EX-99.3 5 a13-4570_4ex99d3.htm EX-99.3

Exhibit 99.3

 

LNR Property LLC and Subsidiaries

 

Consolidated Financial Statements

as of December 31, 2011 and 2010 and for the

year ended December 31, 2011 and the period from

July 29, 2010 to December 31, 2010,

and Independent Auditors’ Report

 



 

INDEPENDENT AUDITORS’ REPORT

 

To the Board of Directors and Members of
LNR Property LLC and Subsidiaries
Miami Beach, Florida

 

We have audited the accompanying consolidated balance sheets of LNR Property LLC and Subsidiaries (the “Company”) as of December 31, 2011 and 2010, and the related consolidated statements of earnings, comprehensive earnings, members’ equity, and cash flows for the year ended December 31, 2011 and the period from July 29, 2010 (date of recapitalization) to December 31, 2010. These consolidated financial statements are the responsibility of the Company’s management.  Our responsibility is to express an opinion on these financial statements based on our audits.

 

We conducted our audits in accordance with auditing standards generally accepted in the United States of America.  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement.  An audit includes consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting.  Accordingly, we express no such opinion.  An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation.  We believe that our audits provide a reasonable basis for our opinion.

 

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2011 and 2010, respectively, and the results of operations and cash flows for the above-stated periods in conformity with accounting principles generally accepted in the United States of America.

 

/s/ Deloitte & Touche LLP

 

Miami, Florida

March 20, 2012  (February 11, 2013 as to Note 20)

 



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEETS

(In thousands)

 

 

 

December 31,

 

 

 

2011

 

2010

 

ASSETS

 

 

 

 

 

Cash and cash equivalents

 

$

172,165

 

142,847

 

Restricted cash

 

4,638

 

25,826

 

Investment securities, at fair value

 

36,127

 

22,221

 

Mortgage loans held for sale, at fair value

 

107,435

 

 

Mortgage loans held for investment

 

1,349

 

1,451

 

Land held for investment

 

82,621

 

39,880

 

Investments in unconsolidated entities

 

149,503

 

195,667

 

Derivative assets

 

9,727

 

41

 

Intangible assets - servicing rights ($146,555 and $157,047 at fair value)

 

159,903

 

175,680

 

Goodwill

 

237,538

 

237,538

 

Other assets

 

51,963

 

40,562

 

Variable interest entity assets, at fair value

 

78,938,712

 

142,443,685

 

Total assets

 

$

79,951,681

 

143,325,398

 

 

 

 

 

 

 

LIABILITIES AND EQUITY

 

 

 

 

 

Liabilities:

 

 

 

 

 

Accounts payable

 

$

8,171

 

4,140

 

Accrued expenses and other liabilities

 

96,422

 

130,122

 

Derivative liabilities

 

2,715

 

23,796

 

Debts payable ($3,914 and $12,398 at fair value)

 

320,836

 

366,069

 

Repurchase agreements

 

72,116

 

 

Variable interest entity liabilities, at fair value

 

78,714,179

 

142,197,352

 

Total liabilities

 

79,214,439

 

142,721,479

 

Commitments and contingent liabilities

 

 

 

 

 

 

 

 

 

 

 

LNR Property LLC Members’ equity:

 

 

 

 

 

Members’ equity

 

506,050

 

501,656

 

Retained earnings

 

208,848

 

65,825

 

Accumulated other comprehensive earnings

 

6,070

 

2,456

 

Members’ equity

 

720,968

 

569,937

 

Noncontrolling interests

 

16,274

 

33,982

 

Total equity

 

737,242

 

603,919

 

Total liabilities and equity

 

$

79,951,681

 

143,325,398

 

 

See accompanying notes to consolidated financial statements.

 

3



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF EARNINGS

(In thousands)

 

 

 

Year Ended
December 31, 2011

 

Period from July 29,
2010 to December 31,
2010

 

Revenues

 

 

 

 

 

Management and servicing fees

 

$

220,461

 

59,229

 

Rental income

 

389

 

64

 

Total revenues

 

220,850

 

59,293

 

 

 

 

 

 

 

Costs and expenses

 

 

 

 

 

General and administrative

 

155,925

 

56,742

 

Cost of rental operations

 

1,460

 

353

 

Depreciation and amortization

 

8,076

 

2,861

 

Interest

 

20,835

 

17,131

 

Impairment of long-lived assets

 

240

 

 

Impairment losses on investment securities

 

849

 

18

 

Loss on early extinguishment of debt

 

2,197

 

 

Other expense, net

 

1,111

 

925

 

Total costs and expenses

 

190,693

 

78,030

 

 

 

 

 

 

 

Other income

 

 

 

 

 

Income of consolidated VIEs, net

 

97,089

 

50,995

 

Equity in earnings and impairments of unconsolidated entities

 

22,314

 

7,130

 

Change in fair value of servicing rights

 

(10,492

)

(16,836

)

Change in fair value of investment securities

 

(734

)

 

Change in fair value of mortgage loans held for sale

 

1,667

 

 

(Loss) gain on derivative financial instruments

 

(15,778

)

348

 

Interest income

 

4,196

 

1,344

 

Gain on sales of real estate

 

2,544

 

148

 

Foreign currency (loss) gain, net

 

(87

)

114

 

Other income, net

 

3,989

 

2,297

 

Total other income

 

104,708

 

45,540

 

 

 

 

 

 

 

Income from continuing operations before income taxes

 

134,865

 

26,803

 

Income tax benefit

 

(40,363

)

(33,672

)

Income from continuing operations

 

175,228

 

60,475

 

 

 

 

 

 

 

Discontinued operations (See Note 19)

 

 

 

 

 

Income from consolidated fund, net of tax

 

47,256

 

15,190

 

Gain on sale of interest in consolidated fund, net of tax

 

113

 

 

Income from discontinued operations

 

47,369

 

15,190

 

 

 

 

 

 

 

Net income

 

222,597

 

75,665

 

Net income attributable to noncontrolling interests

 

5,658

 

9,840

 

Net income attributable to members

 

$

216,939

 

65,825

 

 

See accompanying notes to consolidated financial statements.

 

4



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE EARNINGS

(In thousands)

 

 

 

Year Ended
December 31,
2011

 

Period from
July 29, 2010 to
December 31,
2010

 

Net income

 

$

222,597

 

75,665

 

Other comprehensive earnings, net of tax:

 

 

 

 

 

Unrealized gain on available-for-sale securities with no other than temporary impairments during the period

 

2,307

 

1,327

 

Unrealized loss on available-for-sale securities with other than temporary impairments during the period

 

(888

)

 

Reclassification adjustment for gain on available-for-sale securities included in net income

 

(108

)

 

Unrealized gain on foreign currency translation

 

3,033

 

399

 

Unrealized (loss) gain on derivative financial instruments

 

(730

)

730

 

Amounts attributable to noncontrolling interests

 

(941

)

1,045

 

Other comprehensive earnings, net of tax

 

2,673

 

3,501

 

Comprehensive earnings

 

$

225,270

 

79,166

 

 

See accompanying notes to consolidated financial statements.

 

5



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF MEMBERS’ EQUITY

(In thousands)

 

 

 

Contributed
Capital

 

Retained
Earnings

 

Share Based
Compensation

 

Accumulated
Other
Comprehensive
Earnings

 

Total
Members’
Equity

 

Non
Controlling
Interests

 

Total Equity

 

Balance at July 29, 2010

 

$

 

 

 

 

 

 

 

Issuance of member units for cash

 

416,500

 

 

 

 

416,500

 

 

416,500

 

Conversion of debt to member units

 

84,000

 

 

 

 

84,000

 

 

84,000

 

Fair value of equity awards reissued at recapitalization

 

 

 

475

 

 

475

 

 

475

 

Fair value of noncontrolling interests at recapitalization

 

 

 

 

 

 

41,140

 

41,140

 

Net income

 

 

65,825

 

 

 

65,825

 

9,840

 

75,665

 

Distributions to noncontrolling interests

 

 

 

 

 

 

(23,076

)

(23,076

)

Contributions from noncontrolling interests

 

 

 

 

 

 

5,600

 

5,600

 

Forfeiture of interest

 

 

 

 

 

 

(567

)

(567

)

Change in accumulated other comprehensive earnings, net

 

 

 

 

2,456

 

2,456

 

1,045

 

3,501

 

Amortization of share based compensation awards

 

 

 

681

 

 

681

 

 

681

 

Balance at December 31, 2010

 

$

500,500

 

65,825

 

1,156

 

2,456

 

569,937

 

33,982

 

603,919

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

216,939

 

 

 

216,939

 

5,658

 

222,597

 

Permitted tax distributions

 

 

(73,916

)

 

 

(73,916

)

 

(73,916

)

Distributions to noncontrolling interests

 

 

 

 

 

 

(30,969

)

(30,969

)

Contributions from noncontrolling interests

 

 

 

 

 

 

45,701

 

45,701

 

Deconsolidation of consolidated fund

 

 

 

 

(96

)

(96

)

(37,981

)

(38,077

)

Share-based compensation award distributions

 

 

 

(2,722

)

 

(2,722

)

 

(2,722

)

Retention of share-based compensation amounts by consolidated fund

 

 

 

(1,013

)

 

(1,013

)

1,013

 

 

Forfeiture of interest

 

 

 

 

 

 

(189

)

(189

)

Change in accumulated other comprehensive earnings, net

 

 

 

 

3,710

 

3,710

 

(941

)

2,769

 

Amortization of share based compensation awards

 

 

 

8,129

 

 

8,129

 

 

8,129

 

Balance at December 31, 2011

 

$

500,500

 

208,848

 

5,550

 

6,070

 

720,968

 

16,274

 

737,242

 

 

See accompanying notes to consolidated financial statements.

 

6



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

 

 

 

Year Ended
December 31,
2011

 

Period from July
29, 2010 to
December 31,
2010

 

Cash flows from operating activities:

 

 

 

 

 

Net income

 

$

222,597

 

75,665

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation

 

2,704

 

884

 

Accretion of discount on investment securities and mortgage loans

 

(266

)

(99

)

Accretion of discount on debt facilities

 

2,929

 

4,163

 

Amortization of share-based compensation awards

 

8,129

 

681

 

Amortization of intangibles and deferred items

 

7,019

 

1,667

 

Change in fair value of servicing rights

 

10,492

 

16,836

 

Change in fair value of assets and liabilities of consolidated VIEs

 

12,006

 

10,588

 

Change in fair value of investment securities

 

734

 

 

Equity in earnings of unconsolidated entities

 

(22,314

)

(7,130

)

Distributions of earnings from unconsolidated entities

 

22,283

 

6,824

 

Interest received on investment securities in excess of income recognized

 

1,037

 

753

 

Loss on early extinguishment of debt

 

2,197

 

 

Loss (gain) on foreign currency translation

 

49

 

(85

)

Impairment of long-lived assets and investment securities

 

1,311

 

18

 

Gains on sales of real estate

 

(2,544

)

(148

)

Gains on sales of investment securities

 

(891

)

(3,075

)

Gain on sale of interest in consolidated fund

 

(113

)

 

Loss on settlement of litigation

 

1,036

 

 

Change in fair value of derivative financial instruments

 

9,442

 

(7,453

)

Change in fair value of mortgage loans held for sale

 

(1,667

)

 

Origination of mortgage loans held for sale, net of principal collections

 

(105,768

)

 

Changes in assets and liabilities:

 

 

 

 

 

(Increase) decrease in other assets

 

(2,094

)

7,288

 

Decrease in accounts payable and accrued liabilities

 

(33,655

)

(50,902

)

Net cash provided by operating activities

 

134,653

 

56,475

 

 

 

 

 

 

 

Cash flows from investing activities:

 

 

 

 

 

Purchases of furniture, fixtures and equipment

 

(1,414

)

(16

)

Land held for investment:

 

 

 

 

 

Additions

 

(19,789

)

(3,582

)

Proceeds from reimbursements of development costs

 

 

9,110

 

Sales proceeds

 

15,227

 

4,553

 

Investments in unconsolidated entities

 

(6,216

)

(12,269

)

Proceeds from sales of interests in unconsolidated entities

 

 

80

 

Distributions of capital from unconsolidated entities

 

41,844

 

11,349

 

Proceeds from principal collections on mortgage loans held for investment

 

103

 

6,684

 

Purchases of available-for-sale investment securities

 

(26,645

)

(5,615

)

Proceeds from sales of and principal collections on available-for-sale investment securities

 

1,365

 

8,363

 

Payments for purchases and terminations of derivative financial instruments

 

(40,209

)

 

Decrease in restricted cash

 

21,184

 

7,043

 

Decrease in cash resulting from deconsolidation of fund

 

(89

)

 

Net cash (used in) provided by investing activities

 

(14,639

)

25,700

 

 

See accompanying notes to consolidated financial statements.

 

7



 

LNR PROPERTY LLC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS - Continued

(In thousands)

 

 

 

Year Ended
December 31,
2011

 

Period from July
29, 2010 to
December 31,
2010

 

Cash flows from financing activities:

 

 

 

 

 

Capital contributions

 

 

416,500

 

Permitted tax distributions

 

(73,916

)

 

Distributions for share-based compensation awards

 

(2,721

)

 

Distributions to noncontrolling interests

 

(30,969

)

(23,076

)

Proceeds from contributions of noncontrolling interests

 

31,150

 

5,600

 

Proceeds from loans sold under agreements to repurchase

 

72,231

 

 

Payments on credit facilities

 

(48,698

)

(426,680

)

Repurchases of senior notes

 

(8,705

)

(64,395

)

Payment of investee debt pursuant to guarantee

 

(10,844

)

 

Issuance costs for debt and repurchase agreements

 

(6,085

)

 

Repayment of debt of consolidated VIEs

 

(84,035

)

(8,207

)

Issuance of debt of consolidated VIEs

 

61,133

 

70,137

 

Proceeds from consolidated VIEs

 

11,071

 

 

Net cash used in financing activities

 

(90,388

)

(30,121

)

Effect of exchange rate changes on cash

 

(308

)

408

 

Net change in cash and cash equivalents

 

29,318

 

52,462

 

Cash and cash equivalents at beginning of period

 

142,847

 

90,385

 

Cash and cash equivalents at end of period

 

$

172,165

 

142,847

 

 

 

 

 

 

 

Supplemental disclosure of cash flow information:

 

 

 

 

 

Cash paid for interest

 

$

21,057

 

16,084

 

Cash paid for income taxes

 

2,680

 

5,333

 

Cash received from income tax refunds

 

7,637

 

6,373

 

Supplemental disclosure of non-cash investing and financing activities:

 

 

 

 

 

 

 

 

 

 

 

Land acquired via assumption of debt obligation

 

15,534

 

 

Senior credit facility repaid with new credit facility

 

317,759

 

 

Debt issuance costs funded with new credit facility

 

7,241

 

 

Retention of share-based compensation amounts by consolidated fund

 

1,013

 

 

 

Transfer of securities from held-to-maturity to available-for-sale

 

 

1,150

 

Consolidation of VIEs

 

 

 

 

 

Variable interest entity assets

 

7,497,067

 

 

Variable interest entity liabilities

 

7,482,516

 

 

Variable interest entity noncontrolling interest

 

14,551

 

 

Deconsolidation of VIEs

 

 

 

 

 

Variable interest entity assets

 

54,551,088

 

 

Variable interest entity liabilities

 

54,551,088

 

 

Deconsolidation of fund

 

 

 

 

 

Investment securities

 

37,893

 

 

Other assets

 

10

 

 

Accrued expenses and other liabilities

 

28

 

 

Noncontrolling interest

 

37,981

 

 

Accumulated other comprehensive earnings

 

96

 

 

 

See accompanying notes to consolidated financial statements.

