Cherrytree Group LLC Blog

....by Warren Kirshenbaum

Acquiring capital for real estate investments is a difficult and daunting task in this weak economy.  The uncertainty of the real estate market has become a strong barrier between investors and real estate developers, leaving developers with very few options for obtaining capital.  The absence of eager/willing investors has prompted real estate developers to seek innovative means of financing.  One attractive source of financing is through foreign investment that is generated through the EB-5 Green Card program.  EB-5 is part of the Immigration Act of 1990 established for the purpose of attracting foreign capital to the United States.  Under this program, 10,000 green cards are set aside every year for qualifying candidates.  A qualified candidate must satisfy three basic requirements in order to be considered for approval.  These basic requirements include 1) establishing a U.S. business or investing in an existing business that was created or structured after November 19, 1990, 2) the foreign national must have invested $1 million in the business or $500,000 when investing in targeted employment areas and 3) the newly created business must create full time employment for 10 U.S. workers for a specified amount of time.  Once these requirements are met, the EB-5 investors must also demonstrate that they, their spouses and their children under the age of twenty-one have resided in the U.S. for two years by means of conditional visas.  

The EB-5 Program promotes the infusion of foreign capital into the American economy. This benefits real estate developers seeking additional investment capital for their projects.  The U.S. developer can obtain financing from the foreign investor in order to commence or complete local development projects.  This is a great opportunity for American developers to secure capital for their projects in an economy where banks are denying loans and U.S. investors are reluctant to invest in new endeavors.  The program not only benefits U.S. developers, but also offers incentives to foreign investors desiring to live out the American dream.  In exchange for the investor’s capital being put to work in the U.S., they receive green cards for themselves and their families as long as all of the program requirements are met.  This is a win-win situation for both the U.S. developer and the foreign investor in achieving their goals of real estate investment/development and expedited permanent residency status, respectively.  

EB-5 applicants invest foreign capital through Regional Centers that have varying investments programs.  The Regional Center may be a state government agency, a corporation or a private venture.  Companies or private entities that are approved EB-5 Regional Centers can directly contact foreign investors who are interested in participating in the immigration program. The Regional Center must verify that the investor’s capital was earned through lawful activity; otherwise it cannot be utilized for the program.  Once all of the required elements are met, the Regional Center can begin the application process for the foreign investor.  Don’t know where there is a regional Center? The Cherrytree Group can help you find one in your area.

At the Cherrytree Group we have extensive knowledge in structuring investments to achieve the optimal return on investment. The EB-5 provides valuable investment to new real estate development projects.

By Kristina Rodriguez, Paralegal

As a result of the BP oil spill this summer, not only was the Gulf Coast victimized, another group of people were affected right here in New England; the BP gas station owners. Although they are affiliated with BP, many of them had no choice in rebranding their gas station with the BP logo due to contractual obligations. As the oil spill continued for days, then weeks and then months, the public became incensed and frustrated by BP’s inability to cap the destructive oil spill.

People wanted to punish BP for what they had done to our coast and began to protest by boycotting local BP gas stations in New England. I myself considered joining the boycotts so that I could personally serve some justice on the oil giant. I am from the Gulf Coast, so this situation hit home and was not just a distant incident that bore no direct relation to me. The news of this monstrous oil spill leaking millions of barrels into “my Gulf” left me utterly devastated. I grew up swimming in those clear aqua green waters and eating the best seafood I had ever tasted. To think that all this would be contaminated for years to come because some oil company refused to stop drilling when pressure levels were unsafe was infuriating! Though I was upset, I realized that if we boycott local BP gas stations, these local station owners who are members of our community will go out of business. Though BP might go bankrupt, this would not help since they would not be able to pay any of their claims. The better way to hold BP accountable for its extreme negligence is to demand compensation for all of the damage they have inflicted on innocent people.

