Pan-democrats try to delay funding requests amid electoral reform stand-off

Pan-democrats have begun a campaign of non-cooperation over political reform with the aim of holding up all requests for public funding unless they are related to peoples livelihood.

The pan-democratic lawmakers first offensive – a motion raised by the Labour Partys Lee Cheuk-yan to adjourn the Finance Committees first meeting since the summer break – was, however, defeated by the pro-establishment camp in a vote after a heated debate.

The pan-democrats then changed tack by delaying individual funding items – the first being for a food-waste treatment facility – with People Powers Chan Chi-chuen tabling an adjournment motion.

Pro-government lawmakers blocked that motion in another vote.

The Finance Committee was meeting yesterday to discuss 18 items carried over from its last session before the summer break, which had been marred by filibustering.

Topping its agenda were five separate requests for funding for waste infrastructure, including landfill extensions and a plan to build an incinerator.

At the end of the four-hour meeting, no decisions had been reached on any of the items put to a vote, as lawmakers still had questions to raise.

To minimise the impact of the non-cooperation campaign, pan-democrats suggested having a human corridor to allow livelihood-related funding requests – such as the civil service pay rise and welfare benefits for the disadvantaged – to be scrutinised and voted on first.

Controversial items deemed too sensitive amid the citys current tense political atmosphere, such as the landfill extensions, should be accorded lower priority, they said.

Lee said it would be wise for the government to put a brake on its funding requests for the time being, as it had lost its legitimacy to govern the city after its crackdown on the peaceful Occupy Central street protests.

The government owes us an explanation on its use of tear gas, the triad attacks on protesters, and the police beating of protesters, he said. Under these circumstances, the government has no legitimacy to table any funding request.

Chan demanded that the committee chairman and officials reprioritise the requests, by moving the less sensitive livelihood items up the list.

We have already offered you the best bargain by saying we should handle the livelihood items first, he said. If you dont entertain this, we will file a motion to adjourn each item of the funding requests.

Chan likened the waste infrastructure requests to barricades blocking the livelihood items from being approved for funding.

But committee chairman Tommy Cheung Yu-yan rejected the suggestion to reprioritise the requests, saying he was not prepared to do so.

Starry Lee Wai-king, of the Democratic Alliance for the Betterment and Progress of Hong Kong, slammed the pan-democrats for hijacking the meeting and inflicting minority violence on the committee. What is good for society is now being turned into a bargaining chip.

The Liberal Partys James Tien Pei-chun said: Handling the funding requests has nothing to do with the pending dialogue between the students and the government.

Secretary for Financial Services and the Treasury Chan Ka-keung said further delaying the funding requests could cause the costs of infrastructure to rise.

The projected cost of the waste infrastructure had already gone up by HK$1.3 billion, to HK$30.5 billion, since the committee failed to process the items in its previous meeting, he said. Only HK$3.6 billion of capital works projects were approved last year, compared with HK$90 billion the year before, he added.

Environment Secretary Wong Kam-sing said the waste infrastructure projects were also an important livelihood issue. He warned that any delays would be a matter of years, not months. An extended tender for the food-waste treatment facility would expire in January, he noted.


Williams v. FDIC (In re Positive Health Management) lender forced to return …

On October 16, 2014, the United States Court of Appeals for the Fifth Circuit entered an order requiring a real estate lender, First National Bank (the Lender), to refund certain mortgage payments it received from Protective Health Management (the Debtor), an affiliate of its borrower.1 Because the mortgage payments constituted actual fraudulent transfers, the Fifth Circuit held that the Lender could retain the payments only to the extent of the value of the Debtors continued use of the property.2 Like the Eleventh Circuits controversial ruling in the TOUSA bankruptcy, this case serves as an important reminder that lenders should monitor the source of debt payments.


In 2006 the Lender made a loan to Zeigler Enterprises III, LLC (the Borrower) (an entity owned by Robert Zeigler). The loan was secured by a first lien mortgage on an office building owned by the Borrower. The Debtor (a pain management clinic also owned by Mr. Zeigler) occupied the office building, but was neither a borrower nor a guarantor under the Lenders loan. From February 2007 through March 2008, the Debtor made direct payments to the Lender on account of the loan totaling approximately$365,000; the Debtors tax returns described these payments as rent. Although the Borrower was in default, the Lender did not pursue collectionefforts or a foreclosure while the Debtor made the payments.

