Keep Your Eye On The Horizon

A crucial part of investing is to look in all directions towards the horizon. By that I means forwards as well as backwards, since it is both anticipation and retrospective understanding that enable us to increase our ability to make the best decisions.

The best traders and investors are those who adapt fastest from mistakes - and learn from them. It is not about selling when an unrealised loss reaches a huge number for example, but determining whether that situation will recover, or if it is indeed time to cut your losses and analyse what went wrong.

"Indeed one's faith in one's plans and methods is truly tested when the horizon before one is the blackest." Mahatma Gandhi

Hence why my focus on General Growth Properties intensified as its stock price fell throughout Q1 2009. As we know, everything so far has gone well for GGP as an investment recently, but it is well worth spending time re-assessing the stock now.

How exactly does it stack up relative to its peers on current valuations? What are the likely prospects regarding securing advantageous terms with lenders ahead of submitting a reorganisation proposal to the Court? What are the primary risk factors remaining (e.g. dilution), and what is the likely price range in 12 months? Take a look at this table of the American REIT Peer Group, which details the share price performance of GGP relative to its peers over the last 3-12 months.

The statistics speak for themselves as to which has been the best hold over the last 6 months, with GGP up a massive 403.20%. Having said that, this is in no small part due to its enormous discount due to bankruptcy risk - hence the 87.90% year-on-year fall.

For a selected group I have added in some analyst FFO estimates for 2009/10; firstly note the zero 6 month dividend yield - a shame for those of us with plenty of shares. One of the most striking observations is when we look at the forward NAV (Net Asset Value), this reflects GGP's market value based on its real estate properties, and the figure is derived from the total number of shares. At just 3.5, this is a massive 14.8x lower than Simon Property Group, and 8.4x lower than Regency. Why is GGP so much lower? The primary reason remains the uncertainty forward priced due to its status in Chapter 11, and its ability to secure asset prices or cap rates.

However looking at the sector as a whole, commercial real estate has gone through a rally that has pushed up valuation levels to near previous peak levels. If we take a benchmark (EV/EBITDA is more accurate the P/E ratios for REIT's) then the sector average is at a multiple of 14 right now. That gives an implied cap rate in the 6-7% range. However that also means that as on average, REIT's are now averaging 12.8X the 2010 Funds From Operation (per share) estimates - strikingly that is a 23% premium to long-term average multiples.

That actually suggests that for short term traders, now is not necessarily a good time to be entering commercial real estate. However if we go back to GGP, the enormous discount to the sector becomes apparent. At just a 1.5x 2010 FFO/share estimate, it sits markedly as by far the cheapest in the sector, and suggests that should restructuring complete without excessive share dilution - something I will come back to another time - then this clearly remains THE choice in the sector for value investors.

This recent commentary has suggested that the recent ruling on GGP should be considered a one off "largely because [the whole company] has filed for bankruptcy." I think one off is the wrong phrase, what they actually mean is that given most defaults are not at the parent entity level, therefore single entity defaults will not provide any opportunity for debtors to push for the kind of ruling that has just taken place with GGP.

However many other companies operate with a centralised cashflow model, and so could conceivably see similar group wide liquidity problems, so to claim this is a one off is not correct. In fact, this view is shared by the legal firm Wachtell, Lipton, Rosen & Katz, which notes:

"..the GGP ruling may herald a trend towards bankruptcy filings by highly structured commercial real estate enterprises which today find themselves vastly over-levered."

The article is well worth reviewing, as it provides some observations around how the complexity of debt tiers acts in itself as an incentive to file for Chapter 11 due to problems restructuring:

"Further fueling potential bankruptcies, many of the highly structured, multi-tranche capital stacks that were set up in the last few years present significant barriers to consensual restructuring outside of bankruptcy. For one, master servicers and special servicers are often constrained in their ability to modify loans because of restrictions under the relevant pooling and servicing agreements and adverse tax consequences under applicable REMIC tax rules."

So with GGP remaining excellent value, I think the right balance of caution about GGP's future is struck with this final passage:

"While this round went to GGP and against the SPE and CMBS lenders, it remains to be seen where the balance struck by the GGP court between creditors’ rights and the interests of equityholders leads when thorny issues such as cramming down secured lenders to extend maturities and alter pricing and other terms to the benefit of equity are presented to the court, or how negotiation and settlement discussions – both in formal bankruptcy proceedings and in consensual non-bankruptcy restructurings – will play out in the post-GGP era."

Another legal commentary by Davis Polk of the recent court ruling is also available here which gives a good summary.

Gropper Decides 'Enough Diversions'

Delicious. It was like waking up to find a fine pie and chips, with a large pint of ale in a country pub waiting for me. That's really the only way I can describe my morning, as L dried her hair and woke me up, but knowing I was 'working' from home today AND then finding out that Judge Gropper has finally made his decision on whether the disputed SPE's should be included.

As I am sure anybody long on GGP is already well aware, the Court has published its memorandum of opinion on this issue, and has ruled in favour of General Growth Properties.

Despite the multitude of other arguments put forwards by the Creditors, Judge Gropper rightly centred on the issue of 'bad faith' as "the primary ground on which dismissal is sought is that the Subject Debtors’ cases were filed in bad faith. It is also contended that one of the Subject Debtors was ineligible to file." Page 4, MEMORANDUM OF OPINION

While other arguments were raised relating to some malls not having other significant creditors, and the alleged need to include entities due to the centralised nature of the GGP business model (despite other entities such as the Joint Ventures not being included), these really were in there to flesh out the argument. The central premise of this filing has always been around the issue of proving 'bad faith'.

I mentioned in previous analysis that this was highly unlikely to be upheld based on Wells Fargo's own definition of this as:

"...a balancing process between the interests of debtors and creditors which characterizes so many provisions of the bankruptcy laws and is necessary to legitimize the delay and costs imposed upon parties to a bankruptcy."

Gropper's submission gives a useful summary of the GGP group structure including its loan structures - this includes detail on how the underlying CMBS are sold onto the wider market as re-REMIC's: something those who have been reading my recent posts will be familiar with. This demonstrates that the Movant arguments for dismissal of SPE's with a single creditor are actually nonsense:

"The REMIC in turn sells certificates entitling the holders to payments from principal and interest on this large pool of mortgages." Page 10, MEMORANDUM OF OPINION

In effect, negotiations relating to such SPE's can be extraordinarily complex under situations requiring an exceptional extension or refinancing agreement, and can realistically only be achieved with consortium consent, a cramdown or through Chapter 11.

As part of the court justification for the decision, the memo of opinion goes into some detail outlining the plight of General Growth Properties, explaining how its previously industry-standard CMBS refinancing model was left at the mercy of the credit crisis. The submissions goes into detail explaining the refinancing and debt restructuring efforts made:

"...but the lenders were unwilling to consent to additional forbearance, which in turn led to defaults and cross-defaults. Furthermore, the GGP Group was generally unable to sell any of its assets to generate the cash necessary to pay down its debts, as potential purchasers were themselves unable to acquire financing." Page 15, MEMORANDUM OF OPINION

This includes confirming GGP's inability to renegotiate loans set to mature by January 2010 due to the refusal by the master servicers to allow them to communicate with the underlying creditors. This has all been covered previously in GGP's own submissions, but clearly won over the Court as a convincing reason behind its need to move into Chapter 11.

The memo breaks down its ruling by addressing each of the key objection reasons put forward by the creditors.