In July I met with one of the local BP gas station owners for the first time. His station was the target of boycotters and sales had dropped significantly. This man, who is now our client, had invested all of his money in this business with the hopes of attaining the American dream and was now faced with losing his livelihood, the means to provide for his family. Because of this I became even more determined to hold BP accountable. I immediately began setting up a claim package on his behalf to submit to BP. Every news article, proof of boycotts, and financial records were gathered to show the direct causation between the oil spill and the gas station’s sudden loss of income. All of these items have been submitted with the hope that BP will approve the claim and compensate the claimant. It is a tedious process that takes time more so now than ever since BP has transferred the claims process to another facility. But The Cherrytree Group believes in giving our clients a voice to exact justice and in holding corporations accountable for their avaricious recklessness. This firm works hard to create and submit claim packages to BP on behalf of our clients in return for just compensation for their losses.

Hopefully this spill has been a wake-up call for all of the oil companies to practice more caution and exercise more safety measures. Their profits were not worth the eleven lives lost and the thousands of lives destroyed.

By Warren Kirshenbaum

In the recent election, Question 2 on the Massachusetts ballot asked whether voters should “repeal the law allowing developers of projects that include low- or moderate-income housing to apply for a single comprehensive permit from a city or town’s zoning board” The law in question is M.G.L. Chapter 40B, which is an expedited permitting statute. Chapter 40B creates an expedited permitting procedure for those developers that include an affordable component to their development. Specifically, in order to receive a permit under 40B, 25% of the housing units to be built must be considered affordable housing. The towns in the Commonwealth that are subject to 40B are those towns whose affordable housing stock does not exceed 10% of their total housing inventory. 40B subjects the Zoning Board to a streamlined procedure greatly reducing the time and cost of the permitting procedure, and limiting the ability of the town to deny the permit.

On Tuesday, November 2nd, Massachusetts voters, in a decisive victory of 58% to 42% voted not to repeal 40B.

This trend in the voting patterns comports with conversations that I had with people, in which it seemed that there was a lot of non-information, and even misinformation on this issue, and as this movement to repeal 40B could resurface again, I am hoping to shed some light on the issue in this post.

The main underlying issue that I sensed is the NIMBY one. Not in My Back Yard is understandable, and is a concern about falling property values and the denigration of a neighborhood when some of the housing is affordable. Declining property values is indeed a fallout of affordable housing, as the financing options discussed below are very favorable to developers or affordable buyers and, therefore, their properties. These affordability factors lower the market value of a single family home, or a multifamily property, and, therefore, affect the comps of other sellers in the area. This effect is a micro-economic effect, and a relatively minor one at that, as lower comps would affect a financing appraisal in small part, and the market value of a sale with even less consequence. In any event, 40B historically has mostly been used for multi-family construction, and 95% of the projects permitted under 40B are multi-family apartment complexes or condos.

Practically speaking, if a condo development were built near your home, whether it was affordable or market-rate your property value and property enjoyment would decline, so this is not an affordable housing, or 40B issue, as much as it is a land-use or urban planning issue.

Secondly, people I spoke to understood 40B to be a financing statute, and assumed that it gave developers funding to pursue their affordable housing projects. 40B is an expedited permitting statute that allows an override of municipal zoning authority to promote affordable housing. It is not a financing statute. There are forms of financing that are available to developers of affordable housing, such as the Federal Low Income Housing Tax Credit, HUD insured mortgages, tax-exempt bonds, Community Block Grants, and other state and federal sources of funding, and developers use these sources of funding once they are permitted, whether pursuant to 40B or otherwise. 40B is not a preamble to these sources of financing.

While realizing that concern over retaining a leafy suburban lifestyle, or holding on to a paper appraisal of a home value may be important to some in the micro-economic sense, it is not a positive economic trend in the big picture that justifies the repeal of a statute such as 40B. Consider this: a community is more than just our home values; it is a collection of individuals, families, homes, stores, houses of worship, and so forth. While we are happy when we see a fire truck scooting off to tame a brush fire near our neighbor’s yard, we would be foolish to attempt to exclude the possibility that the first responders on the fire-truck also be given the opportunity to live among us in our community by creating affordable options here, and not force them to be relegated to living in a far-off town for affordability reasons.

