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CMBS and the Real Estate Lawyer 2015: Lender and Borrower Issues in the Capital Markets

 
Author(s): Joseph Philip Forte, Meredith J. Kane
Practice Area: Banking, Corporate & Securities, Real Estate
Published: Feb 2015
PLI Item #: 58093
CHB Spine #: N627

Joe Forte is a partner in the firm’s New York office.  He has substantial experience in commercial real estate capital markets and finance with a particular emphasis on the origination, structuring, workout and enforcement of commercial mortgage loans.

Mr. Forte’s experience includes permanent, bridge and construction mortgage lending; mezzanine finance; pari-passu and subordinate debt; co-lending and participation arrangements; loan sales and purchases; loan workouts, foreclosures and restructurings; and environmental risk management for lenders.  He regularly advises lenders and investors on mortgage banking, doing business, licensing, usury, federal preemption and investment authority as well as secondary mortgage and capital markets issues.

Mr. Forte has been at the forefront of many major innovations in the real estate finance industry for nearly 40 years.  He was involved in the early development of the secondary and securitization markets for residential, multifamily and commercial mortgages and, in 1988, he developed the program and loan documents for the first commercial mortgage loan conduit and other early standardized conduit programs, loan documents and flow purchase programs.

Representative Experience

Mr. Forte represents traditional portfolio lenders as well as special servicers in CMBS transactions, whether as stand-alone transactions or in complicated capital stacks involving senior mortgage debt, subordinate B-notes or mezzanine debt with intercreditor, participation and co-lender arrangements.  Through six real estate downturns beginning with the failure of the early mortgage REITS in the mid-‘70s, the interest rate spike and disintermediation crisis in the late ‘70s and early ‘80s, the partnership syndication crisis subsequent to the adoption of the 1986 U.S. Tax Code, the savings and loan crisis and the RTC workouts in the early ‘90s, the market disruption after the Asian Flu crisis in August 1998 and the most recent financial crisis, he has dealt with a wide array of disparate issues in resolving problem loans with the support of experienced partners in litigation, bankruptcy, corporate banking and tax practices.

In the past he has also advised FNMA and FHLMC on a variety of issues.  He has also represented the nation’s commercial real estate finance industry in the development of the ASTM’s original environmental risk assessment standards; with others in the adoption of the 1994 Bankruptcy Code amendments; as principal draftsman of the Capital Consortium’s Capital Markets Ratable Mortgage form; in defeating the American Land Title Association’s original creditors’ rights exception to its title insurance policies across the U.S.; in obtaining the New York state tax authorities’ acceptance of CMBS defeasance as well as the use of consolidated mortgage notes in commercial mortgage transactions in New York; with others in the drafting of a standard co-lending agreement for the Life Insurance Company Task Force of the Mortgage Bankers Association (MBA); as amicus curia in the GGP and ESH bankruptcies; as a draftsman in the CMBS industry effort to establish standard mandatory non-binding mediation procedures governing mortgage putbacks for representation and warranty breaches in CMBS transactions.

Honors and Awards

Mr. Forte has been recognized as a leading real estate finance practitioner in national and international surveys.  Since 2004, he has regularly been highlighted by Chambers USA for his real estate practice and has been hailed as “a legend” “who is at the top of his game.”  “He is someone who everyone truly respects.”  Chambers USA stated that Joe is “a highly experienced and respected real estate finance specialist.  He has notable expertise on the structuring, origination and workout of commercial mortgage loans.”  The Legal 500 United States has also recommended Mr. Forte for his real estate practice.

He has been recognized annually by The International Who’s Who of Real Estate Lawyers as one of the top 10 most highly regarded lawyers and from 2010 to 2013 as “Global Real Estate Lawyer of the Year.”  He was featured in the Real Estate chapter of the inaugural Who’s Who Legal: Thought Leaders 2017.  In 2013, he was one of only two attorneys recognized among 30 executives in Commercial Property Executives’ “Most Influential People in Real Estate” feature celebrating those central to driving growth and innovation in the commercial real estate recovery.  He has been recognized in the Euromoney Guides to the World’s Leading Real Estate Lawyers, Structured Finance and Securitization Lawyers, and Banking Finance and Transactional Lawyers; and as “Highly Recommended” by PLC Corporate Real Estate Leading Lawyers Guide.  Mr. Forte is regularly chosen as a Super Lawyer in New York and is listed in The Best Lawyers in America©.  He has also been the recipient of several “Best Article” awards from several legal and industry publications.

In 2001 Mr. Forte received the CRE Finance Council’s Founders Award for his leadership and in 1999, the Distinguished Service Award from the Mortgage Bankers Association for “years of volunteer service, work, commitment and outstanding leadership.”

