As part of its efforts to combat the economic downturn, the Federal government developed, among other programs,1 the Term Asset-Backed Securities Loan Facility program (TALF Program).2
The TALF Program has evolved substantially since its creation in December, 2008. In fact, on May 1, 2009, and again on May 19, 2009, the Federal Reserve significantly expanded the TALF Program.
Specifically, on May 1, 2009, the Federal Reserve announced that “U.S. dollar-denominated, cash (that is, not synthetic) commercial mortgage-backed pass-though securities (CMBS) issued on or after January 1, 2009”3 (emphasis added) meeting certain conditions can qualify as “eligible collateral” for loans to be made by the Federal Reserve Bank of New York (FRBNY) under the TALF Program. For purposes of this article, CMBS issued on or after January 1, 2009 shall be referred to herein as “New Issue CMBS.”
On May 19, 2009, the Federal Reserve further expanded the TALF Program by announcing that “U.S. dollar-denominated, cash (that is, not synthetic) commercial mortgage-backed pass-though securities issued before January 1, 2009”4 (emphasis added) meeting certain conditions also can qualify as “eligible collateral” for loans to be made by the FRBNY under the TALF Program. For purposes of this article, CMBS issued before January 1, 2009 shall be referred to herein as “Legacy CMBS.”
The newly expanded TALF CMBS Program is underway. $669 million in Legacy CMBS TALF Loans were requested in July and over $2.2 billion in Legacy CMBS TALF Loans were requested in August. No New Issue CMBS TALF Loans have been requested to date. The next subscription date for CMBS TALF Loans is scheduled for September 17, 2009.
For your convenience, set forth below are certain details regarding the expansion and development of the TALF Program to include New Issue CMBS and Legacy CMBS as eligible collateral.
Brief Overview of TALF Program5
General Overview of TALF Program (CMBS and Non-CMBS Eligible Collateral)
Under the TALF Program, the FRBNY will make up to $200 billion of loans (TALF Loans) available to United States companies6 that own certain eligible collateral. The United States Department of the Treasury (Treasury) was to provide up to $20 billion of credit protection to the Federal Reserve in connection with the TALF Program.
Under the TALF Program, the FRBNY offers a fixed amount of non-recourse loans each month. Such loans are awarded to borrowers through a competitive, sealed bid auction process. The minimum amount of each TALF Loan is $10 million and each TALF Loan must be fully secured by eligible collateral. TALF Loan borrowers will be required to enter into a Master Loan and Security Agreement which will set forth the precise terms of the applicable loan.
Unless extended, TALF Loans secured by New Issue CMBS will be made available to eligible borrowers under the TALF Program until June 30, 2010 and all other TALF Loans will be made available under the TALF Program until March 31, 2010.
General Overview of TALF Program (Non-CMBS Eligible Collateral)
Currently, non-CMBS eligible collateral is defined under the TALF Program to include United States dollar-denominated cash asset backed securities (ABS) that have the highest long-term or short-term investment-grade rating category from two or more nationally recognized statistical rating organizations (i.e., Fitch Ratings, Moody’s Investors Service and Standard & Poor’s) and that do not have a credit rating of below the highest investment-grate rating category from a major nationally recognized statistical rating organization. Permitted underlying credit exposures for the ABS include, among others, auto loans, student loans, credit card loans or small business loans guaranteed by the United States Small Business Administration.
The amount of each TALF Loan is equal to the lesser of par or market value of the ABS less a haircut (presently, minimum haircuts for non-CMBS eligible collateral are 5%) established by the FRBNY for each class of eligible collateral. Haircuts are determined based on the price volatility of each class of eligible collateral.
Certain Details Regarding Expansion, on May 1, 2009 and May 19, 2009, of TALF to Include New Issue CMBS and Legacy CMBS as Eligible Collateral7
Details Common to the New Issue CMBS and Legacy CMBS Programs
Each TALF Loan, whether secured by New Issue CMBS or by Legacy CMBS, will, at the borrower’s option, have a three year maturity or a five year maturity. A three year TALF Loan will bear interest at a fixed rate per annum equal to 100 basis points over the three year LIBOR swap rate and a five year TALF Loan will bear interest at a fixed rate per annum equal to 100 basis points over the five year LIBOR swap rate.