Beginning in 2006, the Debtor stopped paying employment tax liabilities; instead, Mr. Zeigler used the funds to maintain his own lavish lifestyle.3 Facing significant unfunded tax liabilities, the Debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code in March 2008. The case was subsequently converted to a case under Chapter 7, and a trustee was appointed.4 The trustee brought an adversary proceeding against the Lender asserting that the payments made by the Debtor to the Lender constituted fraudulent transfers under Section 548 of the Bankruptcy Code.

Bankruptcy Court Opinion

The Bankruptcy Court found that the Debtor made the transfers with the actual intent to hinder, delay, or defraud its creditors.5 Notwithstanding the Debtors actual fraudulent intent, the Lender argued that it was entitled to the affirmative defense set forth in Section 548(c) of the Bankruptcy Code, which allows a transferee that takes in good faith to retain the property transferred by the Debtor to the extent that such transferee . . . gave value to the debtor in exchange for such transfer.6

In evaluating the Lenders defense under Section 548(c), the Bankruptcy Court applied a two-pronged analysis: (a) did the Lender act in good faith; and (b) did the Lender give value in exchange for the payments? With respect to the good faith prong, the Bankruptcy Court concluded that the Lender acted in good faith because it neither knew, nor should have known, that the Debtor was making questionable transfers.7 As for value given, the Bankruptcy Court concluded that the Lender provided reasonably equivalent value in the form of the Debtors continued use of the property. The Borrower was in default, and had the Lender foreclosed, the Debtor would have been evicted. Based on testimony and evidence presented at trial, the Bankruptcy Court concluded that the value related to the Debtors continued use of the property equaled approximately $250,000, which was reasonably equivalent to the $365,000 in payments made to the Lender. Because the Lender acted in good faith and gave reasonably equivalent value, the Bankruptcy Court held that the Lender was entitled to retain the full amount of the payments.8

The Fifth Circuit Court of Appeals Opinion

On appeal, the Chapter 7 trustee argued that Section 548(c) affords an affirmative defense for good faith only to the extent that such transferee . . . gave value to the debtor in exchange for such transfer9 and that as a result, the Bankruptcy Court should have offset the value received by the Debtor ($250,000) against the payments made to the Lender ($365,000) and required the Lender to return any excess.

The Fifth Circuit observed that courts have reached different conclusions on this pointsome, like the Bankruptcy Court in this case, have held that a transferee acting in good faith escapes all liability so long as it gave reasonably equivalent value, but other courts have applied a netting approach allowing a transferee to retain payments only up to the value given to the debtor. The Fifth Circuit adopted the netting approach, concluding that [t]he last clause of the statute, beginning with lsquo;to the extent, makes clear that a transferee is entitled to keep only the amount of a fraudulent transfer that equals the amount it gave up in exchange.10 Accordingly, the Fifth Circuit held that the Chapter 7 trustee was entitled to recover approximately $115,000 (ie, the difference between the payments made to the Lender and the value related to the Debtors continued use of the property).

Lessons Learned

The Protective Health Management decision serves as a reminder to secured lenders that it is increasingly necessary to monitor the source of payments. A red flag should be raised anytime payment comes from a party other than the borrower. If the Debtors rent payments had gone first to the Borrower and then the Borrower used the funds to pay its obligations to the Lender, the Lender would not have faced liability for a fraudulent transfer. Understandably, most lenders are content to receive timely payments regardless of the source. However, as illustrated by this case, that approach can lead to potential fraudulent transfer liability and costly litigation.

Just When You Thought You Were Out, They Pull You Back In

It is a rare occasion for a secured lender to foreclose on collateral with a value in excess of the entire debt owed, particularly following a bankruptcy filing by the borrower, but on that rare occasion the lender should heed the cautionary tale set forth in the 5th Circuit Court of Appeals’ recent decision in Wells Fargo Bank, NA v. 804 Congress, LLC. 1.

In the bankruptcy case of 804 Congress, LLC, Wells Fargo obtained relief from the automatic stay to conduct a foreclosure sale on the debtor’s primary asset, an office building in Austin, Texas. The bankruptcy court’s order authorized Wells Fargo to conduct the sale pursuant to Texas law. The trustee under the deed of trust completed a non-judicial foreclosure sale of the property, which yielded proceeds in excess of the combined debt of both Wells Fargo and the junior lienholder. The trustee attempted to apply the sale proceeds first to the trustee’s 5% commission provided for under the terms of deed of trust, second to the senior debt owed to Wells Fargo (including pre and post-bankruptcy attorney’s fees), and third to the debt owed to the junior lienholder, with the remaining balance to the debtor. The debtor objected to the proposed distribution and the bankruptcy court entered an order directing the foreclosure trustee to pay (i) $7,500 to the trustee rather than the contractual 5% commission of $217,750, (ii) Wells Fargo in full except for its $87,000 in attorney’s fees and (iii) the junior lienholder in full.

