Understanding Differences Between a Syndicated Loan & Participated Loan is Crucial When It Turns Bad

As I've noted previously [link to due diligence topics], one big difference between the current commercial real estate melt down and the last big one (in the late 80s) is the amount or level of “structure” in the deals. Like the last time, the debtor\borrower side is “structured” (with a multi-tier borrower and perhaps even a “single purpose” entity); however, unlike the last time, the creditor\lender side also is structured.

A multi-creditor structure greatly complicates decisions covering a possible workout, the remedies to be invoked, and the management, leasing and eventual sale of the collateral (after foreclosure).

Indeed, co-lender disagreements are the most difficult part of this process.  (And one lesson learned is to NOT do co-lender deals in the future; or do them only with similar lenders having similar balance sheets, ownership, investment objectives and criteria, etc.)

Part of the difficulty flows from some confusion, or misunderstanding, on the part of all of us on the technical terms and attributes of the co-lender structure. Since the typical co-lender structure either is a syndication or a participation, I've identified some of the basic terms for those two structures:

  • Nature of the creditor’s interest
  • Recover of taxes & funding losses; gross up for reserves
  • Common law rights
  • Insolvency of originator/agent
  • Legal opinions
  • Assignments
  • Enforcement actions
  • Amendment (workout) rights
  • Waiver rights
  • REO decisions (management, leasing & sales)

To help you better understand the difference between (i) a loan that has been syndicated (typically where each lender has its own note and all lenders share the collateral) and (ii) a loan that has been participated (where there is a single, lead lender, and the other lenders only participate without their own notes), here is list of some of the major topics of interest.

(For postings on other co-lender topics, such as A\B Note structures and lender v lender litigation, search the site using the term "co-lender.") 

 (Click on "continue reading" for a table detailing differences on these terms)

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Preparing for Conflict: Negotiating, Drafting & Litigating Loan or Workout Documents - Seminar on February 25

Have you checked your boilerplate lately? There is no longer anything standard about the "standard" language in financial services contracts. Whether you are drafting or litigating origination documents, workouts or settlement agreements, you won’t want to miss this seminar (on Thursday, February 25, in our Dallas office)! Otherwise, you could be litigating in an unfriendly forum, fighting over representations made before the loan documents were signed, or find yourself without adequate remedies when the other side defaults. Learn how to minimize your risks and strengthen your position by effective negotiation and drafting.

The seminar brochure [download] is attached.  And here's a short version of the agenda and session topics:

  • 11:30 - 12:15: registration and lunch
  • arbitration clauses
  • forum selection clauses; venue and choice of law provisions
  • indemnity clauses
  • remedy provisions
  • jury waiver provisions
  • merger clauses
  • panel discussion: The View From 10,000 Feet (I'm "on" this panel.)
  • 4:30 - 5:30p: reception

We know that these topics are "hot" ones - we're dealing with them as we handle distressed investments.

Our seminar speakers include a former Texas Supreme Court Judge, litigators currently handling CRE finance litigation, and workout lawyers.

Who should attend?  This seminar is for any professional who regularly negotiates, drafts or litigates financial services contracts, including in-house counsel, transactional lawyers, special assets and workout professionals and litigators. If you deal with contracts on the front end or after the fighting starts, this program is for you.

I know that this blog announcement is late; but since space is limited (and we're paying for the food at lunch and then drinks at the closing reception), we first offered this one to clients.

However, we have a limited number of "extra" spaces.  And you're invited.

If you'd like to attend, please send (ASAP) an e-mail with your contact information to:

Directions to our offices, and parking instructions, are on the brochure.

If you're in Fort Worth\Dallas tomorrow, please consider coming.

I'll enjoy the opportunity to meet you.

 

 

Capital Market Scoreboard: Selected Topics from the CMSA January Conference

As noted in my lengthy postings summarizing the recent 2010 CMSA January Conference in DC [Day 1 link; Day 2 link], over 1,000 commercial real estate professionals attended the conference – roughly 2X more than expected.

Why this unexpected attendance? Answer: All of us are looking for answers amidst the continuing liquidity problems in the CRE Capital Markets. This topic was the sole focus at this conference.  (And it even shows in the number of people "visiting" TTL blog since the Tuesday [Day 1] posting: we show over 1,000 total "hits", of which over 550 are "unique", as of this blog posting.)

 I've received feedback asking for a summary covering a specified set of topics from the two (much, much longer) blogs covering days 1 and 2.  (Keep that feedback coming!)

 

So, here is that subset of information from the 2010 CMSA January Conference:

 

INVESTORS FORUM

 

This forum is for a broad band of CRE debt investors (such as B note holders, mezzanine lenders).

The meeting time was devoted to a survey of the 250+ people in the room. Here are some of the responses: 

  • 45% of the voters believe that CRE values will continue to fall in 2010 with no recovery in CRE values until 2011 (this fall is in addition to the 44% fall from 2007 CRE pricing)
  • with respect to the 2005-2008 CMBS pools, 37% of the voters believe that the average losses will be in the 11%-15% range (these loses will wipe out bond holder through the "AJ" class)
  • 43% of the voters believe that for CMBS loans liquidated in 2010, the average loss severity will be 40%-50% (and 27% believe that the average loss severity will be 50%-60%)
  • 69% of the voters believe that annual new CMBS issuances will not exceed $100B until 2013
  • for new CMBS issuances in 2010: 50% of the voters believe that issuances will be single borrower transactions; and 33% of the voters believe that issuances will be multi-borrower and large loan structures (with only a few assets); and
  • 58% of the voters believe that "old-school" multi-borrower, fixed rate deals will return no sooner than 2012 (or later)

REAL ESTATE FUNDAMENTALS: "THE FACTS OF LIFE"

 