 

8



 

LNR PROPERTY LLC AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

1.    Summary of Organization, Business and Significant Accounting Policies

 

Description of Business

 

LNR Property LLC (collectively with its subsidiaries referred to as the “Company”) was originally organized as a corporation under the laws of Delaware as LNR Property Corporation (“LNRPC”) and was subsequently converted to a limited liability company after completion of a comprehensive balance sheet recapitalization (the “Recapitalization”) on July 29, 2010.  In order to effectuate the Recapitalization on July 29, 2010, the Board of Directors of LNR Property Holdings Ltd. (collectively with its subsidiaries referred to as the “Predecessor”), the former parent of LNRPC, approved a plan whereby a group of five investors (the “Lead Investors”) acquired all of the outstanding shares of the LNRPC from its direct parent, Riley Holdco Corp (“Holdco”), in exchange for the conversion of Holdco’s debt to equity of $84.0 million and a new equity issuance by LNRPC for $416.5 million in cash.  These amounts, in addition to a $0.5 million reissuance of equity awards, reflect total consideration for the Recapitalization of $501.0 million.  In connection with the Recapitalization, we elected push down accounting, pursuant to which the acquisition method of accounting was applied.  See further discussion in Note 2.

 

The Lead Investors and their ownerships interests as of December 31, 2011 and 2010 were as follows:

 

Investor

 

Economic Interest

 

Voting Interest

 

VNO LNR Holdco LLC (a Vornado affiliate)

 

26.174

%

26.75

%

iStar Marlin LLC (an iStar affiliate)

 

23.976

%

24.50

%

CBR I LLC (a Cerberus affiliate)

 

18.042

%

18.44

%

Aozora Investments LLC (an Aozora affiliate)

 

16.723

%

14.90

%

Opps VIIb LProp, L.P. (an Oaktree affiliate)

 

15.085

%

15.42

%

 

The Lead Investors have extensive experience in owning and managing commercial real estate.  VNO LNR Holdco LLC is an affiliate of Vornado Realty Trust (“Vornado”), a publicly traded real estate investment trust which is one of the largest owners and managers of commercial real estate in the United States.  iStar Marlin LLC is an affiliate of iStar Financial Inc. (“iStar”), a publicly traded finance company focused on the commercial real estate industry.  CBR I LLC is a fund managed by Cerberus Capital Management, L.P. (“Cerberus”), one of the world’s leading private investment firms.  Aozora Investments LLC is an entity managed by Aozora Bank, Ltd. (“Aozora”), a Japanese bank.  Opps VIIb LProp, L.P. is an affiliate of Oaktree Capital Management (“Oaktree”), an investment firm which specializes in less efficient markets and alternative investments.

 

The accompanying consolidated financial statements and notes thereto present separately the results of operations for the period from July 29, 2010 to December 31, 2010 (the “2010 Stub Period”), and the year ended December 31, 2011 (“Fiscal 2011”).

 

We operate fee based businesses comprised of (i) our servicing business that is primarily related to managing and working out problem assets, (ii) our finance business that is focused on selectively acquiring and managing real estate finance investments, including unrated, investment grade and non-investment grade rated commercial mortgage backed securities (“CMBS”), non-investment grade rated notes, preferred interests of resecuritization transactions and high yielding real estate loans, either directly or through ventures in which we hold an interest, and (iii) our real estate asset management business which is involved in acquiring, developing, repositioning,  managing and selling commercial, multi-family residential and residential land, either directly or through ventures in which we hold an interest.

 

9



 

Basis of Presentation and Consolidation

 

The accompanying consolidated financial statements include our accounts, those of our wholly owned subsidiaries and certain other entities we are required to consolidate. We consolidate the assets, liabilities, and results of operations of entities (corporations, partnerships and variable interest entities) in accordance with ASC Topic 810, “Consolidation.”

 

Entities not deemed to be variable interest entities (“VIEs”) are consolidated if we own a majority of the voting securities or interests or hold the general partnership interest, except in those instances in which the minority voting interest owner effectively participates through substantive participative rights. Substantive participative rights include the ability to select, terminate and set compensation of the investee’s management, if applicable, and the ability to participate in capital and operating decisions of the investee, including budgets, in the ordinary course of business.

 

We invest in entities with varying structures, many of which do not have voting securities or interests, such as general partnerships, limited partnerships, and limited liability companies. In many of these structures, control of the entity rests with the general partners or managing members, while other members hold passive interests. The general partner or managing member may hold anywhere from a relatively small percentage of the total financial interests to a majority of the financial interests. For entities not deemed to be VIEs, where we serve as the sole general partner or managing member, we are considered to have the controlling financial interest and therefore the entity is consolidated, regardless of our financial interest percentage, unless there are other limited partners or investing members that effectively participate through substantive participative rights. In those circumstances where we, as majority controlling interest owner, cannot cause the entity to take actions that are significant in the ordinary course of business, because such actions could be vetoed by the minority controlling interest owner, we do not consolidate the entity.

 

VIEs are entities that, by design, either (1) lack sufficient equity to permit the entity to finance its activities without additional subordinated financial support from other parties, or (2) have equity investors that do not have the ability to make significant decisions relating to the entity’s operations through voting rights, or do not have the obligation to absorb the expected losses, or do not have the right to receive the residual returns of the entity.

 

The most common type of VIE is a special purpose entity (“SPE”). SPEs are commonly used in securitization transactions in order to isolate certain assets and distribute the cash flows from those assets to investors. SPEs are an important part of the financial markets, including the mortgage- and asset-backed securities and commercial paper markets, as they provide market liquidity by facilitating investors’ access to specific portfolios of assets and risks. SPEs may be organized as trusts, partnerships or corporations and are typically established for a single, discrete purpose. SPEs are not typically operating entities and usually have a limited life and no employees. The basic SPE structure involves a company selling assets to the SPE; the SPE funds the purchase of those assets by issuing securities to investors. The legal documents that govern the transaction specify how the cash earned on the assets must be allocated to the SPE’s investors and other parties that have rights to those cash flows. SPEs are generally structured to insulate investors from claims on the SPE’s assets by creditors of other entities, including the creditors of the seller of the assets.

 

The primary beneficiary of a VIE is required to consolidate the VIE.  The primary beneficiary is the party that has both (1) the power to direct the activities of an entity that most significantly impact the VIE’s economic performance; and (2) through its interest in the VIE, the obligation to absorb losses or the right to receive benefits from the VIE that could be potentially significant to the VIE.  For further details regarding our interests in VIEs, see Notes 9 and 21.

 

When we consolidate entities other than SPEs, the ownership interests of any minority parties are reflected as noncontrolling interests.  When we consolidate SPEs, beneficial interests payable to third

 

10



 

parties are reflected as liabilities when the interests are legally issued in the form of debt.  Investments in entities which are not consolidated are accounted for by the equity method or by the cost method if either our investment is considered to be minor or we lack significant influence over the investee.

 

All intercompany transactions and balances among consolidated entities have been eliminated in consolidation.

 

Deconsolidation and Discontinued Operations

 

We previously consolidated the LNR Archetype Real Estate Debt Fund, L.P. (the “Archetype Fund”), an entity in which we held an approximately 48% ownership interest.  On December 29, 2011, we sold all of our limited partner and general partner interests in the Archetype Fund and therefore no longer have a controlling, or any, financial interest in this entity.  As a result, we deconsolidated the Archetype Fund from our financial statements.  Consistent with ASC 205, “Presentation of Financial Statements,” the statements of earnings for both Fiscal 2011 and the 2010 Stub Period include the results of operations of the Archetype Fund, including any gain or loss recognized, in discontinued operations.

 

Business Combinations

 

Under ASC Topic 805, “Business Combinations,” the acquirer in a business combination must recognize, with certain exceptions, 100% of the fair values of assets acquired, liabilities assumed, and noncontrolling interests in acquisitions of less than 100% controlling interest when the acquisition constitutes a change in control of the acquired entity. As goodwill is calculated as a residual, all goodwill of the acquired business, not just the acquirer’s share, is recognized under this “full goodwill” approach.

 

We applied the provisions of ASC Topic 805, “Business Combinations”, in accounting for the Recapitalization.  In doing so, we recorded provisional amounts for certain items as of the date of the Recapitalization, including our provision for income taxes.  During the measurement period, a period which shall not exceed one year, we retrospectively adjust the provisional amounts recognized at the Recapitalization date to reflect new information obtained about facts and circumstances that existed as of such date that, if known, would have affected the measurement of the amounts recognized. See further discussion in Note 2.

 

Comprehensive Earnings

 

Comprehensive earnings consists of net income and other comprehensive earnings, which are primarily net unrealized gains or losses on available-for-sale securities, foreign currency translation and derivative financial instruments adjusted for amounts attributable to noncontrolling interests. Comprehensive earnings is presented separately in our consolidated statements of comprehensive earnings. The change in accumulated other comprehensive earnings is reflected in our consolidated statements of members’ equity.

 

Cash and Cash Equivalents and Restricted Cash

 

We consider all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents. Our cash equivalent investments are classified as held-to-maturity based on our positive intent and ability to hold the securities to maturity. These investments include securities held in commercial paper, money market accounts and bank certificates of deposit and are stated at amortized cost. Due to the short maturity period of cash equivalents, the carrying amount of these instruments approximates fair value. Income related to these securities is reported as a component of interest income. Restricted cash primarily relates to cash collateral required under derivative instruments.

 

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Concentration of Credit Risk

 

The Company maintains all of its cash accounts with Bank of America, N.A. These accounts are noninterest bearing and are therefore fully insured by the Federal Deposit Insurance Corporation through December 31, 2012 in accordance with Section 343 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

 

Investment Securities

 

Investment securities consist principally of CMBS and the retained interests of resecuritization transactions. Those securities for which the intent and ability to hold to maturity exists are designated as held-to-maturity, while all others are classified as available-for-sale.

 

Securities classified as available-for-sale are recorded at fair value. While certain of our available-for-sale securities are hedged for changes in fair value due to movements in interest rates through the use of interest rate swaps, these hedges are not in qualifying fair value hedging relationships.  Changes in fair value of unimpaired available-for-sale securities for which the fair value option is not elected are reported in members’ equity, net of the related tax effects, as a component of accumulated other comprehensive earnings until realized.  Changes in fair value of available-for-sale securities for which the fair value option is elected are reflected in earnings.

 

If any available-for-sale investments for which we have not elected the fair value option have unrealized losses and we intend to sell or it is more likely than not that we will be required to sell the security prior to the recovery of amortized cost, the other than temporary impairment (“OTTI”) is recognized in our consolidated statements of earnings. If we do not have the intent to sell a security or it is not more likely than not that we will be required to sell the security, and the security is not accounted for under the cost recovery method or fair value option, the amount of OTTI is segregated into two components: (1) the portion representing a credit loss, which is reflected in our consolidated statements of earnings; and (2) the portion relating to other factors, which is reflected within accumulated other comprehensive earnings. In these instances, the credit impairment is measured as the excess of the amortized cost basis of the security over the current period’s estimate of cash flows discounted at the rate last used to accrete the beneficial interest.

 

Unrealized losses are considered to be other than temporary if (a) the present value of the currently estimated total cash flows related to the security is less than the present value of the previous period’s estimated total cash flows of that security and the decline in the present value is due to adverse changes in the projected cash flows; or (b) we are unable to hold the security until recovery of its amortized cost basis. For these securities, total OTTI is the amount by which the fair value of the security has declined below its amortized cost.

 

We account for interest income on securities for which the fair value option is not elected using a level yield method. In doing so, if the projected timing and/or amount of projected cash flows on a particular security become subject to significant uncertainty, the security is accounted for using the cost recovery method. Under the cost recovery method, we record no interest income and apply all cash received to reduce the amortized cost of such securities until such time as we are able to project cash flows with greater certainty, or the investment balance is reduced to zero.  Interest income on securities for which the fair value option is elected is recognized based on contractual rates.  See further discussion of revenue recognition under the Revenue and Income Recognition section.

 

In order to recognize a portion of OTTI as a non-credit loss in OCI, management must be able to estimate future cash flows.  Because securities on cost recovery inherently contain cash flows that cannot be reliably estimated, whether the uncertainty arises from timing or amount, we are unable to assert that a portion of an OTTI is a non-credit loss.  In these instances, an impairment loss equal to the difference between amortized cost and fair value of the security at the date on which the security is placed on cost

 

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recovery is recognized in our consolidated statements of earnings.  Any subsequent decline in the fair value of a debt security placed on cost recovery will result in an additional OTTI in the consolidated statements of earnings.

 

Fair Value Option

 

The guidance in ASC Topic 825, “Financial Instruments,” provides a fair value option election that allows entities to make an irrevocable election of fair value as the initial and subsequent measurement attribute for certain eligible financial assets and liabilities.  Unrealized gains and losses on items for which the fair value option has been elected are reported in earnings.  The decision to elect the fair value option is determined on an instrument by instrument basis and must be applied to an entire instrument and is irrevocable once elected.  Assets and liabilities measured at fair value pursuant to this guidance are required to be reported separately in our consolidated balance sheets from those instruments using another accounting method.  We have elected the fair value option for eligible financial assets and liabilities of our consolidated VIEs, mortgage loans held for sale, purchased investment securities issued from VIEs we expect to consolidate in the future, and the securitized financial assets and liabilities of Madison Square Company LLC (“Madison”).  The fair value elections were made to mitigate accounting mismatches between the carrying value of these financial instruments and related assets or liabilities measured at fair value including derivative instruments not designated in qualifying hedging relationships.

 

Fair Value

 

We measure all assets acquired, liabilities assumed, and noncontrolling interests included in an acquisition which is subject to the acquisition method of accounting at fair value.  We also measure our available-for-sale CMBS, derivative assets and liabilities, domestic servicing rights intangible and any assets or liabilities where we have elected the fair value option at fair value. When actively quoted observable prices are not available, we either use implied pricing from similar assets and liabilities or valuation models based on net present value of estimated future cash flows, adjusted as appropriate for liquidity, credit, market and/or other risk factors.

