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1、精选优质文档-倾情为你奉上Practitioners Corner: An Interesting Time For Real Estate Has there ever been a more interesting time in real estate finance? Happier times, yes, more profitable times, definitely yes .But more interesting? The year leading up to September 2008 saw the creation of real estate finance st

2、ructures of breathtaking complexity .since than time in the real estate finance industry have been involved mainly in trying to understand what went wrong, and to determine whether the collapse, was in any material way the result of flaws in these complex real estate finance structures .or was it ju

3、st a function of external economic pressures and the cyclical nature of real estate .while the jury is still out. The answer seems to be that the structures did not cause the real estate recession, but through their opaque nature they may have made the recession worse, both by delaying the recogniti

4、on of the underling fragility of the market and by making the problems, once recognized, even more difficult to resolve. One thing is sure: many people, whether legislators, regulators, lawyers, accountants, bankers or those who raise and consume real estate capital are now working very hard to addr

5、ess(1) how to resolve distressed real estate capital structures, and (2)how to improve the structures and form of delivery of real estate capital to the market in the future. Change being considered now will affect the real estate markets through the next generation. Following are a few examples.RES

6、TORING AMERICAN FINANCIAL STABILITY ACT As l write this, the US is beginning its final debate of the RESTORING AMERICAN FINANCIAL STABILITY ACT , and appears to be building momentum for adoption in some form, which would then require reconciliation with the equivalent House version. If adopted in an

7、ything like its current form it will cut a broad swath of change across current business. Practices by providers of real estate capital of all shapes and sizes .it will give the Federal Reserve Bank new powers over financial institutions but in turn impose more congressional over sight of the Fed. L

8、awyers recognize that often the most compelling litigation cases lead to the worst precedent: judicial over-reaching in the face of egregious facts. Will that be the case with the RAFS and the resulting regulations? Will we spend the next 20 years backing away from the reforms adopted in this atmosp

9、here of crisis? This will all play out over the coming months and years, we will keep an eye on the process in this column, and as with all subjects covered in this column, we would welcome hearing your perspective on this.CALPERS AND PLACEMENT AGENTS Much of the real estate investment momentum over

10、 the year 2005 through 2007 was fueled by increased asset allocation within public employee pension founds, attracted by seemingly high returns. One example of this was a $14 billion net increase in commercial real estate investment 9by the California Public Employees Retirement System (CalPERS) as

11、the market boomed in 2005 and 2006.Not only was the net exposure increased, but, as detailed in a Real Estate Program Review, dated April 19,2010,by the Real Estate Unit Of the CalPERS Investment Office, new investment disproportionally made to high risk investments .in a Memorandum accompanying the

12、 Program Review The Real Estate Consultant to the CalPERS, Board also noted a wide variety of factors that apparently contributed to the 48.2 percent decline in Net Assets at Fair Market Value from June 30,2008 through June 30,2009, in the CalPERS real estate portfolio, as follows:(1) Higher amounts

13、 of leverage, which lowered income returns and increased exposure to changes in the asset value;(2) Recourse debt, which exposed CalPERS to risks beyond the specific assets;(3) Looser program guidelines gave investment strategies;(4 Shifting commitments from stabilized core investment to non-stabili

14、zed opportunistic investments, which now comprise more than 40 percent of the current holdings in the portfolio;(5) A dramatic increase in the number of manager relationships and commingled investment vehicles provided less control, poorer governance and hindered staffs ability to resolve problems a

15、nd liquidate asset;(6) vintage year concentration with over $27 billion of equity commitments made in 2005 and 2006,in part driven by successful market timing dispositions realized by core partner. Interestingly neither the Real Estate Program Review nor the PCA Memorandum cite the undue influence o

16、f placement agents, generally third party consultants with differing degrees of professional and competence, political or board connections, and compensation arrangements who undoubtedly contributed to the increase in the number of manager relationships, looser program guidelines, and large concentr

17、ated investments. However, the California legislature did take note of the potential foe abuse. On October 11,2009,Governor , Schwarzenegger signed into law Assembly Bill No. 1584 regulating the role of placement agents and requiring disclosure of contributions or gifts to state and local retirement

18、 board members. This now has been followed by Assembly Bill No. 1743, not yet enacted into law, which would define placement agents as lobbyists into accordance with Californias political reform act. This would impose strict controlsover gifts and contributions, and would prohibit compensation conti

19、ngent on any investment decision. The latter provision produced initial strong opposition from the Blackstone Group, from which it subsequently backed off. The bill still face significant opposition from trade association, which, not surprisingly, prefer the regulatory approach of complete disclosur

