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Gensler Seeks Larger Budget, Brushes Off Comment Period Criticism

May 23, 2022

At a Congressional appropriations hearing last week SEC Chair Gary Gensler pressed for an 8% budget increase to roughly $2.15 billion, stating: “We should have grown during these past five years. Instead, the opposite happened.” Gensler went on to note that the agency’s headcount of full-time employees has remained flat despite the growth of private funds and registered public entities during that period, according to Politico.

Comment Period Criticism
Republicans insisted at the hearing that the SEC is moving a partisan agenda with complex rulemakings with insufficient time for public comment. While extended comment periods are appreciated, they view the agency as doing too much too quickly, and not focusing on their core responsibilities to protect investors, maintain markets, and facilitate capital formation. 

Rep. Mark Amodei (R-NV) questioned during the hearing whether the rulemaking staff is sufficient to deal with public comments. “If you’ve got about the same [level of] staffing, and the comment periods are less, give me an idea of how you think that dynamic is good for the end product of rulemaking.” Gensler responded that 140 people in the economic unit and 20-30 people in the general counsel office work on these rules and that SEC comment periods of at least 60 days is adequate for public comment.

Crypto Plans
The budget increase would allow the SEC to maintain its current services while adding roughly 250 full-time staff to support areas like digital asset oversight given its plans to require cryptocurrency trading platforms to register with the SEC. Gensler maintained that the platforms are trading securities rather than commodities under the SEC’s definition and should register; “They’re investment contracts. They’re securities. We’re trying to work with the crypto trading platforms to get them registered.”

 The Wall Street Journal reported that the SEC plans to add 20 investigators and litigators to its unit dedicated to cryptocurrency and cybersecurity enforcement, nearly doubling the unit’s size. Gensler said he worries that more investors will be harmed in cryptocurrency markets, after the collapse this month of the TerraUSD stablecoin. “I think a lot of these tokens will fail,” Mr. Gensler told reporters after a House Appropriations Committee panel hearing Wednesday. “I fear that in crypto…there’s going to be a lot of people hurt, and that will undermine some of the confidence in markets and trust in markets writ large.” 

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CREFC Capital Markets Update

May 23, 2022

Hedging Cost Increase Surprises Borrowers
Last week, an article in Bloomberg highlighted the dramatic increase in hedging costs for floating-rate commercial mortgages in recent months. Lenders almost always require that borrowers obtain interest-rate caps on floating-rate loans to protect against debt service payments soaring out of control in a rising rate environment. With the Fed raising rates twice this year with more increases planned, floating-rate indices have surged.

According to Chatham Financial, a risk management advisory firm, the cost for a two-year, 2% interest-rate cap on a $25 million mortgage was $52,000 in January 2022. That same interest rate cap in early May was $535,000, and prices for a similar three-year, 2% cap increased by 4,000%. “Last year, it would be like buying flood insurance for your house in the mountains,” said Chris Moore, a Managing Director at Chatham. “This year, it's sort of like buying flood insurance for your house on the beach as a hurricane is making landfall.”

Borrowers who need to refinance or extend maturities on existing debt may be in for the biggest surprise. “If a mortgage was taken out two years ago, when rates were very low, the cost of the rate cap was nothing,” said Lea Overby, Head of US CMBS Research at Barclays. “Now, it can change a borrower's decision at an inopportune time.”

Interest-rate cap costs will remain high for borrowers in the near term. The Fed is planning on additional half-point increases in June and July, and potentially even September, bringing the federal funds rate to 2.7% by the end of the year, up from less than 1% today. This is reflected in the SOFR forward curve, as shown below.

While the rising rate environment may push some borrowers to lock in fixed-rate financing, others may continue to opt for the flexibility of floating-rate loans. “If you think a recession is coming, then rates will eventually fall,’’ said Lisa Pendergast, Executive Director of the CRE Finance Council. “You may need to contend with higher rates for a period but then may take advantage of lower rates should the economy falter.’’

ARRC Endorses 12-Month SOFR Term Rate
On May 19, the Alternative Reference Rates Committee (ARRC) announced its endorsement of CME Group’s forward-looking 12-month SOFR term rate. The ARRC previously recommended CME Group’s 1-month, 3-month, and 6-month SOFR term rates. However, at the time of that endorsement in July 2021, the CME Group did not produce a 12-month SOFR term rate.