Bad Faith Dismissal
The first point made is that 'bad faith' filings are "a judge-made doctrine" and not an absolute that can be proven by lawyers citing previous cases in their arguments. Gropper notes that dismissal of the SPE's from Chapter 11 on these grounds should only be granted "if both objective futility of the reorganization process and subjective bad faith in filing the petition are found.” Page 19, MEMORANDUM OF OPINION

Additionally Judge Gropper concludes that no one factor on this issue can be determinative - the Court cites a previous ruling and states:

"It is the totality of circumstances, rather than any single factor, that will determine whether good faith exists... Case law recognizes that a bankruptcy petition should be dismissed for lack of good faith only sparingly and with great caution." Page 19, MEMORANDUM OF OPINION

In other words, this goes back to previous legal analysis of Court submissions that ultimately GGP and the Court needed to consider what is in the best interests of everybody here, not just the few secured creditors that would benefit from liquidation. The Court dismisses comparisons cited with bad faith rulings made on single-assets real estate debtors, and slaps down MetLife in particular by pointing to the fact that both ING Clarion and Helios even concede that GGP do intend to reorganise and emerge from bankruptcy protection.

Objective Bad Faith: Prematurity
The court answers the allegation that GGP filed for bankruptcy 'prematurely' on entities with a maturity date beyond March 2010, as the prospect of liability was too remote. The Court answer is that this is irrelevant, the question is "whether the Subject Debtors were in actual financial distress on the Petition Date", and of course that is undeniable.

Ultimately this issue cannot be upheld because "the goal of the 1978 Bankruptcy Code to incentivize a debtor to file earlier rather than later, so as to preserve the value of the estate." Page 26, MEMORANDUM OF OPINION

This ruling is summarised that it "...is not to assert that every stand-alone company with ample cash flow would necessarily act in good faith by filing a Chapter 11 petition three years before its only debt came due. However, contrary to Movants’ contentions, the Court is not required in these cases to examine the issue of good faith as if each Debtor were wholly independent." Page 27, MEMORANDUM OF OPINION

Gropper finishes off by pointing to a weakness in the creditor's arguments on this: namely not explaining "how the billions of dollars of unsecured debt at the parent levels could be restructured responsibly if the cash flow of the parent companies continued to be based on the earnings of subsidiaries that had debt coming due in a period of years without any known means of providing for repayment or refinance." Page 30, MEMORANDUM OF OPINION

In other words, General Growth Property had no choice to take the decision it did in filing for Chapter 11 protection, because it had no realistic prospect of refinancing at a group level and that was the only criteria it could make when choosing to bring the wider structure with it in the filing.

Inability To Confirm A Plan
Another of MetLife's more absurd arguments was the suggestion of bad faith because a plan could not be confirmed in advance of filing for Chapter 11, and that they would never be able to confirm a plan over its own opposition! The logic to this was clearly flawed, and Judge Gropper devotes an appropriately short space to citing previous case law that proves this is utter rubbish with no basis in the Bankruptcy Code.

Subjective Faith
The arguments here were around not negotiating prior to filing and the firing of several independent managers / directors of SPE's ahead of the Chapter 11 filing. The Court confirmed that actually Bankruptcy law does not require negotiations to begin prior to any filing - this is certainly not sufficient for proof of bad faith. Gropper adds his views on this:

"On this record, there is no evidence that pre-filing talks would have beenadequate to deal with the extent of the problem. Indeed, there is no evidence Movants would have been willing to work with the Subject Debtors." Page 36, MEMORANDUM OF OPINION

Again Judge Gropper reserves additional criticism for MetLife, who despite having some mortgage loans as well as the unwieldy CMBS structures that caused so many problems with negotiations of loans further out, revealed some fascinating views via their internal documents called for examination by the Courts:

"...there is no indication that it [MetLife] would have readily agreed to a refinancing of any of its loans." Page 37, MEMORANDUM OF OPINION

"In December 2008, the head of real estate investments at Metlife identified its debt exposure to GGP (as a group) as a 'lessons learned opportunity.' A director and member of the research group responded, 'We wouldn’t do a loan with GGP now, given their problems.'" Page 37, MEMORANDUM OF OPINION

That's what you call 'the Smoking Gun' regarding MetLife's intentions and hence need for General Growth to file for Chapter 11.

Relating to GGP's activities with its somewhat dubious late dismissal of Independent Directors of many SPE's ahead of voting in favour of joining Chapter 11, Judge Gropper surprised me by not just agreeing that this was contractually allowed and hence legal, but also largely agreeing that in many cases this was right and proper.

This was justified by GGP President Thomas Nolan, who explained that the issues requiring their dismissal arose from certain directors who were less experienced with restructuring environments and the challenges the project entities were facing, and who incorrectly agreed with lenders and "thought the independent managers were obligated to protect their interests alone." Page 39, MEMORANDUM OF OPINION

Gropper goes on the record as stating that the firing of two 'Independent Managers' was "admittedly surreptitious", but falls back on the holes in the CMBS legal contracts, which gave GGP full control over such actions. You could say GGP got away with that one, although indications are that this would never have been a dealbreaker on the wider decision of bad faith, given the need for the Court to consider the wider interests - which is clearly a Chapter 11 restructuring.

Poor Old MetLife
I had long thought that MetLife in particular was whinging more than most of the creditors, with its plethora of largely unjustified complaints submitted to the courts. Perhaps over that bottle of fine 10-year single malt Scotch that should have arrived at the Court last week, the same occurred to Judge Gropper as well.

The Court acknowledged that as a consequence of Chapter 11, "creditors are now only receiving interest on loans, and have been deprived of current amortization payments, and Metlife complains that it is not even receiving interest on its mezzanine loan, which is secured only by a stock interest in its borrower’s subsidiary." Page 41, MEMORANDUM OF OPINION

However the court concludes that no additional adequate protection has even been sought by the creditors, who have full rights to recover both the principal (original loan amount) plus interest and post-petition interest once a restructuring plan is confirmed.

"Movants complain that Chapter 11 gives the Debtors [GGP] excessive leverage, but Metlife asserts it has all the leverage it needs to makesure that its rights will be respected." Page 42, MEMORANDUM OF OPINION

Let me translate from legalese: shut up and stop whinging.

Summary
Judge Gropper sums this up with true 'third glass of the good stuff at 1am and tired of writing 40 pages to justify himself' style:

"These Motions are a diversion from the parties’ real task, which is to get each of the Subject Debtors out of bankruptcy as soon as feasible. The Movants assert talks with them should have begun earlier. It is time that negotiations commence in earnest." Page 42, MEMORANDUM OF OPINION

Impact On Other Rulings
This bodes badly for Citi's ill-timed filing yesterday of a motion to grant relief from the automatic stay under Chapter 11 of its Oakwood Shopping Center. On paper Citi have a strong argument with precedent in their favour: GGP was undersecured by $10million upon entering Chapter 11 in April 2009, and crucially now after an asset revaluation (the accuracy of which is questionable in this market), there is arguably no longer any equity remaining within the property.

"Using KTR Realty's appraised value, the Lenders [GGP] are now undersecured by more than $19 million, or approximately 20.3% of the principal amount of the Loan."

Of course, millions of homeowners around the world are in negative equity right now, and without the support of an enormous REIT. However because they continue to service their loans they are not having a forced repossession.

When put like that, Citi's claim seems equally difficult to justify, as precedent rulings previously have not been in cases where loans have continued to be serviced at pre-filing levels, hence no actual material loss suffered by the creditor.

Given the arguments already put forwards above by Judge Gropper in dismissing other such cases, this one looks likely to be swiftly dismissed as well. With General Growth Properties share price now at a new 52 week high as I finish this, I look forwards to unrealised profits climbing ever higher.

Risk Mananging Asset Backed Securitization

GGP Q2 Results
General Growth Properties Q2 results were better than the markets expected. When you strip out exceptionals, many of which are related to Chapter 11 costs, the fundamentals are encouraging, and have rightly been reflected in a significant rise in the share price.