If the focus on "CMBS 2.0" (which is the "hot" phrase used to describe the "new" CMBS model and market) is a bit too out of touch for me, this session just hammered on the current picture of the CRE market:

  • unemployment at historical highs (and still rising)
  • retail sales still stumbling
  • consumer confidence falling
  • "asking" commercial rents falling
  • commercial leasing activity (absorption) falling
  • CRE sales activity: stagnant
  • CRE values -43% from the high in 2007
  • huge amount of CRE loan maturities over the next three years, with inadequate sources of credit to pay-off those maturities
  • huge shortfall in CRE equity (such that it will not fill gap between the credit available and the looming CRE maturities)
  • over 75 funds have been formed to buy distressed CRE debt and properties; but little it has been deployed
  • very little CRE has been "re-priced" or "re-set" by lenders or servicers foreclosing or disposing of assets
  • we're still early in the CRE recover (perhaps only 25% into the process!) (One interesting comment: remember that valuation adjustment occurs early in the CRE recovery process; so we might be 75%-90% into the valuation adjustment process.)
  • importantly: no one on the panel, nor else where in the room, foresees an implementation by the Government of an "RTC style" approach (where the Federal government quickly closes large numbers of banks and thrifts, and then quickly sells the loans and assets at steep discounts – resulting in a "harsh pain" but quick re-pricing of CRE
  • unlike the late 80s & early 90s: this time there is no new industry (such at technology) to lead the recovery by increasing employment

BORROWER PANEL: "SURVIVOR"

 

This panel focused on "how" a borrower could make it through until CRE liquidity returns.

 

The panel has some advice for borrowers:

  • show up with $ if you want to restructure your debt
  • if you're in a good city, with good tenants and with DSC (get it?
  • Use $ to right-size the loan), then you'll probably survive

It was interesting that while reference was made to splitting up a CMBS loan into an A Note (with good DSC & LTV) and a B Note (representing the "bad" part of the original loan), no one gave any details on the structure (such as the terms of the B Note, the proceeds waterfall between the lender [under the B Note] and the "new" equity [that injected capital needed, in part, to right-size the Note A], the rate of return on the new equity, etc.)

 

SURVEILLANCE & WORKOUTS: "LET'S MAKE A DEAL'

 

This panel didn't give any real guidance on terms of workouts, other than to list some basic rules of the game:

 

Do This:

  • be nice
  • send all information in; be open and transparent
  • sign a pre-negotiations agreement
  • keep paying cash flow
  • have a reasonable, cogent plan BEFORE you contact the lender or servicer

Do NOT Do This:

  • tell lender or servicer that you're "partners"
  • tell lender or servicer that you're a good borrower
  • "fish" for information or for terms of a plan that will be acceptable
  • cry
  • hold lender or servicer hostage
  • ask for any of the cash flow (nor a cash flow mortgage)
  • fly in on a private jet
  • offer a bribe
  • rob Peter to pay Paul
  • launch off on a religious sermon (caveat: "the special servicer knows that it is going to Hell – every day is Hell")
  • ask for any return on the new equity infusion made in borrower

It was an interesting day. Much like our experience in Munich – very little clapping at the end of any session (yes, it reminded me a little of the sessions at the EU conference that we attended in October 2008) [link]

 

In a future posting, I'll cover comments made to us by several elected and appointed Federal officials.

 

If you have any questions, comments or observations, please post them below.

The Ox and the Ditch: FAQ - What Can I say to Borrower?

This is a special series of blog entries in which we provide some quick answers to lenders' frequently asked questions (FAQ).  Two things should be kept in mind.  First, none of these questions can be answered in a vacuum.  Questions should be considered with a thorough review of the file and an interview with appropriate loan officers.  And secondly, many of the questions are worth revisiting from time to time because subsequent events will impact the answers.

FAQ #11 What can I say to the Borrower?

Oral Communication Tips (Best Practices):

  • Attitude – Be calm, cool and factual
  • Truth – Stick to the truth, keep your statements fair and in good faith
  • Loan Documents – Know your loan and do not contradict
  • Notes – Take written notes, but be careful since they might be read in court
  • Power of Two – All conversations should include at least 2 lender personnel
  • Disclaimers – At the beginning of a conversation, state clearly that you have no authority to bind the lender and the call is merely to collect information
  • No Threats – Never threaten a criminal complaint or civil suit
  • No Oral Agreements – Make clear that all agreements must be in writing and you will follow up with a written agreement for their review
  • Stick to Your Business – Only make statements within the scope of the lender's business – never suggest ways for the borrower to run or improve its business, i.e., avoid statements such as "you'd make more money if …"
  • One-Sided Deals – Avoid suggesting structures that solely benefit you.  A decision that solely benefits the lender may come back to haunt you
  • Do NOT record conversations


To read the entire Tough Times FAQ series, please click here

The Ox and the Ditch: FAQ - Understand the Borrower; Lender Liability

This is a special series of blog entries in which we provide some quick answers to lenders' frequently asked questions (FAQ).  Two things should be kept in mind.  First, none of these questions can be answered in a vacuum.  Questions should be considered with a thorough review of the file and an interview with appropriate loan officers.  And secondly, many of the questions are worth revisiting from time to time because subsequent events will impact the answers.

FAQ #9 – How Do I Deal With The Borrower?

Analyze the borrower's perspective:

  • What is the borrower's legal position?
  • What are the lender's weaknesses?
  • Can the borrower avoid personal liability?
  • Who are the guarantors and what is their position?
  • What is the borrower's tax position?
  • Is the borrower concerned about forgiveness of debt (as income)?
  • Does the borrower want to keep cash flow and therefore avoid bankruptcy?
  • Is the borrower likely to file bankruptcy?

FAQ #10 – What Are the Risks for Lender Liability?