The bankruptcy court ruled that Wells Fargo failed to follow the proper procedure for obtaining court approval of the attorney’s fees and did not present evidence that the fees were reasonable. Similarly, the court held that the trustee’s 5% commission was unreasonable and reduced the amount. The bankruptcy court relied on its authority under section 506(b) of the Bankruptcy Code to determine the reasonableness of fees, costs and charges sought by oversecured creditors. Section 506(b) entitles a creditor whose claim is secured by collateral worth more than the amount of its debt to include as part of its secured claim against the collateral, post-petition interest and its “reasonable” fees, costs and charges provided for under the loan documents or state law.

On appeal by Wells Fargo, the district court reversed, finding that once the bankruptcy stay was lifted and the foreclosure sale completed, the bankruptcy court no longer had jurisdiction over the foreclosure sale proceeds, which should be distributed in accordance with state law and the loan documents. On further appeal by the debtor, the 5th Circuit reversed the district court, holding (i) Bankruptcy Code section 506(b), not state law, governs the amount to be distributed to a secured creditor that is oversecured, (ii) the lifting of the automatic stay to allow Wells Fargo to foreclose was not tantamount to an abandonment of the bankruptcy estate’s interest in the property, (iii) section 506(b) applies to both pre and post-bankruptcy fees, costs and charges and (iv) as a result the bankruptcy court retained the authority under section 506(b) to determine the reasonableness and allowed amount of the trustee’s commission and Wells Fargo’s attorney’s fees.

The 5th Circuit’s opinion focuses primarily on its determination that a bankruptcy judge retains the authority to control the distribution of foreclosure sale proceeds to an oversecured creditor after evaluating the reasonableness of any fees and costs pursuant to Bankruptcy Code section 506(b). However, there are two novel aspects of the decision that may have ramifications for secured lenders. The first is a reminder that in some Circuits a bankruptcy judge has the authority to use section 506(b) to reach beyond amounts incurred during the bankruptcy case and disallow pre-bankruptcy fees, costs and charges even if those amounts are permissible under applicable state law and were incurred long before the bankruptcy case was filed.

In 804 Congress, LLC, the bankruptcy court disallowed all of Wells Fargo’s pre and post-bankruptcy attorney’s fees. Citing both 5th and 11th Circuit precedent, the Court concluded that section 506(b) does not draw a distinction between fees incurred before a bankruptcy filing and fees incurred after. Although Bankruptcy Code section 506(b) is more commonly viewed as applying only to the determination of whether a secured creditor is entitled to recover post-bankruptcy interest, fees costs and charges, in those jurisdictions that have extended section 506(b)’s reach, bankruptcy court approval may be required before applying foreclosure sale proceeds to standard pre-bankruptcy fees, costs and charges, such as unused line fees, collateral monitoring fees, late charges, valuation costs, and force-placed insurance.

The second interesting implication is the possibility that an order granting relief from the automatic stay, at least in the 5th Circuit, may no longer provide the exit from bankruptcy court most secured creditors have relied on in the past. One of the unanswered questions from the 5th Circuit’s decision is whether a secured lender will now need to return to the bankruptcy court for a separate order authorizing the distribution of foreclosure sale proceeds. The relief from stay order issued by the bankruptcy court in the case of 804 Congress, LLC explicitly authorized Wells Fargo to conduct a foreclosure sale “in accordance with applicable state law.” Similar language is standard in many bankruptcy district form orders across the country and most bankruptcy practitioners interpret such orders as granting a secured creditor the authority to both conduct a foreclosure sale and apply the foreclosure sale proceeds to the debt. That interpretation is called into question following the 804 Congress, LLC decision.

In reversing the district court’s ruling that upon relief from the automatic stay, the sale proceeds should be distributed in accordance with applicable state law, the 5th Circuit held that the bankruptcy court’s order lifting the stay simply allowed Wells Fargo to foreclose on the property in accordance with state law foreclosure procedures, but did not grant the trustee the authority to determine how the sale proceeds should be distributed. Moreover, while the 804 Congress, LLC decision focused on the application of the proceeds to the fees and costs of an oversecured creditor pursuant to section 506(b), the 5th Circuit’s reasoning in reversing the district court equally applies to the application of foreclosure sale proceeds to any portion of a secured creditor’s claim regardless of whether the creditor is over or under-secured. As a result, those parties relying on an order granting relief from the automatic stay to carry out certain actions, such as lenders, trustees, auctioneers and title insurers, should more closely consider the limits of such orders. One solution may be to request language in the relief from stay order authorizing the secured creditor to not only conduct the sale but also apply the sale proceeds in accordance with applicable state law and the loan documents. But some bankruptcy judges may be reluctant to give up their oversight authority before the amount of the sale proceeds is known.