Taking a look at the breakdown, the immediate comparisons appear poor: Funds From Operation (FFO) are down by 73.8% year on year, Core FFO is also down 43.9%. However of much great importance is GGP's Net Operating Income (NOI) - down a much more modest 11% in total, and a very good figure both in comparison to GGP's major peers and market expectations. In fact, excluding the main drag from the MPC's (Master Planned Communities) - with those stripped out we reach the headline figure reported for the main Retail businesses, with NOI down a mere 2.1% on the previous year.

Relatively strong fundamentals adds further credibility to the GGP business model. The increasing market capitalization of the firm is a direct reflection of growing confidence across the market in its ability to successfully restructure without excessive equity dilution.

Bubbles & Risk Management
I fully admit to not seeing the credit crunch coming until it was too late, and if most people are honest they did not either. In fact, nor did most of the noted commentators - it was a rare few who warned of the dire effects of a credit withdrawal with the years in advance required to avoid these problems.

I thought the dot com and recent housing bubbles were both glaringly obvious, and stayed well out of both. However as I discovered with the credit crunch, bubbles are not always so clear - they have to be hard to spot to enable them to build up.

Risk management was a dirty word on the Street a few years ago. On a few occasions, I remember sneering with the best of them, as calls from risk management about positions being taken were viewed as unnecessarily cautionary. And consistently unnecessary as the high earners and income generators within my former bank confidently dismissed them as overly conservative. I was naively a believer in the pure capitalist argument that too much collateral tied up money that could and should be actively and productively used as part of the development of the 'new economy'. The financial instruments now in use were different; these managed risk as inherent in their design.

Whenever anybody starts justifying practices that generate extraordinary profits and inserts the word 'new' in the context of economics, it is time to beware. Things really weren't different this time of course, just as recessions and crises have occurred with startling regularity throughout the last century. My take on this is that it is the different generation of investors ultimately ensures that reoccurrence. Much like investment, few take the time to research before jumping in, and hence do not learn the lessons of history.

Additionally throw in the less sophisticated consumers in the emerging markets and bubbles in India and China in particular are a virtual certainty – that means the potential to exploit significant, quick profit in the coming years ahead for those willing to take the time to invest in these markets and not play safe at home (much more on this theme another time).

Risk Management of Asset Backed Securities
The one plus of this learning process for our generation is that the regulators have been taking a hard look at the woeful risk management practices in many of the large banks - particularly in the context of asset backed securitization.

The US government is proposing several key legislative changes, which are worth understanding for those inside and outside the industry:

1. Any bank, non-bank issuer or underwriter of an asset-backed security must retain at least a 5% interest of the credit risk in such assets for an as-yet unspecified period or form. Crucially that would be without hedging - the theory being that if firms are themselves exposed to what they are trading, they as shareholders and owners of the banks will take the issue of risk a great deal more seriously.
   
2. Requirement to continue reporting by issuers of asset-backed securities even if the number of holders falls below 300 - this has relevance to the low level issuance/ownership of Structured Purpose Entities (SPE's) that we have seen in General Growth Properties bankruptcy, whereby some creditors have effectively been the sole lender. At present these structures escape under the reporting radar, but soon no longer.


3. Requirement to disclose standardised asset-level or loan-level data and standardised compensation and risk retention information. This really does not have much bearing on risk management, and seems to have been inserted to placate those wishing to have some disclosure of bankers compensation.
   
4. Regulations on the use of representations and warranties in the asset-backed securities market that would require credit rating agencies to include additional analysis in their reports - this would require disclosure permitting investors to identify originators with clear underwriting deficiencies.


5. Elimination of the offering exemption for certain real estate mortgage notes and related participation interests.

If these proposals are adopted, the impact on the securitisation market will depend on the nature and scope of the regulations that are ultimately developed. However it is that first proposal relating to forced exposure which knowing the banks will be the most effective means of ensuring responsible behaviour.

As the cocky young traders I describe in my last entry have long proven, it is easy to play dice with other people's money – and in the right period for the economy a total muppet can make money. However put your own money on the table, and you think about the risk far more seriously. This links back to what bonuses are meant to be about - a performance linked assessment that incentivises traders to trade as effectively as possible – it is that glaring short-termist flaw in them that has been exposed and is rightly attracting criticism.

Bonus reforms remain another vital change that needs to be imposed on the sector, and if I can recognise that then you know there is no excuse for those disagreeing.

Trader Territory Marking

As expected, the motion filed by Hugo Boss for a relief from the automatic stay (see previous entry for link to the motion) was roundly rejected by Judge Gropper last week. Otherwise this story is doing the rounds today, and illustrates how the 'sword' of Chapter 11 can be used as a threat:

"[GGP] said it was considering ways to treat some of its subsidiaries as a single debtor and override their status as separate companies."

This is actually going over old ground, although it would be useful to clarify there is an apparent difference in how substantive consolidation is being used. The major concerns of the credit industry lie in CMBS being substantively consolidated into wider loans such that the agreed collateral is no longer secure - this been addressed in court submissions and will be protected by the replacement lien and order for GGP to provide 'adequate protection'.

There is however a desire and incentive by GGP to consolidate lender negotiations where possible through the Chapter 11 process to assist in restructuring - the two are not necessarily incompatible, although GGP is clearly using this as a threat.

A sign of the changing tide perhaps - our first new trader since 2008 joined the Desk on Monday morning. Somehow we coped after Junior Trader's departure earlier in the year - we lost a character, but not a revenue generator. However increasing volumes and opportunities are encouraging the bank to pick up some people again.

I always enjoy watching new traders when they join a Desk.. the verbal rutting with the old hands an be highly entertaining as they attempt to establish their place in the team. In fact, for those who don't work for banks, just pop on Animal Planet when you get home tonight and you'll get the idea - replace the hogs and territorial scent marking with traders crude humour.

He might have turned into a pious, hypocritical waste of time now, but back in 2007 the columnist Cityboy gave this old example of trade floor dynamics, which plays out in various forms every week:

"Why are you such a fat bastard?" said the posh salesman to the barrow-boy trader, who admittedly did look like he'd been on the notoriously unsuccessful 'all pie diet'.

The recipient of this rather innocuous insult slowly swung around in his seat and with perfect comic timing delivered the oft-used but still classic response: "Because every time I shag your wife she gives me a biscuit".

It is how well a new arrival can handle themselves and fit in with the Desk dynamics that plays a major role in their success at a bank. Obviously though, that only goes so far. Exceptional sales contacts, or an innate talent to manage large portfolios and hence bring in huge amounts of cash make those further up happy and that is what counts most of all.

I've seen some real arses turn up over the years though, and not all have been the 19 year old Essex boy sterotypes - although on that subject, many of them are a particularly special blend of twat. With a stated aim of doing their trading exams straight out of school, these kids are often very average – not even skilled numerically - but to their credit they don't waste their time or money following a route of higher education – and with hindsight I don’t blame them.

I recall an Irish guy who arrived at a former bank I worked for, and made the mistake of continually boasting about senior roles at Morgan Stanley and Goldman Sachs previously. He also made the mistake of looking down on the rest of us and making sure everybody knew it – I think in a misguided attempt to establish himself as the alpha trader.

Unfortunately that sort of attitude doesn't endear, and within a week the team had dug the dirt on him via ex-colleagues, and confirmed his overstated role and habit for bullshit. On his first day off, the team took some time out in the morning to ceremoniously unveil a sign above his monitor reading 'Little Fella' for him to find upon his return. A reflection of his small stature in more ways than just his height.

Interestingly that was a name which stuck for the remainder of his time there..

Anyway so far our new boy seems fairly quiet - listening and learning about the non-standard systems and what portfolio's he's inheriting. Let's see whether he starts pissing off anybody over the next month or two as he comes out of his shell.