  • Waiver
  • Misrepresentation
  • Good faith, fair dealing (breach of)
  • Risk of improper disclosure (tortuous interference with business relationships)

To read the entire Tough Times FAQ series, please click here:

The Ox and the Ditch: FAQ - Pay Property Taxes Before Foreclosure? Other Legal Issues Prior To Foreclosure?

This is a special series of blog entries in which we provide some quick answers to lenders' frequently asked questions (FAQ). Two things should be kept in mind.  First, none of these questions can be answered in a vacuum.  Questions should be considered with a thorough review of the file and an interview with appropriate loan officers.  And secondly, many of the questions are worth revisiting from time to time because subsequent events will impact the answers.

FAQ #7 - Should I pay the property taxes prior to foreclosure?
Taxes and Escrows: Escrows may be in your possession and available for tax payments.  Taxes should typically be paid prior to foreclosure in order to add them to the loan deficiency amount--unless it is your plan to sell at the close, subject to taxes to a third party.

FAQ #8 - What other legal issues or hurdles should I consider in proceeding with foreclosure
Each state's law governs when and how a lender proceeds with foreclosure.  The following questions should be considered:

  • Is there an anti-deficiency statute or single cause of action rule?
  • What are the mechanics lien filing periods?
  • What are the content and timing requirements for sending notice of default and acceleration?
  • How does my course of dealing affect the existence of the default?

To read the entire Tough Times FAQ series, please click here.
 

Webcast: Investing in Distressed Assets

Every downturn and recovery offer opportunities for investors to adapt and respond to changing economic conditions.  Today's climate requires investors to look for commercial real estate opportunities in new and challenging ways.  Investing in distressed assets presents investors with one opportunity for growth as market conditions improve.  Winstead PC and Cohen Financial hosted a webinar covering topics important to implementing an investment strategy in this difficult market.

Did you miss the webcast?
Don't worry, one reason that you follow this blog is to gather information on your own terms, and on your own schedule. 

After you watch this webcast or read the materials, please post comments or questions.
 

Into the Looking Glass: What are the lawyers focusing on at the ACMA meeting?

For the next couple of days, I'll be attending the annual meeting of the American College of Mortgage Attorneys (ACMA).  Members of ACMA are a select group of in-house and outside counsel, who are recognized as leaders in commercial real estate finance.

OK, I know:  You're rolling your eyes as your internal big screen pans a view of a room full of (ego laden?) lawyers, sitting in your basic seminar setup, listening to speakers (most by now are far enough up the tech curve to use PowerPoint), and discussing . . . .

Here's where you should wake up to the relevance of it all:  What are the topics that the legal thought-leaders are focusing on?  What has their attention?

I'll admit that some (most?) events like this are grueling for me, but simply because I can't sit still for a stretch of 8 hours.  The content, however, keeps my attention.  And because I think that it might interest you, below is a summary of several of the topics.

A reminder for you:  If you want more information on distressed debt & investments, go to the "Client Resources" tab on our blog homepage.  It contains instructions on how you can access our extranet site, where we have posted 60+ papers, articles and presentations for you to read, download, etc.  It is free.  It is available 24/7.

Continue Reading...

Investing in Distressed Assets - Webinar, October 7

Periodically, we alert you of opportunities to participate in online webinars on various topics—from the "comfort" of your own computer.  No travel.  No hassle.

On Wednesday, October 7, Cohen Financial and Winstead PC are hosting a webinar on investing in distressed assets.

Every downturn and recovery offer opportunities for investors to adapt and respond to changing economic conditions.  Today's climate requires investors to look for commercial real estate opportunities in new and challenging ways.

Investing in distressed assets presents investors with one opportunity for growth as market conditions improve.  The professionals at Cohen Financial and Winstead PC will present you with the knowledge needed to evaluate this investment strategy.

During this webinar you will learn:

  • How to find distressed commercial real estate assets
  • What is involved in the valuation and financing of these assets
  • How to buy debt
  • How to buy commercial real estate
  • The tax issues involve

Investing in Distressed Assets – Webinar

Wednesday, October 7, 2009
11:30am PT/12:30pm MT
1:30pm CT/2:30pm ET

Click here to register (link)

This webinar should interest players from every point or perspective, whether sellers, buyers, special servicers\asset managers, REO\asset managers, or intermediaries.

If you have questions in advance, please post a comment.

The Tax Man Cometh: Webinar on Federal Tax Treatment of Debt in Workouts

Periodically, we post commentary on this important topic.  Frankly, it can literally drive the structure of a workout, and most certainly the timing of it.

And as painful as this is to admit (because I've really started to like writing on ToughTimes), reading this text might be a little "dry" or even tiresome (although I do try to spice this up—but within the boundaries of the "law firm thing").

As a change of pace, Mike Cook , who authored several pieces previously posted, will host a webinar on this topic.  The information is below, and I have attached the "official" invitation.  So, if you like a more formal approach, download the invite (PDF).

Please freely forward this blog entry or "official" invitation to anyone interested in this topic.

Note that unlike this blog, the webinar is NOT free.  However, the $12\screen charge is the cost charged to us by the 3rd party service provider—there is no profit in it for us.

If you have other topics that you think will merit a webinar, please post a comment. 

Federal Tax Treatment of Debt Workouts

When: Wednesday, September 16, 2009 at 10:00 a.m. - 11:00 a.m. CST
Speaker: Michael L. Cook, Winstead PC

Description: This webinar will highlight certain federal income tax consequences to debtors and lenders in the context of debt workouts (including cancellation of debt (COD)income, exceptions to COD income, and the tax consequences of foreclosures and deeds in lieu of foreclosure), including the 2009 legislative changes allowing an election defer COD income.