It will be interesting to see how the bankruptcy courts apply the 5th Circuit’s decision in the near future. For now, secured lenders should be prepared to document and defend the reasonableness of all fees, costs and charges included in a secured claim, even those incurred well before the bankruptcy case was commenced, and also consider requesting authority to apply sale proceeds when obtaining relief from the automatic stay.

 1.  756 F.3d 368 (5th Cir. Tex. 2014).

Lake Shore Gold’s CEO Anthony Makuch on Q3 2014 Results – Earnings Call …


Good afternoon. My name is Keith and I will be your conference operator today. At this time, I would like to welcome everyone to the Lake Shore Gold’s Third Quarter 2014 Earnings Conference Call. All lines have been placed on mute to prevent any background noise. After the speakers’ remarks, there will be a question-and-answer session (Operator Instructions) Thank you.

I would now like to turn the call over to Mr. Mark Utting, Vice President of Investor Relations with Lake Shore Gold. Please go ahead sir.

Mark EF Utting

Thanks very much, operator. Good afternoon everyone and thanks for participating in today’s call to review our third quarter and nine-months 2014 financial and operating results. Speaking today will be Tony Makuch, our President and CEO; we also have a number of our other members of our management team with us, including Phil Yee, our Senior Vice President and Chief Financial Officer; Eric Kallio, our Senior Vice President of Exploration; Natasha Vaz, our Vice President of Technical Services; Meri Verli, our Vice President of Finance; Alasdair Federico, our Vice President and General Counsel; and Tina Ouellette, our Vice President of Human Resources.

Slides accompanying today’s remarks are available on a viewer advanced basis, on the website at Following the presentation, we will open the call to questions. Participants are reminded that during the call some of the comments made will be forward-looking statements. A cautionary statement around forward-looking information is provided in the presentation which is available on the webcast on our website.

With that I would like to turn the call over to Tony Makuch, President and CEO of Lake Shore Gold.

Anthony P. Makuch

Okay. Thanks Mark and again thanks everyone for being on the call. As Mark said as well as just – this has been another good solid quarter of production and operating and financial results for the company. It represents our fourth consecutive quarter of solid performance on an operating level, fourth consecutive quarter of generating net free cash flow and really leads the company on to moving forward into – as we go forward into being a producer that’s definitely profitable and growing its cash position of financial strength based in Timmins.

The people of Lake Shore Gold, the people that really do the work, a lot of the people are up in Timmins and they are not the people like myself here on this call and again we get the pleasure to report on the report on the results and the hard work of others and we really appreciate that opportunity, but at the same time we thank the people that have actually done all the work.

So starting in Slide Number 3, where we give some of the highlights for the Q3 2014 production, we had total production of 45,600 ounces in the quarter, a definite increase from Q3 of 2013. No throughput in the quarter was up both from Q2 this year as well as from Q3 2013, averaging just about under 3500 tonnes per day.

Average grade 4.2 grams per tonne, although slightly lower, although lower than previous two quarters in line with our reserve grades and in line with our guidance where we would like to guide people that 4.5 grams per tonne to 5 grams per tonne on average. The range we would achieve on any quarter basis and on average for a year, we expect to achieve something in that line or closer to our reserve grade. Gold poured for the quarter as well as gold sales for the quarter more or less track with our record gold production in the quarter.

Turning to operating performance from a cash perspective – cost perspective in the third quarter, cash operating cost $594 an ounce, all-in sustaining cost just under $860 announce. CapEx in the quarter $15.2 million inline with expectations and a big part in the generation of free cash flow in the quarter, cash in bullion increased to $13.9 to $67.3 million by the end of September of this year and net earnings for the quarter is $7.9 million or $0.02 per share.

Going to Slide 5, what does this do and where are we sitting year-to-date and where does this put us for the full-year. On a production level the company is tracking with a 142,500 ounces produced in the first three quarters of 2013, higher than our overall throughput – of overall production in 2013 and you can see now we are tracking – we expect to produce about close to 180,000 ounces in 2014 which is the top end of our guidance.

Slide Number 6, from a unit cost basis for nine-months of this year, we’re tracking cash cost of $588 an ounce, all-in sustaining cost $861 an ounce both of these cost setting indicators are below our cost guidance for the year and we expect now that our unit cost will be lower than guidance for 2014. On the financial side, one of the other key things weve been working on this year is both generating free cash to build up our cash position and for the year weve increased our cash by $33 million so far in 2014 to currently at levels as we said as $67 million and on top of that we made debt repayments of $25 million this year to our senior secured lenders. And the main part of us being able to increase our cash position and pay down debt is through net free cash flow from the operations.