Further supporting the ARRC’s announcement was the continued development of SOFR futures markets. The ARRC notes that 12-month rates are relatively less used and therefore believes that the used of the 12-month SOFR term rate should be primarily for legacy products and in trade or receivables finance.

Macro Volatility Continues to Weigh on Issuance

• Private-Label CMBS and CRE CLOs. Only two private-label transactions priced last week:
  • $609 million CRE CLO and a $761 million conduit transaction.
  • As of May 20, CMBS and CRE CLO issuance stood at $63.1 billion, 32% higher than the same period in 2021 ($47.9 billion).
  • According to BofA Global Research, there are 31 private-label transactions totaling ~$21 billion in the current pipeline consisting of eight conduit, 12 SASB, and 11 CRE CLO transactions. However, if the market volatility continues, it is highly likely that pricing will be delayed and timelines will be extended.
  • Choppy macro conditions, including another sharp selloff in equity markets, led to another week of spread widening in conduit CMBS spreads:
    • Spreads on 10-year super-senior AAA conduit CMBS widened by 2 bps to 128, while AA – A tranches widened by 19 – 24 bps to 215 – 275, and BBB- spreads increased by 29 bps to 515.
    • The conduit transaction that priced last week saw the LCF AAA clear at 136 bps, 8 bps wider than the secondary market level (128 bps).
      
      
• Agency CMBS. Last week saw ~$6 billion in new agency transactions, consisting primarily of Freddie K issuance (~$4 billion) and Fannie DUS (~$1 billion). Total agency issuance reached $74.3 billion for the year-to-date period ended May 20. Agency issuance is down 7% from the same point last year ($80.0 billion).
  • Agency spreads held on and were generally consistent, widening only 2 bps for senior Freddie K and 3 bps for Fannie GeMs bonds.

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Aid for Ukraine, But Not Restaurants During Busy Week

May 23, 2022

Congress completed an active week of negotiations on China competitiveness, aid for Ukraine, baby formula, and responding to the Buffalo shooting. Additional pandemic aid for restaurants failed and demonstrated that more funds for COVID tests, therapeutics, and vaccines may not become available.

U.S. Innovation and Competition Act to Strengthen Supply Chains
Congressional leaders hope to complete House and Senate conference committee negotiations by June 21 on the U.S. Innovation and Competition Act (S.1260). The legislation would strengthen supply chains, improve America’s competitiveness with China, and provide $52 billion in funding to revitalize the U.S. semiconductor manufacturing industry. Speaker Nancy Pelosi said she hopes to have the bill done by July 4 to celebrate “our new independence” from foreign-made microchips. 

Ukraine Aid
On Thursday, the Senate approved $40 billion in aid to Ukraine by an overwhelmingly bipartisan vote of 86-11. The Associated Press reports that the funds include:

• $24 billion for arms, equipment, financing weapons purchases, and paying for American troops deployed in nearby countries,
• $9 billion in direct aid to Ukraine’s government, and
• $5 billion for food to countries reliant on Ukraine’s food production.

Funds also help Ukrainian refugees in the U.S., seize Russian oligarchs’ assets, reopen the U.S. embassy in Kyiv, and prosecute Russian war crimes.

Now $54 billion has been pledged to Ukraine assistance, including $13.6 billion approved earlier this year. The amount is more than what the U.S. spends annually on all military and economic foreign assistance. On Wednesday, the U.S. embassy in Kyiv was reopened and the Senate confirmed Bridget Brink to serve as U.S. ambassador to Ukraine, which has not had a Senate-confirmed ambassador in three years. 

Baby Formula
Congress also approved $28 million in emergency funds to FDA to address the nationwide baby formula shortage and passed legislation to remove restrictions on which formulas can be purchased under the WIC program during a public health emergency or product recall. 

Buffalo Shooting Response
Democrats responded to the racism that allegedly motivated the Buffalo shooter as the House passed the Domestic Terrorism Prevention Act by a vote of 222-203, including just one Republican, retiring Rep. Adam Kinzinger (R-IL). The legislation would create offices within DHS, DOJ, and the FBI focused on domestic terrorism and white supremacy. Gun control advocates recognize that Congress is unable to do more to prevent gun violence, but Senator Chris Murphy (D-CT) thinks Democrats should make gun safety a key part of their 2022 midterm message.