Small Bang Time as GGP Takes Control

I have got far too little time at the moment with the Time Wasting Insolvency initiative nearing its crescendo - hence the lack of entries. Still it's the weekend, it's not like L had plans that might involve taking up more time with wedding preparations surely...

General Growth Properties Extension
A very big plus this week was the news on Tuesday that GGP got the hoped for time extension for the exclusion period to file a restructuring plan, along with a less important extension to the time allowed to file schedules of assets and liabilities.

So what does this actually mean? To Absolutely Confidential's question, yes the commentator you mention did get carried away with regards to General Growth Properties now spending the next six months piling up cash.
General Growth proposed in the original cash collateral motion back in mid-May to continue their prepetition cash management practices. Unless the SPE inclusion decision is overturned - still no formal news on this, but the extension suggests this has been made - then this means GGP has committed to the following as part of the ruling:

• continue the practice of a centralised cash sweep from its various sub-entities into the central firm accounts
• provide 'adequate protection' of creditors cash collateral by providing a replacement lien on intercompany loans - this is the notion of ensuring there is no substantive consolidation of CMBS
• continue to pay interest on CMBS loans at the non-default contract rate
  

It looks like somebody else made the same point in the comments, including referencing back to the Cadwalader court commentary. Sullivan's response: "correct but there is approx. $5B in default that is now another 7 months from being resolved and I believe another $8b that will fall into default during that time frame.."

Just because more loans will fall into default during the next period does not mean they will be treated differently from those pre-bankruptcy. Presumptuous at best, although in most cases firms within Chapter 11 cannot service debts and so do use this period as an effective 'breather' (a significant criticism of Chapter 11, since it can provide weak companies with an unfair competitive advantage during the process).

However GGP have committed to not doing so, partly to illustrate the viability of the existing business model and add credence to extensions being a viable solution.

Regardless this is excellent news for the stock in increasing incentives of creditors to negotiate - and was rightly reflected in a 10% upturn in share price since the announcement. It is striking that every bit of news since General Growth filed for Chapter 11 has been positive.

Industry Changes to Structured Credit Products
Related to changes in the credit markets that I have mentioned previously are the industry protocol updates made by the International Swaps and Derivative Association (ISDA) for restructuring events of credit derivatives. Firstly there was the release of the Big Bang protocol in April 2009, which has been designed to add certainty for investors when defaults occur. Something as we are seeing in recent months has been a significant grey area with existing products when finally tested with a default event.

Big Bang was the final step in a process known in the industry as 'hardwiring', which has crucially incorporated auction settlement terms into standard CDS documentation for the first time. The big bang protocol includes the following:

1. Introduces auction settlement as a means of settling transactions - eliminates the need for defining credit event protocols for every potential scenario to cash settle Credit Default Swaps.
2. Makes resolutions of the Determinations Committees binding by adding into standard CDS contracts - for issues including i) dispute on whether a credit event has occurred, ii) whether obligations are deliverable, iii) whether an auction should be held.
3. Adds credit and succession events (aka backstop 'look back' provisions) into the CDS documentation - to provide a common standard effective date for CDS transactions.
   

Further refinement to resolving restructuring disputes has been added by Small Bang, which took effect on Friday, details of which are covered in this ISDA web presentation. Key additions are to provide buyers with a five day window (sellers with two days) to trigger a credit event after a restructuring has taken place. Once triggered the evidence is then presented to the Determinations Committee to argue the case - a combined arbitrator and judge in the process.

It is all about clarifying how credit derivatives will work in future, and ensuring that buyers and sellers have a clearer idea of what protection (and liability) they are entering into. For those interested in finding out more about what credit companies companies will be entering into over the coming years, and how disputes will be handled, take a look at this analysis.

Additional Reading on re-REMIC's
For recommended additional reading on how structured products are evolving and what are impacting the recovery of the credit market this Bloomberg article illustrates how re-REMIC's are being used by the banks to refinance real estate. This article by Deloitte into re-REMIC's is dry but provides a very detailed examination of how these function and their impact.

Finally this report by Andrew Cuomo into bankers bonuses has to be the least surprising set of observations since the credit crisis of October 2008 plunged the world into recession, although this is the choice quote:

"When the banks did well, their employees were paid well. When the banks did poorly, their employees were paid well. And when the banks did very poorly, they were bailed out by taxpayers and their employees were still paid well."

Welcome to my world Andy...

Credit Markets and Rating Agency 'Refinement'

This is a follow on from my analysis in May into the credit markets and rating agencies, when Fitch assured that it would continue to monitor GGP assets in the context of bankruptcy proceedings (although the implication was for further downgrades).

Rating Agency Antics Fuel Uncertainty
This process continued last month when Standard & Poor's began to tighten their criteria for rating CMBS, with figures quoted as high as $235bn worth of commercial bonds under threat of losing their AAA status.  Now in the WSJ today, Standard & Poor announced that it has just reversed "its evaluation of a clutch of mortgage bonds backed by commercial property." It has re-rated a number which are part of the GG-10 benchmark securitization back to the crucial AAA status required for TALF legacy eligibility - and all just a week after downgrading them.

GG-10 is a large $8bn commercial mortgage backed security bond, that has large numbers of loans resecuritized each year across the market by dealers - so ratings on this baby serve as a bellwether for the health (or problems) of the wider commercial credit market. Looking into S&P's published methodology refinement in more detail, the Fed's desire to support commercial real estate is certainly a possible factor in this turnaround.

If so then that should come as no surprise - the impartiality of rating agencies has always been questionable. Note: for more on this, I highly recommend reviewing this great commentary by Linda Lowell of Housing Wire, on the ratings agencies and their impact on CMBS markets (particularly how S&P could not provide any meaningful backing to JP Morgan analysts regarding their previous change that lead to the downgrades). 

Suffice to say that the late June rally in CMBS resecuritizations was impacted by the ratings downgrade rumours and counter-rumours, as dealers were unable to price with certainty, unsure that triple-A paper classes at the time still would be so for much longer.

What Are S&P Changing?
So behind all this, quoting from the S&P methodology changes announced, the following key aspects are being amended:

• Amending how losses and recoveries resulting from 'AAA' rating scenarios for super-senior classes in US conduit/fusion CMBS are assessed.
• Differentiating the timing of losses from 'AAA' term and maturity default tests when cash flow modelling transactions.
• Spreading out losses that are applied to a transaction's certificates over a longer period of time.
  
  

The latter is the most meaningful change, since it allows for exceptional short-term losses to be effectively averaged, and hence to smooth out rating changes and thus reduce the occurrence of short term rating changes that are subsequently reversed.

S&P Methodology Outlined
For those interested, from Standard & Poor's own paper is the refined 3-step approach that they will be using for rating conduit and fusion transactions:

1. Aggregate recoveries from defaults in the 'AAA' scenario and credit impaired assets up to the crossover date. [NB Crossover date is the time where allocation of principal and losses to the super seniors change to pro rata from sequential]
2. For cash flow modelling, assume loans will not default for 3yrs and apply a 24mth recovery period before losses up to 30% would be applied (at the end of the fifth year). Any additional losses applied the following month, expect losses due to maturity.
3. Use Trepp's cash flow model to apply recoveries through the capital structure of the transaction to determine which certificates had an ending balance of $0, and would therefore retain their 'AAA' ratings.

Credit Market Evolution
This report on Sribd from Deutsche entitled 'The Future Refinancing Crisis in CRE' is another one worth reviewing, to understand the refinancing challenges within CRE right now. 

On a side note, the markets have been changing the structuring of resecuritisation in the last few years, in order to juice up tranches and create more AAA-rated bonds as assets became distressed.  How?  By moving away from the much maligned CDO to re-REMIC's (REsecuritization of Real Estate Mortgage Investment Conduits).