 

As discussed above, we measure the assets and liabilities of consolidated VIEs at fair value pursuant to our election of the fair value option.  The VIEs in which we invest are “static”; that is, no reinvestment is permitted, and there is no active management of the underlying assets.  In determining the fair value of the assets and liabilities of the VIE, we maximize the use of observable inputs over unobservable inputs.  We also acknowledge that our principal market for selling CMBS assets is the securitization market where the market participant is considered to be a CMBS trust or a collateralized debt obligation (“CDO”).  This methodology results in the fair value of the assets of a static CMBS trust being equal to the fair value of its liabilities.

 

Mortgage Loans

 

Loans for which we have the intent and ability to hold for the foreseeable future or until maturity or payoff are reflected in mortgage loans held for investment on our consolidated balance sheets and are recorded at their outstanding principal amount adjusted for any charge offs, allowances, deferred fees or costs, and any unamortized premiums or discounts. Unaccreted discounts or premiums are accreted to income utilizing a methodology that results in a level yield.

 

We provide an allowance for credit losses for mortgage loans held for investment that are considered to be impaired. The allowance for losses is based on our evaluation of various factors, including our historical loss experience, fair value of the collateral, operating performance of the collateral, strength of the borrower, and other factors, and is charged to earnings. Realized credit losses on loans are deducted from the allowance when they occur. Any loan recoveries are recorded as an increase to the allowance for losses when received. We do not accrue interest on impaired loans where, in the judgment of

 

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management, collection of interest according to the contractual terms of the loan documents is considered doubtful. Among the factors we consider in making an evaluation of the amount of interest that is collectable are the financial condition of the borrower, the status of the underlying collateral and anticipated future events.  For impaired non-accrual loans, interest is recognized on a cash basis.  Loan acquisition costs, such as costs incurred in conducting our due diligence, are capitalized and amortized to earnings over the life of the loan using the effective interest method.

 

Loans for which we have the intent to sell or securitize are recorded as mortgage loans held for sale on our consolidated balance sheets.  We have elected the fair value option for all mortgage loans held for sale, resulting in the loans being carried at fair value with changes in fair value reflected in earnings.  Fair value of our held for sale mortgage loan portfolio is determined using a whole-loan pricing methodology.  Interest income on mortgage loans held for sale is recognized based on contractual rates.

 

Land Held for Investment

 

Land held for investment is recorded at cost. We review long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of long-lived assets is measured by comparing the carrying amount of an asset to the undiscounted future net cash flows expected to be generated by the asset. If such carrying amounts exceed the expected undiscounted future net cash flows, we adjust the carrying amount of the asset to its estimated fair value. For land under development or repositioning, fair value is determined using discounted expected future cash flows.

 

Debt Issuance Costs

 

We incur structuring fees and other costs in connection with the issuance of our debt facilities, including mortgage loans sold under agreements to repurchase. Such costs are deferred when incurred and amortized to interest expense over the term of the underlying debt or commitment period using either the effective interest method or the straight-line method in those cases where such method approximates the effective interest method.

 

Investments in Unconsolidated Entities

 

Investments in which we maintain an interest in excess of 20%, but not more than 50%, and/or have significant influence over the investee are accounted for in accordance with the equity method of accounting. Differences, if any, between our carrying value and the underlying equity in the net assets of the investee are accounted for as if the investee were a consolidated subsidiary. All other investments in unconsolidated entities are accounted for pursuant to the cost method of accounting. We assess our ability to recover the carrying amounts of our investments in unconsolidated entities whenever events or changes in circumstances indicate that the carrying amount of the investments may not be recoverable. If the fair value of the investment is less than the carrying value and the decline in value is considered to be other than temporary, a write-down is recorded through equity in earnings and impairments of unconsolidated entities. Because no active market exists for the investees’ ownership interests, the determination of fair value is based on valuation methodologies, including discounted cash flows, and the ability of the investee to sustain an earnings capacity that justifies the carrying amount of the investment.

 

Goodwill and Intangible Assets

 

We allocate the purchase price of acquired real estate assets and assumed liabilities in accordance with the provisions of ASC Topic 805. Goodwill is not amortized, but rather tested for impairment annually during the fourth quarter of each fiscal year, or more frequently if events or changes in circumstances indicate potential impairment. Goodwill at December 31, 2011 and 2010 represents the excess of the consideration paid in connection with the Recapitalization over the fair value of net assets acquired.

 

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In September 2011, the FASB issued Accounting Standards Update (“ASU”) No. 2011-08, “Testing Goodwill for Impairment,” which provides entities the option of performing a qualitative assessment of whether it is more likely than not that the fair value of a reporting unit is less than its carrying value including goodwill.  If the qualitative assessment determines that it is not more likely than not that the fair value of a reporting unit is less than its carrying value including goodwill, then no impairment is determined to exist for the reporting unit at the date of assessment.  However, if the qualitative assessment determines that it is more likely than not that the fair value of the reporting unit is less than its carrying value including goodwill, the entity must compare the fair value of that reporting unit with its carrying value, including goodwill. If the carrying value of a reporting unit exceeds its fair value, goodwill is considered impaired with the impairment loss equal to the amount by which the carrying value of the goodwill exceeds the implied fair value of that goodwill.  ASU No 2011-08 was effective for annual periods beginning after December 15, 2011 with early adoption permitted. We elected to early adopt ASU No. 2011-08, and performed a qualitative assessment in connection with our Fiscal 2011 goodwill impairment test.

 

In connection with the Recapitalization, we were required to determine the fair value of all identifiable intangible assets.  Special servicing rights of both our domestic and European servicing operations were identified.  The fair value measurement method was elected for subsequent measurement of the domestic servicing asset.  We also elected the fair value measurement method for subsequent measurement of any newly purchased domestic servicing intangible assets after the Recapitalization date.  Election of this method is necessary to conform to our election of the fair value approach for measuring the assets and liabilities of the VIEs consolidated pursuant to ASC Topic 810.  The amortization method was elected for subsequent measurement of the European servicing asset.  This asset is amortized in proportion to and over the period of estimated net servicing income, and is tested for potential impairment whenever events or changes in circumstances suggest that its carrying value may not be fully recoverable.

 

For purposes of testing our European servicing intangible for impairment, we first determine whether facts and circumstances exist that would suggest the carrying value of the intangible is not recoverable.  If so, we then compare the fair value of the servicing intangible with its carrying value. The estimated fair value of the intangible is determined using discounted cash flow modeling techniques which require management to make estimates regarding future net servicing cash flows, taking into consideration historical and forecasted loan defeasance rates, delinquency rates and anticipated maturity defaults. If the carrying value of the intangible exceeds its fair value, the intangible is considered impaired and an impairment loss is recognized for the amount by which carrying value exceeds fair value.

 

Variable Interest Entities

 

We evaluate all of our interests in VIEs for consolidation.  As part of this analysis, we first determine whether these interests represent variable interests.  When our interests are determined to be variable interests, we assess whether we are deemed to be the primary beneficiary of the VIE.  ASC 810 defines the primary beneficiary as the party that has both (i) the power to direct the activities of the VIE that most significantly impact its economic performance, and (ii) the obligation to absorb losses and the right to receive benefits from the VIE which could be potentially significant.  We consider our variable interests as well as any variable interests of our related parties in making this determination.  Where both of these factors are present, we are deemed to be the primary beneficiary and we consolidate the VIE.  Where either one of these factors is not present, we are not the primary beneficiary and do not consolidate the VIE.

 

To assess whether we have the power to direct the activities of a VIE that most significantly impact the VIE’s economic performance, we consider all facts and circumstances, including our role in establishing the VIE and our ongoing rights and responsibilities.  This assessment includes first, identifying the activities that most significantly impact the VIE’s economic performance; and second, identifying which party, if any, has power over those activities. In general, the parties that make the most significant

 

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decisions affecting the VIE or have the right to unilaterally remove those decision makers are deemed to have the power to direct the activities of a VIE.

 

To assess whether we have the obligation to absorb losses of the VIE or the right to receive benefits from the VIE that could potentially be significant to the VIE, we consider all of our economic interests, including debt and equity investments, servicing fees, and other arrangements deemed to be variable interests in the VIE. This assessment requires that we apply judgment in determining whether these interests, in the aggregate, are considered potentially significant to the VIE. Factors considered in assessing significance include: the design of the VIE, including its capitalization structure; subordination of interests; payment priority; relative share of interests held across various classes within the VIE’s capital structure; and the reasons why the interests are held by us.

 

Our purchased investment securities include CMBS which are primarily comprised of the unrated and non-investment grade rated securities issued by CMBS trusts.  In certain cases, we may contract to provide special servicing activities for these CMBS trusts, or, as holder of the controlling class, we may have the right to name and remove the special servicer for these trusts.  In our role as special servicer, we provide services on defaulted loans within the trusts, such as foreclosure or work-out procedures, as permitted by the underlying contractual agreements.  In exchange for these services, we receive a fee.  These rights give us the ability to direct activities that could significantly impact the trust’s economic performance.  However, in those instances where an unrelated third party has the right to unilaterally remove us as special servicer, we do not have the power to direct activities that most significantly impact the trust’s economic performance.  We evaluated all of our positions in such investments for consolidation.

 

We also hold retained interests in securitization transactions which are CDOs, where CMBS assets from our balance sheet were transferred to an SPE, which then issued to investors various forms of interests in those assets.  We received cash and/or other interests in the SPE as proceeds for the assets transferred.  We generally serve as collateral administrator of these CDOs.  In this role, we perform certain administrative tasks as defined in the indenture in exchange for a fee.  This role also provides us with certain rights, including a right to purchase impaired assets from the trust if an event of default has not occurred.  Given the nature of the entity, its activities are relatively static until an event of default occurs.  At that time, the trustee or the senior note holders are allowed to exercise certain rights, including liquidation of the CDO’s collateral.

 

We assessed the variable interests we hold in CDO structures and determined that we are the primary beneficiary of certain of these structures.  This determination was based on the presumption that from inception of the CDO through the date of default, the most significant activity impacting the CDO’s economic performance is its initial structure.  Given our involvement in structuring the entity at inception and our subsequent role as collateral administrator, we have the power to direct activities that most significantly impact the CDO’s economic performance until an event of default occurs.  In addition, through our retention of the residual equity interest in the CDO at inception, we have the obligation to absorb losses or the right to receive benefits from the VIE that could be potentially significant to the VIE. Where both of these factors are present, we are deemed the primary beneficiary.

 

For VIEs in which we are determined to be the primary beneficiary, all of the underlying assets, liabilities and equity of the structures are recorded on our books, and the initial investment holdings, along with any associated unrealized holding gains and losses, are eliminated in consolidation.  Similarly, the interest income earned from these structures, as well as the fees paid by these trusts to us in our capacity as special servicer, are eliminated in consolidation.  Further, an allocable portion of the identified servicing intangible asset associated with the management fee streams, and the corresponding allocable amortization or change in fair value of the servicing intangible asset are also eliminated in consolidation.  See Note 9 for further discussion regarding the impact to our financial statements from these consolidations.

 

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We perform ongoing reassessments of: 1) whether any entities previously evaluated under the majority voting interest framework have become VIEs, based on certain events, and therefore subject to the VIE consolidation framework, and 2) whether changes in the facts and circumstances regarding our involvement with a VIE causes our consolidation conclusion regarding the VIE to change.

 

As stated in the Fair Value Option section above, we have elected the fair value option pursuant to ASC 825, Financial Instruments, in measuring the assets and liabilities of any VIEs which we have consolidated.  Fluctuations in the fair values of the VIE assets and liabilities, along with trust interest income and trust interest and administrative expenses, are presented net in income of consolidated VIEs in our consolidated statements of earnings.

 

Derivative Financial Instruments

 

Each derivative instrument is reflected as either an asset or liability in the consolidated balance sheets at its fair value. The accounting for changes in the fair value of a derivative instrument depends on whether it has been designated in a qualifying hedging relationship. Certain criteria must be met before an interest rate swap or other derivative instrument is accounted for as a hedge. This includes formal documentation at hedge inception of (i) the hedging relationship and our risk management objective and strategy for undertaking the hedge and (ii) an indication that the hedging relationship is expected to be highly effective in hedging the designated risk during the term of the hedge. Effectiveness is tested periodically, and at least quarterly.

 

We periodically enter into derivative financial instruments to hedge unpredictable changes in fair values related to our investment securities and mortgage loans held for sale. These derivatives hedge value changes resulting from both interest rates and credit quality and are reported in the consolidated balance sheets at fair value with changes in the fair value recognized in our consolidated statements of earnings.  Cash paid for such instruments, if any, is reflected as a derivative asset upon acquisition.

 

We also may enter into interest rate swap agreements to manage our interest costs and hedge against risks associated with changing interest rates on certain of our debt obligations. These derivative instruments are reported in the consolidated balance sheets at fair value. If the instrument qualifies as a cash flow hedge, the effective portion of the unrealized gain or loss on these derivatives is reported in members’ equity, net of the related tax effect, as a component of accumulated other comprehensive earnings, and the ineffective portion is recognized as interest expense in the consolidated statements of earnings. If the instrument does not qualify, the unrealized gain or loss is reported as interest expense. If a cash flow hedge is terminated or is no longer designated in a qualifying hedging relationship, the net gain or loss attributable to that hedge that has been accumulated in other comprehensive earnings is reclassified into earnings in the same period or periods during which the cash flows on the previously hedged item affect earnings. If the hedged item matures, is terminated, or is disposed of, the corresponding hedge is either terminated or re-designated to a similar instrument.

 

We analyze our retained interests in CDO transactions and report any resulting embedded derivatives in the balance sheets at fair value, with any changes in fair value recorded in earnings.  A residual instrument is deemed to have an embedded interest rate derivative to the extent that a shortfall of cash flow could exist after the senior interest holders are paid due to adverse changes in interest rates.

 

Our derivative instruments are not leveraged or held-for-trading purposes. See Note 5 for further discussion of derivative financial instruments and hedging activities.

 

Foreign Currency

 

The assets and liabilities held by our foreign entities with a functional currency other than the U.S. dollar are translated into U.S. dollars at exchange rates in effect at the end of each reporting period. Foreign entity revenues and expenses are translated into U.S. dollars at the average rates that prevailed during the

 

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period. The resulting net translation gains and losses are reported as foreign currency translation adjustments, net of the related tax effect, in members’ equity as a component of accumulated other comprehensive earnings. At December 31, 2011 and 2010, accumulated other comprehensive earnings included $3.4 million and $0.4 million of gains, respectively, from foreign currency translation adjustments. Realized foreign currency gains and losses and changes in the value of foreign currency monetary assets and liabilities are included in the determination of net income and are reported as foreign currency gain (loss) in our consolidated statements of earnings.

 

Upon sale or upon complete or substantially complete liquidation of an investment in a foreign entity, the amount attributable to that entity and accumulated in the translation adjustment component of other comprehensive earnings shall be removed from other comprehensive earnings and shall be reported as part of the gain or loss on sale or liquidation of the investment for the period during which the sale or liquidation occurs.