It should also be pointed out since its enactment, 40B has been credited with spurring upwards of 80% of the new development in Massachusetts, and there are several new developments, as well as many ongoing ones that would not have been built, or will not now be completed were 40B to be repealed, or if it didn’t exist in the first place. This construction has created jobs, spending, and economic activity that we rely on for our stability, and, particularly in our economic malaise, we can little afford to repeal a statute that has created such substantial growth and employment.

The Citizens Housing and Planning Association (“CHAPA”), a prominent Massachusetts non-profit that plays a decisive role in encouraging the production and preservation of affordable housing claimed that this vote evidenced the largest victory margin of any ballot campaign. CHAPA claimed that, “over 1.2 million voters and 80% of cities and towns affirmed their support for protecting the affordable housing law for seniors and working families in urban, suburban, and rural communities all across the state.” While this is true, an analysis of the voting results shows that the larger urban centers voted strongly in favor of not repealing 40B, constituting the largest slice of the 16% victory margin, while the voting in many towns was closer than this 16% victory margin suggests. Many towns actually voted in favor of repeal. Cities and towns such as Worcester, Somerville, Quincy, Arlington, Boston, Brockton, Lawrence, New Bedford and Cambridge opposed repealing 40B in large numbers, and they were joined by the suburban bastions of Newton, Needham, Lexington, Brookline, and Milton, which all together carried the NO vote on this question. Significantly, however, there were also several towns that voted to repeal 40B, such as Abington, Amesbury, Billerica, Bridgewater, Sudbury, Stoughton, Wilmington, Westford, Chelmsford, Tewksbury, Walpole, and Canton.

... by Warren Kirshenbaum

It is my opinion that banks really do not have much incentive to lend money. Banks can borrow money from the Fed at rates that approximate zero, and they can then purchase US Treasuries and return a 3 point spread with little to no risk. Accordingly, why would they be willing to incur the time consumption of due diligence, the transaction expenses, and the inherent risk of loaning money to consumers and businesses when they can be profitable borrowing from the Fed, lending to each other, and engaging in hedging transactions. Nevertheless, as their apparent mandate is to take in deposits and then loan those funds out to borrowers while maintaining a reserve of funds to maintain net capital requirements, they need to put some money out to work in loan transactions but their documents, loan covenants, underwriting requirements, equity requirements, and debt-service coverage ratios are very restrictive, and in some cases are either unprofitable for borrowers or are putting businesses in the position of having to run business decisions by their bankers prior to accessing necessary working capital or credit line funding. I have been promoting for some time now that businesses need to create their own sources of funding, in order to decrease their reliance on bank financing, which is fast becoming a scarce resource. Private equity or corporate debt issuance is a viable option in these economic times, and I urge businesses of all sizes and levels of growth and development to formulate a plan to tap their non-bank resources for capital funding.

Interestingly, a midterm election that changes the majority party in Congress, such as the 2010 Midterm elections did can have a profound effect on the business plans of many different types of companies. For example, those businesses that supply the defense industry may find that under a Republican controlled Congress there are more dollars appropriated to defense spending, and will benefit from such a political change. Those businesses that are non-unionized may find that a Democratic Congress or state administration would be more favorable to union labor and open-shop employers may find that the cost of labor would dramatically increase, effectively turning a company’s cash flow upside down. Any of these factors would cause a company to need to seek financing to smooth out the edges while it re-formulates its business plan and carves out new market niches for itself.

My message is that if you are hoping to seek bank financing, you should add to your quiver of options the possibility of raising funds using private equity, or by issuing corporate bonds or debt instruments. As you are setting the terms of the offering or issuance you are in more of a position to control and accept provisions, terms, covenants and this will be beneficial to your business interests, and that will spur, and not hamper or restrict growth. We, as small business people are in need of capital and funding to execute many, if not most of the objectives of our business plans, but the sources of capital have become restrictive, unwieldy, and stifling. It is time to change the terms of this game, and look for alternate sources of funding.

Private Equity as a Banking Alternative ... by Warren Kirshenbaum

Banks are approaching lending practices with a stranglehold mentality.  Not only have underwriting practices tightened since the financial meltdown began in 2007, making it more difficult for businesses to secure financing for their operations and acquisitions, but banks are inserting and enforcing loan covenants that are causing business owners to reevaluate their use of bank financing.  