Getting away from the production side. Some of the other milestones achieved are some of the other exciting things that has happened for the company in a quarter is as we talked previously with company has gone its full circle, was now at a point where we’re going to start exploring again. We announced that’s a beginning of some programs in first quarter of this year, we announced some upgrades or some additions to the programs in Q2 as we progress.

Now we’re starting to some of the results from the work we’ve been doing 75,000 metres of in mine drilling, supporting production and reserve replacement we’ve had – from that we’ve had some high-grade interceptions and Timmins Deposit on the S2 Fold Nose in areas where inferred resources are which confirming inferred resources and are potentially extending resources. We’ve had positive results for resource drilling at Bell Creek targeting the area between 775 and 1050 level this is the area below our current reserve. And in area with the resource and excess of – close to all in measured indicated and inferred closer to 400,000 ounces.

And recently we reported some wide, gold-bearing mineralization intersection in 144 Gap. And you think this is a very exciting area and actually a very exciting time for the company in terms of our ability to both not only to target reserve replacement in 2014, which is one of our goals for this year. And work to identify new resources with the main goal of both reserve replacement and extending, discovering new resources as we’re beginning to demonstrate the potential or the opportunity where we can extend mine life beyond on our current reserve base.

Now just – before I just summarize and finally I just want to go through in terms of the strategy for the company and what we’re really working towards in terms of driving -developing our growing shareholder value. Number one on our operating side, we want to get the valuation for our current business. And do that consistently meaning and exceeding all of our key targets that’s production and cost targets. It’s generating net free cash flow and building up our cash position, building our financial strength of the company reducing the debt we’ve been paying down our debt as we demonstrated and extending mine life through exploration and drilling within the resource to extend reserves, number one.

Number two, we’ve been advancing our other wholly-owned projects and doing work and will be reporting on these as the year progress and in coming for the new year in terms of what we’ve accomplished in terms of understanding of Gold River understanding of Bell Creek Deep understanding some information about Fenn-Gib.

And the third part, which we believe is very exciting is achieving exploration success and leading into the discoveries that 144 which is starting to happen even really the discovery and what we’re going to do in terms of growing potential or upgrading the resources and reserves at Bell Creek give us sense on the exploration upside for this company. And again by – we feel strongly that by executing these three parts of our strategy we’ll be the key drivers for growing shareholder value. Just in summarizing to in terms of giving a 2014 outlook now – after a results of our third quarter this year.

Again we expect to achieve the top end of our production guidance to produce at least 180,000 ounces of gold. We expect – we will beat our cost guidance per ounce sold basis. Again we’re tracking year-to-date 588 ounce cash cost, our targets. Our guidance was 675 to 775 we expect to beat the lower end of our guidance. All in sustaining cost of 861 for the first nine-months of this year. We give guidance 950 to 1050.

Again we expect to beat the guidance of the lower in our guidance. We are targeting to replace reserves mine this year. We feel what we’re on track to doing that, will be demonstrating that over the next few months. And we’ve been advancing our exploration programs to identify new resources this year.

With that, I’ll finalize the presentation and we’ll be happy to answer any questions and just give you a little bit update to where you will notice in the slide deck presented to you but there is some – there is an appendix. In any appendix we’ve included some financial slides and some further exploration slide, if you need any clarification or if you have any other questions related with any of these topics. Thanks.

Fears for lifeline service facing a 40% cut in cash

GAMH has realistically said it cant offer a city-wide service and warned them it would put the whole viability of the charity at risk.

The council is hoping this will just disappear quietly to hide the fact they are in crisis with their budget. This isnt how you treat people.

The leader of the council is advocating that he will look after the health and mental wellbeing of the people of Glasgow – hes not doing that.

I dont believe there has been proper consultation as closing a charity like this will end up costing the city money.

One member of staff said he didnt know what would happen to the thousands of Glaswegians who are helped by GAMH, and admitted the charity would probably have to close if the 40% cuts went ahead.

A spokesman for the council said: The majority of service users who use GAMH are not known to social work, but those who are will continue to be supported by social work services.

The councils budget for the next financial year has still to be agreed and so decisions on individual funding awards have still to be taken.

However, even after years of huge pressure on the councils budget, it has been widely anticipated that further savings will be required.

Where appropriate we have been working with providers to inform them of the reality of the public finances so they can plan accordingly.