To qualify as eligible collateral, the CMBS must have, as of the TALF Loan subscription date, a “credit rating in the highest long-term investment grade rating category from at least two TALF CMBS-eligible rating agencies (i.e., DBRS, Inc., Fitch Ratings, Moody’s Investors Service, Realpoint LLC and Standard & Poor’s) and must not have a credit rating below the highest-investment-grade rating category from any TALF CMBS-eligible rating agency.” CMBS that meets the credit ratings requirements because of a third party guaranty will not qualify as eligible collateral.
The CMBS must “bear interest at a pass-through rate that is fixed or based on the weighted average of the underlying fixed mortgage rates.” Furthermore, the CMBS cannot be interest-only or principal-only pay securities—the securities must entitle their holders to payments of principal and interest. CMBS issuers cannot be an agency or instrumentality of the United States or a government sponsored entity.
Payments of principal received on the CMBS collateral must be used to reduce the principal balance of the TALF Loan in proportion to the haircut. Based on a FRBNY formula, when the amount of interest paid on the CMBS collateral exceeds the interest due on the TALF Loan, a portion of such excess may, under certain circumstances, be paid to the TALF Loan borrower, with the balance to be used to repay the TALF Loan.
The FRBNY has reserved the right to reject CMBS as eligible collateral based on its risk assessment. In conducting a risk assessment the FRBNY will consider, among other factors, whether there is an unacceptable concentration in the pool (such as borrower sponsorship, property type or geographic region). The FRBNY’s right to reject CMBS as eligible collateral could become important in the Legacy CMBS context because a “TALF [Loan] borrower may purchase a [L]egacy CMBS at any time following the prior month’s [L]egacy CMBS subscription date, but in any event, the borrower must enter into a transaction [to purchase the Legacy CMBS] with a settlement date on or before the [then-]current subscription date for [L]egacy CMBS.” Accordingly, a situation could arise where a potential TALF Loan borrower purchases Legacy CMBS, only to have such Legacy CMBS rejected as eligible collateral for a TALF Loan. Although not necessarily an indicator as to how the FRBNY may act in the future, it is nevertheless important to note that the FRBNY approved 35 of the 36 Legacy CMBS TALF Loan applications in July.
CMBS will not be Eligible Collateral if the TALF Loan borrower is, or is an affiliate of, a borrower under a mortgage loan backing the CMBS unless “that loan, and each other mortgage loan in the CMBS mortgage pool made to an affiliate of the TALF borrower, together constitute no more than 5% of the aggregate principal balance of the mortgage loans in the pool as of the [TALF Loan] subscription date.”
The FRBNY has engaged Trepp, LLC to serve as a “collateral monitor” and may engage other firms to serve as collateral monitors. Collateral monitors will not “establish policies or make decisions” for the FRBNY but will assist the FRBNY by providing valuation, modeling, analytics and reporting.
Characteristics Unique to the New Issue CMBS Program
The haircut for each New Issue CMBS with an average life8 of five years or less will be 15% and collateral haircuts will increase by one percentage point for each additional year (or portion thereof) of average life beyond five years, with a maximum permitted average life of 10 years.
To qualify as eligible collateral, each New Issue CMBS must “evidence an interest in a trust fund consisting of fully-funded, firstpriority mortgage loans that are current in payment at the time of securitization, and not other CMBS, other securities or interest rate swap or cap instruments or other hedging instruments.”9 The New Issue CMBS must not be “junior to securities with claims on the same pool of loans.”
Underlying Mortgage Loan Requirements
The underlying mortgage loans must have been originated on or after July 1, 2008 and must be fixed rate loans. Furthermore, the underlying mortgage loans cannot provide for payments of interest only during any part of their remaining terms.
Each of the underlying mortgages must encumber a fee or leasehold interest in one or more income generating properties located in the United States or one of its territories. Furthermore, the mortgage loans must have been recently underwritten or re-underwritten prior to the issuance of the New Issue CMBS based upon “then-current in-place, stabilized and recurring net operating income and then-current property appraisals.”
Pooling and Servicing Agreement Requirements
The Pooling and Servicing Agreements must meet several requirements. Specifically, the following requirements appear in the FRBNY New Issue Terms and Conditions Sheet:
- If a class of the CMBS is one of two or more time-tranched classes of the same distribution priority, distributions of principal must be made on a pro rata basis to all such classes once the credit support is reduced to zero as a result of both actual realized losses and “appraisal reduction amounts.”