Who Should Attend
Accounting professionals, tax professionals, in-house legal counsel and consultants

Register by September 14 at:
http://www.winstead.com/CEWebinarSeries

$12.00 registration fee per computer screen
Payable via major credit card

Webinar instructions will be sent upon registration
**  Participants must have a Java-enabled browser  **

Continuing Education Credit Information
Texas Bar CLE: 1 credit hour
CPE: 1 credit hour

Lease Issues Unique to Medical Uses: A Trap For the Unwary (Part 2 of 2)*

This is the second posting on this topic (click here for part 1) which addresses the volatile combination: the aging population in America; the real estate industry looking for something to develop; and a lender community that is just now comprehending the value of understanding lease terms as a bedrock topic for the collateral.

The earlier posting addressed “problems” with standard lease boilerplate topics.

Here are some eccentric issues not found in standard office or retail leases:

  • Building Name & Signage:  The naming rights of buildings on hospital campuses, together with related building signage, can be a significant source of revenue for the hospital, especially to nonprofit hospitals.  Hopefully all of this is addressed by the lease; and in fact conforms to the actual building names and signage.  So, watch for these provisions; and then determine if they have been violated.
  • Prohibited Uses:  Medical office buildings affiliated with a particular hospital may prohibit uses that the hospital deems inappropriate given its particular mission.  For example, many not-for-profit hospital systems are created by faith-based organizations carrying a faith-based mission.  These hospitals may impose restrictions upon tenants relating to elective abortion services, stem cell harvesting from fetal tissue or other practices that violate their faith-based mission.  Also, watch for this issue in any restrictive covenants, if the building is located in a project\campus established by such an organization.  So, watch for these provisions, and then determine if they have been violated.
  • Lease Restrictions Imposed by a Hospital:  Because the goal of a hospital system for medical office buildings on its campus is for them to support and create synergies with the hospital, the hospital system may also want to limit the leasing of space in buildings on its campus to only those physicians and physician practices that have staff privileges at the hospital.  This is a matter of convenience for both the hospital and the physician and additionally prevents competitors from occupying space in the hospital campus.  Likewise, the hospital may require that any tenant of a building on the hospital campus be a medical-related tenant (Again, watch for this issue in any restrictive covenants if the building is located in a project\campus established by such an organization).  So, watch for these provisions, and then determine if they have been violated.
  • Lease Restrictions – Exclusive & Limited Uses:  Similar to exclusive rights in retail leases, tenants under medical leases sometimes seek to be the exclusive physician in a medical office building providing their particular expertise to patients.  Generally, landlords are also sensitive to the tenant mix on a hospital campus because their success in marketing the building to tenants will be enhanced if more specialties of medical practice are represented, which should enhance patient referrals among the tenants.  So, watch for this provision, and then determine if it has been violated.

Again, once you understand these issues, then the inquiries become:

  • Have these been implemented?
  • Have they been violated?
  • Are these “problems” that you’ll inherit once you take back the property?

Please share your comments, suggestions or questions on this topic.

* Confession: This entry comes from a piece written by my colleagues at Winstead PC, Andy Dow and Allan Katz.   I thank them for bringing this good stuff to our attention.  My contribution is “adding” the workout perspective to it.

 

Lease Issues Unique to Medical Uses: A Trap For the Unwary (Part 1 of 2)*

Here’s a volatile combination:  the aging population in America; the real estate industry looking for something to develop; and a lender community that is just now comprehending the value of understanding lease terms as a bedrock topic for the collateral.

So, let’s take a quick look at unique issues in leases involving medical uses.  If you didn’t catch these at the loan closing (when lender approved the leases and the lease form), or during servicing following closing, you’ll need to understand this subject BEFORE you foreclose or take title to any collateral containing medical uses.  Indeed, those “standard” provisions create distinctive challenges when applied in a medical lease context.  In addition, medical uses often produce unique issues not found in standard office or retail leases.

“Standard” Provisions aren’t so standard in a medical lease.  Here are a few:

  • Compliance with Laws:  Since patients visiting medical facilities are more likely than the general public to have special needs relating to accessibility, the parties should pay special attention to the compliance with laws and accessibility provisions of the lease.
  • Landlord Access to Premises:  HIPAA and other federal and state laws regulating confidentiality of medical records and personal health data may necessitate modifications to some typical clauses in standard office leases.
  • Environmental Provisions:  Medical tenants also frequently utilize materials and generate waste (such as immunotherapy and chemotherapy agents, biological specimens and the like), which require appropriate disposal to comply with applicable federal and state environmental and waste disposal laws.  Therefore, an absolute prohibition from the utilization of such materials is not appropriate, but the lease should clearly specify rules governing the use of such materials and which party is responsible for their disposal. Finally, surgery centers have their own, unique, environmental issues.
  • Utilities & Services:  Medical tenants often have higher utility usage than standard office tenants because many medical tenants have sinks in each examining room and operate X-ray, MRI and other equipment that utilize more electricity than standard office equipment.  The lease should require separate metering of the premises in order to charge tenants equitably, if there are significant variations in utility usage among the tenant base.  In addition, medical uses such as surgery centers will require specialized utilities, including back up power generation.  Finally, medical uses often will restrict or require specialized janitorial services.
  • Assignment and Subletting:  This is a topic that the lender\servicer must understand, and be flexible about.  Tenants under medical office leases are often more sensitive to assignment and subletting rights than tenants in other types of leases.  For example, in the case of a lease involving a physician group, the lease should adequately address the tenant's ability to admit new partners into the practice from time to time, as well as accommodating retiring physicians exiting the practice.  And, this topic should be addressed in any lease guaranty-–if there is person liability for the partners (Hopefully, the lease guaranty clearly runs to the benefit of landlord and its successors; and consider the merits in obtaining a confirmation of the lease guaranty as part of your workout strategy).