 

Revenue and Income Recognition

 

We typically seek to be the special servicer on CMBS transactions in which we invest. When we are appointed to serve in this capacity, we earn special servicing fees from the related activities performed, which consist primarily of overseeing the workout of under-performing and non-performing loans underlying the CMBS transactions. In addition, we receive management, asset acquisition, development and master servicing fees from third parties and unconsolidated affiliates. These fees are recognized in income in the period in which the services are performed and the revenue recognition criteria have been met. Development fees received from unconsolidated affiliates during the development period are recognized as revenue only to the extent of third party ownership interests in such unconsolidated entities.

 

Interest income on CMBS for which the fair value option is not elected is recognized in accordance with the accounting guidance governing beneficial interests in securitized financial assets, whereby we estimate all cash flows attributable to an investment security on the date the security is acquired. The amount by which estimated cash flows exceed the initial investment is recognized as interest income over the life of the security using the effective interest method. Changes in expected cash flows result in prospective adjustments to interest income. Interest income on mortgage loans for which the fair value option is not elected is comprised of interest received plus the accretion of discount, if any, between the carrying value and unpaid principal balance using a methodology that results in a level yield.  Interest income on CMBS and mortgage loans for which the fair value option is elected is recognized based on the contractual rate of interest.

 

Revenues from sales of real estate including land held for investment and interests in unconsolidated entities are recognized using the full accrual method provided that various criteria relating to the terms of the transactions and our subsequent involvement with the sold real estate are met. Revenues relating to transactions that do not meet the established criteria are deferred and recognized when the criteria are met or using the installment or cost recovery methods, as appropriate in each circumstance. Revenue from sales of real estate to unconsolidated affiliates is recognized only to the extent of the third party ownership interests in such unconsolidated entities.

 

Transfers of investment securities and mortgage loans are accounted for as sales pursuant to the accounting guidance governing transfers and servicing of financial assets, providing that we have surrendered control over the assets and to the extent that we received consideration other than beneficial interests in the assets.  The cost of assets sold is based on the specific identification method.

 

Rental income is recognized on a straight-line basis over the respective lease term, commencing on the date that the lessee is granted access to the property. Contingent rents are not recognized until realized, which is when the tenant exceeds certain contractual thresholds specified in the lease.

 

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Income Taxes

 

Following the Recapitalization, we completed a reorganization through which the majority of our subsidiaries converted to Delaware LLCs.  Accordingly, we are not generally subject to income taxes, as our income is taxed directly to our owners.  However, certain of our subsidiaries may still be subject to income taxes in certain jurisdictions.  Additionally, we retained the net tax liabilities of the Predecessor as of the date of the Recapitalization, which principally related to uncertain tax positions of the Predecessor.  Recognition of an uncertain tax position is based on an evaluation of whether the position meets the more likely than not threshold for recognition. Amounts recorded are based on our best estimate of the ultimate settlement of the positions.  At the date of any change in our best estimate of the ultimate settlement of these tax liabilities, if such date was within the measurement period, and related to changes in facts and circumstances that existed at the Recapitalization date, we adjusted the liability with a corresponding offset to goodwill attributable to the Recapitalization. However, for any such change in our estimate that was (i) the result of an identifiable event that occurred after the transaction date, or (ii) subsequent to the measurement period, the corresponding offset was recognized in earnings.

 

We recognize tax positions in the financial statements only when it is more likely than not that the position will be sustained upon examination of the relevant taxing authority, based on the technical merits of the tax position.  A tax position is measured at the largest amount of benefit that will more likely than not be realized upon settlement. A liability is established for the differences between positions taken in a tax return and amounts recognized in the financial statements and no portion of the benefit is recognized in the consolidated statements of earnings. We report interest and penalties related to income tax matters as a component of income tax benefit.

 

From time to time, certain of our subsidiaries may be subject to audits covering a variety of tax matters by taxing authorities in any taxing jurisdiction where we conduct our business. Additionally, there are several open tax years of the Predecessor that may be selected for audit.  While we believe that the tax returns filed by the Predecessor and any tax positions taken are supportable and accurate, some tax authorities may not agree with those positions. This can give rise to tax uncertainties which, upon audit, may not be resolved in our favor. The Predecessor established accruals for various tax uncertainties that we believe are probable and reasonably estimable, and these accruals were retained by the Company following the Recapitalization. These accruals are based on certain assumptions, estimates and judgments, including estimates of amounts for settlements, associated interest and penalties.

 

Share-Based Compensation

 

In a business combination, share-based payments held by employees on the acquisition date that are not formally exchanged or replaced, but that continue under their original terms after the business combination, are accounted for as if the acquirer was obligated to issue replacement awards.  The portion of the deemed replacement awards attributable to precombination service is included in the consideration transferred for the acquiree, while the portion attributable to postcombination service is recognized as compensation expense in our postcombination financial statements with an equal offsetting increase to members’ equity.

 

Share awards issued postcombination are measured at their respective fair values at the date of grant.  This fair value is expensed as compensation expense, based on our estimate of shares that will eventually vest, on a straight-line or accelerated basis over the vesting period. The fair value is determined using an income-based approach to measuring the enterprise value.

 

Use of Estimates

 

The preparation of consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires us to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. On a regular basis, management evaluates its estimates. Actual results could differ from those estimates.

 

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New Accounting Pronouncements

 

In April 2011, the FASB issued ASU No. 2011-03, “Transfers and Servicing (Topic 860): Reconsideration of Effective Control for Repurchase Agreements.” ASU No. 2011-03 changes the assessment of effective control by removing (i) the criterion that requires the transferor to have the ability to repurchase or redeem financial assets on substantially the agreed terms, even in the event of default by the transferee, and (ii) the collateral maintenance implementation guidance related to that criterion.  ASU No. 2011-03 is effective for periods beginning after December 15, 2011. Because our repurchase agreements constitute secured financing transactions, this amendment is expected to have no impact on our characterization of such transactions and therefore is not expected to have any impact on our financial condition, results of operations or cash flows.

 

In May 2011, the FASB issued ASU No. 2011-04, “Fair Value Measurements and Disclosures (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs.” ASU No. 2011-04 clarifies the application of existing fair value measurement and disclosure requirements, changes certain principles related to measuring fair value, and requires additional disclosures about fair value measurements. ASU No. 2011-04 is effective for periods beginning after December 15, 2011. The adoption of this ASU is not expected to have a significant impact on our fair value measurements, financial condition, results of operations or cash flows.

 

In June 2011, the FASB issued ASU No. 2011-05, “Comprehensive Income (Topic 220): Presentation of Comprehensive Income.”  This ASU will require companies to present the components of net income and other comprehensive income either as one continuous statement or as two consecutive statements. It eliminates the option to present components of other comprehensive income as part of the statement of changes in stockholders’ equity. The standard does not change the items which must be reported in other

comprehensive income, how such items are measured or when they must be reclassified to net income. This standard is effective for interim and annual periods beginning after December 15, 2011. The FASB subsequently deferred the effective date of certain provisions of this standard pertaining to the reclassification of items out of accumulated other comprehensive income, pending the issuance of further guidance on that matter. Because this ASU impacts presentation only, it will have no effect on our financial condition, results of operations or cash flows.

 

In December 2011, the FASB issued ASU 2011-11, “Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities.”  The update requires new disclosures about balance sheet offsetting and related arrangements. For derivatives and financial assets and liabilities, the amendments require disclosure of gross asset and liability amounts, amounts offset on the balance sheet, and amounts subject to the offsetting requirements but not offset on the balance sheet. The guidance is effective January 1, 2013 and is to be applied retrospectively. Because this amendment impacts disclosures only, it will have no effect on our financial condition, results of operations or cash flows.

 

A discussion of the goodwill impairment guidance in ASU No. 2011-8 issued in September 2011 is included in the Goodwill and Intangible Assets section above.

 

2.    Recapitalization Transaction

 

As described in Note 1, we completed the Recapitalization on July 29, 2010.  Prior to this date, certain of the Lead Investors were already holders of notes representing approximately 74% of the Predecessor’s unsecured senior subordinated loan (the “Subordinated Loan”).  Concurrent with the new equity raise by the Lead Investors of $416.5 million, on the closing date, these Lead Investors acquired from the remaining note holders the approximately 26% balance of the Subordinated Loan, for a total cash payment to those remaining note holders of $25.0 million.  They then exchanged 100% of the outstanding Subordinated Loan, including accrued and unpaid interest, for equity interests in Holdco’s subsidiary, LNRPC, and the Subordinated Loan was extinguished.  As a result of this transaction, LNRPC became

 

20



 

wholly owned by the Lead Investors.  Subsequent to the transaction, LNRPC reorganized as a Delaware LLC, as did the majority of its consolidated subsidiaries.

 

Due to our election of push down accounting, we accounted for the Recapitalization under the acquisition method of accounting.  Accordingly, the assets acquired and liabilities assumed as well as noncontrolling interests were recorded at 100% of their fair values at the Recapitalization date.  The purchase price was first allocated to the identified assets acquired and liabilities assumed based on their estimated fair values at the date of the transaction, and the excess was allocated to goodwill.  The consideration exchanged in the transaction and allocated pursuant to the acquisition method of accounting totaled $501.0 million, representing the new equity raise of $416.5 million, the debt to equity conversion of $84.0 million, and the portion of a vested share based payment awards deemed replaced of $0.5 million.  The following table summarizes the estimate of amounts of identified assets acquired and liabilities assumed at the Recapitalization date, before consolidation of securitization VIEs (in thousands):

 

21



 

Assets acquired:

 

 

 

 

 

Cash and cash equivalents

 

$

75,204

 

 

 

Restricted cash

 

32,869

 

 

 

Investment securities

 

299,684

 

 

 

Mortgage loans

 

8,130

 

 

 

Operating properties and equipment

 

5,055

 

 

 

Land held for investment

 

49,816

 

 

 

Investment in unconsolidated entities

 

194,610

 

 

 

Derivative asset

 

334

 

 

 

Intangible assets - servicing rights

 

321,851

 

 

 

Goodwill

 

237,538

 

 

 

Other assets

 

43,993

 

 

 

 

 

 

 

1,269,084

 

Liabilities assumed:

 

 

 

 

 

Accounts payable

 

7,255

 

 

 

Accrued expenses

 

174,446

 

 

 

Deferred income taxes

 

 

 

 

Derivatives liability

 

31,541

 

 

 

Mortgage notes and other debts payable

 

513,727

 

 

 

 

 

 

 

726,969

 

Noncontrolling interests

 

 

 

41,140

 

Net assets acquired

 

 

 

$

500,975

 

 

 

 

 

 

 

Summary of consideration:

 

 

 

 

 

Cash paid for equity

 

 

 

$

416,500

 

Conversion of Holdco note to equity

 

 

 

84,000

 

Equity awards reissued

 

 

 

475

 

 

 

 

 

$

500,975

 

 

During Fiscal 2011, we recognized $1.7 million in adjustments to the July 29, 2010 income tax liability balance, which is included within accrued expenses and other liabilities in our condensed consolidated balance sheets, and a corresponding adjustment to goodwill.  These adjustments related to the finalization of the income tax returns for our Predecessor.

 

3.    Restricted Cash

 

The following table provides a summary of our restricted cash (in thousands):

 

 

 

 

December 31,

 

 

 

2011

 

2010

 

Cash collateral for derivative instrument margin calls

 

$

4,100

 

$

24,943

 

Funds held in escrow

 

364

 

811

 

Other

 

174

 

72

 

 

 

$

4,638

 

$

25,826

 

 

22



 

4.    Investment Securities

 

Investment securities consist of investments in investment grade, unrated and non-investment grade rated portions of various issues of CMBS and the retained interests of non-investment grade rated notes and preferred interests issued through resecuritization transactions. Except for the securities held by Madison, which are classified as held-to-maturity, all of our investment securities are classified as available-for-sale.  As discussed in Note 1, we have elected the fair value option for all of our held-to-maturity securities and the vast majority of our available-for-sale securities.

 

In general, principal payments on each class of security are made in order of seniority. Each class of security is, in effect, subordinate to all classes with earlier designations. The principal repayments on a particular class are dependent upon collections on the underlying mortgages, which are affected by prepayments, extensions and defaults. As a result, the actual maturity of any class of securities may differ from its stated maturity. We have already begun to receive principal payments from some of our securities, and some have matured entirely. At December 31, 2011, the stated maturities of our available-for-sale and held-to-maturity investment securities extended through 2051 and 2039, respectively, and their weighted average coupon rates ranged from zero to 8.1% and from 5.0% to 8.1%, respectively. Our potential yield, however, may be substantially greater than the coupon rates, because we purchase our investment securities at substantial discounts from the face amounts.  During Fiscal 2011 and the 2010 Stub Period, we sold investment securities for proceeds of $62.5 million and $31.1 million, respectively. Of these amounts, $61.1 million and $22.7 million during Fiscal 2011 and the 2010 Stub Period, respectively, relate to interests in VIEs which are eliminated in consolidation.  As such, these proceeds are included in issuances of debt of consolidated VIEs in our consolidated statements of cash flows.

 

Our investment securities are collateralized by pools of mortgage loans on commercial and multi-family residential real estate assets.  The risk associated with the performance of these mortgages is partially mitigated by the existence of our right to be the special servicer for certain of the securitization vehicles in which we invest. As special servicer, we impact the performance of the securitization by using our loan workout and asset management expertise to resolve non-performing loans.

 

During the 2010 Stub Period and until April 29, 2011, the date our senior credit facility was refinanced (see Note 10), we were unable to express an intent and ability to hold our investment securities either to maturity or to recovery of their amortized cost basis due to the near term maturity of our senior debt. Therefore, during the 2010 Stub Period and until April 29, 2011, any declines in fair value were deemed to represent other than temporary impairments (“OTTI”), with such declines recorded in earnings. During Fiscal 2011, we recorded OTTI of $0.8 million in our consolidated statement of earnings. OTTI for the 2010 Stub Period was not material.

 

The following table presents information about consolidated available-for-sale and held-to-maturity investment securities as of the dates noted.

 

23



 

Balances at period end (in thousands):

 

 

 

December 31,

 

 

 

2011

 

2010

 

 

 

Available-for-
Sale

 

Held-to-
Maturity

 

Available-for-
Sale

 

Held-to-
Maturity

 

Fair value

 

$

32,213

 

3,914

 

9,823

 

12,398

 

Gross unrealized holding gains

 

2,644

 

 

2,326

 

 

Gross unrealized holding losses

 

(6

)

 

 

 

Amortized cost

 

29,575

 

3,914

 

7,497

 

12,398

 

Gross OTTI recognized in accumulated OCI

 

 

 

 

 

Net carrying value

 

32,213

 

3,914

 

9,823

 

12,398

 

 

Activity related to credit losses (in thousands):

 

During Fiscal 2011 and the 2010 Stub Period, there were no investment securities held in which the total OTTI recognized was bifurcated between earnings and accumulated other comprehensive income.

 

Securities with gross unrealized losses, and the length of time these investments have been in a continuous unrealized loss position (in thousands):

 

As of December 31, 2011, there were $0.4 million of investment securities that were in a continuous unrealized loss position for less than 12 months and no investment securities in a continuous unrealized loss position for 12 months or more.  Total unrealized losses on these securities were not material.  As of December 31, 2010 there were no investment securities with unrealized losses.