To see how these can be misused, take a look at this crap published by Fannie Mae back in December 2007 - see page 2 for the re-REMIC's section in which they state:

"Market participants know that almost any type of MBS can be used as collateral for Fannie Mae REMICs."

I think we're starting to see part of the problem Fannie, when you openly state almost any MBS will do. How to mortgage the future of the next generation in America through incompetence in one easy step. Let's take a look back at how the process used to work for the banks in the good old days...

"So, if I offer you this enormous stash of our sub-prime mortgage backed securities, you'll give me REMIC's in exchange?", asks the disbelieving banker.

"Sure, we luuurve you guys - you're one of our biggest clients, and we just keep on buying these.. cos.. hell, I don't know but we do. Anyway, the government wants us to buy 'em." replies the Fannie Mae redneck employee.

"I love this job.. ok fine in that case here's $50bn of our worst shit we couldn't sell to Bernie Madoff, and in exchange we'll have those nice AAA-rated Fannie re-REMIC's and sell them onto clients. As a sweetener, we'll even throw in vouchers for you and your family to have a 3 course meal at Cracker Barrel." 

"HELL YES!" replies the Fannie Mae redneck. "If there's Cracker Barrel in the deal, then you've got yourself one."

However back to reality, and re-REMIC tranches are attained in a different way to the particularly special blend of bullshit that the banks came up with previously to produce AAA-grade paper from sub-prime toxicity. Rating levels now are attained with a heavy emphasis on collateralisation - hence why rating changes like today increase uncertainty and problems.

For example, triple-A paper in recent offerings has had the most extraordinary 50% subordination levels; in English that means these would still be AAA rated if half the underlying properties burned down and none of them were insured (which they are). At least in theory, these CMBS are almost unnecessarily safe, thus should not ever be downgraded.

A trader is quoted in a Commercial Mortgage journal as stating that: "The life insurance companies are driving this. For regulatory capital reasons, they benefit from holding bonds that have more ratings stability."

Credit Future
This activity had lead to tighter spreads in the resecuritization market for super-senior bonds, leading to increases in their prices on the market and a general upturn in activity at last. However the junior tranche CMBS going out onto the market still have a significantly higher 30% subordination rate, which is a lot better than the triple-A class deals of old.

To me that is a sign that the quality of the bonds is improving to instill genuine confidence in the AAA-rating once again, and rightly so. Going back to the rating agencies, these sorts of problems then derail such progress by increasing the spreads.

GGP
Despite this, looking back at GGP, this is all part of wider series of moves by the government towards improving the credit markets and is to be welcomed by shareholders as a further means of assisting the firm in restructuring.

Indications continue to be reported that the government is open to reassessing TALF terms and conditions, but these mostly are around an extension to the scheme time frame, not a meaningful change to the criteria. Talking of GGP, there has been little going on besides some arguing between GGP and Hugo Boss relating to the latter wishing to terminate a signed lease early due to delays. Boss are likely to have that dismissed and are just trying their luck with a filing like this.

Otherwise the rulings today are largely unimportant, or have already been made (e.g. around the Success Fee). Somebody needs to slip a bottle of whisky to the good judge and tell him to hurry up and make his decision on the SPE inclusion issue…

The Art Of (Self) Assessment

It's that time of the year once more, when bankers are expected to select a number of colleagues who we have tenuously worked with over the past year, and ask them to provide constructive, impartial feedback on our performance.

In the name of self-assessment, we seek to better ourselves as individuals.. to make the world a better place. And more importantly determine the size of our bonuses.

The whole process is about as impartial and representative as reading the average pile of resumes that are ending up on my desk for a role we've got open - i.e. nothing more than a partisan sales pitch. Assessments are more an art than science.

The key for any graduate wondering how to climb the greasy pole, is to always select your assessor targets early in the year. I started buttering up a select few around March - inviting them out for drinks on me for example. It's amazing how much goodwill a bottle of champagne buys. A couple of tickets to a football game is a virtual guarantee of performance inflation.

Most important of all, is to combine all of this with being unjustifiably nice to them throughout the year, even when they deserve a verbal slap for incompetence.

Such self control means the end result is always fun to behold; by next month, as the glowing reviews flow in for me, others who don't prepare in advance repeat the same cycle of suddenly realising too late that they've spent most of the year pissing off people that now matter to them in a way that really matters - financially.

"Emerging Investor is a wonderful chap, a credit to the bank - and clearly one of a deserving elite that requires a fat cheque to retain his services."

Having had a browse of the Yahoo board for the first time yesterday, the above would be a lot more constructive feedback than the first comment I noticed about one of my early GGP legal analysis posts. Not anything about what I actually said - no, just some waffle about not liking the white text on a black background - clearly the author is senior management material.At this stage of the year, senior managers also frequently apply another subtle tactic, as they realise the value in being seen to 'deliver something' impressive by November. Typically from now the industry sees a flurry of small projects kicking off, combined with a hiring spree as consultants are pulled on board with no regard for cost or efficiency - all in order to further aforementioned manager's potential bonus.

Only minor rumblings on the GGP front: the judge has ordered the firm to pay Deutsche Bank the full amount of the non-default contract rate for two malls. The headlines cite the additional $2.89m GGP must pay, but at LIBOR +6% this is an entirely fair ruling.

The only other news is that GGP have applied to extend the time frame allowed within Chapter 11 to finalise and submit a restructuring plan. This will be heard on July 22nd, along with hearings to approve the success and DIP financing fees. This request to extend has been triggered due to several factors. Firstly the underlying complexity of GGP's credit structuring, and sheer number of individual creditors, means that completing this task by mid-August was always ambitious at best.

Otherwise though, the cynic in me cannot help but observe that Chapter 11 protection is an advantageous position for GGP to be in right now. While it remains here, partially shielded from the slowly passing economic downturn, its pressing need to refinance is removed, and it can happily sweep its excess cash flows from all its entities centrally, and use these to fund operations and loan repayments - all while continuing negotiations.

It is now the creditors on the back foot and more interested in seeing GGP restructure and refinance so that they can at least re-access the principle from their CMBS's, which is a good example of Chapter 11 positively incentivising.

Oh, and do take a moment to read this classic story doing the rounds right now. The Goldmangate scandal relates to a dodgy Russian programmer (referred to as a 'strat' internally at GS), who decided to further the national stereotype with some good old corporate espionage. Old Twinkle Toes Aleynikov, hatched a plan to download all of the algorithmic code for Goldman's infamous 'black box', which is actually a swarm of machines that make automated trades in response to news and events, and which brings in millions of dollars of pure profit each year.

Every major bank has a black box, but Goldmans is the most famous as they were an early and prominent pioneer of algo trading. Unfortunately Aleynikov seems to have not been especially bright, and either assumed the security around this was not high (picture a financial Fort Knox in reality), or that his idea of zipping, encrypting and sending out in smaller chunks to an external server was subtle.

Of course, that triggered the internal alarms and the rest is history with the FBI.

"..if you think about it, instead of getting their panties in a bunch over a coupla jacked megabytes of data, the Masters o' the U should be looking at this whole thing as a source of pride. Everybody wants a piece of their shit." Bess Levin, Dealbreaker

You can always trust Dealbreaker to say it like it should be said.

Exploiting Loopholes

The golden rule with tennis, as with finance, is to always put your money on the Swiss. Tough luck on poor old Andy Roddick though, the guy was rightly gutted and is too good to only win a single major in his career so let's hope he comes back and wins another.

So the final legal submissions have now been made - this includes General Growth's post-hearing submissions against MetLife and against ING Clarion and Wells Fargo. The Committee of Unsecured Creditors, and the unsecured lenders ING Clarion, Helios AMC, and of course MetLife. They are really just summarising the arguments already put forwards, although additionally MetLife submitted a motion to dismiss evidence submitted by GGP because the "Movants [MetLife] were not provided with a copy to review."

