Distressed Commercial Real Estate Debt: New Opportunities and Legal Risks presents presents Strategies for Buying and Selling Loans Facing Default A Live 90-Minute Teleconference/Webinar with Interactive Q&A Today's panel features: George E. Covucci, Partner, Arnold & Porter , Washington, D.C. Amy B. Rifkind, Counsel, Arnold & Porter , Washington, D.C. Ren R. Hayhurst, Partner, Bryan Cave , Irvine, Calif. Thomas O’Connor, Partner, Cooley Godward Kronish , New York Thursday, March 11, 2010 The conference begins at: 1 pm Eastern p 12 pm Central 11 am Mountain 10 am Pacific You can access the audio portion of the conference on the telephone or by using your computer's speakers. Please refer to the dial in/ log in instructions emailed to registrations. CLICK ON EACH FILE IN THE LEFT HAND COLUMN TO SEE INDIVIDUAL PRESENTATIONS. If no column is present: click Bookmarks or Pages on the left side of the window. If no icons are present: Click View , select Navigational Panels , and chose either Bookmarks or Pages . If you need assistance or to register for the audio portion, please call Strafford customer service at 800-926-7926 ext. 10
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March 2010 DISTRESSED COMMERCIAL REAL ESTATE: New Opportunities New Opportunities George E. Covucci George.Covucci@aporter.com 202.942.5026 Amy B. Rifkind Amy B. Rifkind Amy.Rifkind@aporter.com 202.942.6137 555 Twelfth Street, NW Washington, DC 20004-1206
Introduction The Real Estate Market Today Case Study #1: Potential Solutions for the Inherently Unworkable Case Study #2: Problems with Solutions 4
THE FOLLOWING PROGRAM THE FOLLOWING PROGRAM CONTAINS THE LATEST DISTRESSED REAL ESTATE NEWS. VIEWER DISCRETION ADVISED. 5 www.econosseur.com (as edited by Arnold & Porter LLP)
Headlines from Troubled Banking Industry Sharply Reduced Lending in 2009 (Feb. 24, 2010) (Feb. 24, 2010) Realtors Give Commercial Real Estate Outlook (Feb. 23, 2010) “… The commercial real estate market is not expected to recover ...rates will trend higher and...” Commercial Real Estate “Underwater” (Feb 19, 2010) “...'Underwater' means the mortgage exceeds the current property value....” 6
Headlines from Commercial Mortgages Ailing in February (Feb. 23, 2010) “. . .The performance of loans bundled in commercial mortgage- backed securities deteriorated sharply in February, raising fears...” Tarp Panel: Small Banks Are Facing Loan Woes (Feb 11 2010) Tarp Panel: Small Banks Are Facing Loan Woes (Feb 11, 2010) “Nearly 3,000 small U.S. banks could be forced to dramatically curtail their lending because of losses on commercial real estate…” 7
Distressed Real Estate: January 2010 Delta Associates : Distressed Commercial Real Estate Journal, January 2010 8
Congressional Oversight Panel Congressional Oversight Panel FEBRUARY February 10, OVERSIGHT REPORT 2010 Commercial Real Estate Losses and the Risk to Fi Financial Stability i l St bilit “The Congressional Oversight Panel is deeply concerned that commercial loan losses could jeopardize the stability of many banks , particularly the nation’s mid- size and smaller banks, and that as the damage spreads beyond individual i d ll b k d th t th d d b d i di id l banks that it will contribute to prolonged weakness throughout the economy.” 9
Recent Letter from Senator Dodd to Ben Bernanke Recent Letter from Senator Dodd to Ben Bernanke Federal Reserve has addressed the CRE issue so far, and what additional February 22, 2010 steps you plan to take. Ben S. Bernanke I believe that the weakness in the CRE market requires prompt and robust Chairman responses from the regulators to guard against harmful effects on financial Board of the Governors of the institutions and the economy. I urge you to redouble your efforts to provide Federal Reserve System appropriate oversight of this vital component of our economy, and look 20 th Street and Constitution Avenue, NW Washington, DC 20551 forward to working with you to bring much needed stability to the CRE market. Dear Chairman Bernanke: Sincerely, I write to express my concern about the state of the commercial real estate (CRE) market CHRIS DODD and the potential impact on the financial system and the greater economy. Chairman Recent reports and testimony indicate that while the economy is showing signs of stabilizing, the CRE market continues to face significant challenges. The