New Crowdfunding Tool for Real Estate Projects Emerges – But Tread Carefully

Last week, the Securities and Exchange Commission (“SEC”) adopted final rules that will make it easier for real estate firms to pursue capital raises of up to $50 million in a 12 month period.

The rules, commonly referred to as Regulation A+, permit eligible companies to conduct securities offerings without the onerous requirements of full securities registration.  What’s more, companies can solicit funds from individuals who are not accredited investors.  In other words, companies can promote their investment opportunity to any investor with an internet connection, although unaccredited investors will be limited in the amount they can invest.  It’s no surprise why Regulation A+ has been called the private company’s mini-IPO law.

Silicon Valley’s legal community seemed to shrug and yawn when asked about the fundraising opportunities for startup tech companies, according to a recent article in The Recorder.  Time will tell if they are right.  However, in the real estate investment and development community, $50 million can help fund a very attractive real estate opportunity.

Overview of Regulation A+

Of course, the new regulation is not without its process and procedure, so real estate project sponsors need to proceed carefully.  The exemption cannot be used for a “blank check” real estate business model.   In addition, the new rules establish two tiers of offerings that can be made:

Tier 1:  Annual offerings of up to $20 million, including no more than $6 million on behalf of selling security holders that are affiliates of the issuer.  There are no minimum investor qualifications and only reviewed, but not audited, financials are required.  However, Tier 1 offerings are subject to both SEC and state review.

Tier 2:  Annual offerings of up to $50 million, including no more than $15 million on behalf of selling security holders that are affiliates of the issuer.  A company making a Tier 2 offering must provide audited financial statements, annual reports and engage in ongoing reporting.  Tier 2 offerings will be exempt from registration and full Exchange Act reporting and may list their securities on a national securities exchange by filing a short-form registration statement.  Unaccredited investors can purchase no more than (i) 10% of the greater of annual income or net worth (for natural persons) or (b) 10% of the greater of annual revenue or net assets at fiscal year end (for non-natural persons).  Tier 2 offerings are subject to SEC, but not state review.

Real estate companies can “test the waters” with, or solicit interest in a potential offering from, the general public either before or after the filing of a Regulation A+ eligible offering statement so long as certain conditions are satisfied.  This can be an important tool for real estate developers who want to gage interest in their particular project before launch.

Some Issues Unique to Real Estate Related Offerings

Unlike a typical startup company offering, structuring a real estate offering properly is crucial to take advantage of the new regulation.

For example, asset backed securities are excluded from the list of eligible securities that can use Regulation A+.  The definition of  an “asset backed security” used by Regulation A+ is the definition found in Regulation AB, which reads in part:  “a security that is primarily serviced by the cash flows of a discrete pool of receivables or other financial assets, either fixed or revolving, that by their terms convert into cash within a finite term period, plus any rights or other assets designed to assure the servicing or timely distributions of proceeds to the security holders[.]” The important take away from this definition for real estate companies?  Regulation A+ cannot be used if a company’s offering is selling participation interests in a pool of real estate secured debt, in pools of long term ground leases, or other similar pooled real estate secured receivables.

Nevertheless, the definition of an “asset backed security” in the Securities Exchange Act does not prohibit single “asset-backed” transactions.  It would be possible to structure a real estate investment transaction so that investors can participate in a single loan or single lease (in the latter case, one for a significant rental value for a long term).  But again, one should proceed with caution in structuring the opportunity.

Finally, another alternative that should be considered is structuring a Regulation A+ offering with preferred equity in a limited liability company.  That being said, it is important think through the structure from a legal and economic perspective before moving forward.  One important consideration would be review of SEC rules at the time of the offering.

Other structuring options may be available.  The good news is that one more tool will soon be available to help real estate project sponsors raise funds in the capital stack. Regulation A+ will take effect 60 days after its posting. We will see how the real estate community reacts to this new financing tool.

New ADA and Energy Use Disclosure Requirements for Commercial Property Owners

Beginning July 1, 2013, owners of commercial property in California will need to comply with new disclosure requirements when entering a new lease, amending a lease, or when owners sell or finance a commercial building.  The first disclosure requirement relates to disability access and the other requirement relates to a building’s energy use and consumption.