The evidence itself is a summary of the MetLife Debtor groups that own the two malls in question in this appeal. Ultimately they were included to provide evidence of the consolidation benefit to GGP that would come about from their inclusion in Chapter 11. Again, whether this is accepted or rejected is arbitrary and will have little bearing on the overall decision.

Additionally I recommend reviewing two interesting analysis papers discussing the impact of the GGP bankruptcy on the CMBS industry. The first is entitled The GGP Bankruptcy So Far: Grounds for Concern, Sources for Hope, (thanks to GGP Freak for bringing that to my attention - you mentioned it is from a post on one of the boards so perhaps you could post the link). Either way, the article provides an interesting additional summary from legal experts.

It agrees that the notion of 'bad faith' is unlikely to stand up to analysis and sway the impending decision, although here the authors focus on the eleventh hour dismissal of independent directors as the other key factor instead of GGP's ability to prove its decentralised structure and hence requirement to include SPE's in Chapter 11 not directly in default. As I have said previously, many of the arguments being made in this case are being made for the cameras, and this view is clearly shared:

"in the GGP bankruptcy, it seems that the independent director issue may not be fully pursued because of the practicalities of the situation. In the view of some, even if the motions to dismiss are not granted, it is important that these arguments are made, if only to force a decision that will at least provide a benchmark against which lenders can attempt to structure and price transactions going forward."

Also interesting is this observation on the impact of the agreed DIP financing loan from Farallon Capital Management, part of which will be used to pay off the Goldman Sachs loan: "Using the $400 million DIP loan to retire the Goldman Sachs facility effectively increases the leverage on these assets by almost 100 percent."

The second article 'CMBS Bankruptcy Remote Structuring and the Recession: Revisiting the Benefits', was published last week by the Bureau of National Affairs. It provides a much more detailed analysis of CMBS structuring, and crucially an analysis on how the GGP rulings to date are impacting the industry. One telling remark is that the SPE bankruptcy remote structure has been "largely untested" to date, and only once these are resolved will the credit markets be able to move forwards with confidence and accurately rate and price risk into credit investments.

Where this article is useful is in summarising key ways in which SPE's "theoretically mitigates" risks:

1. Independent Directors to vote/approve the commencement of bankruptcy proceedings - the controversial one that we know about from its alleged 'misuse' during GGP's filing, which illustrated contractual holes.
2. Limits Debt that an entity can incur - both secured and unsecured, the court rulings have upheld this concept and ensured that GGP will not be able to load them up with additional debt as a result of their inclusion in Chapter 11.
3. Ensure that SPE assets/liabilities are not consolidated with those of a parent or affiliate that is involved in a bankruptcy - in reality this has not taken place in GGP's case from their inclusion in Chapter 11 either, although there would be a significant benefit from consolidation of net cash flows and of course negotiations.

As if anybody needed confirmation that the markets were being presumptuous about CMBS's, the article comments: "CMBS sponsors and lenders, supported by many of the credit rating agencies, relied heavily on the assumption that the remote bankruptcy provisions, specifically the independent director provisions, in the SPE’s governing documents would provide protection against an SPE borrower filing for voluntary bankruptcy."

Where the article becomes much more interesting is an examination of the circumstances in which GGP has been able to utilise cash flows as a collateral. Normally it would not be allowed, unless the lender consents, or the debtor convinces the court that "the lender’s interest in the cash collateral is ‘adequately protected.' "

This notion of 'adequate protection' means proving to the court that "the collateral is not being dissipated to the ultimate detriment of the lender. Typically this condition is satisfied if the property continues to generate cash flow and the lender is given a lien on post-petition income to replace the cash collateral that is expended." Despite the turbulence in commercial real estate valuations, it is fair to assume that the value of the assets exceeds debt in all cases before the court at present.

As such this is precisely what the Courts have awarded all of GGP's lenders who have appealed for their respective malls to be removed from Chapter 11. Despite a lien on cash collateral not being as appealing to lenders than instant access to the cash flows from the malls, income is safeguarded by the decisions made by Judge Gropper, by ensuring they are serviced and repaid in the event of liquidation.

The article concludes a summary of ways in which the GGP rulings to date are impacting the industry and a realistic assessment of the next steps relating to restructuring. Ultimately the ability of GGP to control the independent directors of its SPE's is seen as a key weakness in the current structure of SPE's. The legal authors point out that despite this it is very much legal, :

"Despite the fact that the removal and replacement of the independent directors may have violated the spirit of the original agreement with the lenders, GGP’s actions were permitted under state law and do not appear to have been prohibited by the organizational documents of the SPE borrowers."

In fact, the article even advises lenders able to who have the opportunity to "revisit the governance terms of borrower SPEs, would be well advised to consider modifying the 'remove and replace' provisions relating to the independent directors."

In many ways this suggests that GGP's bankruptcy is unique in another sense, due to timing and its ability to exploit weaknesses in the contracts that will be closed in the future. That being the case, any investors contemplating on taking positions in other REIT's in a similar position to GGP should exercise caution. It would be unwise to simplistically assume that other companies will necessarily be able to exploit this loophole for long, and so need to investigate the underlying SPE structures and contracts.

And finally:

"As the GGP bankruptcy progresses, given the uncertainties in the valuation of commercial real estate in the current markets, it will be interesting to see whether GGP attempts to reduce required interest payments based on the current market value of its properties and, if it does, how the bankruptcy court will determine the valuations of these properties and how reduced values will affect the commingled use of cash collateral."

Bear in mind how early into the bankruptcy process this all is - decisions made now can be amended throughout GGP's period in Chapter 11 on appeal. Meantime all of the information is before the court, suggesting a ruling is impending.

Addendum: just tidied up this post - you could tell I wrote and posted it during the Wimbledon Final, what a bloody mess it was...

Greed Guarantees It Will Happen Again

It is interesting how everything in life is cyclical. You're born a disgusting, wrinkly ball akin to the stomach parasite from Alien, unable to speak or wipe your own bottom - and if lucky you end up that way again by your late-80's.

On the subject of cycles, do we truly learn from mistakes? Perhaps on a generational level, but surely not beyond that, which is why so many of the problems we are seeing now have happened before. It is the same point raised in the book 'The Millionaire Next Door', which observes how the wealth acquired by self-made millionaires through frugality is usually lost within a couple of generations, as their offspring piss it all away pursuing a materialistic utopia.

Anyway my point was actually around the whole Bernard Madoff fraud, and the absolute certainty that it will happen again in the future. I don't care what politicians and others in the press state about controls to prevent it, that is simply not the case. Wherever there are naive and/or lazy investors, there will be largely unregulated, opaque funds promising fabulous returns that seem too good to be true

In one sense everything is legal until you are caught - something that Enron illustrated impressively - although not a position I agree with, despite notions of 'right' and 'wrong' being grounded solely in perspective.

So it was with some interest that I got some perspective when I chanced upon a CMBS securitization dealer from another bank over at a Corney & Barrow champagne reception last Friday. It was completely random, at a wedding drinks bash: not mine, and sadly and not corporate - the days of charging everything back are sadly not yet there again.

I was most surprised to find out the trader worked for RBS, who having notched up losses to rival Citibank, and really are a basket case in the world of banking these days. My first question to him of course, apart from the standard piss-take "what's it like to work in the public sector these days?", was what he was still doing there with a job?

He confirmed my suspicions by admitting to being the only one left of a team of 25 a year ago. An interesting illustration of another factor reducing the CMBS transactions taking place, given the headcount reductions to support the transactions. In effect though, he is minding the shop with respect to their existing CMBS portfolio - but did add he is still an originator.

Obviously I had to bring up the subject of General Growth, more to see if he knew anything about it and the potential impact of the SPE ruling. He knew enough for me to have some fun ripping his industry apart, as I reminded him what a joke the previous contracts and sales processes had been.