Memberships and Associations

Anglo-American Real Property Institute, Member, 1993-present
New York State Bar Association, Real Property Section
ABA Real Property, Trust and Estate Law Section
New York City Bar Association, Real Property Committee, Former Member
American College of Real Estate Lawyers, Fellow, 1988-present
American College of Mortgage Attorneys, Fellow, 1996-present
Real Estate Roundtable and its Real Estate Credit Policy Advisory Committee, Member, 1991-present
Mortgage Bankers Association, Member, 1985-present
Commercial Real Estate Finance Council (formerly known as CMSA), Member, 1994-present

Professional Activities

CRE Finance World Magazine, Founder and Publisher, 1999-present.

Getting the Deal Through, published by Real Estate Law Business Research, Contributing Editor, 2014-present.

Anglo-American Real Property Institute, Chair, 2015.

Commercial Real Estate Finance Council (formerly known as CMSA), President, 1998-1999.

Served as Chair of various committees of bar and real estate industry associations.

Publications

“IRS Treatment Of ‘Bad Boy’ Guarantees Brings Uncertainty,” Law360, March 3, 2016, co-author.

“Global Overview: The Globalization of Property Investment,” Getting the Deal Through – Real Estate 2016, Law Business Research, 2016.

United States Chapter, Getting the Deal Through – Real Estate 2016 , Law Business Research, 2016.

“Global Overview: the Shifting Landscape of Capital Sources for Property Investment,” Getting the Deal Through – Real Estate 2015, Law Business Research, 2015.

United States Chapter, Getting the Deal Through – Real Estate 2015, Law Business Research, 2015.

“Global Overview:  Government Intervention in Property Investment and the Impact of Demographic Change,” Getting the Deal Through – Real Estate 2014, Law Business Research, 2014.

“The Reality of CMBS Risk Retention: A Real Solution or Just Another Illusion?,” Probate & Property, Sept/Oct 2012.

“Topsy-Turvey: The World of Commercial Real Estate Finance Turned Upside Down,” Bloomberg BNA Real Estate Law & Industry Report, March 20, 2012.

Chapter 38 – USA International Comparative Legal Guide To Real Estate 2012 Global Legal Group, 2012.

“CMBS Risk Retention: How to Make it a Market Reality Rather than an Illusion,” BNA Real Estate Law and Industry, April 2011.

“Disruption in the Capital Markets: What Happened?,” Probate & Property, Sept/Oct 2009.

“The GGP Bankruptcy So Far: Grounds for Concern, Sources for Hope,” CRE Finance World, Summer 2009.

Client Advisories

IRS Withdraws Controversial Pronouncement on ‘Bad Boy’ Guarantees,” April 21, 2016.

IRS Pronouncement On ‘Bad Boy’ Guarantees Challenges Well-Established Tax Treatment of Real Estate Investors,” February 25, 2016.

Speaking Engagements

“Macro-Economic Viewpoint 2017: Is the Bubble About to Burst?,” IMN Borrower & Investor Forum on Real Estate Mezzanine Financing & Subordinated Debt, New York, NY, November 1, 2016.

Program Chair, “CMBS and the Real Estate Lawyer,” PLI, February 2015, to be reprised in 2016.

Global Legal Panel for IBA and MIPIM in Cannes, France, March 2015.

Global Legal Panel for IBA and MIPIM in Cannes, France, March 2014.

“Non-Recourse Financing after Cherryland” at ACREL and ACMA and several other venues in 2012 and 2013.

Several Webinars for ABA and others on different topics, 2010 – 2015.

Bar Admissions

New York, 1974

Court Admissions

U.S. Court of Appeals – Second Circuit
U.S. District Court – Southern District of New York

Education

St. John’s University School of Law
J.D., cum laude, 1973
Managing Editor, St. John’s Law Review and The Catholic Lawyer
St. Thomas More Scholar

St. Francis College
B.A., magna cum laude, 1969
Franciscan Scholar


Co-Chair of the Paul, Weiss Real Estate Department and a member of the firm’s Management Committee, Meredith J. Kane regularly represents developers, equity investors, institutional and entrepreneurial owners and government agencies in all aspects of development, finance, acquisitions and sales, equity joint ventures, restructuring, leasing and securitization of real estate.