Once you understand these issues, then the inquiries become:

  • Have these been implemented?
  • Have they been violated?
  • Are these “problems” that you’ll inherit once you take back the property?

The next posting will cover some unique issues not found in standard office or retail leases.  Please add your own comments, suggestions or questions on this topic.

* Confession:  This entry comes from a piece written by my colleagues at Winstead PC, Andy Dow and Allan Katz.   I thank them for bringing this good stuff to our attention.  My contribution is “adding” the workout perspective to it.
 

2009 Bankruptcy & Insolvency Events Calendar

Armstrong & Associates International, Inc. has given us a fabulous 2009 calendar that lists events and meetings for industry associations, legal education events, governmental meetings, etc.--all focused on bankruptcy and insolvency.

Click here to download the 2009 Bankruptcy & Insolvency Events Calendar

These meetings will put you in touch with other workout professionals, keep you up-to-date on industry developments, and give you access to hard-core training.  It is a perfect compliment to our Tough Times focus.

Kudos to Armstrong & Associates International, Inc.

If you have meetings to "add" to the calendar, or other helpful resources, please post a comment.
 

The Ox and the Ditch: FAQ - Reduce the Commitment? Monthly Statements? New Written Agreements?

Guest Writer: Brenda Brown, Winstead PC

More from ourTough Times FAQs series:

FAQ #4 -  Do I need to reduce the commitment amount after sending a Notice of Default?

  • Typically, no – once the loan is declared to be in default, or once the maturity of the loan is accelerated, the lender has no on-going funding obligation – but confirm this in the documents.
  • The lender typically is not required to fund current loan allocations or grant new loan allocations.
  • Communicate clearly in writing to the Borrower that the lender has no further obligation to the fund and negotiations, inspections, administrations and even making future draws during a draw period (whether under a construction loan or a partial disbursed loan) do not amount to waivers of pre-existing defaults or can be considered obligations for future fundings.

FAQ #5 -  After a Default Notice, should I send statements showing Regular Monthly Interest or statements showing interest at the Default Rate?

  • Statements to the borrower should reflect the Default Rate of interest (rather than the prior regular interest rate), late fees, and any other fees due the lender (such as legal fees) – all of which usually do not appear in the "standard" statement.
  • So, typically it is best to STOP sending the regular monthly statements.

FAQ #6 -  What else should I put in writing?

  • Agreements Regarding Interim or Protective Advances
  • Forbearance Agreement

All of these first six questions underscore the fact that the status of the property and the loan must be looked at with current and fresh eyes so that the opportunities for solutions are enhanced, and the risks of encountering questions of waiver are avoided.

To read the entire Tough Times FAQ series, please click here.

Please post comments or questions below.
 

Into the Looking Glass: MBA Servicing & Technology conference - day one

The first day of the 2009 MBA's Commercial/Multifamily Servicing and Technology conference has ended.

It has been a long day, filled with attending panel presentations and meetings with people over meals, in the halls and at receptions.  It started at a 7:30 breakfast and ended @ 10p (when I refused to join a group that headed toward B___n Street).

Attendance this year seems down by @ 40%-50% from prior years.  Indeed, several companies told me that they would not be attending this year.  And many companies seem to have sent only 1 or 2 people this year; instead of the usual 4 or 5.

It is late, and if I don't get this down-load out soon, tomorrow will hit with more panel presentations and meetings - and I'll "lose" these data points.  They are in the order collected by me during the day - and so they are NOT ordered by relative importance.  Here is the down-load  (remember, this is a blog and not a thesis or brief; and it is very late).

(One other preliminary and important thought: if your boss requires that you prepare a memo on the conference, consider this permission to cut'n paste as you wish . .  . . )

From the opening general session:

  • during the next 2-3 years, the commercial mortgage finance industry will focus on servicing & asset management, which will be the new front line for the industry
  • unemployment remains a key leading indicator of the performance of real estate as an asset class (and since unemployment is expected to increase, it will take several years for the asset class to recover)
  • while defaults presently are @ 3%, some predict that the default rate will increase to 6%; consequently, special servicing will become busier, and the need for greater transparency will be increased (in order to support better decision making) (Note the Fitch report described below.)
  • one speaker articulated five areas of focus for the industry: (1) greater transparency (with "real time" property performance data); (2) the need for high quality and detailed physical asset condition inspections; (3) greater focus on customized business plans for each asset, which points to the need for more expertise by special servicing; (4) the increase in defaults will strain human resources at companies (and require greater recruiting, more training and better integration); and (5) companies must be better at understanding macro trends and changes

From a session on developments in Washington, DC:

  • expect more changes and experimentation by policy makers
  • accounting issues include: (1) FASB 140 (true sale changes); (2) FIN 46(r) (balance sheet consolidation with the "primary beneficiary" of securitization vehicles); and (3) FASB 157 (fair value); all due to "FASB's perceived suspicion" of real estate structures
  • REMIC reform will take a back seat to other issues at Treasury
  • Single Purpose Vehicle (or single purpose entities) and separateness covenants: the General Growth Properties bankruptcy will be an initial stress test of this "bankruptcy remote" structure; although one panelist labeled the GPP structure as "SPE light with bad cash management."  Another panelist called the GPP case simply "bad facts, which should not be followed by other situations."  (This last point puzzles me: a clever borrower might view the GPP case not as "bad facts" but as a "helpful road map.")
  • One panelist expects to see a new securitization in 3rd or 4th Q of 2009.  Wow.  Given all of the accounting and structure "issues" detailed during the day, anticipated increase in the default rate, etc. - a securitization in 2009 would be . . . well  . . . wow.
  • Federal limits on executive compensation are a huge problem for investors; and are chilling the market by impeding companies from participating in Federal programs
  • Terrorism insurance needs to be addressed . . . but the Executive Branch needs to cut programs - not increase the funding of them.
  • Welcome to the "Age of Regulation"