Restaurant Aid
A $48 billion bipartisan bill stalled after a 52-43 vote fell short of 60 votes required to provide additional funds for restaurants, small business, gyms, and music venues still impacted by the pandemic. The legislation would have replenished the pandemic-era Restaurant Relief Fund and provide $2 billion to gyms, $500 million to minor league sports teams, $2 billion for live performing arts venues. The lack of further assistance left restaurant lobbyists seething. SBA had announced that more than 278,000 applications were submitted to the program, but the agency was only able to fund approximately 101,000 of them. 

No Path for COVID Aid
Punchbowl News reports that Democrats on both sides of the Capitol are now skeptical that Congress will pass another round of COVID relief to replenish federal stockpiles of tests, therapeutics, and vaccines. Not enough Republicans support either the $10 billion Senate Republicans previously agreed to or the $22.5 billion Speaker Nancy Pelosi has sought to prepare for future needs. 

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New York – Revised Congressional Map Upsets Democrats

May 23, 2022

Last month, a New York state court rejected the proposed congressional map drawn by the New York State Legislature. In the opinion, the Court rejected the initial map because it heavily favored Democrats and violated the 2014 amendment to the State Constitution, which prohibits gerrymandering in the redistricting process. With this decision, the Court did two things;

1. Moved the Congressional primaries from June 28 to August 23; and
2. Appointed a special court master to redraw the Congressional map.

Last Monday, the new draft Congressional map was released. The new map would create 15 Democratic-leaning seats and five Republican-leaning seats, leaving six seats up for grabs by either party. Democratic lawmakers in Washington did not support the new map because it could pit incumbents against each other and prevent Democrats from picking up more seats upstate. If the map is finalized, as is:

• Longtime lawmakers Rep. Jerry Nadler (D-NY) and Rep. Carolyn Maloney (D-NY) would compete for the newly created 12th district. However, either could potentially run in the newly created 10th district. Both Maloney and Nadler have said they plan to run in the 12th.
• Former NYC Mayor Bill de Blasio (D) announced he is forming an exploratory committee to run in the 10th district.
• Democratic Congressional Campaign Committee Chair Rep. Sean Patrick Maloney (D-NY) announced he would run in the newly created 17th district. Maloney urged current 17th District Rep. Mondaire Jones to move to another district because he would be “ideologically better suited to another district”, which caused Rep. Ritchie Torres (D-NY) to accuse Maloney of “thinly veiled racism” because the newly created 17th has three-quarters of Jones’s current district.
• Maloney’s decision could cause Rep. Jamaal Bowman (D-NY) and Rep. Mondaire Jones (D-NY) to compete against each other for the newly created 16th district.

In the fallout of the new map, the Democratic Congressional Campaign Committee implored the Court last week during the public comment period to reconsider the draft map and have the special court master change the map to prevent unnecessary competition between incumbents. The congressional map for New York is set to be finalized in the coming days. This is an ongoing story that CREFC will continue to monitor.

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Results of North Carolina & Pennsylvania Congressional Primaries

May 23, 2022

At the beginning of May, we highlighted Senate primaries in two battleground states, North Carolina and Pennsylvania. Last week, voters in those states headed to the polls to decide who would run in November’s competitive general elections.

North Carolina
In the North Carolina Republican primary to succeed retiring Senator Richard Burr (R-NC):

• Rep. Tedd Budd (R) won the primary with 58.6% of the vote;
• Former Gov. Pat McCrory (R) finished with 24.6% of the vote;
• Former Rep. Mark Walker (R) finished with 9.2% of the vote.

Over the last few weeks, Republican support centered on Budd, the Trump-endorsed candidate, leaving the establishment candidate McCrory behind. This fall, Budd will face Cheri Beasley (D), who received 81.1% of the vote in the Democratic primary. To view the full results of the North Carolina primaries, click here.

Pennsylvania
In the ultra-competitive Republican primary to succeed retiring Senator Pat Toomey (R-PA), the result is still too close to call:

• Dr. Mehmet Oz (R) received 31.2% of the vote;
• Dave McCormick (R) received 31.1% of the vote;
• Kathy Barnette (R) finished with 24.7% of the vote.

