Attached files
file | filename |
---|---|
EX-32 - EXHIBIT 32 - Winthrop Realty Liquidating Trust | c13978exv32.htm |
EX-21 - EXHIBIT 21 - Winthrop Realty Liquidating Trust | c13978exv21.htm |
EX-31 - EXHIBIT 31 - Winthrop Realty Liquidating Trust | c13978exv31.htm |
EX-24 - EXHIBIT 24 - Winthrop Realty Liquidating Trust | c13978exv24.htm |
EX-23.2 - EXHIBIT 23.2 - Winthrop Realty Liquidating Trust | c13978exv23w2.htm |
EX-23.1 - EXHIBIT 23.1 - Winthrop Realty Liquidating Trust | c13978exv23w1.htm |
EX-10.19 - EXHIBIT 10.19 - Winthrop Realty Liquidating Trust | c13978exv10w19.htm |
EX-10.20 - EXHIBIT 10.20 - Winthrop Realty Liquidating Trust | c13978exv10w20.htm |
10-K - FORM 10-K - Winthrop Realty Liquidating Trust | c13978e10vk.htm |
Exhibit 99.1
Lex-Win Concord LLC
Consolidated Financial Statements
For the Period from January 1, 2010 to August 26, 2010 (Dissolution),
and the Years Ended December 31, 2009 and December 31, 2008
and the Years Ended December 31, 2009 and December 31, 2008
LEX-WIN CONCORD LLC
Index to Consolidated Financial Statements
Report of Independent Registered Public Accounting Firm |
1 | |||
Consolidated Balance Sheet at December 31, 2009 |
2 | |||
Consolidated Statements of Operations for the Period from January 1, 2010 to August 26,
2010 (Dissolution) (Unaudited) and the Years Ended December 31, 2009 and 2008 |
3 | |||
Consolidated Statements of Comprehensive Loss for the Period from January 1, 2010 to
August 26, 2010(Dissolution) (Unaudited) and the Years Ended December 31, 2009 and 2008 |
4 | |||
Consolidated Statements of Changes in Members Capital for the Period from January 1,
2010 to August 26, 2010 (Dissolution) (Unaudited) and the Years Ended December 31, 2009
and 2008 |
5 | |||
Consolidated Statements of Cash Flows for the Period from January 1, 2010 to August 26,
2010 (Dissolution) (Unaudited) and the Years Ended December 31, 2009 and 2008 |
7 | |||
Notes to Consolidated Financial Statements |
9 |
Report of Independent Registered Public Accounting Firm
To the Members of Lex-Win Concord LLC:
In our opinion, the accompanying consolidated balance sheets and the related consolidated
statements of operations, comprehensive income, changes in members capital and cash flows present
fairly, in all material respects, the financial position of Lex-Win Concord LLC and its
subsidiaries at December 31, 2009 and 2008, and the results of their operations and their cash
flows for the years then ended in conformity with accounting principles generally accepted in the
United States of America. These financial statements are the responsibility of the Companys
management. Our responsibility is to express an opinion on these financial statements based on our
audits. We conducted our audits of these statements in accordance with the standards of the Public
Company Accounting Oversight Board (United States). Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence supporting the
amounts and disclosures in the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our opinion.
As discussed in Note 4 to the consolidated financial statements, the Company changed the manner in
which it accounts for non-controlling interests and other-than-temporary impairment of available
for sale securities in 2009.