Recently, potential clients have requested meetings to discuss the possibility of raising private equity in order to pay off existing bank credit facilities, and for use as working capital and for acquisitions.  The necessity to extract one’s banker from becoming an unwitting business partner is an inbred business owner mentality.  Because bank credit facilities sometimes contain loan covenants that require a company to maintain certain pre-determined profit levels, limit a company from accepting new business from a large client, require the maintenance of a high level of raw materials or inventory, and discourage new equipment financing, the successful operation, growth and sustainability of an enterprise is being choked by the banks' credit facilities, rather than such capital acting as a growth engine for business.  It is a paradox for institutions that have existed in principle to provide capital to facilitate entrepreneurial growth and development to be having a restrictive effect on business, but that is the way it has become in today’s economy.  Banks are forcing business owners to convince its banker to fund routine business activities, such as those that result in an increase in business because the banker is concerned that the increased business is coming from one large customer rather than several smaller customers.  Such a discussion is heresy for a business owner --- these are business decisions, not banking decisions!  Moreover, securing financing for acquisitions has also become difficult, and with the economy as it currently is, expansion by companies is more likely through acquisition than it is through job creation.  

Accordingly, private equity is becoming more attractive as a source of funding for many businesses.

Structuring and completing a private equity offering is a complicated, but worthwhile endeavor.  Private offerings are exempt from Federal and State securities laws so long as the issuer (i.e. the company raising the funding) complies with the statutory exemptions of Regulation D of the 1933 Securities Act, and its State counterparts.  Some characteristics of Reg. D offerings are that they are limited in size and investor type; must identify accredited vs. non-accredited investors, and can only include a maximum of 35 non-accredited investors; must fully disclose all salient terms of the offering as well as applicable disclaimer language for forward-looking statements; and cannot use general advertising and solicitation.

The Cherrytree Group and Kirshenbaum Law Offices have extensive experience in advising clients on structuring and completing private equity offerings.   We can assist with many different types of private equity transactions, including mergers and acquisitions, financing and formation of funds, as well as tax and employee benefits. The Cherrytree Group, LLC can provide creative solutions to the most complex issues in evaluating, structuring, negotiating, and consummating private equity transactions.

We deal extensively in "Private Equity Offerings" and realize how mystifying this subject can be.  We'd like to break it down for you here in this blog post.

Investment capital is mostly directed to private equity, meaning societies that are not listed in the open markets. People often compare it with venture capital but that only provides funding to new or recently opened companies. Capital investors get their private equity from the shares of existing shareholders. They can also buy new shares from the company that is issued for those purposes.

Venture capitalists seek to transfer or sell their share in the longer term (3 to 10 years based on the individual economic sector) of capital gains. Their exit can be done little by little, or by selling shares on Wall Street.

We talk about financial guarantees of unlisted firms in a market, hence the term "private equity", as opposed to public equity, which means securities that were subject to listing on a market. Bonds and guarantees of private equity are lower and liquidity because of the greater difficulty in selling is much less important. For this reason, the capital investment uses almost only on private equity, seeking superior performance over the long term. Capital investment using private equity has three branches each one with different characteristics and focus of action:

• Venture capital gives funding almost exclusively to companies that are starting and that have great potential for innovation and use of specific technology. Venture capitalists look for promising projects and although not all of them have the expected success, those who do keep the venture capitalists motivated to find opportunities.
• Development capital: a logical extension of venture capital, capital development focuses on the established companies, with a historical account, a significant size and position on existing markets. The funding is used for internal growth or external company.
• Capital transmission is a type of capital investment where a company would buy the totality of the capital of business that has a prospective future. It also known as leveraged buy-out because the company is basically ceding all their belongings to another one buy they continue to have the old structure and they pay the money back.

Capital returns are capital investments given to companies that have promising futures and that need to restructure their entire operations. These funds are also another form of leveraged buy-out.

To learn more about the opportunities and services that the Cherrytree Group LLC can do for you, call us today.