EXPERIENCE

Ms. Kane’s experience includes all aspects of the finance and development of complex public/private joint venture projects including:

  • the long-term lease acquisition of New York’s World Trade Center complex;
  • the development of MTA’s 26-acre Hudson Yards on Manhattan’s far west side for over six million square feet of office space and 5,000 residential units; and of Atlantic Yards in Brooklyn for a sports arena and up to 16 residential and commercial buildings;
  • the representation of the Stuyvesant Town/Peter Cooper Village Tenants Association in the ownership and debt restructuring of the 11,000-unit residential complex;
  • the transaction between the City of New York and Cornell University and Technion–Israel Institute of Technology to develop a world-class Engineering and Applied Sciences graduate school in New York City;
  • the development and financing of New York Wheel, a 630-foot high observation wheel to overlook New York Harbor and the New York skyline on land leased from the City of New York in St. George, Staten Island;
  • the representation of Time Warner, Inc. in its program to relocate up to four million square feet of corporate office space in the New York area;
  • the retail redevelopment and historic restoration of Grand Central Terminal;
  • the development and securitized financing of Brooklyn Renaissance Plaza and the Marriott at the Brooklyn Bridge, a 1.2 million square foot office and hotel complex in downtown Brooklyn;
  • the development and financing of Avalon Chrystie Place, a 5-building, 720-unit housing, retail and community facility development in Manhattan’s Cooper Square area;
  • the development and financing of the 76-story Trump World Tower luxury condominium; the development and financing of over 5 million square feet of major mixed-use retail and residential projects in Flushing, Queens;
  • the development of multiple new facilities for City University of New York, including a new headquarters, new building for Silberman School of Social Work at Hunter College, and new academic facilities for CUNY senior colleges;
  • the acquisition, development and financing of multiple new facilities for North Shore-LIJ Health System, including medical offices, hospital facilities, and administrative headquarters;
  • the development and financing of major proposed new and expanded cultural venues, including the Park Avenue Armory, New York City Opera, New York Public Library, Brooklyn Academy of Music, Poets House, and Little Shubert Theatre;
  • the redevelopment of nine historic theaters in the 42nd Street Development Project;
  • the development and financing of a new arena for the Miami Heat basketball team; and
  • the development and financing of numerous office, residential and mixed-use complexes throughout all boroughs of New York City and the New York region.

She has represented Avalon Bay Communities, The Lefrak Organization, Vornado Realty Trust, Time Warner, Inc., Muss Development Company, Daewoo Corporation, the Metropolitan Transportation Authority, Rockefeller Group Development Corporation, Carnival Corporation, City University of New York, and others in major real property acquisitions, sales, financings and developments.

Ms. Kane has received numerous honors and awards for her work. She was honored as the 2009 Woman of the Year by WX - New York Women Executives in Real Estate, and was named one of the Top 50 Women in Real Estate and one of 25 Current Leaders in the Industry by Real Estate Weekly and The Association of Real Estate Women. Euromoney Legal Media Group named her Best in Real Estate at the 2012 inaugural Americas Women in Business Law Awards and Grid Magazine named her one of the top 10 American women in real estate development. Most recently, Commercial Observer profiled Ms. Kane as part of New York’s Most Powerful Real Estate Attorneys, an accompaniment to its 2015 Power 100 list.

Ms. Kane is also cited by multiple legal directories as one of the leading real estate lawyers in the United States. In Chambers USA 2015, sources describe her as “terrific” and a “problem solver.” She is recognized for advising Rockefeller Group Development Corporation on the financing and development of the Flushing Commons Project. Ms. Kane is also recognized in Who’s Who Legal USA, The Legal 500, The Best Lawyers in America and numerous other peer-review publications. She is a member of the American College of Real Estate Lawyers.

Ms. Kane served as a commissioner of the New York City Landmarks Preservation Commission from 1995 to 2004. She was a member of the World Trade Center Memorial Center Advisory Committee. She was a lead official from 1985-87 of the New York City Department of Housing Preservation and Development in charge of the planning and development of 8,000 new housing units, and a City Planning official for the City of New Haven from 1977-79 in charge of mixed-use retail and commercial districts. She is a regular speaker at professional forums on real estate development and finance, and she also contributes to The Real Estate Law Review, an international legal reference publication covering developments in real estate law in 33 countries. She serves on the Executive Committee of the Avenue of the Americas Association (Chair, 1999-2007), and is a member of the Real Estate Board of New York, WX-Women Executives in Real Estate, the New York Women’s Forum, the ULI-Urban Land Institute, the Forum for Urban Design and the Association of the Bar of the City of New York (former Chair, Economic Development Subcommittee). She serves on the boards of several civic and not-for-profit organizations.

PRACTICES

Real Estate

EDUCATION

J.D., Harvard Law School, 1982
cum laude

B.A., Yale College, 1976
magna cum laude

RECOGNITIONS

Euromoney Legal Media Group – “Best in Real Estate” Americas Women in Business Law Awards

Real Estate Weekly
“Top 50 Women in Real Estate” and “25 Current Leaders in the Industry”

Grid “Top 10 American Women in Real Estate Development”

Commercial Observer “New York’s Most Powerful Real Estate Attorneys”

Chambers USA

Who’s Who Legal USA

The Legal 500

The Best Lawyers in America

Member, American College of Real Estate Lawyers