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Regulators Replace Policy Statement on Troubled CRE Loans and Allow Short-Term Accommodations (Article)

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Thomas Fileti, Jeremy Mandell, Alexa Tirse, and Jason Shafer authored an article in The Banking Law Journal discussing a joint policy statement on Prudent Commercial Real Estate Loan Accommodations 

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. The Financial Times has named us to its list of most innovative law firms in North America every year that it has published its Innovative Lawyers Reports in the region,and Chambers Asia-Pacific has named us the Japan International Firm of the Year for the sixth year in a row. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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Thomas Fileti, Jeremy Mandell, Alexa Tirse, and Jason Shafer authored an article in The Banking Law Journal discussing a joint policy statement on Prudent Commercial Real Estate Loan Accommodations (CRE) and Workouts produced by The Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, National Credit Union Administration, and Federal Deposit Insurance Corporation and what it means for CRE borrowers experiencing financial difficulties and how it differs from the 2009 Policy Statement. Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt1c20d58f54fb6981/65426e34d6281b001bb8cad8/231101-regulators-replace-policy-statement.pdf" target="_self">full article</a>.

Regulators Replace Policy Statement on Troubled CRE Loans and Allow Short-Term Accommodations

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Tom Fileti is the co-chair of the firm’s U.S. Real Estate Group. He represents a broad spectrum of clients in connection with investments in, and the financing, development, operation, and disposition of, real estate assets in California and throughout the United States. He has a track record of representing clients with substantial and complex transactions. In the recent words of clients, Tom is “one of the smartest and most thoughtful attorneys in the market today,” (Legal 500 US) and is “exceptionally thorough, deliberate, careful and thoughtful,” “fantastic at thorny transactions,” and a “strategic thinker” who “sees the implications of [client] decisions miles down the road and advises [clients] accordingly.” (Chambers USA)Tom’s practice emphasizes transactions involving REITs; acquisition and disposition of real estate assets, loans, and portfolios; real estate finance transactions and credit facilities of all types; matters involving the financing, acquisition, operation, and disposition of hotels and resorts; real estate joint ventures and other equity investments involving development projects, acquisitions, and portfolios; credit lease and master lease transactions involving corporate real estate assets and real estate aspects of mergers and acquisitions involving companies with deep real estate footprints; and workouts, restructurings, exercise of remedies and dispositions with respect to problem loans, troubled joint ventures, and other problem real estate investments. His practice involves all property types, including office, residential (multi-family, subdivisions, and condominiums), retail, hospitality, mixed-use, industrial, and land development projects. Tom regularly represents financial institutions and other clients in connection with syndicated credit facilities; A/B notes and participation arrangements; mezzanine financing; and intercreditor and co-lender arrangements related to the financing of major real estate projects.Tom’s REIT practice includes such matters as representing REITs and contributors in connection with tax deferred roll-up transactions involving the receipt of common and custom-tailored preferred operating partnership units; representing clients selling projects to REITs in taxable transactions involving cash consideration or REIT securities; representing lenders providing financing to REITs for working capital and acquisition or development lines (including credit facilities in connection with REIT IPOs); and representing REITs or their counterparties in connection with joint ventures, purchase and sale transactions involving individual projects and portfolios, development projects, credit facilities, mortgage and mezzanine loan investments, and other matters.Tom is a member of the American College of Real Estate Lawyers and of the National Association of Real Estate Investment Trusts.<h4>Representative Experience</h4><ul><li>Represented Equity Residential in connection with its joint acquisition, with AvalonBay, of the assets of Archstone from Lehman Brothers, involving a valuation (including assumed indebtedness) in excess of $16 billion.</li><li>Represented UDR, Inc. in connection with a series of joint venture transactions with Metropolitan Life Insurance Company, relating to the acquisition or development of multi-family assets in California, New York, Texas, and other locations valued in excess of $2 billion.</li><li>Represented UDR, Inc. in connection with an agreement by Home Properties, L.P. to contribute apartment projects in the Washington, D.C., metropolitan area valued in excess of $900 million, in exchange for cash, assumption of debt, and limited partner interests in a “down-REIT” partnership that UDR formed and to which UDR contributed additional real estate projects having a value in excess of approximately $1.2 billion. This contribution transaction was part of an overall transaction among UDR, entities controlled by Lone Star Funds, Home Properties, L.P., and its general partner Home Properties, Inc., valued at approximately $7.6 billion, including associated property management and development management agreements.</li><li>Represented the general partner of 16 different real estate partnerships in connection with the contribution by that partner to a REIT’s operating partnership of its partnership interests in the partnerships, concurrently with the tender offer by the REIT for the partnership interests owned by all limited partners, in a transaction involving apartment projects valued at approximately $400 million.