some important constituencies - could indicate a growing desperation to get something (anything, anything at all) in front of the President before his appearance at the G-20 this weekend.  As someone who spends a good piece of my week (and some weekends) reading and writing documents that are intended to build a legal framework around unforeseeable real-word events, I can appreciate the utter impossibility of crafting legislation that will simply get it right the first time.  I’ve learned this too many times:  As complexities increase, the better can become the enemy of the good. 

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According to the Boston Globe, the owners of Boston's signature office building - the John Hancock Tower - have begun marketing a significant stake in the building.  Many will remember that the Hancock Tower represented one of the Great Recession’s first large-scale mezzanine foreclosures, falling in late 2008/early 2009 when a joint venture comprised of Normandy Real Estate and Five Mile Capital acquired the building via mezzanine foreclosure.  As other industry players were “extending and pretending”, the team from Normandy/Five Mile did their homework, called the borrower’s bluff and bought themselves a building.  And now it looks like it may be paying off.

By accurately predicting the building's value and strategically purchasing mezzanine debt at the rights levels, the joint venture was able to seize control of the mezzanine stack and force foreclosure.  The master stroke - using mezzanine controlling holder rights to de-lever a bloated (and hugely complicated) mezzanine capital stack, while keeping attractively low-priced mortgage debt in place – serves as a brilliant example of sophisticated distressed-debt investing in CMBS structures and a primer on how to fight and win “Tranche Warfare”.
 

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FASB wants to expand Fair Value to other financial assets.  That bears repeating:  FASB has published an Exposure Draft that would extend the dubious joys of fair value accounting to ALL financial assets.  I so wish I was making this up.  On May 26, 2010, FASB published this missive. Fair Value seems to hold a religious (that's born again, not Presbyterian) fascination for the academic accounting community, which seems astonishingly indifferent to the horrifying role the viciously pro-cyclical fair value process played in the late “Great Recession.”  Isn’t the definition of insanity doing something a second time and expecting a different outcome?  What are we doing here?

The proposed new rules would require all financial assets, with very few exceptions, to be subject to a mark to market  requirement.  Banks and other financial institutions would be obliged to mark all loans whether held for sale (which makes some sense) or held to maturity.  For loans, the mark would hit Other Consolidated Income (OCI) and put equity on the Fair Value roller coaster.

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I write from CREFC’s annual do with my 800 or so best friends.  We are trying to party like it’s not 2009, and you know, we’re getting there.  The government’s still playing pin the tail on the regulatory donkey, Europe’s a mess, housing and employment are not ready for prime time, and the banking system hangover goes on.  Yet…JPM got a deal done, the bonds cleared, and pricing was… well, it’s been reported that they made a few bucks.

The CREFC convention kick off is the Monday night parties, of which yours truly was a host of the annual Dechert dinner.  Note I said parties with an “s”.  We’ve had a banker party drought these past few years. I see the return of the Street parties as a leading indicator of CMBS 2.0.  We cannot wish 2.0 into existence, but let’s face it:  A robust appetite for anything to invest in with yield measured in percentage points not basis points plus good vibes can a market revive.
 

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This article was published by Matthew T. Clark and Stewart McQueen.

For 150 attendees, Day 1 of the 2010 CREFC Annual Convention ended with dinner hosted by Dechert at Shelly's Trattoria in Midtown.  We thought the turnout was exceptional, and it was great to be able to socialize and dine with so many of our clients and friends.

The sessions continued this morning.  The Investment-Grade Bondholders Forum included a spirited debate about best practices for a CMBS restart, including risk retention and streamlined information flow.  Another panel, entitled Color of Money: Raising Capital in the Current Environment - Challenges and Opportunities, was very well attended as panelists discussed the hurdles to successful fund raising in this market. 
 

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This article was published by Matthew T. Clark and Stewart McQueen.

The 2010 CREFC Annual Convention has begun in earnest.  Day 1 began for many attendees with a meeting of the Securities and Loan Investors Forum.  This meeting included a lengthy discussion of the Fair Value Purchase Option and a perceived conflict of interest existing when the special servicer holds the securitization's B Piece.  A short break was followed by a lunchtime address from Congressman Scott Garrett (R - NJ), who was vocal in his critique of the current drafts of Financial Reform Legislation that is presently the subject of Congressional reconciliation. We just left the Servicers Forum, which was led by Forum Chair Daniel Bober from Wells Fargo. The Forum is currently working to identify the lessons learned from the past 36 months and to suggest industry-wide changes as we re-imagine CMBS 2.0.  The panel discussed common document deficiencies, issues relating to decision making authority under pooling and servicing agreements and investor frustration.  Next on the agenda is the Opening General Session on CRE Fundamentals, including an overview of the current state of the CRE market and a look toward the second half of 2010.

Depicted in the photo are Dechert attorneys/ bloggers Matthew T. Clark (left) and Stewart McQueen (right) with Larry Kligman from Ventras Capital Advisors LLC

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Last Friday I moderated a panel at the 11^th Annual IMN Real Estate Opportunity and Private Investment Forum in New York.  The two-day event consisted of about 40 separate concurrent panels and drew over 800 industry participants.  The topics covered revolved around distressed debt investing – loan workouts, exit strategies, tranche warfare and distressed asset sales. 

My panel's topic was “Loan -To-Own” strategies.  Our conversation began with the panelists discussing the common characteristics of successful loan-to-own transactions.  The common areas of focus included the importance of stringent property-level due diligence, exacting legal due diligence with respect to loan documents, a realistic understanding of foreclosure processes and timeframes, accurate modeling of acquisition and stabilization costs, and the importance of the local expertise that can be gained from local developers and operators.

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There's a headline to grab attention. It’s been reported that several Chinese and other non-domestic and non-traditional lenders are rushing across the American landscape looking for deals. Take a look at the WSJ article of June 2 about the International & Commercial Bank of China’s recent loan to GE. ICBC has over a trillion dollars of assets, it’s reported to be the most profitable bank in the world and it’s ready to lend. Maybe this is just a “no duh” moment, but what a terrific business strategy for any lender not damaged by the late unpleasantness (a Southern expression still in use about the Civil War but appropriate here)! If the gnomes of Basal get their way and require US and European banks to put up massive capital over the next couple of years, strong, unimpaired semi-sovereign banks may be the best ticket in town.

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Last week marked the three-year anniversary of New Century Financial filing Chapter 11 bankruptcy, an event that I tend to point to as demarcating "the beginning of the end" and "the end" of the housing bubble, and representing the true beginning of the credit crisis.

Until first quarter 2007, New Century Financial stood as the second-largest US subprime residential mortgage lender (after Countrywide), having contributed significantly to the awe-inspiring $500-plus billion in subprime loans made in 2006. However, faced with a funding deficit when New Century's lenders pulled back amid rising defaults on subprime loans, the company ceased lending operations in early March, 2007. The inevitable Chapter 11 filing followed quickly on April 2.

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