The initial results of last Tuesday’s primary race were close enough to trigger Pennsylvania’s automatic recount law because the separation between Oz and McCormick was inside the 0.5% margin. Currently, Oz leads McCormick by only 1,723 votes. Counties across Pennsylvania will continue to count provisional, overseas and military ballots to certify the election result by tomorrow, May 24.

On the other side of the aisle, the Democratic primary resulted in a different story:

• Lt. Gov. John Fetterman (D) won the primary with 59% of the vote;
• Rep. Conor Lamb (D) finished with 26.3% of the vote;
• State Rep. Malcolm Kenyatta (D) finished with 4.2% of the vote.

Fetterman won the Democratic nomination after surviving a stroke in the days leading up to the primary and is expected to make a full recovery. Democrats are still hopeful that Fetterman will flip the seat come November, despite his recent health issues.

To view the full results of the Pennsylvania primaries, click here.

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Biden Plan to Spur Housing Production, Lower Costs

May 22, 2022

On May 16, the Biden administration released a comprehensive plan to address the current costs of housing, both in single family and multifamily. Some of the provisions are retreads of Build Back Better (BBB) proposals while others combine bipartisan legislative efforts.

The main points of the plan are as follows:

• Reward jurisdictions that have reformed zoning and land-use policies with higher scores in certain federal grant processes.
• Deploy new financing mechanisms to build and preserve more housing where financing gaps currently exist: manufactured housing (including with chattel loans that the majority of manufactured housing purchasers rely on), accessory dwelling units (ADUs), 2-4 unit properties, and smaller multifamily buildings.
• Expand and improve existing forms of federal financing, including for affordable multifamily development and preservation.
• Make ‘Construction to Permanent’ loans (where one loan both finances construction and serves as a long-term mortgage) more widely available by exploring the feasibility of Fannie Mae purchase of these loans;
• Promote the use of state, local, and Tribal government COVID-19 recovery funds to expand affordable housing supply; and
• Reform the Low Income Housing Tax Credit (LIHTC) program, which provides credits to private investors developing affordable rental housing, and the HOME Investment Partnerships Program, which provides grants to states and localities to fund a wide range of housing activities.
• Ensure that more government-owned supply of homes and other housing goes to owners who will live in them – or non-profits who will rehab them – not large institutional investors.
• Work with the private sector to address supply chain challenges and improve building techniques to complete construction in 2022 on the most new homes in any year since 2006.

Immediate Administrative Steps
While some components of the plan will require legislation, the administration included a fact sheet with initiatives that can be accomplished without Congress. Key components include:

• Boosting the supply of affordable rental units
• Relaunching a Treasury and HUD risk sharing program for state housing agencies to provide low-cost capital;
• Raising the GSE equity cap for LIHTC;
• Increasing funding for affordable housing production through the Capital Magnet Fund
• Boosting manufactured housing and 2-4 unit dwellings with expanded financing through Freddie Mac
• Limiting the sale of FHA-insured and HUD-owned single family properties to exclude large investors.
• Leveraging existing federal funds to spur local action, exploring federal levers to help states and local governments reduce exclusionary zoning, and launching learning and listening sessions with local leaders.

GSE Multifamily Construction
Among the components of interest to CREFC members, the Biden plan includes an effort to spur multifamily construction with a GSE program that would allow Fannie Mae or Freddie Mac to purchase construction to permanent loans. While details of the program have yet to be released, the White House plan would envision a single closing for a construction to permanent loan to finance affordable multifamily housing. Note that Ginnie Mae has a longstanding construction loan program via its Ginnie Mae Project loan business line. These fixed-rate loans have a maturity term of 35-40 years, are fully amortizing, and are backed by multifamily, healthcare, and rural housing properties.

CREFC is examining the proposal and working with members to understand the impact on various constituencies.

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Senate Nominee Hearing on Fed and SEC

May 23, 2022

Fed Vice Chair of Supervision and Two SEC commissioners
On May 19, the Senate Banking Committee held a hearing to consider Michael Barr to be vice chairman of supervision for the Federal Reserve Board of Governors. Securities and Exchange Commission nominees Jaime Lizarraga and Mark Uyeda were there too, but lawmakers focused on Barr’s views on a number of issues, including the supplementary leverage ratio (SLR), bank mergers, and climate change.