- Control over the servicing of the assets, whether through approval, consultation or servicer appointment rights, must not be held by investors in a subordinate class of CMBS once the principal balance of that class is reduced to less than 25% of its initial principal balance as a result of both actual realized losses and “appraisal reduction amounts.”
- A post-securitization property appraisal may not be recognized for any purpose under such agreements if the appraisal was obtained at the demand or request of any person other than the servicer for the related mortgage loan or the trustee.
The mortgage loan seller must represent that, upon the origination of each mortgage loan, the improvements at each related property were in material compliance with applicable law.
The FRBNY anticipates that collateral pools will be diversified in terms of property type, geography, loan size and borrower sponsorship; however, the FRBNY will consider nondiversified collateral on a case-by case basis.
Characteristics Unique to the Legacy CMBS Program
Loan Amounts/Base Dollar Haircuts
Each TALF Loan secured by Legacy CMBS will in an amount equal to the lesser of the dollar purchase price on the trade date or the market price as of subscription date of the Legacy CMBS (the “applicable price”) less, in either case, a base dollar haircut (from par)10 determined as follows:
- For Legacy CMBS with an average life11 of five years or less, 15% of par; and
- For Legacy CMBS with an average life of beyond five years, 15% of par plus one percentage point of par for each additional year (or portion thereof) of average life beyond five years, with a maximum permitted average life of 10 years.12
The following example set forth in the FRBNY’s Term Asset-Backed Securities Loan Facility (Legacy CMBS): Frequently Asked Questions sheet provides useful details as to how a Legacy Loan amount would be determined:
Assuming a [L]egacy CMBS with a par value of 100 and seven year weighted average life, with a base dollar haircut of 17% of par:
- If the applicable price is 75% of par, the loan amount is [$]58 (75-17) and the collateral haircut is 23% (17/75) of the applicable price; and
- If the applicable price is 50% of par, the loan amount is [$]33 (50-17) and the collateral haircut is 34% (17/50) of the applicable price.
The FRBNY’s Term Asset-Backed Securities Loan Facility (Legacy CMBS): Frequently Asked Questions sheet provides that the FRBNY will validate the reasonableness of the price of secondary market transactions by comparing the price reflected on the sales confirmation to various market data with respect to the existing market price on the date of such transaction. If the FRBNY determines that the TALF Loan requested does not reflect then-prevailing market prices, the TALF Loan request will be rejected.
Additionally, the FRBNY also “will utilize the services of one or more of its agents to perform a valuation of each [L]egacy CMBS under various stress scenarios” and the FRBNY may reject a TALF Loan request if the requested TALF Loan amount is greater than the stress valuation.
The FRBNY and its agents will determine the market price of the Legacy CMBS as of the subscription date on the basis of information provided by pricing services, unless that information is determined by the FRBNY and its agents not be representative of market conditions prevailing at that time. If the pricing information is not available or is not determined to be representative, the FRBNY and its agents will use reasonable efforts to secure price quotations from at least three brokerdealers and the market price will be the arithmetic average of the broker quotations. If the FRBNY and its agents are unable to obtain such quotations or if it is determined that one or more of such quotations may not accurately reflect the market price of the Legacy CMBS, then the market price will be determined by the FRBNY and its agents.
Legacy CMBS Requirements
To qualify as eligible collateral, each Legacy CMBS must “evidence an interest in a trust fund consisting of fully-funded, mortgage loans and not other CMBS, other securities or interest rate swap or cap instruments or other hedging instruments.”13 The Legacy CMBS, upon issuance “must not have been junior to securities with claims on the same pool of loans.”
Underlying Mortgage Requirements
Each of the underlying mortgages must encumber a fee or leasehold interest in one or more income generating commercial properties, at least 95% of which (based upon related loan principal balance) are located in the United States or one of its territories.
The Federal Reserve may limit the volume of TALF Loans secured by Legacy TALF.
If a Legacy CMBS relating to a TALF Loan request has been downgraded or placed on review or watch for downgrade after the subscription date for a loan with respect to such Legacy CMBS, the Legacy CMBS “will not lose its status as eligible collateral for such loan request solely for that reason.”
Since its creation in December, 2008, the TALF program has became a crucial source of billions of dollars in credit in an otherwise near-frozen credit market. Continuing to expand, the TALF Program has become an important piece of the Federal government’s plan to turn around an ailing economy.