He did not disagree, but gave the inside perspective - namely that it was really for the clients to complete the due diligence as they were the ones impacted. That is fair enough, but as I reminded him that is not really a valid view given the $50bn loss RBS took last year - it might just be arguable that they were impacted as well. He also confirmed the rumours I have heard that the industry is busy co-ordinating a complete re-structuring of SPE's and associated contracts that will supersede what is currently on the market.

Hardly a surprise, but what that does suggest is that when we finally receive a ruling it will not have nearly the ramifications that some would suggest. There is otherwise little news on the GGP front besides some minor legal applications ahead of future hearings.

Good news for me is that the functional spec will (at last!) be finished by the weekend. It has taken me about 2.5mths due to work, and after drafting up a high level technical spec next, I could in theory get it built in the next couple of weeks. However I will be moving onto the biggest job of all next - populating the site content. Rather more important at this stage, and given the site will provide industry grade investment research papers to registered users (for free), that is going to take time to get ready. I will be covering everything from corporate finance to investment products, market psychology and all trading products on the market, whether investors have access to them or not.

The key to successful investing, particularly for those aspiring to reach high net worth status, is building strong foundations - and that goes beyond simply building knowledge. Either way this site is going to be a more intelligent alternative to the main investment tabloids.

Decision Time Legalese

What a week.. if ever I needed a reminder why I want to set-up my own business and get out of the sector, working for one of the supposed 'elite' banks (aka 'slave driving bastards'), this is it.

I am on course to notch up a 70 hours week, which is just unhealthy - never mind it also equating to having no life.

I don't have much time to comment on anything, unless anybody cares more than I do about the centre pieces design. Wedding preparation intensity is non-stop: women have an amazing capacity to focus at such moments I have discovered. Work.. wedding talk.. sleep.. wedding talk.. work.. wedding talk.. sleep..

Without enough time to get back to researching other investment opportunities, I am back onto GGP for now, and there has still not been much movement on the key decision in the Court case, although it should be very soon. Judge Gropper has clearly had a busy week ploughing through the mountain of GGP motions submitted.

Most are minor, procedural changes proposed by GGP in light of it entering Chapter 11, so are unimportant to the outcome. On Wednesday we saw MetLife's motion to dimiss several of it's SPE's from the Chapter 11 filing go before the Court. The day before, GGP filed an objection to limit the testimony of MetLife's experts relating to refinancing, which they submitted here.

GGP questioned the expertise of the witnesses that MetLife sought to call for evidence, citing their lack of being on the MetLife Real Estate Investments Committee, which is "the decision-making body with knowledge of this topic." They also cite their 'lack of preparation' in reviewing the key issues in the weeks leading up to the hearing, such that they could not be deemed suitable to provide advice.

General Growth also sought to draw on the Court's expressed desire to fast-track GGP's case as a reason to dismiss them:

"Given the expedited nature of this hearing and this Court’s expressed desire to resolve the various motions to dismiss rather than hold yet another round of hearings, MetLife’s failure to provide witnesses with knowledge about this area of inquiry cannot be excused, and should not be without the typical consequences i.e., MetLife should be barred from presenting any evidence regarding what MetLife would or might have done with regard to extending or refinancing any of the loans at issue in MetLife’s Motion to Dismiss. Put differently, MetLife should be held to what its corporate representatives testified to -- and nothing more."

Well I am not convinced, but it is worth a try. Yesterday saw this response from MetLife, and I recommend reading the introduction if nothing else, because the language is strong by legal standards and quite a laugh. MetLife's attourney's, Greenberg Traurig LLP, seem beside themselves with anger at GGP's attempt to have their evidence dismissed before it is even heard.

The motion to limit MetLife's testimony representatives is described as "nothing more than a desperate attempt by the GGP Debtors to exclude evidence that demonstrates that their entire premise for the filing of their chapter 11 cases is simply untrue." MetLife go on to forcefully suggest that GGP's case almost entirely rests around its argument "that refinancing was not available to them in the face of upcoming maturities."

In reality that is not the case - just have a browse through my previous analysis for examples of the range of other arguments that GGP have put forwards. MetLife again state that refinancing was not an issue with the malls in question here "and they [GGP] know it". They go on to state:

"The testimony that the GGP Debtors seek to exclude shows that MetLife would have been, and remains, interested in discussing refinancings or extensions of the loans to the MetLife Borrowers."

'Retrospectively interested' seems more accurate to me. MetLife point out that they have refinanced "similar loans of similar properties within the relevant time period" but I suspect that is unlikely to stand up to inspection, as they were not for REIT's in technical default. It is also highly unlikely that MetLife refinanced those with equivalent maturities so far into the future, given the tax exposure factor that is cited in the Wall Street Journal as a flaw preventing many early refinancing negotiations to open.

MetLife suggest that the only reason GGP have submitted the request to exclude these testimonies is because of their 'devastating' nature to GGP's case. Indeed "the GGP Debtors are desperately seeking any pretext to prevent the Court from considering this important evidence." Yet if the other refinancing is not truly comparable as outlined above, then that is not valid at all.

More likely GGP were busy rocking the boat and seeking to exploit a weakness in the case by having witnesses removed. Either way, it is not yet known whether this motion was upheld or not, but I feel that it is unlikely to sway the ultimate decision on this issue, despite MetLife's claims.

Even if MetLife were allowed to provide witnesses who claim refinancing was a possibility, most of their evidence is conjecture and therefore debatable. This also does not counter the case that large numbers of SPE's did refuse to even open negotiations, which combine with factors such as GGP's claim of a need to remain integrated and proactively seek a means of negotiating with all lenders.

To my mind, if the motion to dismiss the witness exclusion was overturned then the strength of GGP's original case is unchanged - but if it was upheld then it undermines MetLife's case, which is probably at the root of their vehement response.

The hearings on Friday are largely not part of this more important issue, but expect a decision soon - I am still expecting a favourable outcome for GGP.

Big Fish Tantrums

I was dialed into the steering committee meeting yesterday for the post-insolvency / time wasting project , and who should dial in but the COO of the bank!

To put that into context, for those unfamiliar with working in the sector and the sheer size of the big investment banks, imagine a combination of a medieval king and Paris Hilton all rolled into one. Vast power, able to behead on a whim, combined with plenty of preening and a vast ego.

Thus he had not stopped by to listen and learn, only to be heard. Aww, bless him - isn't he cute?

We were treated to a 15min speech, although I wasn't bothered as I am not running this whole affair; it certainly didn't stop me reviewing the latest Court docs from GGP while he rambled on. In short though, he had dropped by to tell us all how pissed off he is that we have been beaten to the punch in delivering our insolvency solution by a major rival (announced in the WSJ on Tuesday).

Never mind the fact that ours will be far superior, applying not just in the US but globally, and crucially enabling Hedge Funds to margin securities rather than having to fully fund their positions - the whole point of Prime Brokerage after all. Nope, at the top this was a big corporate race, picture all the CEO's lined up in their sacks and jumping as fast as they could to the finish line. In his eyes we have lost - the trifling details are an irrelevance.

So the Court decision relating to GGP is going to take more time to reach a conclusion. Given the length of my four legal analysis posts, which in themselves are a hugely condensed summary of the arguments put forwards, I would have been surprised had the Court managed to review all of the submissions that have been flooding in right up until the last minute, much less reach a considered opinion so quickly.

The only public information out there is that the Court could take until the end of June before deciding on whether the proceedings by MetLife, Wells Fargo and ING Clarion Capital to remove their underlying collateral from the GGP bankruptcy filing are upheld. This ruling is important, as it would of course enable GGP to negotiate from a position of greater power with many more creditors, while using the combined cashflow as required, and should be able to secure more favourable extension terms. Regardless of the decision however, it will be useful for GGP to focus on its restructuring plan - expected that some time in August.