 

5.    Derivative Financial Instruments and Hedging Activities

 

The accounting for changes in the fair value of a derivative instrument depends on whether it has been designated in a qualifying hedging relationship. There were no qualifying hedging relationships in place as of December 31, 2011 or 2010.  The following tables summarize our non-qualifying derivative assets and liabilities (in thousands):

 

 

 

December 31, 2011

 

 

 

# Contracts

 

Maturities

 

Notional

 

Fair Value

 

Derivative Assets:

 

 

 

 

 

 

 

 

 

Embedded derivative, not designated

 

1

 

Feb-12

 

$

 

10

 

CMBX, not designated

 

5

 

Mar-49 to Oct-52

 

110,000

 

9,685

 

Put option, not designated

 

1

 

Mar-12

 

*

 

32

 

Total derivative assets, not designated

 

7

 

 

 

$

110,000

 

9,727

 

 

 

 

 

 

 

 

 

 

 

Derivative Liabilities:

 

 

 

 

 

 

 

 

 

Interest rate contracts, not designated

 

14

 

Feb-12 to Jan-22

 

71,712

 

2,715

 

Total derivative liabilities, not designated

 

14

 

 

 

$

71,712

 

2,715

 

 


*100,000 shares

 

24



 

 

 

December 31, 2010

 

 

 

# Contracts

 

Maturities

 

Notional

 

Fair Value

 

Derivative Assets:

 

 

 

 

 

 

 

 

 

Embedded derivative, not designated

 

1

 

Feb-12

 

$

 

41

 

 

 

 

 

 

 

 

 

 

 

Derivative Liabilities:

 

 

 

 

 

 

 

 

 

Interest rate contract, non qualifying cash flow hedge**

 

1

 

Jul-11

 

200,000

 

3,015

 

Interest rate contracts, non qualifying fair value hedges

 

9

 

Jul-16

 

162,097

 

20,759

 

Interest rate contract, not designated

 

1

 

Feb-12

 

 

22

 

Total derivative liabilities, non qualifying or not designated

 

11

 

 

 

$

362,097

 

23,796

 

 


** Initial notional of $200,000, reduced to $100,000 in February 2011, and reset sequentially every three months through July 2011.

 

Hedging Objectives and Strategies

 

We do not enter into derivative instruments for speculative purposes. The counterparties to our arrangements are major financial institutions with which we and our affiliates may also have other financial relationships. These counterparties potentially expose us to loss in the event of their non-performance.  Generally, our derivative instruments with counterparties contain provisions that require us to post collateral when the derivatives are in a net liability position.  The provisions are generally dependent upon the dollar amounts in a liability position at any given time which exceed specific thresholds, as indicated in the relevant contracts.  In these circumstances, the counterparties could require additional collateral.  See Note 3 for amounts held as collateral related to our derivatives in a net liability position.

 

Cash Flow Hedging Instruments

 

We periodically enter into derivative financial arrangements, primarily interest rate swap agreements, to manage fluctuations in cash flows resulting from interest rate risk. These swap agreements effectively change the variable-rate cash flows on debt obligations to fixed-rate cash flows.  In connection with these agreements, we were required to pay the counterparty a predetermined fixed stream of payments in exchange for a floating rate stream from the counterparty through each swap’s maturity date. The net amount paid to the counterparty totaled $3.1 million and $4.2 million for Fiscal 2011 and the 2010 Stub Period, respectively. Payments to the counterparty are reflected as an increase to interest expense and receipts as a reduction of interest expense.  There were no qualifying cash flow hedges during Fiscal 2011 or the 2010 Stub Period.

 

Fair Value Hedging Instruments

 

To manage the risk associated with unpredictable changes in asset fair values related to our fixed-rate mortgage loans held for sale or fixed-rate available-for-sale securities, we periodically use derivative financial instruments, primarily interest rate swap agreements or credit default swap index instruments (“CMBX”).  During Fiscal 2011, we paid cash of $12.9 million to enter into CMBX.  There were no qualifying fair value hedges during Fiscal 2011 or the 2010 Stub Period as these hedging instruments were either not designated in a qualifying hedge relationship at purchase or no longer met the criteria necessary to continue in a qualifying fair value hedging relationship.

 

During Fiscal 2011, we terminated the majority of interest rate swaps originally intended to hedge our available-for-sale securities, as these hedges were no longer effective at hedging changes in fair value of these instruments.  In connection with these terminations, we paid $24.4 million to the respective swap counterparties.  In addition, we terminated an interest rate swap in the Archetype Fund in connection with

 

25



 

the sale of our interests in this venture (see Note 9).  We paid $2.4 million to the swap counterparty to terminate this swap.

 

Financial Instruments Not Designated

 

The table below presents the effect of our non-qualifying derivative financial instruments on our consolidated statements of earnings (in thousands):

 

Derivatives not designated:

 

Fiscal 2011

 

2010 Stub
Period

 

Embedded derivatives

 

$

(31

)

(293

)

Interest rate contracts

 

(3,017

)

(2

)

Non-qualifying fair value hedges

 

(9,205

)

643

 

CMBX

 

(3,308

)

 

Put options

 

(217

)

 

Amounts included in (Loss) gain on derivative financial instruments

 

(15,778

)

348

 

 

 

 

 

 

 

Interest rate contracts

 

(3,181

)

 

Amounts included in earnings from discontinued operations

 

(3,181

)

 

 

 

 

 

 

 

Non-qualifying cash flow hedges included in interest expense

 

3,015

 

(3,929

)

Total of all non-qualifying derivatives

 

$

(15,944

)

(3,581

)

 

6.    Mortgage Loans

 

The following table is a summary of our mortgage loans (in thousands):

 

 

 

December 31,

 

 

 

2011

 

2010

 

Mortgage loans held for sale, at fair value

 

$

107,435

 

 

Mortgage loans held for investment

 

1,349

 

1,451

 

 

 

$

108,784

 

1,451

 

 

Our mortgage loans are comprised primarily of fixed-rate commercial real estate mortgage loans. We elected the fair value option for all originated mortgage loans held for sale, with increases in fair value of $1.7 million reflected within change in fair value of mortgage loans in our consolidated statement of earnings for Fiscal 2011.  The unpaid principal balance of mortgage loans held for sale as of December 31, 2011 was $105.8 million, and none of these loans were 90 days or more past due or on a nonaccrual status.

 

In February 2012, we sold all of our mortgage loans held for sale at December 31, 2011 into a securitization structure.  In connection with this sale, we repaid all outstanding amounts under the First Repurchase Agreement (see Note 10).

 

7.  Goodwill and Intangible Assets

 

Goodwill at December 31, 2011 represents the excess of Recapitalization proceeds over the fair value of net assets acquired at July 29, 2010.  Based on the results of our impairment assessments, we determined that goodwill was not impaired during Fiscal 2011 or the 2010 Stub Period.

 

26



 

Servicing intangibles consist of servicing rights associated with loan servicing contracts to which we are a party.  The following table presents information about our domestic and European servicing intangibles for Fiscal 2011 and the 2010 Stub Period (in thousands):

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

Domestic servicing rights, at fair value

 

 

 

 

 

Fair value at beginning of period

 

$

157,047

 

173,883

 

Changes in fair value due to changes in inputs and assumptions

 

(10,492

)

(16,836

)

Fair value at end of period

 

$

146,555

 

157,047

 

 

 

 

 

 

 

European servicing rights

 

 

 

 

 

Carrying value at beginning of period ($20.7 million and $20.7 million at fair value, respectively)

 

$

18,633

 

20,702

 

Amortization

 

(5,373

)

(1,977

)

Foreign exchange gain (loss)

 

88

 

(92

)

Carrying value at end of period ($20.3 million and $20.7 million at fair value, respectively)

 

$

13,348

 

18,633

 

 

 

 

 

 

 

Contractually specified servicing fees for the period

 

$

94,391

 

44,097

 

 

The future amortization expense for the European servicing intangible is expected to be as follows (in thousands):

 

 

 

Years Ended December 31,

 

 

 

2012

 

2013

 

2014

 

2015

 

2016

 

Thereafter

 

Amortization expense

 

$

3,809

 

3,460

 

1,841

 

2,370

 

1,257

 

611

 

 

8.    Investments in Unconsolidated Entities

 

Summarized financial information of our unconsolidated entities on a combined 100% basis accounted for by the equity method is as follows (in thousands):

 

 

 

December 31,

 

 

 

2011

 

2010

 

Assets

 

 

 

 

 

Cash

 

$

155,195

 

101,947

 

Portfolio investments

 

2,273,021

 

2,771,322

 

Other assets

 

69,238

 

86,011

 

 

 

$

2,497,454

 

2,959,280

 

Liabilities and equity

 

 

 

 

 

Accounts payable and other liabilities

 

$

77,584

 

116,038

 

Notes and mortgages payable

 

708,899

 

833,976

 

Equity and advances of:

 

 

 

 

 

LNR Property LLC

 

347,470

 

501,938

 

Others

 

1,363,501

 

1,507,328

 

 

 

$

2,497,454

 

2,959,280

 

 

27



 

Summarized operating results of unconsolidated entities on a combined 100% basis accounted for by the equity method are as follows (in thousands):

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

Revenues and other income

 

$

118,210

 

157,231

 

Costs and expenses

 

89,656

 

67,135

 

Net income of entities

 

$

28,554

 

90,096

 

 

LEI Fund

 

In February 2005, we along with four other investors formed the LNR Europe Investors S.A.R.L. SICAR (the “LEI Fund”), a private equity investment venture in which we hold a 50% interest. The purpose of the LEI Fund is to evaluate, make and actively manage investments in real estate, real estate-related income-bearing debt instruments and other forms of real estate related income bearing securities consisting of, but not limited to CMBS, B-notes, mezzanine debt and distressed debt products across Europe. The difference between the amount at which the investment is carried and the amount of underlying equity in net assets of the investee is $62.9 million.  This basis difference resulted from our recording of the investment at its fair value at the Recapitalization date.  The difference is being amortized as the underlying net assets of the investee resolve. Our investment in the LEI Fund is denominated in pounds sterling, and may be affected by fluctuations in exchange rates.

 

CPI Fund

 

In November 2005, we along with several other investors formed the LNR Commercial Property Investment Fund, L.P. (the “CPI Fund”), a private equity investment venture in which we hold an approximate 20% ownership interest. The purpose of the CPI Fund is to acquire, finance, develop and dispose of a broad range of real estate operating properties focusing primarily on industrial, rental apartments, office and retail properties and land zoned substantially for commercial uses located throughout the United States. The commitment period for the CPI Fund expired in February 2010.  However, the venture may issue follow on capital calls, of which our maximum funding obligation is $22.5 million.  See Note 16 for related party transaction disclosures.

 

The difference between the amount at which the investment is carried and the amount of underlying equity in net assets of the investee is $41.7 million.  This basis difference resulted from our recording of the investment at its fair value at the Recapitalization date.  The difference is being amortized as the underlying net assets of the investee are sold.

 

Other Commercial Real Estate Services Ventures

 

During Fiscal 2011, we obtained 50% equity interests in each of two newly formed joint ventures which provide commercial real estate related services to sellers of commercial real estate. We account for each of these ventures in accordance with the equity method of accounting.

 

Land Joint Ventures

 

We hold equity ownership interests in various land ventures which are accounted for pursuant to the equity method.  In August 2011, we entered into a settlement agreement to resolve claims and disputes

 

28



 

with respect to certain of these ventures.  In connection with the settlement agreement, we were released of all claims in exchange for the assignment of our membership interest in one joint venture and the liquidation of another, as well as certain other concessions.  With respect to the liquidated joint venture, prior to such liquidation, the partners repaid the outstanding debt of the venture.  The repayment was disproportionate to our ownership interest, and therefore was not contributed inside the venture, but rather paid directly to the lenders pursuant to a joint and several guarantee.  Because this $10.8 million payment was made directly to the lenders pursuant to a guarantee, the payment is reflected as a cash outflow from financing activities in our consolidated statement of cash flows for Fiscal 2011.  As noted above, one of our joint ventures was liquidated as part of the overall settlement.  In connection with this liquidation, we received a noncash distribution of land with a fair value of $20.3 million which was recorded as land held for investment upon distribution.  Collectively, all amounts associated with this settlement resulted in a net loss of $1.0 million which is reflected in other expense, net in our consolidated statement of earnings for Fiscal 2011.

 

With respect to the remaining land joint ventures at December 31, 2011, the difference between the amount at which those investments are carried and the amount of underlying equity in net assets of the investee is $96.7 million.  This basis difference resulted from our recording of these investments at fair value at the Recapitalization date.  The difference is being amortized as the underlying net assets of the investees are sold.

 

9.   Consolidation of Variable Interest and Other Entities

 

As discussed in Note 1, we evaluate all of our investments and other interests in entities for consolidation. These included interests in investments in certain real estate entities, as well as our investment securities.

 

International Entity

 

We held an investment in a European entity which prior to 2008 held an equity interest in an entity that had an interest in a pool of commercial real estate properties located throughout France. This European entity was determined to be a VIE due to disproportionate voting and economic rights. We were deemed the primary beneficiary of the VIE, and accordingly, we consolidated this entity into our financial statements. We received a final liquidation distribution related to this entity in January 2011 in the amount of $5.2 million.

 

Madison Square Company LLC

 

Madison is an entity formed for the purpose of investing in unrated and non-investment grade rated CMBS. We own an approximately 65% interest in Madison and since we are deemed the primary beneficiary, consolidate Madison into our financial statements. On July 29, 2010, in connection with the Recapitalization, we elected the fair value option for all of Madison’s securitized assets and liabilities. This entity had assets and liabilities of $154.5 million and $133.1 million, respectively, at December 31, 2011. The securitized assets are legally owned by the issuer of the CDO and the debt of the entity is in the form of securitized notes which are non-recourse to us.

 

Madison is not the primary beneficiary of any of the securitization structures in which it is invested. However, we are the primary beneficiary of certain of these structures.  As a result, the investment securities of the consolidated structures are eliminated in consolidation, as is an allocated portion of the related CDO debt.  The consolidated structures are reflected in VIE assets and liabilities in our consolidated balance sheets.  The remaining assets and liabilities of the CDO reflected on our consolidated balance sheet relate to the securitization structures for which we or Madison are not deemed the primary beneficiary.  In such cases, the investment securities are reflected on our consolidated balance sheets, along with an allocated portion of the related CDO debt.  See Note 10.

 

29



 

Archetype Fund

 

In February 2009, we along with several other investors formed the Archetype Fund, a private equity investment venture which invests in CMBS, B-notes, mezzanine loans, non-performing loans, sub-performing loans and distressed debt on commercial real estate properties. Although this entity was not deemed to be a VIE, we served as the sole general partner and were therefore presumed to have a controlling financial interest. As the limited partners did not maintain substantive participative rights, the Archetype Fund was consolidated into our financial statements.