Climate Change. Sen. Pat Toomey (R-PA) pressed Barr on whether the Fed can use its power to accelerate the transition to a lower carbon economy. Barr responded that the Fed should not be in the business of telling financial institutions which particular sectors they should or should not lend to. In a follow-up question on whether the Fed has authority to use climate-related stress tests to penalize banks for lending to energy companies, Barr said the sole purpose of the Fed’s scenario analysis should be to understand climate-related risk and work with financial institutions on measures to manage that risk.

Sen. Thom Tillis (R-NC) cited a New York Fed research paper that assessed how badly banks’ bottom lines have been affected by weather disasters. He asked if Barr could recall the main takeaways from the report, to which Barr said there hadn’t been any weather events that led to the failure of a bank in the last few decades.

S. 2155. Democrats and Republicans were curious on Barr’s views on S. 2155, a bipartisan law that made modest reforms to Dodd Frank. Ranking Member Toomey, in his opening statement, said that Barr’s previous work raised some questions about his views on financial regulation, such as his strong opposition to S. 2155. Barr said that he supported certain aspects of the bill during its passage, especially the community bank provisions and other protections for veterans and service members

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Study Assesses Cost and Benefits of Climate Disclosures for Issuers and Investors

May 23, 2022

On May 17, ERM, a global sustainability consulting firm, released a study on what U.S. organizations currently spend to measure and manage climate change data and disclosure. Ceres, a non-profit organization that engages with the capital markets on sustainability, and Persefoni, a climate management and accounting platform, commissioned the survey to help inform climate disclosure guidelines and methods being developed across the public and private spheres. 

Estimated Costs
The SEC estimated that an issuer would spend $530,000 following the first year of the proposal’s implementation. The ERM survey found that corporate issuers currently spend $533,000 per year on the proposed climate-related disclosure activities. “This suggests the SEC’s estimated costs closely align with corporate issuers’ current average spend and reflect a realistic assessment of market practice.”

The ERM survey also examined costs related to:

1. Proxy responses to climate-related proposals; and
2. Voluntarily developing low-carbon transition plans, stakeholder engagement, government relations, and the preparation of related disclosures.

When the above costs are added to disclosure-related activities, the survey finds that corporate issuers currently spend an average of $677,000. The survey also found that institutional investors spend an average of $1,333,000 annually to collect, analyze, and report climate data to inform their investment decisions.

According to the survey, the biggest spend items for issuers in terms of average annual cost are:

1. Greenhouse gas (GHG) analysis and/or disclosures ($237,000);
2. Climate scenario analysis and/or disclosure ($154,000); and
3. Internal climate risk management controls ($148,000).

For investors, the biggest cost items are:

1. External ESG ratings, data providers, and consultants ($466,000);
2. In-house and outside counsel, and proxy solicitor analysis of shareholder voting for ballot items ($397,000); and
3. Internal climate-related investment analysis ($335,000).

Potential Benefits
Meeting Customer Demand. The highest-ranked benefit among investor survey respondents was “meet client/customer demands for climate disclosures and related products” followed by “better performance in meeting sustainability, climate, ESG, and SDG goals.” 

Meeting Issuer ESG Goals. In terms of the potential benefits of climate-related disclosures, issuers most often cited “better performance in meeting sustainability, climate, ESG, and sustainable development goals .” Other potential benefits included “better access to data capable of enhancing corporate strategy” and “better relationships/reputation with NGOs, non-profits, and civil society.”

Limited Benefit to Cost of Capital. The survey noted an interesting result related to cost of capital, which ranked as the lowest potential benefit. However, survey authors stated, “While issuer respondents rated this benefit lowest, some ranked it highly, and a correlation was found between spending more on overall climate-related disclosure and recognizing a lower cost of capital. This suggests that issuers spending more on climate-related disclosure may be recognizing additional benefits.”

Survey Scope
Issuer survey results are based on 39 corporate responses, including organizations across a broad range of industry sectors representing a combined market capitalization of at least $3.8 trillion. None of the respondents were Smaller Reporting Companies (SRCs) as defined by the SEC. Investor survey results are based on 35 institutional investor responses representing $7.2 trillion combined assets under management. 