In an unrelated announced on Wednesday, Jim Graham, GGP's Director of Public Affairs also announced that the company had "very recently" made the decision not to sell the Bridgeland development as previously planned, and instead develop the site itself. This directly reflects the improvement in GGP's position since it filed for Chapter 11 and received DIP financing.

No longer is the firm desperately seeking ways to avoid Chapter 11, and is instead making considered decisions in-line with both Adam Metz and Bill Ackman's comments about there not being any rash asset sales. An encouraging sign that demonstrates mutually aligned interests with common shareholders.

Other minor points of interest this week:

• Pershing Square submitted a motion on Wednesday for their Chief Legal Officer, Roy Katzovicz, to start receiving paper copies of all notices and papers going forwards. No reason is given, but it suggests that the fund will be taking an increasingly active involvement in GGP's legal maneouvering, planning and positioning over the coming months.
• GGP have settled the DIPS financing claim with Brookfield Financial LLC and Goldman Sachs. The original claim was $5.78m, and the settlement is for $2.75m, and is fully supported by the committee of unsecured creditors.
• Ahead of the deadline for objections by unsecured creditors, various claims have been filed. This includes the occupant at various malls J.C. Penney, filed a limited objection and reservation of their rights to the inclusion of related SPE's into the GGP bankruptcy filing. They add nothing to the actual case beyond suggesting GGP's inclusion of relevant malls "blatantly ignore the due process rights of numerous Lien holders - including J.C. Penney - who have Liens in or on property owned by the Debtors [GGP]".
• A similar limited objection claim has been filed by A&K Endowment Inc, and many others - mostly around proposed amendments to establishing alternative procedures under Chapter 11.

Legal Analysis IV: GGP's Final Response

Okay this is starting to get excessive, but then this run up to the court hearing tomorrow has seen some interesting arguments going on behind the scenes. Yesterday GGP submitted their final response to the creditor's case ahead of the hearing on Wednesday, which is a baby at a mere 100 pages.

One key part of that was a dissection of the motion to dismiss the Chapter 11 case of the Fox River Shopping Center LLC by FRM Funding. FRM Funding had by then already submitted a motion to withdraw its objections to inclusion in Chapter 11. Although no reason was given, the case is covered in GGP's submission, and in all probability it was an assessment by FRM's legal team on the strength of GGP's case that lead to the withdrawal.

A quick review of GGP's final response to the creditor case:

1. MetLife / FRM funding 'bad faith' arguments fundamentally flawed
GGP point out that just because certain GGP subsidiaries are operationally sound with strong cash flows does not mean they could ignore the realities of the credit markets or their duty to maximise value. In other words willfully waiting until default and potentially being forced to liquidate individual entities would be an abuse of their duty to all.

GGP's team reiterate that the wider market problems meant that anticipating future problems refinancing all loans was nothing more than a realistic assessment of the credit markets, and hence the Chapter 11 filing was made in good faith. Additionally they note that the debtors do not even attempt to show that GGP's chances of a successful "reoganization is objectively futile."

GGP also refute that Chapter 11 is being used as a "sword" to gain a tactical advantage in negotiations with secured lenders (note: it is in reality, but let's ignore that), and instead refer to it as a "shield" that will protect the firm as it restructures the debt. In that case is Bill Ackman a knight in shining armour and MetLife the evil dragon?

It does illustrates the highly subjective nature of filing under bad faith. You can argue it both ways, but you need to have definite proof to make the mud stick, and the creditors case is not strong enough. Weil Gotshal & Manges also point out inconsistencies between creditor cases, with MetLife arguing the credit market problems persisting for a year or more is "sheer speculation" by GGP, while ING and Helios agree that the CMBS market has disappeared.

2. GGP filed for Chapter 11 protection for the same reason that ING and Helios debtors filed
This being the collapse of the CRE financing markets and the advantage of "participating now in an integrated, consolidated restructuring of project entities". This makes an effective point by illustrating that other creditors were filing against GGP by this stage, and undermines suggestions by those creditors objecting just because GGP filed first that taking no action was a viable option.

3. GGP filings included loans that had already cross-defaulted
Hence did not give GGP "a reasonable prospect of refinancing before maturity, and certain other loan characteristics that further exacerbated the need for a restructuring." This point is again particularly strong, as it demonstrates the financial stress that GGP was indeed under during the months of financial limbo when it moved into technical default on loans without declaring Chapter 11.

Additionally GGP dismiss this further by arguing: "There exists no basis in law or in fact for overriding these reasonable business judgments made by the Subsidiary Debtors [GGP] on the advice of sophisticated financial, restructuring, and legal experts."

The 'loan characteristics' referred to above are covered in more detail in this WSJ article from yesterday, which shows an increasing recognition by the wider industry and US government now that there are problems with the entire CMBS market. This goes back to the point that ultimately (due to tax reasons, as it turns out), many of GGP's lenders were largely unwilling to even discuss refinancing of any loans not due within a short period of time - a fundamental structural flaw of the credit markets.

GGP has to my mind received a significant boost from these potential plans to amend the tax laws to enable lenders to talk earlier. This gives a powerful argument that GGP really was forced into Chapter 11 due to market failings and exceptional circumstances, and hence should be fast tracked back out.

4. Dismissal for lack of good faith should be granted "sparingly, with great caution."
The defence elaborate further with previous court decisions that support GGP's case, stating that a petition for bad faith should only be granted when: "it is clear that on the filing date there was no reasonable likelihood that the debtor intended to reorganize and no reasonable probability that it would eventually emerge from bankruptcy proceedings."

The defence then go into detail dismissing all of the bad faith arguments that ING, Helios, MetLife and FRM have made in their filings, claiming none have merit.

5. GGP filings for bankruptcy had full corporate authority
GGP move onto FRM's claims around technicalities in the Fox River SPE filing, and rebuff with some telling quotes back from the original derivative contracts.

For those who have read my previous comments on the CMBS industry and how contracts used to be sold, you will know I have long said that nobody did any due diligence in the good old days. It was a zip 'em and sell 'em on mentality, and frankly nobody in the banks cared as long as people bought them. Only now are people running around complaining.

Let's face it, if you did due diligence you would never have sold CMBS contracts with this explicitly in the wording:
"Nothing contained herein or omitted herefrom shall prevent the shareholder(s) of the Company [GGP] from removing an Independent Manager with immediate effect at any time for any reason."

GGP's lawyers state that the loan documents include no legal opinion regarding whether Fox River was bankruptcy remote. Even more damning, and probably the final nail that forced FRM to withdraw their motion was the legal assessment of Fox River, which refutes the notion Chapter 11 would not enable any substantive consolidation (of assets and liabilities).

6. MetLife's 'speculation' on the outcome
In MetLife's recent response, they made a convincing case about GGP acting in bad faith, but a key point was that it was indeed based largely on speculation on their part. At the heart of this was an argument that there was no point moving into Chapter 11 because when it comes time to approve any restructuring plan, "there might not be any other impaired creditors and it [MetLife] might vote against a plan."

This response from GGP is all you need to say on the matter:
"..if creditors could get a bankruptcy dismissed at the start of the case simply by claiming they may not agree to a plan of reorganization, as MetLife claims, then chapter 11 would be rendered useless as creditors can always assert they will not agree to any impairment of their claims."

The defence conclude that all of the creditors seeking dismissal of the bankruptcy petitions are seeking "to impose a requirement that debtors face imminent collapse before seeking chapter 11 protection. But no such requirement appears in the actual text of the Bankruptcy Code."

Everything continues to point towards a favourable outcome for GGP, although law is a hornet's nest, so you never quite know what will come out when you start playing with it.