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Want to help fight Ebola? Careful where you donate

Theres a warning of a different kind on the Ebola crisis. For those looking to make a donation to help fight this deadly disease, experts warn to make sure your do your homework first before giving to the cause.

Anytime a crisis of this magnitude strikes, many generous people will open their wallets to provide aid. But unfortunately, scammers are out there, too, looking to take advantage of the situation to earn a quick buck. But there are steps you can take to make sure your funds go to the right group.

Texans in particular have been very generous in supporting our efforts in this outbreak, said Karen Turney with US Funds for United Nations International Childrens Emergency Fund (UNICEF).

Turney tells us donations have increased over the past month. She says its important to know who youre giving to, no matter what the cause.

I encourage people to support organizations like that. Ask the tough questions, what are organizations doing on the ground to help, Turney said.

UNICEF is one of many overseas helping to fight this deadly disease.

If supporters donate to our Ebola relief effort, every donation will be matched dollar for dollar, she said.

And according to Leah Napoliello with the Houston Better Business Bureau, its important to know who youre supporting.

Whenever a disaster or crisis occurs, unfortunately the scammers are going to be online. And theyre going to be trying to take advantage of people, Napoliello said.

Napoliello says there are red flags to watch out for.

Scammers will be contacting via email as well trying to get you to donate to their fake website rather to a legitimate group, she said.

Websites like the Better Business Bureau or Charity Navigator are great resources to help you research organizations youre thinking of supporting.

You want to watch out for any charity thats spending less than 65 percent on their programs. And also in this case, you want to be careful when giving to a group that is not really experienced in disaster relief, Napoliello said.

And recently, a support page was setup for Nina Pham, the first nurse in Dallas diagnosed with Ebola. It was setup through the crowd-funding site Go Fund Me. According to Texas Health Resources, that page is official and funds will go toward Nina and her family.

But according to the BBB, more of these individual funding sites supporting other Ebola victims could develop soon. They say just make sure you know who youre supporting, before donating.

Top Lenders Abandon Ch. 11 Plan To Split Up LightSquared

By Andrew Scurria

Law360, New York (October 06, 2014, 7:40 PM ET) — LightSquared Inc.s secured bank lenders have jettisoned a Chapter 11 exit plan that would split the wireless venture in two and reorganize each estate separately, the groups attorney said on Monday, opting to pursue only a separate plan keeping the debtor unified.

The long and twisting bankruptcy is slated to come to a head next month when a group of secured lenders will try to convince US Bankruptcy Judge Shelley Chapman to adopt their plan over one offered by controlling equity holder Harbinger Capital Partners LLC,…

2014 NAIOP-AZ Roundtable

Megan Creecy-Herman: Why does the Tempe submarket appear to be so hot right now?

Molly Carson: Tempe has done a wonderful job of positioning itself for success within the development realm. The abundance of amenities (restaurants, the Tempe Center for the Arts, Tempe Town Lake) within this walkable community are desirable from a work-and-live standpoint. Arizona State University remains a valuable draw from an employment standpoint. Simply put, Tempe has done an impeccable job of building a strong foundation and was ready to take advantage of the uptick in the market.

Tom Johnston: The confluence of our freeway system and the center of Metro Phoenix is in Tempe. Proximity to ASU, the airport and light rail make it advantageous for employers. It has become a real urban core where you can live, work and play.

Chuck Vogel: Tech companies want to locate in areas that are attractive to younger, tech-savvy workers. Arizona State University and recreational, cultural and retail amenities are draws for this cohort as is easy access via the Loops 101 and 202, Highway 60 and Interstate 10. Somewhat central locations (are ideal), especially for the east Valley and the nearby Phoenix Sky Harbor.

Megan Creecy-Herman: Tempe doesn’t “appear to be hot” it is hot. There are numerous reasons why tenants want to be in Tempe, one of which is its central location and the fact that it allows employers to pull talent from across the metro-plex considering that 60 percent of Phoenix Metro residents live within a 20-minute commute of Tempe. Also, its proximity and access to Sky Harbor Airport and proximity to the largest public university in the United States are substantial contributing factors.

Megan Creecy-Herman: There’s a lot of buzz around adaptive reuse and redevelopment of downtown spaces, particularly in Phoenix. What significance does this development have to the industry? What have been some of the most important projects?

Tom Johnston: As someone who grew up here and now lives downtown, it is refreshing to see all the redevelopment in our central core. As evidenced by housing price increases in central Phoenix, people want to be in an urban environment. They no longer want to drive 30 to 45 minutes to get somewhere. We have seen tremendous success with retail (particularly restaurants) and multi-family redevelopment. There is a lot of opportunity with infill sites for office redevelopment as well. Important projects include 7th Avenue and McDowell Road, 7th Street and Osborn Road, Central Avenue and Colter Street, and the Roosevelt Arts District.