From a panel session on dealing with troubled securitized loans:

  • even life companies are starting to see their mortgage portfolios in distress (so they are focusing in-ward on their portfolios; and not outward to refinance CMBS loans)
  • the demand for new commercial mortgages exceeds the supply
  • long term, fixed rate interest mortgages are limited in amount
  • property values are difficult to establish
  • debt service coverage & loan-to-value criteria are very conservative (and thus underwriting is tough)
  • CMBS structures do not offer refinancing (with only a limited ability to extend)

From a panel session on today's servicing challenges:

  • servicers are surprised that subordinate lenders do not understand their rights (relative to the rights of the first-lien secured lender)
  • communication among the lenders in the credit stack can be "challenging" (Wow; that was an understatement.  I've seen some deals where the disparate balance sheets and agendas of the lenders present the biggest hurdle to resolving a distressed project.  The project and the borrower can almost be an afterthought)
  • valuation is a huge problem: every party at every point of the debt stack and the equity stack needs a good\reliable value in order to make decisions.  No value=No decisions=No peace
  • as reported by Fitch Ratings in an April 29, 2009 special report, CMBS special servicing volume increased by more than 5.0X in the 15 months ending March 31, 2009 (from $4.6B at 12/31/07 to $23.7B at 3/31/09).  And these figures do not address distressed bank debt, nor distressed life insurance company debt.  More wow.

Taken together, I come away from the day with much the same impression as I did on that day three session at the EU conference last fall: no one is clapping.

Time to go to bed.

If you have your own comments, or follow up questions, please post a comment below.

P.S.:  Returning to the eating theme from my posting on Tuesday, and before I get some sleep -  here's another good restaurant in New Orleans: Herbsaint Bar and Restaurant.  This is the second restaurant recommended to me by a New Orleans native.  I now understand.  It is very, very good.  Not as fancy as Nola; much more stylish than Jacques-Imo's. And not in the French Quarter. Together, all three restaurants will pull me back to New Orleans.

Stop, Look and Listen: What Are the Risks? What is the Exit Strategy?

There's an old, old joke about two old men and a dog.  They see a bus go down the street.  Pretty soon a little dog goes chasing after the bus, barking wildly and looking for all the world like it's going to try to bite it.  One old gentleman looks at the other and says, "There's that dog chasing that bus again."  The other one says, "Yep, he sure is.  And I wonder what he's going to do when he catches it."

Lenders and servicers contemplating foreclosure on property probably should take a moment to remember that dog and its bus before they try to catch foreclosed property.  The foreclosure process itself can be fraught with peril; for example, on September 11, 2008, the Nevada Supreme Court held a lender vicariously liable for punitive damages based upon the improper acts of its local asset manager in disposing of the personal property of a family that had been mistakenly foreclosed upon.  (Countrywide Home Loans, Inc. v. Titchener, 193 P.2d 243 (Nev., September 11, 2008).)  There also is case law to the effect that a foreclosing party's failure to maintain foreclosed property may subject it to claims for nuisance or other torts.  (Nuisance – cf. Willmschen v. Trinity Lakes Improvement Ass'n, 362 Ill. App.3d 546, 840 N.E.2d 1275 (2d Dist. 2005); other torts, see, e.g., Miller v. Everest, 212 N.W.2d 522 (Iowa 1973).)  And even if legal liability is not imposed, imagine the results of a Channel 7 Eyewitness News FocusTeam® Investigation about the meth lab found in a piece of property you foreclosed on . . .  Or on how Mr. & Mrs. Joe Doakes want to buy the property at 1234 Wisteria Lane but can't find anyone to sell it to them.

Whether your foreclosed property is commercial or residential, the same principles apply.  Before foreclosing – even better before lending – ask yourself what you're going to do with that "bus" if you catch it.  Most of the issues are ones you know from your own house: doing the paperwork right, maintenance, upkeep, safety, comps, and curb appeal.  Advance consultation with the right professionals and careful attention to details can spare you a mountain of heartache later.

 

Falling Markets Require Borrowing Base Reductions

Guest Writer - Dan Susie, Winstead PC

A "borrowing base" is a financing structure where loan funds are disbursed NOT on a "cost incurred" basis, but rather are disbursed based upon a limited audit or information from across the collateral pool.

This structure often appears in oil and gas financing structures, and some times in loans to production (high volume) home builders.  Given the current prices of oil and gas, and of the home building market, this is the season of borrowing base reductions – because the value of the collateral no longer supports the loan or the amount outstanding.

Lenders should consider the following issues, steps and precautions in connection with any borrowing base reduction:

  • In the case of a syndication, review the borrowing base determination provisions carefully to conform to the requirements of lender approval for the reduction.
  • Comply with the provisions of the credit agreement with respect to the payout of the borrowing base deficiency.
  • The borrowing base reduction and any change in the monthly commitment reduction amount must be confirmed in writing.  Use a form of borrowing base adjustment letter approved by counsel.  Where a change in the repayment terms is agreed to, amend the credit agreement rather than using a borrowing base adjustment letter, and make sure the amendment includes a release of all claims to date.
  • Consider additional collateral and/or modification of the terms of the payout for those borrowers who cannot pay the entire deficiency in accordance with the terms of the credit agreement.
  • If additional collateral is offered by a borrower to reduce or eliminate a borrowing base deficiency, obtain title information regarding any new properties and promptly file new mortgages to perfect liens against such collateral.
  • In the case of a syndication, review the borrowing base determination provisions carefully to conform to the requirements of lender approval for the reduction.

If you have any other suggestions, or if you have any questions, please post a comment.
 

What workout topics interest you? Any inside scoop?

Once a month, our regular group of authors discuss topics that we view as being of interest (the "hot" topics) in the commercial loan workout arena.  We then hash out a list of what we'll write on for the next month.