 

We initially held a 50% ownership interest in the Archetype Fund.  During 2010, prior to the Recapitalization, we transferred 4.9% of our ownership interest in the Archetype Fund to certain executives for cash consideration.  These transfers are subject to dilution and vesting requirements. Since their original issuance, these interests were diluted to 1.97%, inclusive of forfeitures.

 

Pursuant to an agreement between us and the other Archetype Fund partners, effective December 29, 2011, our limited partner and general partner interests in the Archetype Fund were purchased by the remaining limited partners.  As consideration for our interests, we received an in-kind CMBS distribution with a fair value of $19.9 million and cash of $12.5 million.  The cash receipt of $12.5 million included $4.6 million related to the purchase of our general partner interest, from which $1.0 million was withheld for payment to former executives holding interests in one of our share-based compensation plans.  As these transactions occurred while the Archetype Fund was still a consolidated entity, they are not separately reflected in our consolidated statement of cash flows for Fiscal 2011.  Immediately after this sale was effectuated, we deconsolidated the Archetype Fund from our financial statements.

 

Investment Securities

 

As discussed in Note 1, we evaluate all of our investments and other interests in entities for consolidation, including our investments in CMBS and our retained interests in securitization transactions we initiated, all of which are generally considered to be variable interests in VIEs.

 

The VIEs consolidated in accordance with ASC 810 are structured as pass through entities that receive principal and interest on the underlying collateral and distribute those payments to the certificate holders.  The assets and other instruments held by these securitization entities are restricted and can only be used to fulfill the obligations of the entity.  Additionally, the obligations of the securitization entities do not have any recourse to the general credit of any other consolidated entities, nor to us as the primary beneficiary.  As we invest primarily in non-investment grade and unrated bonds, the SPE liabilities initially represent investment securities on our balance sheet (pre-consolidation).  Upon consolidation of these VIEs, our associated investment securities and any associated components of equity, such as unrealized holding gains or losses or OTTI are eliminated, as is the interest income and any impairment losses related to those securities.  Similarly, the fees we earn in our roles as special servicer of the bonds issued by the consolidated VIEs or as collateral administrator of the consolidated VIEs are also eliminated.  Finally, an allocable portion of the identified servicing intangible associated with the eliminated fee streams is eliminated in consolidation.

 

VIEs in which we are the Primary Beneficiary

 

The inclusion of the assets and liabilities of VIEs in which we are deemed the primary beneficiary has no economic effect on us.  Our exposure to the obligations of VIEs is generally limited to our investment in these entities.   We are not obligated to provide, nor have we provided, any financial support for any of these consolidated structures.

 

VIEs in which we are not the Primary Beneficiary

 

In certain instances, we hold a variable interest in a VIE in the form of CMBS, but either (i) we are not appointed, or do not serve as, special servicer or (ii) an unrelated third party has the rights to unilaterally

 

30



 

remove us as special servicer.  In these instances, we do not have the power to direct activities that most significantly impact the VIE’s economic performance.  In other cases, the variable interest we hold does not obligate us to absorb losses or provide us with the right to receive benefits from the VIE which could potentially be significant.  For these structures, we are not deemed to be the primary beneficiary of the VIE, and we do not consolidate these VIEs.

 

Three of our CDO structures are in default as of December 31, 2011, which pursuant to the underlying indentures, changes the rights of the variable interest holders.  Upon default of a CDO, the trustee or the senior note holders are allowed to exercise certain rights, including liquidation of the collateral, which at that time, is the activity which would most significantly impact the CDO’s economic performance.  Further, when the CDO is in default, the collateral administrator typically no longer has the option to purchase securities from the CDO.   In cases where the CDO is in default and we do not have the ability to exercise rights which would most significantly impact the CDO’s economic performance, we did not consolidate the VIE.  As of December 31, 2011, two of these CDO structures were not consolidated.

 

As noted above, we are not obligated to provide, nor have we provided, any financial support for any of our SPEs, whether or not we are deemed to be the primary beneficiary.  As such, the risk associated with our involvement in these VIEs is limited to the carrying value of our investment in the entity.  As of December 31, 2011 and 2010, our maximum risk of loss related to VIEs in which we were not the primary beneficiary was $36.1 million and $22.2 million, respectively, on a fair value basis and $33.5 million and $19.9 million, respectively, on an amortized cost basis.

 

The VIEs which we do not consolidate have debt obligations to beneficial interest holders with unpaid principal balances of $161.3 billion and $65.4 billion at December 31, 2011 and 2010, respectively.  The corresponding assets are comprised primarily of mortgage loans with unpaid principal balances corresponding to the amounts of the outstanding debt obligations.

 

10.     Debts Payable and Repurchase Agreements

 

The following table summarizes our debts payable and repurchase agreements (in thousands):

 

 

 

 

 

 

 

December 31,

 

 

 

 

 

 

 

2011

 

2010

 

 

 

Interest Rate (*)

 

Maturity

 

Commitment

 

Outstanding

 

Commitment

 

Outstanding

 

Senior Secured Credit Facility:

 

 

 

 

 

 

 

 

 

 

 

 

 

Revolving credit line

 

LIBOR + 3.00%

 

April 2014

 

$

40,000

 

 

60,000

 

 

Term loan facility

 

LIBOR + 3.50%

 

April 2016

 

325,000

 

308,750

 

358,870

 

358,870

 

Total Senior Facility

 

 

 

 

 

365,000

 

308,750

 

418,870

 

358,870

 

Unamortized discount

 

 

 

 

 

N/A

 

 

N/A

 

(5,215

)

Senior Facility, net of unamortized discount

 

 

 

 

 

365,000

 

308,750

 

418,870

 

353,655

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Senior Subordinated Notes

 

 

 

 

 

 

 

 

16

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Collateral Debt Obligation

 

N/A

 

N/A

 

N/A

 

3,914

 

N/A

 

12,398

 

Promissory Note

 

3.54%

 

December 2031

 

10,000

 

8,172

 

 

 

 

 

Total Debts Payable (**)

 

 

 

 

 

$

375,000

 

320,836

 

418,870

 

366,069

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Repurchase Agreements (**)
First Repurchase Agreement

 

LIBOR + 2.20%

 

September 2013

 

$

250,000

 

72,116

 

 

 

Second Repurchase Agreement

 

LIBOR + 2.10%

 

November 2012

 

150,000

 

 

 

 

Total Repurchase Agreements

 

 

 

 

 

$

400,000

 

72,116

 

 

 

 


(*) The senior secured term loan facility is subject to a LIBOR floor of 1.25%.

(**) All debt is recourse except for the Collateral Debt Obligation.

 

31



 

Senior Secured Credit Facility

 

On December 31, 2010, our senior secured credit facility (the “Senior Facility”) included a $60.0 million revolving credit line, a $27.9 million term loan and a $331.0 million term loan which were scheduled to mature in July 2011.  In January 2011, we repurchased $8.8 million face amount of the Senior Facility for total cash payments of $8.7 million.  The repurchase resulted in no gain or loss.

 

In April 2011, we refinanced our Senior Facility with a new $365.0 million senior secured credit facility (the “New Senior Facility”).  The New Senior Facility includes a $325.0 million, five-year term loan and a $40.0 million, three-year revolving credit facility of which $15.5 million was utilized for the issuance of letters of credit, leaving $24.5 million available at December 31, 2011.  Proceeds from the refinancing, along with cash on hand, were used to repay the Senior Facility.  In connection with the refinancing, we incurred approximately $10.8 million of debt issuance costs which was deferred and is being amortized to interest expense over the term of the underlying debt.  In addition, we recognized a $2.2 million loss on early extinguishment of debt reflecting the write-off of the unamortized discount on the Senior Facility.

 

The New Senior Facility requires a minimum 10% annual amortization and is secured by substantially all of our assets, equity interests in consolidated entities (excluding consolidated VIEs) and intercompany notes.  The New Senior Facility contains certain financial tests and restrictive covenants, including a requirement to maintain a minimum liquidity, specified leverage and interest coverage ratios.  As of December 31, 2011, we are in compliance with all such covenants. The weighted average interest rate on the New Senior Facility for the period from its issuance to December 31, 2011 was 5.78%.

 

Collateral Debt Obligation

 

In 2004, Madison entered into a CDO transaction which was accounted for as a financing, primarily as a result of certain rights retained by the entity and the character of some of the assets held within the CDO.  Pursuant to ASC 810, the securitization structures in which Madison is invested are also subject to consolidation, and we are deemed the primary beneficiary of certain of these structures.  As a result, the investment securities of the consolidated structures are eliminated in consolidation, as is an allocated portion of the related CDO debt.  The consolidated structures are reflected in VIE assets and liabilities in our consolidated balance sheets.  The remaining assets and liabilities of the CDO reflected on our consolidated balance sheets relate to the securitization structures for which we or Madison are not deemed the primary beneficiary.  In such cases, the investment securities are reflected on our consolidated balance sheets, along with an allocated portion of the related CDO debt.  In accordance with our fair value policy, this allocated portion of debt is equal to the fair value of the investment securities.

 

During the 2010 Stub Period, we sold a portion of our owned interest in the Madison CDO for $47.4 million.  As this interest is eliminated in consolidation, the sale is included in issuance of debt of consolidated VIEs in our consolidated statements of cash flows.

 

Promissory Note

 

In December 2011, we entered into a disposition and development agreement (“DDA”) with a government agency to redevelop a former military air station located in Massachusetts into a mixed-use commercial development project.  The agreement provides for our phased acquisition and development of the property.  Pursuant to the DDA, we acquired the land via a payment of cash of $2.0 million and an agreement to pay, on behalf of the government agency, all amounts due and payable under a $10.0 million promissory note, $8.2 million of which relates to land to which we have taken title and for which we are obligated.  The remaining $1.8 million is payable only to the extent we obtain title to additional acreage at the project.  See further discussion at Note 17.

 

32



 

Repurchase Agreements

 

During Fiscal 2011, one of our wholly-owned subsidiaries entered into two separate master repurchase agreements, one for $250.0 million and another for $150.0 million (collectively, the “Repurchase Agreements”).  Our objective is to use these facilities to finance the origination of mortgage loans pending sale, securitization or other structured financing or liquidation of those loans.  The agreements involve a sale of mortgage loans to the lender, with the concurrent agreement by us to repurchase the loans at the same price plus accrued and unpaid interest at the end of the term of the transaction. The Repurchase Agreements are secured by the mortgage loan collateral as well as a parent company guarantee (see Note 18).

 

The first Repurchase Agreement was entered into in September 2011 (the “First Repurchase Agreement”) and contains a two-year initial maturity with a one-year extension option, exercisable at our option if certain conditions are met.  The second Repurchase Agreement was entered into in November 2011 (the “Second Repurchase Agreement”) and contains a one-year initial maturity with two one-year extension options, exercisable at our option if certain conditions are met.  As of December 31, 2011, none of these extension options had been exercised.

 

The Repurchase Agreements contain certain financial tests and restrictive covenants, including a requirement to maintain a minimum liquidity, specified leverage and interest coverage ratios.  We are subject to margin calls during the period the agreements are outstanding and therefore may be required to repay a portion of the borrowings prior to expiration of the commitment period if the value of the mortgage loans securing the agreement decreases. During Fiscal 2011, we incurred approximately $2.6 million of financing costs related to the Repurchase Agreements, which were deferred and are being amortized to interest expense over the term of the underlying debt.

 

Maturities

 

The aggregate stated principal maturities of debts payable for each of the next five fiscal years and in the aggregate thereafter are as follows, excluding the collateralized debt obligation with a fair value of $3.9 million and amounts owed pursuant to the Repurchase Agreements (in thousands):

 

 

 

2012

 

2013

 

2014

 

2015

 

2016

 

Thereafter

 

Aggregate principal maturities

 

$

33,317

 

33,317

 

33,317

 

33,317

 

179,568

 

4,086

 

 

Amounts payable pursuant to the Repurchase Agreements are due upon the earliest to occur of certain dates, depending on the loan for which the agreement applies.  At our option, we may repurchase the loans at any time during the respective term of each agreement.  The facility remains outstanding and may be utilized to finance future purchases of mortgage loans held for sale.

 

In February 2012, we sold all of our mortgage loans held for sale at December 31, 2011 into a securitization structure (Note 6).  In connection with this sale, we repaid all outstanding amounts under the First Repurchase Agreement.

 

11.    Fair Value Disclosures

 

Our estimates of fair value are based on the best information available to management as to conditions that existed as of the valuation date. Assets and liabilities recorded at fair value in the consolidated balance sheets are categorized based upon the level of judgment associated with the inputs used to

 

33



 

measure their fair value. Hierarchical levels are directly related to the amount of subjectivity associated with the inputs to fair valuation of these assets and liabilities and are as follows:

 

Level 1 – Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date. As of December 31, 2011 and 2010 and for the periods then ended, we did not have any assets or liabilities classified in Level 1 fair value.

 

Level 2 – Inputs (other than quoted prices included in Level 1) are either directly or indirectly observable for the asset or liability through correlation with market data at the measurement date and for the duration of the instrument’s anticipated life.

 

Level 3 – Inputs reflect management’s best estimate of what market participants would use in pricing the asset or liability at the measurement date. Consideration is given to the risk inherent in the valuation technique and the risk inherent in the inputs to the model.

 

Fair Value on a Recurring Basis

 

Assets and liabilities measured at fair value on a recurring basis are categorized in the following tables based upon the lowest level of significant input to the valuations (in thousands):

 

 

 

December 31, 2011

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

Financial Assets

 

 

 

 

 

 

 

 

 

Investment securities at fair value

 

$

 

 

36,127

 

36,127

 

Mortgage loans held for sale

 

 

 

107,435

 

107,435

 

Derivative assets

 

 

9,717

 

10

 

9,727

 

Domestic servicing rights intangible

 

 

 

146,555

 

146,555

 

VIE assets

 

 

76,401,645

 

2,537,067

 

78,938,712

 

 

 

$

 

76,411,362

 

2,827,194

 

79,238,556

 

Financial Liabilities

 

 

 

 

 

 

 

 

 

Derivative liabilities

 

$

 

2,715

 

 

2,715

 

Debts payable at fair value

 

 

 

3,914

 

3,914

 

VIE liabilities

 

 

76,401,645

 

2,312,534

 

78,714,179

 

 

 

$

 

76,404,360

 

2,316,448

 

78,720,808

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2010

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

Financial Assets

 

 

 

 

 

 

 

 

 

Investment securities at fair value

 

$

 

 

22,221

 

22,221

 

Derivative assets

 

 

 

41

 

41

 

Domestic servicing rights intangible

 

 

 

157,047

 

157,047

 

VIE assets

 

 

138,854,694

 

3,588,991

 

142,443,685

 

 

 

$

 

138,854,694

 

3,768,300

 

142,622,994

 

Financial Liabilities

 

 

 

 

 

 

 

 

 

Derivative liabilities

 

$

 

23,796

 

 

23,796

 

Debts payable at fair value

 

 

 

12,398

 

12,398

 

VIE liabilities

 

 

138,854,694

 

3,342,658

 

142,197,352

 

 

 

$

 

138,878,490

 

3,355,056

 

142,233,546

 

 

The following is a summary of the valuation techniques employed with respect to financial instruments measured and reported at fair value:

 

34



 

Investment securities at fair value: We utilize several inputs and factors in determining the fair value of investment securities classified as available-for-sale or for which the fair value option was elected.  These factors include projected future cash flows, ratings, subordination levels, vintage, remaining lives, credit issues, recent trades of similar securities and the spreads used in the prior valuation. We obtain current market spread information where available and use this information in evaluating and validating the market price of all investments. Depending upon the significance of the fair value inputs used in determining these fair values, these securities are classified in either Level 2 or Level 3 of the fair value hierarchy.