Bob Mulhern: Phoenix is in the early stages of the adaptive reuse and redevelopment phase, in part because Phoenix is a newer city and in part because the area does not have as developed a downtown as some other markets. That is not to say that the city does not have opportunities for adaptive reuse, either with outdated inventory in the downtown/midtown area or some large blocks of vacant retail space. Education has been a driver of redevelopment in the downtown portion of Phoenix, and further expansion by Arizona State University and University of Arizona could be a source of future activity.

The pace of population growth is the wild card for adaptive reuse downtown. First, a larger residential presence would fuel development of retail properties to serve the population. Chef-driven restaurants, where properties are purchased, rehabbed and then re-opened would be an example of this. Also, an increase in the local population would make transit oriented development increasingly feasible and alleviate some of the strain associated with office parking ratios that are lower than the current market standard.

Megan Creecy-Herman: What is the current state of our Metro Phoenix industrial market?

Anthony Lydon: Metro Phoenix typically absorbs 3.5MSF to 4MSF of space annually. As we move through Q2 Metro Phoenix’s industrial market remains in flux. Larger, national/regional employers like Living Spaces, Winco Foods, Pepsi and others have selected Metro Phoenix to be their “West Coast solution” through the design-build process. These requirements tend to be larger and/or sophisticated “process” facilities that mandate signature construction. In fact, Metro Phoenix has almost 3MSF of industrial facilities currently under construction. In fact, almost two-thirds of “net” absorption is due to corporate design-build projects.

Conversely, the smaller (less than 50KSF) and larger (more than 200KSF) “existing building stock has yet to see a clear, sustained level of occupant demand.” The mid-sized (75KSF to 200KSF) market does show significant activity with several leases and user sales pending. Leading vertical sectors include high-technology, food and beverage, e-commerce and regional retail fulfillment. With a metro industrial vacancy rate at +/-12 percent versus the national average at 8 percent, the Valley has significant product runway to accommodate most occupant requirements.

Chuck Vogel: The Phoenix industrial market is very strong. Demand has been booming, fueled by e-commerce (Amazon), as well as traditional retailers and third-part logistics firms attracted by the area’s low costs, proximity to southern California ports and expanding local economy. Construction has picked up more quickly than we would have expected and led to an increase in warehouse vacancies last year despite robust demand. It is expected that demand will continue to accelerate, putting vacancies back on a downward path.

Megan Creecy-Herman: NAIOP conducted the industry’s first in depth look at e-commerce and its effect on industrial. Where does Arizona stand in preparedness for this shift, in existing and future developments?

Anthony Lydon: Due to the lack of sales tax consistency nationally, Metro Phoenix was an early winner in attracting e-commerce operations. In fact, Arizona contains almost 10MSF of e-commerce space with operators like Amazon, Target, Home Depot and others. Moving forward, facilities will provide a multichannel service: internet, store replenishment, catalog, etc. Older industrial properties will be hard-pressed to compete with higher clear heights, larger electrical services, higher auto parking needs, super flat floors and other building/site enhancements mandated by e-commerce employers.

Megan Creecy-Herman: What role does our proximity to the Inland Empire increasingly play in industrial development?

Anthony Lydon: Metro Phoenix offers an excellent location option for energy-centric, higher head count employers who seek a 25 to 40 percent operational cost saving while enjoying a deep, qualified workforce population at +/-4.5M. The +/-300MSF Inland Empire lies an hour from the ports of Long Beach and LA and is comprised of “West IE” and “East IE.” IE West has significant geographic and economic development barriers to entry. The IE East lies further from ports while being susceptible to California’s perceived over-regulated and cost environments. Accordingly, Metro Phoenix’s west Valley provides same-day access within the federal truck driving rules and regulations.

Bob Mulhern: In the short- to intermediate-term, proximity to the Inland Empire will play a minimal role in the Greater Phoenix industrial market. The Inland Empire’s status as a premier big-box industrial market is well-deserved, with approximately 70 percent of the market space in buildings of 100KSF and greater and 88 percent of its space built in the past 20 years. Current vacancy in the region is approximately 4 percent, which at first glance would suggest an opportunity to attract tenants that are unable to secure space in the Inland Empire, but developers have more than 15MSF of space under way to meet current and future demand. Tenant demand in Metro Phoenix is forecast to be fairly steady in 2014 and 2015, but tenant activity will likely stem from organic growth rather than spillover from the Inland Empire.