Identifying "hot" workout topics can be a dangerous thing for lawyers.   Yes, we -

  • are active in industry organizations (such as the several committees with the Mortgage Bankers Association and working on creating workout data standards through MSMO 
  • give workout seminars to clients and at legal industry meetings, and
  • now handle an increasing number of workouts and bankruptcies every day . . .

BUT as "outside" counsel,  we're keenly aware that we are not privy to all of the discussions (both formal and informal) that you, the front-line participant, are having on this growing topic.  (There you have it: that long sentence proves I'm a lawyer - which is the reason why we need your help.)

While we believe that we're generally in touch with the market, we understand that we still remain "outside" legal counsel.  So, we're looking to you for the "inside" scope on topics of interest.

- Do you have any topics that you'd like us to address in Tough Times?

Please post a comment to give us some guidance.

Say What? Tips On Oral Communication - When It Becomes Personal

In several earlier postings (part I and part II), I listed several tips on oral communication with the borrower, loan guarantor or principals.

One tip covered included maintaining a level-headed "attitude" during the workout or foreclosure process.  A professional attitude is tough to keep when conversations go beyond hard-nosed negotiations, and start to attack you personally.

Below is the advice that I recently gave to a lender when another co-lender (in the bank group) started to attack him personally.  The advice applies equally to the situation where the borrower, the loan guarantor or the principals do the same.

Trust Your Judgment
Accept the situation for what it is - a personal attack. The other side obviously wants to start a real "shooting" war. Recognize it for what it is, and then . . . .

Go the other way:  If you've raised (or if you have) a teenage child, then you're already a veteran. Put those skills to work. As the other person raises his\her voice, increases emotional intensity and goes for your jugular, take the opposite approach in response: lower your voice, decrease your emotional intensity, and simply reflect on (or repeat) what is being said. You might be astounded at how this approach sometimes disarms the opponent. They want to go to war, yet, you're not willing to do the war dance. Baffling.

Note it:  Write down the exact words that were said. Then write down your "go the other way" approach.

End it:  Give the raving lunatic the chance to come back to earth by telling him/her that in X seconds you're going to have to get off the phone.

Report it:  Don't be alone in this - report it to another person on your team.

If you have other suggestions or a war story (literally) of your own, please share your comments with us. This is a topic that is rarely discussed.
 

Say What? Tips On Oral Communication (Part 2 of a two part series)

In a prior posting, I articulated several suggestions or tips on oral communication with the borrower or principal about a troubled loan.  The most basic goals of a workout (restructure or recovery) require some oral communication.  Another goal is to avoid "bad" communication.

Here are several more tips:

Power of Two:  All conversations should involve at least two (2) lender personnel.  There is strength in numbers – and it can help if (or when) at a later date, the borrower has a “different” version of the conversation.

Disclaimers:  At the start of the conversation, clearly state that you have no authority to bind the lender, that the call is merely meant to collect information, etc.  It is a good idea to repeat the statement at the end of the call.

No Threats:  Never ever threaten a criminal or civil law suit.  Never.

No Oral Agreements:  Agreements should be in writing.  Do not invite or create oral agreements.  In other words, simply agree to put terms into writing as a follow-up to the conversation so the borrower (and its counsel) can review them.  And, as noted above, make it clear that other lender personnel will need to approve the written terms before become a binding agreement.

Stick to Your Business:  Only make statements that are well within the scope of your business. Never suggest ways for the borrower to run its business or improve business.  Use “I need to see” statements.  Avoid statements like “you’d make more money if. . . . “  You should exercise control over your business as the lender, and NOT the operations of the borrower’s business.

One-sided Deals:  Avoid suggesting structures that solely benefit you.  A decision that solely benefits the lender (without benefit to borrower) probably will come back to haunt the lender.  Once again, avoid proposing the “too good to be true” idea.

No Recordings:  Don't. (Sorry that I even mention this, but it is always best to state the obvious.)

As stated in my earlier posting, in future postings, we’ll cover related topics such as (i) theories of lender liability and recommendations on avoiding it, (ii) attorney client communication, and (iii) the “drivers” behind the borrower’s perspective.

Any thoughts, suggestions or other comments on this important topic?

 

Say What? Tips On Oral Communication (Part 1 of a two part series)

What can I say in my discussions?
In a prior posting, I commented upon the lack of experience among the entire range of people on the workout team – from outside legal counsel to title company personnel.  Indeed, in our office, the experience topic is a matter of concern, and training and mentoring are focal points for those of us with experience.

One subject that I’m often asked about is this one: “What can I tell the borrower and the guarantors or principals?  What should I NOT say?  I just want to punch him\her in the face! After all the games of golf that we’ve played together through the years, now they . . . . ”

Behind this question is a healthy fear or concern of the “L” words: Lender Liability.   Oral communication with a borrower (and guarantors) and others about a troubled loan is a minefield – where innocent comments, a bad attitude at the end of a hard day, handwritten notes during the conversation, etc., can and will be “used against” the lender in a law suit alleging any number of lender liability claims (and defenses to performance under the loan).  (Theories of lender liability and defenses to performance will be the subject of numerous future postings.)

One important point before you pick up the phone:
Consider the value of entering into a discussion or negotiations agreement with the borrower and the guarantors. (We’ll cover this subject in a future posting.)

The following are some practical thoughts and suggestions on this important “say what” topic (several topics will be discussed in the second part of this two part series):

Attitude:  Be calm, be cool, be factual and don’t take it personally. Don’t react to emotional statements or threats. Stay far away from emotional displays of your own. No name calling. And don’t react to being called some thing. Leave your “bad day” in the other room before you make the call. (Yes, this can resemble a bad day at recess.)