 

In the unlikely event that we are able to obtain quoted prices from an active market for identical assets, these securities would fall within Level 1 of the fair value hierarchy. Unless sufficient trading activity levels exist with respect to the security for which the quote is being provided, these quotes will not be deemed Level 1 inputs and will simply be used as a benchmark, if at all, in assessing the appropriateness of our valuations. If there is significant market volatility and diversity in quotes, then the related securities are classified within Level 3 of the fair value hierarchy.

 

Mortgage loans held for sale: We measure fair value of mortgage loans held for sale using a discounted cash flow analysis. This analysis requires management to make estimates regarding future interest rates and credit spreads. The most significant of these inputs relates to credit spreads and is unobservable.  Thus, we have determined that the fair values of these mortgage loans in their entirety should be classified in Level 3 of the fair value hierarchy.

 

Liabilities of consolidated VIEs: We utilize several inputs and factors in determining the fair value of VIE liabilities, including future cash flows, market transaction information, ratings, subordination levels, and current market spread and pricing information where available. Quoted market prices are used when this debt trades as an asset. Depending upon the significance of the fair value inputs used in determining their fair values, these liabilities are classified in either Level 2 or Level 3 of the fair value hierarchy.

 

Assets of consolidated VIEs: The VIEs in which we invest are “static”; that is, no reinvestment is permitted, and there is no active management of the underlying assets.  In determining the fair value of the assets of the VIE, we maximize the use of observable inputs over unobservable inputs.  We also acknowledge that our principal market for selling CMBS assets is the securitization market where the market participant is considered to be a CMBS trust or a CDO.  This methodology results in the fair value of the assets of a static CMBS trust being equal to the fair value of its liabilities.  Depending upon the significance of the fair value inputs used in determining their fair values, these assets are classified in either Level 2 or Level 3 of the fair value hierarchy.

 

Intangible asset — Domestic servicing rights:  As discussed above, the fair value measurement method was elected for subsequent measurement of the domestic servicing asset.  The fair value of this intangible is determined using discounted cash flow modeling techniques which require management to make estimates regarding future net servicing cash flows, including forecasted loan defeasance, delinquency and anticipated maturity defaults. Since the most significant of these inputs is unobservable, we have determined that the fair values of these intangibles in their entirety should be classified in Level 3 of the fair value hierarchy.

 

Derivative assets and liabilities: For all interest rate swaps, fair value is determined using widely accepted valuation techniques including discounted cash flow analysis on the expected cash flows of each interest rate swap. This analysis reflects the contractual terms of the swap, including the period to maturity, and uses observable market-based inputs, including interest rate curves and implied volatilities. We incorporate credit valuation adjustments to appropriately reflect both our own nonperformance risk and the respective counterparty’s nonperformance risk in the fair value measurements. In adjusting the fair value of our derivative contracts for the effect of nonperformance risk, we have considered the impact of netting and any applicable credit enhancements, such as collateral postings, thresholds and guarantees.

 

35



 

Although we have determined that the majority of the inputs used to value interest rate swaps are classified in Level 2 of the fair value hierarchy, the credit valuation adjustments associated with these interest rate swaps utilize Level 3 inputs, such as estimates of current credit spreads to evaluate the likelihood of default by us and our counterparties. However, we have assessed the significance of the impact of the credit valuation adjustments on the overall valuation of these positions and have determined that the credit valuation adjustments are not significant to the overall valuation of these derivatives. As a result, we have determined that these derivative valuations in their entirety are classified in Level 2 of the fair value hierarchy.

 

For all CMBX, fair value is determined based on changes in the relevant indices from the date of initiation of the CMBX to the reporting date, as these changes determine the amount of any future cash settlement between us and the counterparty. These indices are considered Level 2 inputs as they are directly observable.  We have assessed the significance of the impact of the credit valuation adjustments on the overall valuation of our CMBX and have determined that any credit valuation adjustment would not be significant to the overall valuation as the counterparty to these contracts is a highly rated global financial institution. As a result, we have determined that CMBX are classified in Level 2 of the fair value hierarchy.

 

Embedded derivatives: For our embedded derivatives, fair value is computed based upon estimated cash flows of the related preferred interests resulting from any unhedged change in LIBOR, discounted at an appropriate discount rate. This determination is based in part on an expectation of future interest rates (forward curves) derived from observable market interest rate curves. Although the forward curves utilized in the valuation of our embedded derivatives represent Level 2 inputs, the discounted cash flows which are most significant to the overall valuation of these derivatives represent Level 3 inputs. Accordingly, we have determined that the embedded derivatives in their entirety are classified in Level 3 of the fair value hierarchy.

 

Debts payable at fair value: The allocated portion of the Madison CDO debt is determined using the fair values of the associated investment securities as a benchmark. Depending upon the significance of the fair value inputs used in determining the underlying benchmark fair values, this debt is classified in either Level 2 or Level 3 of the fair value hierarchy.

 

The following tables present additional information about assets and liabilities measured at fair value on a recurring basis for which we utilized Level 3 inputs to determine fair value (in thousands):

 

 

 

Investment
Securities at
Fair Value

 

Embedded
Derivative
Assets

 

Domestic
Servicing
Rights
Intangible

 

VIE Assets

 

VIE Liabilities

 

Debts
Payable

 

Mortgage
Loans

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at December 31, 2010

 

$

22,221

 

41

 

157,047

 

3,588,991

 

(3,342,658

)

(12,398

)

 

413,244

 

Total realized and unrealized gains (losses):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Included in earnings:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gains on sales of investment securities

 

891

 

 

 

 

 

 

 

891

 

Loss on derivative financial instruments

 

 

(31

)

 

 

 

 

 

(31

)

Change in fair value

 

(9,217

)

 

(10,492

)

(468,698

)

409,445

 

8,484

 

1,667

 

(68,811

)

Impairment

 

(1,069

)

 

 

 

 

 

 

(1,069

)

Included in other comprehensive earnings

 

512

 

 

 

 

 

 

 

512

 

Net accretion

 

473

 

 

 

 

 

 

 

473

 

Purchases / Originations

 

26,645

 

 

 

 

 

 

105,958

 

132,603

 

Sales

 

(1,349

)

 

 

 

 

 

 

(1,349

)

Issuances

 

 

 

 

 

(61,133

)

 

 

(61,133

)

Cash repayments / receipts

 

(1,261

)

 

 

 

84,035

 

 

(190

)

82,584

 

Transfers into level 3

 

 

 

 

301,971

 

(301,971

)

 

 

 

Transfers out of level 3

 

 

 

 

(678,354

)

678,354

 

 

 

 

Consolidations of VIEs

 

 

 

 

460,629

 

(446,078

)

 

 

14,551

 

Deconsolidations of VIEs

 

36,174

 

 

 

(667,472

)

667,472

 

 

 

36,174

 

Deconsolidation of fund

 

(37,893

)

 

 

 

 

 

 

(37,893

)

Balance at December 31, 2011

 

$

36,127

 

10

 

146,555

 

2,537,067

 

(2,312,534

)

(3,914

)

107,435

 

510,746

 

Amount of total gains (losses) for the period included in earnings attributable to the change in unrealized gains or losses relating to assets still held at December 31, 2011

 

$

(10,286

)

(31

)

(10,492

)

(468,698

)

409,445

 

8,484

 

1,667

 

(69,911

)

 

36



 

 

 

Investment
Securities at
Fair Value

 

Embedded
Derivative
Assets

 

Domestic
Servicing
Rights
Intangible

 

VIE Assets

 

VIE Liabilities

 

Debts
Payable

 

Mortgage
Loans

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at July 29, 2010

 

$

7,148

 

334

 

 

3,384,505

 

(3,110,027

)

 

 

281,960

 

Impact of fair value accounting election

 

 

 

173,883

 

127,266

 

(82,892

)

(16,415

)

 

201,842

 

Balance at July 29, 2010, as adjusted

 

7,148

 

334

 

173,883

 

3,511,771

 

(3,192,919

)

 

 

 

 

483,802

 

Total realized and unrealized gains (losses):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Included in earnings:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gains on sales of investment securities

 

3,075

 

 

 

 

 

 

 

3,075

 

Losses on derivative financial instruments

 

 

(293

)

 

 

 

 

 

(293

)

Impairment

 

(24

)

 

 

 

 

 

 

(24

)

Included in other comprehensive earnings

 

2,326

 

 

 

 

 

 

 

2,326

 

Change in fair value

 

(4,041

)

 

(16,836

)

77,220

 

(149,739

)

4,017

 

 

(89,379

)

Net accretion

 

116

 

 

 

 

 

 

 

116

 

Net purchases, sales proceeds and cash

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

collections, net

 

(3,945

)

 

 

 

 

 

 

(3,945

)

Redesignation (to) from available-for-sale

 

1,151

 

 

 

 

 

 

 

1,151

 

Net transfers in (out) of Level 3

 

16,415

 

 

 

 

 

 

 

16,415

 

Balance at December 31, 2010

 

$

22,221

 

41

 

157,047

 

3,588,991

 

(3,342,658

)

(12,398

)

 

 

413,244

 

Amount of total losses for the period included in earnings attributable to the change in unrealized gains or losses relating to assets still held at December 31, 2010

 

$

(24

)

(293

)

 

 

 

 

 

(317

)

 

Fair Value on a Nonrecurring Basis

 

We use fair value measurements on a nonrecurring basis when assessing certain of our cost basis financial assets and certain non-financial assets for impairment and when accounting for business combinations pursuant to the acquisition method of accounting.  There were no impairment charges recorded for assets measured at fair value on a nonrecurring basis during Fiscal 2011.  The following table shows the fair value hierarchy and carrying values for those assets measured at fair value on a nonrecurring basis for which an impairment charge was recorded during the 2010 Stub Period, based upon the lowest level of significant input to the valuations, and the amounts of the impairments included in our consolidated statements of earnings (in thousands):

 

 

 

As of December 31, 2010 and for the Period from July 29, 2010 to

 

 

 

December 31, 2010

 

 

 

 

 

 

 

 

 

 

 

Impairment

 

 

 

Level 1

 

Level 2

 

Level 3

 

Total

 

Charges

 

Non-Financial Assets

 

 

 

 

 

 

 

 

 

 

 

Investments in unconsolidated entities

 

$

 

 

6,250

 

6,250

 

15,376

 

 

The following is a summary of the valuation techniques employed with respect to assets and liabilities measured at fair value on a nonrecurring basis:

 

Investments in unconsolidated entities: The fair value of these investments is determined based on the fair values of the underlying assets and liabilities of the investee. Since these inputs are unobservable, we have determined that the fair values of these investments should be classified in Level 3 of the fair value hierarchy.

 

Financial Instruments not Measured at Fair Value

 

In addition to the financial instruments which utilize fair value measurements on a recurring or nonrecurring basis, the following represents fair value disclosures for our remaining financial instruments:

 

Cash and cash equivalents, restricted cash, financial instruments included within other assets and accounts payable, accrued expenses and other liabilities: Fair values approximate carrying values due to their short-term nature.

 

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Debts payable not at fair value:  The fair values of our New Senior Facility is based on quoted market prices, as this debt trades as an asset. The fair value of this facility at December 31, 2011 and 2010 was $391.8 million and $369.9 million, respectively.  The carrying value of our Repurchase Agreements approximates fair value at December 31, 2011 due to the relatively short-term nature of these instruments.

 

12.    Noncontrolling Interests

 

Noncontrolling interests relate to the third-party ownership interests in entities (including corporations, partnerships and VIEs) we consolidate. For financial reporting purposes, the entities’ assets, liabilities and results of operations are consolidated, and the third parties’ interests in the entities are included in our consolidated financial statements as noncontrolling interests.

 

13.    Member Interests

 

Member Interests

 

Interests in LNR Property LLC are represented by units.  The only units issued to date were issued in connection with the Recapitalization.  The following table summarizes each member’s number of units and their respective ownership interests at December 31, 2011:

 

Member

 

Number of Units

 

% Ownership

 

VNO LNR Holdco LLC (a Vornado affiliate)

 

26,174

 

26.174

%

iStar Marlin LLC (an iStar affiliate)

 

23,976

 

23.976

%

CBR I LLC (a Cerberus affiliate)

 

18,042

 

18.042

%

Aozora Investments LLC (an Aozora affiliate)

 

16,723

 

16.723

%

Opps VIIb LProp, L.P. (an Oaktree affiliate)

 

15,085

 

15.085

%

Total

 

100,000

 

100.000

%

 

To the extent permitted by the debt instruments to which we are a party, we are required to annually distribute to each member, not later than 90 days after the close of each taxable year, an amount sufficient to cover their income tax liability attributable to their ownership interest. This distribution is treated as a reduction to the member’s interest account.  Distributions of $73.9 million and zero were made in Fiscal 2011 and the 2010 Stub Period, respectively.

 

Share-Based Compensation

 

In October 2010, we adopted the LNR Property LLC 2010 Management Equity Compensation Plan (the “2010 Equity Plan”).  The purpose of the 2010 Equity Plan is to attract, retain and motivate officers, directors, employees, consultants and others who may perform services for us or our affiliates, and to compensate them for their contributions to our long-term growth and profits.  Awards under the 2010 Equity Plan are granted in the form of options which allow the recipient to acquire units in LNR Property LLC at a specified exercise price.  The options vest and become exercisable upon the earlier of (a) the satisfaction of certain performance conditions, or (b) five years.  Due to the inherent uncertainty associated with predicting the timing of achievement of the specified performance conditions, we are recognizing the grant date fair value of these options on a straight-line basis over five years.  During Fiscal 2011 and the 2010 Stub Period, we recognized $2.6 million and $0.5 million, respectively, of compensation expense with an equal offsetting increase in members’ equity, related to the 2010 Equity Plan.  The Board of the Company has authorized the issuance of up to 25,000 units through the 2010 Equity Plan.  At December 31, 2011, options for the purchase of 12,500 units at exercise prices from approximately $5,000 to $7,000 per unit were outstanding.  There were no grants under the 2010 Equity Plan during Fiscal 2011 and no awards vested, were forfeited, exercised or expired under the 2010 Equity Plan during Fiscal 2011 or the 2010 Stub Period.  All outstanding awards at December 31, 2011 were issued during the 2010 Stub Period and had a grant date fair value of $15.3 million.