Congressional Research Service, for example, reported last month that commercial mortgage defaults and losses are at unusually high and increasing levels. According to the report, delinquency rates for commercial mortgages climbed from 4% at the end of the third quarter of 2009 to more than 6% in January 2010. I understand that you have been raising concerns about the CRE market as well. Indeed, in a speech before the Economic Club of New York in November 2009, you stated that “poor fundamentals have caused a sharp deterioration in the credit quality of CRE loans” and that these “pressures may be particularly acute at smaller regional and community banks.” Others also have expressed concerns. At a hearing last month before the Congressional Oversight Panel (COP), a Federal Reserve official testified that “Federal Reserve examiners are reporting a sharp deterioration in the credit performance of [CRE] loans in i ti h d t i ti i th dit f f [CRE] l i banks’ portfolios and loans in commercial mortgage-backed securities,” and warned that more than $500 billion of CRE loans will mature each year over the next few years. This point was reinforced in an oversight report published by the COP this month, which stated that nearly half of CRE loans at present are “underwater” and that the largest “loan losses are projected for 2011 and beyond.” In response to the growing concerns, I understand that last October the Federal Reserve and other agencies on the Federal Financial Institutions Examination Council released a d th i th F d l Fi i l I tit ti E i ti C il l d policy statement on prudent commercial real estate loan workouts to “assist examiners in evaluating institutions’ efforts to renew or restructure loans to creditworthy CRE borrowers.” I appreciate your efforts to coordinate action in addressing this critical issue and ask that you keep me informed as to your progress. While it may still be relatively 10 early in the process, I would like you to provide an update on how this guidance is helping to stabilize the CRE market. In addition, I would like an explanation of how the
*CoStar Group: The State of the Commercial Real Estate Industry Mid-Year 2009 Review 11
*CoStar Group: The State of the Commercial Real Estate Industry Mid-Year 2009 Review 12
The Watergate Hotel – Washington, D.C. Sells 3 times in 11 years Purchase Price: $42,930,000 $ , , Loan: $69,815,000 August 2004 Purchase Price: $39,000,000 August 1998 Lender Forecloses: $25M No bidders other than Lender July 2009 July 2009 13
Commercial Real Estate World Turned Upside Down 2007 A 2007 Acquisition i iti Millions Assume: $5M NOI $5M NOI Equity: $20M 5% cap rate 80% loan 14
Commercial Real Estate World Turned Upside Down 2010 V l 2010 Value Millions Assume: NOI declines by 10% to $4.5M NOI d li b 10% t $4 5M Deficiency: $15.7M Cap rates increase by 200 basis points to 7% 15
Real Estate Loans in Trouble: Buying and Selling Distressed Debt Debt Ren Hayhurst (Irvine,CA) 949-223-7125; rrhayhurst@bryancave.com
Overview of Note and REO Sales • Note Sales – Acquire Debt, Not the Underlying Asset – Seller is the Lender, Not the Borrower/Debtor Seller is the Lender Not the Borrower/Debtor – Subject to Defects in Documentation, Title, etc. – Must Complete Foreclosure Process Before Assuming Control of the Property of the Property – Know Your Enforcement Options • REO Sales – Take Title to the Asset; Deal Directly with Owner T k Titl t th A t D l Di tl ith O – Must Wait for Remedies to be Completed – Uncertainty Pending Foreclosure 17
Overview of Pricing & Due Diligence Issues • Overcoming the Bid and Ask Gap – Reasons for the Gap – Possible Solutions that Will Bridge the Gap – TARP? PPIP? FDIC Loss Sharing? What will work? • Due Diligence Challenges g g – Note Sales Require Due Diligence on the Loan, Title and the Property – REO Sales Requires Standard Property Purchase Due REO Sales Requires Standard Property Purchase Due Diligence 18
Overview of Alternative Strategies • Use of Deeds in Lieu of Foreclosure – Allows Immediate Possession of Asset – Subject to Liens/Claims/Development Issues – Works Best When Combined with Note Sale and Subsequent Foreclosure • Option Transactions – Provides Immediate Pricing and Allows Immediate Due Diligence g – Contingent on Foreclosure Sale Results • Other Alternatives 19
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