Certified Access Specialist Disclosure

Under California SB 1186, commercial property owners must include a disclosure in all commercial leases or lease amendments stating whether the property has been inspected by a certified access specialist and, if so, whether the property is in compliance with construction-related accessibility standards.   A certified access specialist (also known as a “CASp”) is a professional certified by the State of California to assess commercial properties and their compliance with federal and state disability-related laws and regulations.  After an inspection, the specialist issues a report which identifies areas of non-compliance with accessibility standards.  The report can be used by property owners to create a practical and financially reasonable plan for fixing problems in advance of litigation.

While the CASp disclosure in leases and lease amendments is mandatory, property owners are not required obtain such inspections.  The new law provides incentives, however, to having the building inspected.  Property owners who timely correct ADA violations identified in a CASp report or have had their property inspected by an approved inspector prior to being served with a complaint by an ADA plaintiff can be eligible for reduced statutory damages or a 90 day stay of proceedings in the event of a lawsuit.   The stay is granted to give the owner the opportunity to correct accessibility issues and dismiss the lawsuit.

Energy Use Reporting

Another California law, known as AB 1103, provides that prior to the leasing, sale or financing of an entire commercial building of more than 50,000 square feet (the requirement hits smaller buildings in 2014 – all the way down to 5,000 square feet on July 1, 2014!), the landlord, seller or borrower is required to disclose energy use data for the building for the prior 12 months, together with information regarding the building’s operating characteristics and ENERGY STAR Energy Performance Score.  To comply, building owners are required to open an account for the building at the ENERGY STAR Portfolio Manager Website, operated by the US EPA, no later than 30 days prior to the date the disclosure is required.  Under the law, once an account is opened, utility companies are required to provide energy data within 30 days of the date of the request.   Then, the owner must log back in to the account, complete a compliance report, and download certain Energy Use Materials for disclosure to the prospective tenant, purchaser or lender.   The disclosure requirement applies to virtually all commercial building use types.

The ENERGY STAR Portfolio Manager is a free online software tool that allows property owners to track and evaluate energy consumption in light of the occupancy of the building in specified land use categories.  A building is given a score on a scale of 1 to 100.  A rating of 50 means that the building performs at the midpoint when compared with similar buildings.  The Portfolio Manager uses national weather data to compare buildings in similar climates, so that buildings in locations that have snow in the winter and high humidity in the summer are not are scored against buildings in temperate climates. A building that scores 75 or above qualifies for an ENERGY STAR certification.  Because the consequences of having a poor score can have consequences in attracting tenants that have green building requirements, it is important for property owners to retain knowledgeable staff or consultants to handle the inputs into the ENERGY STAR database.  Even small mistakes can affect an overall score considerably in the wrong direction.

The new law will allow tenants, buyers and lenders to compare a building’s  performance with other similar buildings.  In addition, the disclosure requirement provides more information than a disclosure of monthly utility bills, as is typical when tenants evaluate utility pass through expenses, buyers estimate future operating costs in their pro formas, or when lenders evaluate which assets have a better ability to maintain profitability and support loan repayment.  On the other hand, the cost and expense of complying with the law’s new disclosure requirement is an added cost of doing business as a commercial property owner in California.

Breach of Commercial Lease Doesn’t Trigger Loan Guaranty, Resulting in $40 Million Loss for Lender

A tenant’s refusal to pay rent and the borrower’s resulting failure to make debt service payments did not trigger a “bad boy” loan guaranty because the lease was never terminated by operation of law, a California Court of Appeal has held. 

In GECCMC 2005-C1 Plummer Street Office Limited Partnership v. NRFC NNN Holdings, LLC (referred to in this Post as the “Plummer decision”), the court’s holding resulted in a heavy loss of more than $40 million for the lender.  The court’s holding demonstrates the necessity of carefully evaluating lending risks and coordinating remedies in lease and loan documents, particularly when a real estate asset has a single tenant.

Facts of the Case

In the Plummer decision, the lender loaned $44 million to a borrower.  With the money, the borrower purchased two commercial projects in Chatsworth, California.  The borrower leased the properties to Washington Mutual Savings and Loan as the sole tenant.  The loan was non-recourse, secured by the properties but not any other assets of the Borrower, subject to exceptions for borrower misconduct.  An affiliate of the borrower, Northstar, executed a loan guaranty that contained triggers that corresponded to the borrower misconduct non-recourse carve outs.