 

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In April 2010, we issued equity awards in a wholly owned subsidiary to certain executives.  In connection with the Recapitalization, awards were not formally exchanged or replaced, but continued under their original terms. As a result, they were accounted for as if we were obligated to issue replacement awards.  The fair value of these replacement awards at the Recapitalization date was $1.6 million.  We recognized compensation expense of $0.1 million in the 2010 Stub Period, with an equal offsetting increase in members’ equity, related to these awards.

 

In March 2011, we issued new awards in this same wholly owned subsidiary.  In connection with these awards, we recognized compensation expense of $5.5 million during Fiscal 2011 based on a fair value at the grant date of $12.4 million.  Distributions related to these awards totaled $3.7 million during Fiscal 2011.  The awards contain an accelerating vesting provision upon issuance and then vest ratably through 2013.  The awards also provide for forfeiture of any unvested portion upon resignation of the executive.

 

14.    Benefit Plans

 

Savings Plan

 

The Predecessor adopted, and we have continued, the LNR Property Corporation Savings Plan (the “Savings Plan”), which allows employees to participate and make contributions to the Savings Plan. We may also make contributions to the Savings Plan for the benefit of employees. Participants in the plan self direct both salary deferral and any employer discretionary matching contributions. The Savings Plan offers various investment options for participants to direct their contributions. Matching contributions to the Savings Plan are recorded as general and administrative expense in the consolidated statements of earnings.  During Fiscal 2011 and the 2010 Stub Period, matching contributions to the Savings Plan were $1.2 million and $0.2 million, respectively.

 

Long-Term Incentive Arrangements

 

In February 2005, the Predecessor adopted the LNR Property Holdings Ltd. Long-Term Incentive Program (the “LTIP”). The LTIP provided a select group of eligible employees with the opportunity to receive cash distributions through performance-based remuneration. Participants under the LTIP shall be 100% vested in an award on the payment date, as designated by our senior management. Generally, no vesting shall occur prior to the payment date. The Company assumed obligations related to the LTIP in connection with the Recapitalization.

 

Additionally, in Fiscal 2011, we entered into new long-term incentive compensation arrangements with certain employees.  These arrangements provide for a fixed cash distribution amount which vests over a four year period and is payable at certain dates within this period.  In connection with all of our long term incentive arrangements, we recorded a net reduction of compensation expense of $0.1 million during Fiscal 2011, primarily due to forfeitures resulting from employee departures, and an expense of $0.2 million during the 2010 Stub Period. The liability related to these arrangements was $1.9 million and $2.0 million as of December 31, 2011 and 2010, respectively.

 

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15.    Income Taxes

 

The income tax (benefit) expense from continuing operations consisted of the following (in thousands):

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

Current

 

 

 

 

 

Federal

 

$

(41,432

)

693

 

Foreign

 

5,378

 

816

 

State

 

(4,309

)

(35,181

)

Total income tax benefit

 

$

(40,363

)

(33,672

)

 

As described in Note 2, we reorganized as a limited liability corporation after the Recapitalization, and consequently, we are not generally subject to income taxes.  However, certain of our subsidiaries may be subject to taxes in certain jurisdictions. Additionally, at the Recapitalization date, we retained certain tax liabilities and uncertain tax positions of the Predecessor.

 

The deferred tax assets and liabilities and net operating loss and credit carryforwards of our taxable subsidiaries as of December 31, 2011 and December 31, 2010 were not material.

 

As of December 31, 2011, we had a liability of $2.8 million related to uncertain tax positions, of which $1.9 million related to interest.  These represent tax positions of the Predecessor, any of which may be challenged by tax authorities, and for which we could be held responsible. If challenged, the amount of taxes, penalties and interest which could be assessed by taxing authorities may differ from the amount that has been accrued.  No change to these unrecognized tax benefits is anticipated within the next twelve months as a result of statute of limitations expirations or audit resolutions.

 

In the 2010 Stub Period, through a state voluntary disclosure program, we settled an uncertain tax position, which resulted in a reduction of $34.5 million in accrued state income tax liabilities.  Of this settlement, $0.2 million was paid to the taxing authority while $34.3 was recognized in our consolidated statement of earnings.  This adjustment comprised essentially all of the state income tax benefit recognized by the Company.  During Fiscal 2011, several uncertain tax positions were effectively settled, resulting in the recognition of a $47.3 million income tax benefit within our consolidated statement of earnings.

 

A reconciliation of the change in the accrual for uncertain tax positions, which is included in accrued expenses and other liabilities in our consolidated balance sheets, is as follows (in thousands):

 

Balance at July 28, 2010

 

$

83,268

 

Additions for tax positions related to prior years

 

1,321

 

Reductions for tax positions effectively settled

 

(34,466

)

Reductions for statute closings and other reductions

 

(1,536

)

Balance at December 31, 2010

 

48,587

 

 

 

 

 

Additions for tax positions related to prior years

 

1,502

 

Reductions for tax positions effectively settled

 

(47,261

)

Balance at December 31, 2011

 

$

2,828

 

 

During Fiscal 2011 and the 2010 Stub Period, federal tax refunds received totaled $6.5 million and $5.6 million, respectively, and state tax refunds totaled $0.8 million and $0.8 million, respectively.

 

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16.    Related Party Transactions

 

Transactions with our Owners and their Affiliates

 

We lease space in a satellite office from one of our Lead Investors.  During Fiscal 2011, we paid $0.1 million to this related party for rent and related amounts associated with this arrangement.  Such amount is included within general and administrative expense in our consolidated statement of earnings for Fiscal 2011. Additionally, during Fiscal 2011, we performed due diligence services for one of our Lead Investors, for which we recognized $0.4 million of management fees in our consolidated statement of earnings.

 

Investments in Unconsolidated Entities

 

As previously discussed in Note 8, we are a partner in the CPI Fund, a private equity investment venture of which we hold an approximate 20% ownership interest. We receive project cost reimbursements for services we perform on behalf of the CPI Fund, mostly related to due diligence efforts. We also earn fees from managing the CPI Fund, the LEI Fund and other unconsolidated entities in which we have investments and from acquiring, developing and disposing of assets held by such entities.  We perform certain administrative activities including accounting and human resources functions for joint ventures in which we hold an ownership interest.  The joint ventures pay us shared services fees as compensation for these administrative services.  We also have an exclusive marketing agreement with the joint ventures which obligates us to utilize services of the ventures exclusively for any commercial real estate property we seek to sell in our capacity as either the owner or special servicer.

 

The table below sets forth amounts recorded in connection with transactions between us and our unconsolidated entities (in thousands):

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

 

 

 

 

 

 

Project cost reimbursements from the CPI Fund

 

$

1,335

 

221

 

 

 

 

 

 

 

Management fees earned

 

 

 

 

 

From the CPI Fund

 

11,349

 

5,695

 

From the LEI Fund

 

1,537

 

75

 

From other unconsolidated entities

 

1,737

 

1,197

 

 

 

 

 

 

 

 

 

December 31,

 

 

 

2011

 

2010

 

Management fees receivable at year end

 

 

 

 

 

From the CPI Fund

 

$

2,760

 

1,043

 

From the LEI Fund

 

96

 

 

From other unconsolidated entities

 

836

 

257

 

 

 

 

 

 

 

Management / development fees payable at year end

 

 

 

 

 

To the CPI Fund

 

3,885

 

3,279

 

 

 

 

 

 

 

 

Executive Resignations

 

Following the Recapitalization, our Chief Executive Officer (“CEO”) resigned.  In connection with his resignation, we entered into a separation agreement with the former CEO and made a cash payment in the amount of $4.0 million, which is included in general and administrative expenses in the 2010 Stub Period.

 

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As discussed in Note 9, during 2010, prior to the Recapitalization, we transferred 4.9% of our ownership interest in the Archetype Fund to certain executives for cash consideration.  These transfers were subject to dilution and vesting requirements. Since their original issuance, these interests were diluted to 1.97%, inclusive of forfeitures.

 

Following the Recapitalization, certain executives were terminated.  During Fiscal 2011, these executives filed a complaint against us in connection with the termination of their employment relationships.  All claims have been resolved, resulting in a cash payment to these former executives of $4.3 million during Fiscal 2011.

 

17.    Commitments and Contingent Liabilities

 

We are subject to various claims, legal actions and complaints arising in the ordinary course of business. In our opinion, the disposition of these matters will not have a material adverse effect on our financial condition, results of operations or cash flows. We are also subject to the usual obligations associated with entering into contracts for the purchase, development and sale of real estate, as well as the management of entities and special servicing of CMBS and mortgage loans in the routine conduct of our business.

 

We provide commitments to fund capital contributions to certain unconsolidated entities and consolidated joint ventures, as required by the respective partnership agreements or pursuant to approved business plans.  These commitments amounted to $136.2 million at December 31, 2011 and are not reflected in our consolidated financial statements. See also Note 8 and Note 9 for discussion of additional funding commitments related to certain of our investments.

 

In December 2001, we entered into a disposition and development agreement with a government agency to redevelop a military base located in California into a mixed-use commercial development project.  The agreement provides for our phased acquisition and development of property in exchange for certain profit participation rights, all amounts pursuant to which are payable only if certain targets are achieved on the overall project. In December 2005, we sold our rights to the agreement (to acquire, develop and sell the land) for a portion of the project to the CPI Fund for a sales price of $12.1 million and additional amounts payable only if certain targets are achieved, consistent with those in the original agreement. In connection with this agreement, we have recorded a liability of $6.0 million in our consolidated balance sheets at December 31, 2011 and 2010, based on the anticipated profit participation payments to be made under the agreement for the overall project.

 

In Fiscal 2011, we entered into an arrangement with a government agency to redevelop a former military air station in Massachusetts into a mixed-use commercial development project.  The agreement provides for our phased acquisition and development of property in exchange for cash, a debt obligation, and certain profit participation rights.  The cash and debt are discussed in Note 10.  The profit participation rights are payable only if certain targets are achieved on the overall project.  We have recorded a liability of $7.4 million in our consolidated balance sheet at December 31, 2011 based on the anticipated profit participation payments to be made under this arrangement.

 

In connection with the Recapitalization, we recognized an intangible unfavorable lease liability of $11.8 million related to an operating lease for our corporate headquarters in Miami Beach, Florida.  This liability is included in accrued expenses and other liabilities and is being amortized over the remaining 11 years of the underlying lease term.  Amortization of this liability is reflected in general and administrative expense in Fiscal 2011 and the 2010 Stub Period.  The liability was $10.3 million as of December 31, 2011.  We sublease a portion of this office space and collect sublease income which is reported net against the related rent expense in general and administrative expenses in our consolidated statements of earnings, and we lease other premises and office equipment under non-cancelable operating leases with terms expiring thru June 2019, exclusive of renewal options periods.  At the Recapitalization date, we recognized an intangible favorable lease asset of $1.0 million related to these operating leases.  This asset

 

42



 

is included in other assets in our consolidated balance sheet.  Rental income related to these subleases and rent expense, included in general and administrative expense in our consolidated statements of earnings, was as follows:

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

 

 

 

 

 

 

Rental Income

 

$

1,998

 

774

 

Rental Expense

 

6,977

 

3,061

 

 

The future minimum rents and sublease income related to all of our existing leases and subleases for each of the next five fiscal years and in the aggregate thereafter are expected to be as follows (in thousands):

 

 

 

2012

 

2013

 

2014

 

2015

 

2016

 

Thereafter

 

Minimum Rents

 

$

5,958

 

6,041

 

6,041

 

5,896

 

5,237

 

21,764

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sublease Income

 

1,061

 

1,036

 

867

 

800

 

564

 

212

 

 

18.    Guarantees

 

In the ordinary course of business, we provide various guarantees, including: (i) standby letters of credit, generally to guarantee our performance under contractual obligations; (ii) guarantees of debt to obtain financing for consolidated and unconsolidated entities; (iii) lease payment guarantees in connection with office leases and equipment, and (iv) surety bond reimbursement guarantees, generally related to specific performance obligations relating to property development, and court and utility bonds related to our specially serviced loans.  These guarantees have varying expiration dates through May 2021, and total $52.2 million at December 31, 2011. We believe the risk associated with these guarantees is low, as most of the conditions that must be met are within our control.

 

As is customary in the real estate development business, we also have provided completion guarantees to our construction lenders that guarantee we will complete the development of the project they are financing. We cannot estimate the maximum exposure on these guarantees because the amount of any obligations we might incur would depend on the extent to which costs of completing construction exceeded amounts provided by committed borrowings and capital contributions. We are not currently aware of any reason to expect we will be required to make payments under any of our outstanding construction completion guarantees.

 

We are a partner in a joint venture formed to purchase 3,724 acres of land, a former military base, in California. We are subject to a completion guarantee related to this venture which obligates us to fund the development of certain infrastructure improvements should the venture fail to do so.  We also issued a $24.4 million payment guarantee, representing the amount of our future capital commitment to the venture.  We have funded $9.4 million of our capital commitment to date and have no reason to believe that we will not continue to fund our remaining commitment.  As such, the maximum determinable amount of this guarantee at December 31, 2011 is $15.0 million.

 

We have not recorded any liabilities at December 31, 2011 and 2010 in connection with the above mentioned guarantees as their fair value at inception was zero and they did not meet the subsequent measurement recognition criteria.

 

19.    Discontinued Operations

 

As described in Note 1 and Note 9, on December 29, 2011, we sold our limited partner and general partner interests in the Archetype Fund.  Concurrently with this transaction, we deconsolidated the

 

43



 

Archetype Fund from our financial statements.  The results of discontinued operations related to the Archetype Fund were as follows (in thousands):

 

 

 

Fiscal 2011

 

2010 Stub
Period

 

Costs and expenses

 

 

 

 

 

General and administrative

 

$

468

 

25

 

Impairment losses on investment securities

 

222

 

 

Total costs and expenses

 

690

 

25

 

 

 

 

 

 

 

Other income

 

 

 

 

 

Interest income

 

16,059

 

11,467

 

Gain on sale of investment securities

 

37,500

 

13,672

 

Change in fair value of investment securities

 

(2,432

)

(9,924

)

Change in fair value of derivatives

 

(3,181

)

 

Total other income

 

47,946

 

15,215

 

 

 

 

 

 

 

Gain on sale of interest in the Archetype Fund

 

113

 

 

 

 

 

 

 

 

Income from discontinued operations

 

47,369

 

15,190

 

Income from discontinued operations attributable to noncontrolling interests

 

17,821

 

10,106

 

Income from discontinued operations attributable to members

 

$

29,548

 

5,084

 

 

20.    Financial Statement Reissuance

 

Subsequent events have been considered through March 20, 2012, and reconsidered through February 11, 2013, the date the consolidated financial statements were issued and reissued, respectively.

 

2013 Purchase Agreement

 

On January 23, 2013, we entered into a definitive agreement with Starwood Property Trust and Starwood Capital Group (collectively “Starwood”) whereby Starwood would acquire LNR Property LLC for a total purchase price of approximately $1.05 billion in cash.

 

44