</li><li>Represented seller in connection with the sale of four Luxury Collection hotels to Starwood Lodging Trust for $350 million. Consideration for the transaction consisted in part of cash and in part of stock in Starwood Lodging Trust.</li><li>Represented Genentech, Inc. in connection with various lease financing transactions aggregating over $1.38 billion for the acquisition or construction of office buildings, pilot plants, and other manufacturing facilities. These transactions included a $520 million lease financing, the primary source of funding for which was a “single issuer” commercial paper program that was secured by condominium units created through the vertical subdivision of Genentech’s Vacaville, California, manufacturing campus.</li><li>Represented Boyd Gaming Corporation in connection with the real estate aspects of its acquisition of four Pinnacle Entertainment, Inc. casinos/resorts for cash consideration of approximately $575 million in conjunction with Penn National Gaming, Inc.’s $2.8 billion acquisition of the balance of Pinnacle Entertainment, Inc.’s assets. This representation included the negotiation on behalf of Boyd Gaming Corporation, as lessee, of master lease agreements with real estate investment trust Gaming and Leisure Properties, Inc. (GLPI) related to the land and real estate facilities associated with the casinos. </li><li>Represented luxury hotel developer Pontiac Land Group in connection with negotiation of joint venture and air rights lease with the Mayo Clinic for development of a luxury hotel on top of the premier building in the heart of Mayo Clinic’s Rochester, Minnesota, campus.</li><li>Represented a large asset management company in connection with the $144 million acquisition of a multifamily residential project and commercial project, each structured as separate condominium units within a mixed-use complex, in Bethesda, Maryland.</li><li>Represented a subsidiary of Mori Trust Co. Ltd. in connection with the $535 million sale of HQ@First, a three-building office park in San Jose, California, wholly leased to Micron Technologies, to a subsidiary of the KKR Real Estate Select Trust fund. Upon closing, this was the Bay Area’s largest office transaction in 2021. Our firm also represented Mori Trust Co. Ltd. in connection with its acquisition of this property in 2019, which was also the largest real estate transaction that year in Silicon Valley.</li><li>Represented borrowers affiliated with GLP Pte. Ltd. in connection with several CMBS financing transactions (consisting of mortgage, senior mezzanine, and junior mezzanine financing tranches) aggregating in excess of $2.85 billion and secured by a total of 271 industrial and logistics properties located throughout the United States that were acquired from Industrial Income Trust through a merger transaction valued at $4.55 billion.</li><li>Represented Wells Fargo Bank as arranger and administrative agent in connection with $580 million in syndicated acquisition financing to a joint venture among affiliates of Douglas Emmett, Inc., Qatar Investment Authority, and Korea's National Pension Service in connection with the joint venture’s acquisition of a portfolio of office projects in the Westwood district of Los Angeles from affiliates of the Blackstone Group for $1.34 billion. Our firm also represented Wells Fargo in the $625 million refinancing of this loan in 2021.</li><li>Represented administrative agent, arrangers, and lenders in connection with revolving line of credit and term loan facility aggregating $750 million provided to Four Corners Operating Partnership, LP, the operating partnership of Four Corners Property Trust, in connection with its IPO and the spinoff and leaseback of real estate assets (consisting of 424 restaurant locations) by Darden Restaurants, Inc.</li><li>Represented administrative agent, arrangers, and lenders in connection with revolving line of credit and term loan facility aggregating $380 million provided to Prime US REIT, a real estate investment trust organized under Singapore law and listed on the Singapore stock exchange, in connection with its IPO, secured by a pledge of ownership interests in subsidiaries that own office buildings located in major metropolitan areas of the United States and in connection with several exercises by the borrower of its accordion rights that increased the lenders’ commitments to $600 million.</li><li>Represented Hypothekenbank Frankfurt (formerly known as Eurohypo, A.G.) in connection with the disposition of portfolios of mortgage loans, mezzanine loans, and participation interests in mortgage and mezzanine loans, in separate transactions to Wells Fargo Bank, to a real estate opportunity fund sponsored by Blackstone, to a major money center bank, and to SunTrust Bank (now, Truist Bank). The aggregate consideration in connection with these dispositions exceeded $1.7 billion.</li><li>Represented administrative agent for senior lenders in connection with default by borrower on a $180 million construction loan for construction of luxury hotel in Paradise Valley, Arizona, appointment of receiver, forbearance agreement, foreclosure, inter-lender disputes, disputes with hotel manager related to performance guaranty payments due under hotel management agreement, evaluation of issues associated with bankruptcy of mezzanine lender (Lehman Brothers), and ultimate disposition of the project.</li><li>Represented co-arrangers and agents of senior construction loan for a $700+ million mixed‑use project in Flushing, Queens, in connection with structuring and documentation of solutions dealing with default by borrower; in connection with failure of mezzanine lender to fund its share of advances at the height of the financial crisis in 2009; in connection with litigation commenced by mezzanine lender against the administrative agent; in connection with litigation commenced by one of the senior lenders against the administrative agent; and in connection with several restructurings of the loan, sales of loan positions by lenders, and ultimate payment in full of the loan.</li></ul>