Northstar’s guaranty to the lender provided that “[t]he Loan shall be fully recourse to Guarantor, and Guarantor hereby unconditionally and irrevocably guarantees payment of the entire Loan, if any of the following occurs after the date hereof:  . . . (iv) without the prior written consent of the [Lender, either lease] is terminated or canceled.”

Washington Mutual went out of business and it and its successors stopped paying rent and abandoned the properties.  The borrower ceased making loan payments to the lender.  The lender took title to the properties through a non-judicial foreclosure sale in which it bid approximately $11 million.  The lender then brought suit against Northstar, the guarantor, for the balance due on the loan — approximately $42 million plus attorney fees and costs.

Court’s Decision

The principal legal issue was whether the tenant’s ceasing to pay rent and abandoning the property terminated the leases, triggering the guarantor’s duty to pay the amount owning on the loan if the leases were “terminated” “without the prior consent of Lender.”  The trial court concluded that the leases were terminated without the lender’s consent and the guarantor was liable. 

The Court of Appeal disagreed, holding that the guarantor was not liable under the guaranty.  When the tenant stopped paying rent and abandoned the premises, the leases were not terminated as a matter of law.  Both leases contained provisions, pursuant to California Civil Code section 1951.4, that the leases continued in effect for so long as the landlord did not terminate the tenant’s right of possession, notwithstanding the tenant’s breach of the lease.  The leases expressly provided:  “No act by Lessor other than giving notice of termination to Lessee shall terminate Lessee’s right of possession.”  The borrower never gave notice of termination of the leases.  (Why would the borrower do so under these facts?)

As a result of the lease provisions and operation of California Civil Code section 1951.4, the leases did not terminate and the guaranty was not triggered.  The court reasoned that its interpretation of the guaranty was consistent with the parties’ intent, expressed in the deed of trust and other loan documents, to  carve out exceptions to the loan’s non-recourse provision only in the event that borrower committed certain “bad boy acts” that pose particular risks to the lender’s interests and collateral.  Those same acts could trigger the liability of the guarantor.  But in this case, because none of the express “bad boy” acts occurred, so the lender’s sole recourse was to the collateral. 

The lender tried to argue that although the lease termination provision in the guaranty resembled a “bad boy” guaranty it should operate like an absolute guaranty because full recourse is triggered regardless of whether the lease is terminated by the tenant or the landlord (i.e., the borrower).   However, the court did not accept that argument, stating that the leases were never terminated and only the borrower held the right to terminate the leases, which the borrower did not do.  For the same reasons, the tenant’s repudiation of the leases did not trigger the guaranty.   The leases expressly provided they could not be terminated by an act of the tenant. 

Analysis

Do you think the lender believed, at the time the loan was made, that the guarantor had no obligation if the borrower stopped making debt payments on the grounds that its sole tenant decided to walk from the lease?  The answer to this question is almost certainly no, but the court’s decision doesn’t provide any facts to help us understand the thinking of the loan officer or loan committee.  Did the lender underwrite this loan believing that Washington Mutual was essentially at no risk of default?

Going forward, lenders and their counsel will want to pay close attention to remedies in leases and loan documents.  Lenders may be tempted to require their borrowers to include lease continuation provisions in order to continue collecting rents from a defaulting, creditworthy tenant.  However, as this case instructs, if a tenant suffers a financial calamity and goes out of business, those lease continuation provisions have little utility and can actually be harmful if a “bad boy” guaranty is not properly structured.

The language of a loan guaranty should also be carefully reviewed so that it reflects the expectations of the parties.  Does the lender expect that the single tenant will provide the sole source of funding for the loan?  Or does the borrower need to back up the loan and have incentive to find a replacement tenant?  If the latter is so, the guaranty could have provided that any abandonment of the premises by its single tenant combined with a failure of the borrower to make debt service payments triggered the guaranty.   The trigger would not be “termination” of the lease, but abandonment of the premises regardless of whether the lease was “terminated.”  If the original tenant goes out of business and abandons the property, the borrower should find a replacement tenant and continue to make debt service payments during the search.  Then, the incentives are properly aligned between the borrower and the lender:  both want a stable rental stream.  Of course, there are circumstances where a lender may be willing to take on the additional risk after extensive underwriting of the single tenant, but the pricing model for the loan would likely have to be adjusted to account for the additional risk.  The Plummer case offers a unique view into decisions that were made during the real estate finance bubble prior to 2008 and their heavy financial consequences.