The accompanying financial statements have been prepared assuming that the Company will continue as
a going concern. As discussed in the financial statements, the Company has suffered losses from
operations and is in violation of certain debt covenants that raise substantial doubt about its
ability to continue as a going concern. Managements plans in regard to these matters are also
discussed in the financial statements. The financial statements do not include any adjustments that
might result from the outcome of this uncertainty.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
February 19, 2010
Boston, Massachusetts
February 19, 2010
1
LEX-WIN CONCORD LLC
CONSOLIDATED BALANCE SHEET
(In thousands)
December 31, | ||||
2009 | ||||
Assets: |
||||
Cash and cash equivalents |
$ | 747 | ||
Restricted cash |
25,369 | |||
Real estate debt investments, net of allowance for loss |
447,270 | |||
Real estate debt investments held for sale, at fair value |
66,311 | |||
Available for sale securities, net |
83,977 | |||
Interest and other receivables |
1,756 | |||
Deferred financing costs, net of accumulated amortization |
5,306 | |||
Real estate properties held for sale |
3,634 | |||
Other assets |
138 | |||
Total assets |
$ | 634,508 | ||
Liabilities and Members Capital: |
||||
Liabilities: |
||||
Repurchase agreements |
$ | 135,064 | ||
Revolving credit facility |
58,850 | |||
Collateralized debt obligations |
347,525 | |||
Collateral support obligation |
9,757 | |||
Sub-participation obligation |
4,500 | |||
Liabilities of discontinued operations |
142 | |||
Other liabilities |
14,056 | |||
Note payable to related parties |
| |||
Total liabilities |
569,894 | |||
Non-controlling redeemable preferred interest: |
||||
Non-controlling redeemable preferred interest |
5,720 | |||
Total non-controlling redeemable preferred interest |
5,720 | |||
Members Capital: |
||||
Lex-Win Concord LLC members capital |
113,928 | |||
Accumulated other comprehensive loss |
(55,148 | ) | ||
Total Lex-Win Concord LLC members capital |
58,780 | |||
Non-controlling equity interest |
114 | |||
Total members capital |
58,894 | |||
Total liabilities and members capital |
$ | 634,508 | ||
The accompanying notes are an integral part of these consolidated financial statements.
2
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF OPERATIONS
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands)
(Unaudited) | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Income: |
||||||||||||
Interest income on real estate debt
investments and available for sale securities |
$ | 17,930 | $ | 38,948 | $ | 71,307 | ||||||
Realized gain on sale of real estate debt investments |
7,760 | | | |||||||||
Total income |
25,690 | 38,948 | 71,307 | |||||||||
Expenses: |
||||||||||||
Interest |
9,581 | 17,335 | 36,410 | |||||||||
Provision for loss on real estate debt investments |
106,150 | 80,620 | 31,053 | |||||||||
Realized loss on sale of real estate debt investments |
2,407 | 9,606 | | |||||||||
Impairment loss on real estate debt investments held for sale |
| 101,027 | | |||||||||
Realized loss on sale of real estate debt investments held for sale |
| 17,566 | | |||||||||
Other-than-temporary impairment losses on available-for-sale securities |
||||||||||||
Gross impairment losses |
3,874 | 29,770 | 65,905 | |||||||||
Less: Impairments recognized in other comprehensive losses |
| (13,468 | ) | 7,927 | ||||||||
Net impairment losses recognized in earnings |
3,874 | 16,302 | 73,832 | |||||||||
Realized loss on sale of available for sale securities |
| 5,074 | | |||||||||
Fees and expenses paid to related party |
470 | 1,108 | 1,637 | |||||||||
Collateral support expense |
319 | 9,757 | | |||||||||
General and administrative |
1,754 | 4,604 | 3,187 | |||||||||
Total expenses |
124,555 | 262,999 | 146,119 | |||||||||
Other income: |
||||||||||||
Interest income on bank deposits |
6 | 7 | 426 | |||||||||
Gain on extinguishment of debt |
| | 15,603 | |||||||||
Total other income |
6 | 7 | 16,029 | |||||||||
Loss from continuing operations |
(98,859 | ) | (224,044 | ) | (58,783 | ) | ||||||
Discontinued operations: |
||||||||||||
Loss from discontinued operations |
(971 | ) | (959 | ) | | |||||||
Total discontinued operations |
(971 | ) | (959 | ) | | |||||||
Consolidated net loss |
(99,830 | ) | (225,003 | ) | (58,783 | ) | ||||||
(Income) loss attributable to the non-controlling redeemable
preferred interest |
4,585 | 68,709 | (1,619 | ) | ||||||||
Income attributable to the non-controlling interest |
(8 | ) | (12 | ) | (12 | ) | ||||||
Net loss attributable to Lex-Win Concord LLC |
$ | (95,253 | ) | $ | (156,306 | ) | $ | (60,414 | ) | |||
The accompanying notes are an integral part of these consolidated financial statements.