CREFC Developing Response to SEC Proposal
CREFC, via its Sustainability Initiative, is working closely with members on a response to the SEC climate risk disclosure proposal. On May 9, the Securities and Exchange Commission (SEC) announced that it was extending until June 17 the public comment period on the proposed rulemaking to enhance and standardize climate-related disclosures for investors. Given the breadth and depth of the proposal (nearly 500 pages and over 200 questions), CREFC and other industry groups submitted requests in April for an extension of the proposal. Please see here for CREFC’s request for extension and here for the CREFC led joint-trade request. Please contact Sairah Burki if you would like to join this effort.

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CREFC's May 2022 Monthly CMBS Loan Performance Report

April 18, 2022 

CRE Finance Council has released a report on CMBS loan performance for the month of April.*

Key takeaways:

DELINQUENCY RATE CONTINUES DECLINE

• The CMBS delinquency rate reported another downward shift in April, dropping 22 basis points (bps) to 3.5%
• The CMBS delinquency rate has declined in 21 of the last 22 months, rising only in December 2021
• The April reading is the lowest since April 2020 (2.1%) – before the impacts of the pandemic were first reflected in the data
• March’s delinquency rate is 680 bps lower from its peak of 10.3% in June 2020, but still remains elevated relative to pre-pandemic level of 2.2% at year-end 2019
• The pandemic-related CMBS delinquency peak of 10.3% exceeded that reached during the Global Financial Crisis (GFC) of 9.8%. Yet, pandemic delinquencies were quick to reverse course.
• The decline to the current 3.5% delinquency rate took only 22 months whereas the GFC delinquency rate took over six years to match the same decline
• REO asset volume has been significantly more muted during the pandemic than during the GFC. The REO rate amidst the pandemic has remained consistent at ~1%, while the rate following the GFC quickly surpassed 2% (and peaked at 3.6%).
• The sharp declines in delinquent and special serviced loans suggest that pandemic related REO volumes will prove substantially lower than in the GFC

STRONG OVERALL TRENDS IN CMBS LOAN PERFORMANCE

• Overall performance for conduit and SASB CMBS is sound with delinquency rates at 4.9% and 1.4%, respectively
• The same applies for ‘in-foreclosure’ loans and REO assets at a combined 2.7% for conduit and 0.7% for SASB
• Total specially serviced loan rates are also low at 7.1% for conduit and 2.6% for SASB
• The outperformance of SASB CMBS is due primarily to the institutional-quality assets and sponsorship associated with larger loans and the heightened capital liquidity of the borrowers and thus their ability to withstand the cash-flow deficits caused by the pandemic

SPECIAL SERVICING RATE NOTCHES YET ANOTHER LARGE DECLINE

• Continued Decline in Special Servicing Volume: Loans in special servicing fell 36 bps to 5.3% in April, the 19th consecutive monthly decline, and down from a high of 10.5% in September 2020
• Hotel loans led the way, decreasing 190 bps to 9.0%
• Currently ~$31 billion of specially serviced loans vs. ~$14 billion at year-end 2019
• De-Minimis In-Foreclosure and REO Loans: The high percentage of loans in special servicing over two years into the pandemic suggest in-foreclosure and REO rates should be much higher; yet, they remain low at 1.2% and 0.8%, respectively
• Low rates reflect forbearances by special servicers as reported in watchlist data, special servicer comments
• According to BofA Global Research, as of April 2022:
• 472 loans across 287 conduit deals had delinquency statuses of in-foreclosure or REO
• 281 loans across 205 conduit transactions mentioned foreclosure/dual tracking in the servicer commentary
• ~41% backed by retail properties and ~29% hotel properties; 2014 and 2015 vintage loans most impacted
• Servicers do not expect rates to spike even as most, if not all, moratoriums have been lifted. Servicers continued to report loans as ‘in-foreclosure’ if that was a strategy they planned to pursue once the moratoriums had ceased.
• Yet, while liquidations currently remain very low, we anticipate these levels to rise as servicers work through the inventory of loans with foreclosure or REO statuses

*Source: Trepp. CMBS data in this report reflect a total outstanding balance of $639.7 billion: 61.7% ($394.9B) conduit CMBS, 38.3% ($244.8B) single-asset/single-borrower (SASB) CMBS.

Click here to download the full report. Contact Raj Aidasani for more information on CMBS loan performance.

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