Megan Creecy-Herman: Is the Phoenix market ripe now for spec building? If so, where and what type of building?

Molly Carson: Yes, for responsible spec building. Tempe’s sub-5 percent, class-A vacancy and overall 10 percent office vacancy combined with very healthy activity in the class-B+ office product make for a market ripe for spec class-A office. The construction of Hayden Ferry Lakeside phase III allows Tempe to remain squarely competitive (with other markets such as Denver, Austin and California in general).   

Keaton Merrell: For the right submarket and project, banks will finance spec buildings in the 60 to 65 percent of cost range.

Megan Creecy-Herman: There’s a lot of capital coming into the market right now. Where is this best invested? How is financing trending? 

Molly Carson: Core assets in solid locations within primary and tertiary markets. The discipline to invest in core assets through upturns and downturns is almost always rewarded. As for financing, we are seeing institutions continue to be competing to invest/purchase/lend for the type of assets mentioned above. Lending for land is still challenging.

Steven Schwarz: Since we are selling a decent amount of office product right now, I would say that the best investments are in stabilized office. The reality is that there are certain office markets (certain pockets of north Scottsdale, like Chauncey, Tempe and Chandler) where rents are beginning to really move in a positive direction. We have sold some assets at sub-6 percent caps, but if full-service rents move from $20 to $25 that is really a 40 percent increase in net rents.
That cap rate becomes an 8.3 percent, which is a pretty
nice return on investment when interest rates are 4 to 5 percent. One of our strategies that applies to the local market is a focus on acquiring and developing general industrial in tightening markets. This asset type can take advantage of the current historically low interest rate environment, upside potential in rents and being bought at below replacement cost.

Chuck Vogel: There is no shortage of available debt and equity capital. Senior secured lenders still remain modestly levered. Projects with 30 to 40 percent equity work because there is plenty of capital available. If the 10-year treasuries tick up, there will be pressure for the senior secured lenders to take a bigger part of the capital stack if cap rates remain low.

Keaton Merrell: Financing is getting very aggressive. CMBS is back and quoting interest only for up to half of the loan term at 75 percent loan to value. Banks are getting aggressive as well.

Megan Creecy-Herman: What new trends are coming to our industry?

Steven Schwarz: In the short-term, the “densification” of office space and focus on creative space will continue. I love these companies saying they want their office to be a “home away from home.” If that’s the case, why are they cramming eight people in 400 SF? I doubt most people are sharing their bedroom with seven other people! The corporate world has realized that density saves the company money, so they have offset that negative by making the space fun and cool so people aren’t bothered by their lack of space. There are a lot of studies going on right now about productivity and morale related to office space. It’s still early, so I’m not sure anyone has the true answers at this point. Obviously, the continued adoption of technology such as the internet, smartphones and 3-D printing will change the supply chain and use of industrial space, as will the shifting energy landscape and globalization. These items will have a profound impact on the office environment on a rapid and constant basis for many years to come.

Anthony Lydon: The newest industrial trends include 3-D printing, robotics and open source hardware. 3-D printing deposits thin layers of plastics or metals atop the other fabricating a component part and/or finished good. This will have a profound impact on how companies manage their supply chains. For instance, half of typical pharmacy stock can be 3-D printed on-site. The cost of robotic equipment has dropped from +/-$250,000 per machine to $25,000 per machine. Amazon hopes to increase its pick-pack-ship robotics from 1,300 to 10,000 by end of 2014. Finally, open source hardware found in mechanical systems and networking equipment is available to all without reverse engineering need. This will compress the prototyping cycle time and move machine tools to the production line sooner, quicker and faster.

Chuck Vogel: It is becoming easier for the small investor to invest in institutional quality real estate through non-traded and exchange traded REITs. More investment products are coming available for investors that may offer liquidity and yield in the product types they are looking for. I expect you will see these kinds of investment vehicles continuing to grow. There is also an increasing disparity between credit and non-credit cap rates as the investor appetite continues to grow for credit opportunities, which is keeping the credit cap rates low

Harbinger Takes Aim At $1.7B LightSquared Debt Guaranty

By Andrew Scurria

Law360, New York (October 27, 2014, 5:38 PM ET) — Harbinger Capital Partners LLC can expect a decision later this week on its attempt to wipe out a $1.7 billion guaranty claim asserted by a group of secured lenders against the smaller half of LightSquared Inc., the judge handling the gnarled Chapter 11 case said Monday.

Philip Falcones hedge fund, which holds a controlling position in LightSquareds equity, has offered up a Chapter 11 plan that would reorganize the debtors parent entity LightSquared Inc. separately from the LightSquared LP unit where most of its valuable wireless…