Thomas R. Fileti

Partner

Jeremy Mandell is the co-chair of our Financial Services Group. His practice focuses on financial services regulation, with particular attention to payment and emerging payment issues.Jeremy advises bank, non-bank, and fintech clients on financial services regulatory issues, including issues arising under the Electronic Fund Transfer Act, the Truth in Lending Act, and the Equal Credit Opportunity Act. He has particular experience working on issues related to interbank and emerging payments systems, including blockchain-based payment solutions and stablecoin platforms. He has counseled clients with award-winning apps and innovative products and services on complex issues, bringing a practical, broad-market perspective to product development, ongoing compliance needs, and regulatory engagement.He also has extensive experience working with banks and non-banks on strategic partnerships. As partnerships between banks and fintechs become more prevalent, Jeremy draws on this experience to advise clients on the financial services regulatory and commercial issues that arise in the context of these partnerships.Jeremy is co-editor of The Consumer Finance Law Review, surveying the legal and regulatory approaches to consumer finance law in jurisdictions around the world.Before joining Morrison Foerster, he served as a senior financial services analyst at the Board of Governors of the Federal Reserve System in the Division of Reserve Bank Operations and Payment Systems, where he focused on policy issues related to large-value payments systems. Jeremy leverages this experience to advise clients on various legal and regulatory issues.Jeremy earned his J.D. from The George Washington University Law School in 2010. He earned his M.A. in applied economics from Johns Hopkins University in 2004 and his B.A in economics and international relations from Lehigh University in 2001.

Jeremy R. Mandell

Alexa Tirse is an associate in Morrison Foerster’s Real Estate Group.Prior to joining Morrison Foerster, Alexa was an associate at another law firm serving domestic and international clients. She also served as a judicial extern for the Honorable Roy K. Altman in the Southern District of Florida and was a student attorney for the Farmworker Legal Assistance Clinic at Cornell.Alexa received her J.D. from Cornell University and her B.A. magna cum laude from the University of Florida.Alexa is fluent in Spanish and proficient in French.

Alexa Tirse

Associate

Jason Shafer is Of Counsel in the Financial Services Group, based in Morrison Foerster’s Washington D.C. and Los Angeles offices.Jason’s practice focuses on advising U.S. and foreign banking organizations and other financial institutions on transactional, regulatory reform, supervisory, enforcement and governance matters. He also advises U.S. and foreign banking organizations and Fintech companies on partnerships and investments.Prior to joining Morrison Foerster, Jason was a Senior Counsel in the Legal Division of the Board of Governors of the Federal Reserve System, where he focused on the regulation and supervision of banks and bank holding companies. While at the Federal Reserve, he reviewed complex proposals by U.S. and foreign banking organizations to engage in mergers and acquisitions, conduct new activities, and offer new products. In addition, Jason reviewed investments in banks and bank holding companies, and advised on liquidity regulations, swap margin requirements, and enhanced prudential standards.Prior to joining the Federal Reserve, Jason was a Special Counsel at the U.S. Commodity Futures Trading Commission and Senior Counsel at the American Bankers Association.

Jason Shafer

Of Counsel

Financial Services

Real Estate