Truth, Fairness and Good Faith:  Regardless of whether your state has an implied covenant of good faith and fair dealing, your statements should be measured against general standards of “fairness and good faith.” Stick with the truth. (In other words, if a jury heard your statement, would they think that you were being a jerk or an untruthful son of a ____ [ you know]?)

Loan Documents:  Know your loan documents and do not make a statement that contradicts them. If you are discussing possible modifications to the loan documents, make it clear that nothing will be modified until there is a written agreement, and that other lender personnel will need to approve all changes before they are binding.

Call Notes: Take written notes, but be careful in what you record (remember, these notes might be used by not only the lender’s lawyer, but also by the borrower’s lawyer in a law suit).

Up Close and Personal: Video of the Builder Finance Workout Seminar Posted Here

If you did not make the Builder Finance Workout seminar, don't worry. 

We post this for your personal use or for use as part of your company's training program.  After you watch this video, please post your comments or send us your questions, so that we (and other readers) may respond.

We'll keep you advised of our future public speaking engagements; and we'll endeavor to do a digital "capture" to make them available to you.

To help us in looking around the workout corner (or into the next ditch):

  • What other commercial credit products do you see as near term problems (as the next wave of distressed commercial debt)?
  • What other seminar topics do you find of value or interest?

 

Up Close and Personal: Seminar on Dealing with Home Builder Workouts on Tuesday, October 7, 2008 in Houston, Texas

This posting is part of a series addressing the training and mentoring of the loan workout team – as a practical and tangible follow up to my previous posting on the need for experience.  Resources such as this blog and other sites on the Internet allow management to both furnish and direct personnel to valuable materials – and on a 24/7 basis.  However, at some point, face-to-face communication becomes the best way to communicate and to learn.

We periodically speak and give presentations on issues surrounding problem loans or special servicing issues.  If you’re in or around Houston, Texas on Tuesday, October 7, 2008, we’ll be hosting a workout seminar focusing on Builder Finance (although the topics covered are equally applicable to other real estate asset classes).  Here are the details:

  • Tuesday, October 7, 2008
  • 3:30 – 5:00 pm seminar; 5:00 – 7:00 pm reception
  • Four Seasons Hotel (Austin Room), 1300 Lamar Street, Houston, Texas
  • Complimentary valet parking
  • RSVP to Marianne Lee at builderfinance@winstead.com

Note that seating is limited, and that 1.5 hours of CLE and CPE credit may be available (we’re in the process of seeking the applicable approvals).

We hope to see you at the seminar.

IMPORTANT NOTE:  DAMAGE TO THE HOUSTON AREA CAUSED BY HURRICANE IKE MIGHT FORCE A DELAY OR CHANGE IN THIS SEMINAR.  PLEASE RSVP AND THEN BE ALERT FOR ANY FOLLOW-UP COMMUNICATION FROM US.
 

Experience, Experience, Experience

Where have all the experienced people gone?

As the credit crisis deepens and gathers steam, it is becoming clear that the "problem" simply is not limited to "big picture" subjects favored by economists and industry wags.

Recently, we encountered several situations highlighting the inexperience of the title company and local counsel. In other words, problems arose during the execution of the recovery plan simply because key players in the plan were not "in" this sector of the commercial mortgage industry during the last real estate downturn. Below is a short description of both situations, with a couple of practical suggestions.

Separately, outside of a few large commercial mortgage service companies and the largest national banks, many banks and servicing companies are thinly staffed with personnel who are experienced in commercial real estate workouts, foreclosures, bankruptcies and related litigation (i.e., special servicing). Consequently, we devote a considerable amount of effort in training less experienced bank and loan servicing staff – both formally in seminars and informally in conversations. (In future postings, we'll cover a broad range of training and mentoring topics.)

Continue Reading...

Special Servicing 101

A new loan with an existing or impending default has just hit your desk. What do you do? Here is a check list that should help get you started.

  1. Gather all of the loan documents and read through them. Along the way, pay particular attention to default terms (relative to your current situation) notice provisions and anything in your loan documents that are out of the ordinary.
  2. Gather all background possible from the master servicer. Like the weather – there will always be a history. It may be full of events or show absolutely no events – but you need to know what that story tells. Look for past courses of dealing, waivers (formal or informal) and areas where your predecessor could have created problems for you.
  3. Obtain all regular reporting documents available. Assemble and review those documents previously provided to the master servicer. Check your loan documents and make sure all required reports have come in. If not, make a formal request to your debtor to remedy that situation.
  4. Obtain additional documents on the debtor's operations. Ask for all you are entitled to ask for – and them some. If your borrower is working with you, he should be happy to respond to reasonable requests for information. If he will not – you've learned more about your situation from that response.
  5. Comb through the debtor's documents to learn why there is a problem and to see if any recourse events are apparent. Is the current situation the result of the general market or was it caused by your borrower? Did the borrower violate SPE covenants, misapply rents, misapply insurance proceeds, permit waste or take other action that raises the prospect of recourse liability? Look for leverage points going forward.
  6. Determine if you can trust the borrower. He is in possession of your collateral and generally your sole source of repayment – the real estate and the cash it has earned. Is he forthcoming, consistent, cooperative? Act quickly on your instincts. If you guess wrong, it will probably cost you money. But – act strictly within your loan document rights (see the next point).
  7. Get a handle on the required notices and follow the details carefully. You only have the right to do exactly what the loan documents give you the right to do. Many of your rights depend on whether an event of default has occurred and, in many instances, whether a formal notice of the default has been provided. Be aware that sometimes the loan documents are inconsistent as to when and what notices are required. Follow the most conservative standard.

Best practices will have many other points for this list, but these are the basics. When workouts start coming hot and heavy, it will help to have a basic checklist. Tailor this list to your situation in advance – and keep your calm as you work through these pressure situations.