20、e as opposed to outright prohibition . All of this is a story that will continue to unfold, with New York being another state looking closely at the issue, but while the issue of the access is important, the issue of allocation and investment strategy are even more critical. As PCA concludes in its

21、Memorandum: CalPERS experience during the past 28 years suggests that a real estate strategy focused primarily on direct investment in core-risk type properties has provided a more attractive risk adjusted return than the more aggressive opportunistic strategy. PCA finds significant merit in the ove

22、rall context of the CalPERS investment program in pursuing a less aggressive strategy. With more controls, than was in place between 2002and 2006. Will this mean that public pension funds increasingly will focus on the same core, stable assets that are being pursued by global investment fund? Perhap

23、s, but in the real estate program review the staff notes that at current values the CalPERS actual real estate investment portfolio is at 6.8 percent of total asses versus the target allocation of 10 percent and the dislocation in the real estate market will present investment opportunities, which i

24、s good news for the real estate capital market.FIARA AND PRIVATE PLACEMENT As noted above, congress is considering adding additional structures to the private placement market. while it is un clear how many of those structures will survive the legislative process, the Financial Industry Regulatory A

25、uthority (FINRA), acting as the watchdog of the securities broker-dealers and securities registered representatives who sell private placements of, among other assets, real estate and oil and gas, has published new regulatory guidance as to the obligation of broker-dealers to conduct Reasonable Inve

26、stigations in Regulation D Offering. Private placement, or so-called Regulation D or Regulation 506 offerings sold through the securities broker-dealers channel, have a long and constructive history of raising capital for small and mid-sized business , including real estate and oil and gas companies

27、 .in the background section of RN 10-22,FINRA cites an estimate of $609 billion of such securities on the market in 2008. FINRA cites an estimate of $609 billion of such securities on the market in 2008. However, FINRA reminds its member broker-dealer must have made a reasonable investigation before

28、 determining that a security is suitable for investor generally and to the specific investors to whom it is being sold.RN 10-22obviously this is all very general ,leaving fertile ground for interpretation. perhaps more to the point on a practical level, FINRA reminds broker-dealers that they may con

29、duct their own independent investigation of the issuer and the offering, and not simply rely on information provided by an independent counsel or due diligence firm hired by the broker-dealers, or the syndicate manager, the managing broker-dealer, the broker-dealer independent investigation has to i

30、nclude a reasonable investigation at a minimum into the following issuers:(1) The issuer and its management;(2) The business prospects of the issuer;(3) The assets held by or to be acquired by the issuer;(4) The claims being made; and(5) The intended use of proceeds of the offering RN 10-22 FINRA al

31、so add adds a cautionary note on two particular areas of concern: (1) when the broker-dealer is an affiliate of the issuer and (2) when the broker-dealer and now the issuer prepare the private placement memorandum. RN 10-22 It also reminds broker-dealers to look for red flags, financial statements t

32、hat, although purportedly audited by an accountant, contain numerous indications that the financial statements are inaccurate. Beyond these general principles, after a reminder of supervisory and documentation responsibilities, FINRA closed the notice with helpful list of specific areas broker-deale

33、rs should include in their investigation, including:1. As to the issuers and management:a. Historical financial statements; with particular focus on whether there are credible audited financial statements;b. Inquiring about the activities and cash needs of affiliates;c. Contacting customers and supp

34、liers; andd. Investigation of litigation and regulatory compliance;2. As to the issuers business prospect:a. Review of the issuers business plan, including critical assumption; and b.In depth review of the financial models and projected returns, including stress testing.3. As to issuers asset;a.View

35、ing the asset on site; andb.Reviewing third party engineering and similarreports.RN 10-22 In a footnote FINRA cautions securities registered representatives that description in the notice of the due diligence obligation of a broker-dealer is also intended to cover the concomitant responsibilities of

36、 any registered representatives who recommends a regulation D offering to his or her customer.RN 10-22 probably does not so much create new standards of due diligence as it makes existing standards clearer and more precise ,To that end ,it would be dangerous for any broker-dealer or registered repre

37、sentative not to maintain detailed files covering each of the specific areas of concern listed by FINRA.SEC PROPOSED REVISION OF ASSET-BACKED SECURITIES (ABS) REGULATION (ABS PROPOSAL) Last and certainly not least we should note the SECs recent Release Nos.33-9117and 34-61858 proposing significant t

38、he offering process, disclosure and reporting for asset-backed securities .ABS Proposal summary.significant is probably an understatement as the ABS proposal includes almost 200 pages of proposed rules, requiring some 365 pages of additional explanation, the paperwork reducing act portion of the ABS

39、 Proposal by itself continues for 27 pages. Of course the underlying problems addressed in the ABS Proposal are critically important to our economical recovery. Perhaps no other single factor has been so broadly attributed as a cause of the United State and even world-wide capital market collapse. i

40、n the ABS Proposal the SEC cites the importance of the proposed rulemaking : The recent financial crisis highlighted that investor and other participant in the securitization market did not have the risk underlying those securities and did not value those securities properly or accurately .The sever

41、ity of this lack of understanding and the extent to which it pervaded the market and impacted the US and worldwide economy calls into question the efficacy of several. In light of the problems exposed by the financial crisis, we are proposing significant revisions to our rules governing offers, sale

42、s and reporting with respect to asset-backed securities. These proposals are designed to improve investor protection and promote more efficient asset-backed market. As its inception, securitization primarily served as a vehicle for mortgage financing, since then asset-backed securities have played a

43、 significant role in doth the US and global economy. At the end of 2007, there were more than $7trillon of both agency and non-agency mortgage-backed securities outstanding. Securitization can provide liquidity to nearly all major sectors of the economy including the residential and commercial real

44、estate industry, the leasing industry, and the commercial lending and credit market. Many of the problems giving rise to financial crisis involved structured finance products, including mortgage-backed securities were used to collateralize other debt obligations such as collateralized debt obligatio

45、n and collateralized loan obligations, types of asset-backed securities that are sold in private placement. From Real Estate Finance创业者的转机：房地产的盈利时刻在房地产金融行业中有过获取更多盈利的时刻吗?更高兴的时刻，毋庸置疑就是获取更多利润的时刻，但是更有趣的时刻是何时呢？这一年应该是在2008年9月,当看到房地产金融结构的创造性时。自从这个时候，人们在房地产金融行业中主要从事的是试着去理解房地产哪里出现问题了，以及去确定突然的失败是由于房地产金融结构的缺点所

46、导致的，还是仅仅是外在的经济压力和房地产自然周期的共同作用。但是这个问题一直没有答案。答案看起来是房地产结构没有导致房地产的萧条，但是从房地产不透明的环境来看，房地产的结构可能使萧条更加的严重，表现的形式是延迟认识市场潜在的脆弱性和让曾经公认的难题更难解决。一件事情是确定的，许多人，无论是立法委员，调解员，律师，会计师，银行家，还是那些创造并消耗房地产资金的人，现在都在努力的工作去确定（1）如何解决不良的房地产资金结构；(2)如何去提高结构和形成房地产资金和未来市场的传递。对现在的改革加以考虑将影响房地产资金市场直到下一代。以下是几个例子。恢复美国财政稳定的法令 当我写这篇文章的时候，美国参议

47、院正在开始他们有关恢复美国财政稳定法令的最后辩论，似乎是想要建立其他的财政形式，这种形式将需要与众议院版本采用和解的方法。如果任何与目前相同的形式通过，将削减当前业务的大面积发展。新的形式将赋予美国联邦储备银行对金融机构的新权力，但反过来对美联储施加更多的国会压力。律师认为通常情况下最具有强制性得的诉讼案件导致最糟糕的先例：审判只能触摸到惊人事实的表面。难道这将会是RAFS案例和控制的结果吗？难道我们要花费下一个20年去远离在充满危机氛围中所采纳的变革？这将会在不久的几个月（对于成文法）和几年（对于法令）全部上演。我们也会在本专栏关注其进程，以及对于本专栏的所有话题，我们也期待能聆听到你们的观

48、点。加州公共雇员退休基金和中介公司由于财产分配力度和公共雇员退休基金的提高，许多有商业性的房地产投资势头从2005年到2007年也得到了提高。举个例子，这有140亿的净收入，在加州公共雇员退休基金系统的商业性房地产投资中得到了升值，这全都归因于2005年到2006年房地产市场变得景气了。不仅仅是净收入剧烈的增长，而且如同“房地产方案审查”的详细描写，写于2010年4月19日，加州公共雇员退休基金商业性房地产投资办公室著，“新的投资与高的投资环境不成比例。”在一个备忘录中记载着对加州公共雇员退休基金的方案审查和房地产的相关问题。董事会也记录了大量的各种各样的因素，这些因素明显的与资产净值在2008年6月30日到2009年6月30日的市场价值商品交易会上下降的48.2%价值有关，在加州公共雇员退休基金房地产的文件中写到：（1）大量更强的优势，降低了收入的回报和增加财富价值改变的方式；（2）依靠债务，加州公共雇员退休基金面临超过特殊财产的风险；（3）大规模集中的投