3
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands)
(Unaudited) | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Consolidated net loss |
$ | (99,830 | ) | $ | (225,003 | ) | $ | (58,783 | ) | |||
Other comprehensive income (loss): |
||||||||||||
Unrealized gain (loss) on cash flow hedges |
(4,486 | ) | 10,668 | (20,200 | ) | |||||||
Unrealized gain (loss) on available for sale securities |
5,774 | (29,770 | ) | (65,905 | ) | |||||||
Reclassification of unrealized loss to impairment loss |
| 16,302 | 73,832 | |||||||||
Other comprehensive loss |
1,288 | (2,800 | ) | (12,273 | ) | |||||||
Comprehensive loss |
(98,542 | ) | (227,803 | ) | (71,056 | ) | ||||||
Comprehensive income attributable to non-controlling interest |
(8 | ) | (12 | ) | (12 | ) | ||||||
Comprehensive (income) loss attributable to non-controlling
redeemable preferred interest |
4,585 | 68,709 | (1,619 | ) | ||||||||
Comprehensive loss attributable to
Lex-Win Concord LLC |
$ | (93,965 | ) | $ | (159,106 | ) | $ | (72,687 | ) | |||
The accompanying notes are an integral part of these consolidated financial statements.
4
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF CHANGES IN MEMBERS CAPITAL
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands)
Accumulated | ||||||||||||||||||||
Other | Non- | |||||||||||||||||||
Comprehensive | Controlling | |||||||||||||||||||
Winthrop | Lexington | Income (Loss) | Interest | Total | ||||||||||||||||
Balance at December 31, 2007 |
$ | 163,851 | $ | 163,851 | $ | (16,781 | ) | $ | 102 | 311,023 | ||||||||||
Contributions from Members |
5,087 | 5,087 | | | 10,174 | |||||||||||||||
Distributions to Members |
(14,600 | ) | (14,600 | ) | | | (29,200 | ) | ||||||||||||
Net income allocated to
non-controlling interests |
| | | 12 | 12 | |||||||||||||||
Distributions to non-
controlling interests |
| | | | | |||||||||||||||
Unrealized loss on cash
flow hedges |
| | (20,200 | ) | | (20,200 | ) | |||||||||||||
Unrealized gain on available
for sale securities |
| | 7,927 | | 7,927 | |||||||||||||||
Net income allocation |
(30,207 | ) | (30,207 | ) | | | (60,414 | ) | ||||||||||||
Balance at December 31, 2008 |
124,131 | 124,131 | (29,054 | ) | 114 | 219,322 | ||||||||||||||
Adjustment to opening balance
for cumulative effect of adopting
new accounting method |
11,647 | 11,647 | (23,294 | ) | | | ||||||||||||||
Net income allocated to
non-controlling interests |
| | | 12 | 12 | |||||||||||||||
Contributions from Members |
118 | 118 | | | 236 | |||||||||||||||
Distributions to Members |
(779 | ) | (779 | ) | | | (1,558 | ) | ||||||||||||
Distributions to non-
controlling interests |
| | | (12 | ) | (12 | ) | |||||||||||||
Unrealized gain on cash
flow hedges |
| | 10,668 | | 10,668 | |||||||||||||||
Unrealized loss on available
for sale securities |
| | (13,468 | ) | | (13,468 | ) | |||||||||||||
Net loss allocation |
(78,153 | ) | (78,153 | ) | | | (156,306 | ) | ||||||||||||
Balance, December 31, 2009 |
56,964 | 56,964 | (55,148 | ) | 114 | 58,894 | ||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
5
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF CHANGES IN MEMBERS CAPITAL
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands, Continued)
Accumulated | ||||||||||||||||||||
Other | Non- | |||||||||||||||||||
Comprehensive | Controlling | |||||||||||||||||||
(Unaudited) | Winthrop | Lexington | Income (Loss) | Interest | Total | |||||||||||||||
Balance at December 31, 2009 |
56,964 | 56,964 | (55,148 | ) | 114 | 58,894 | ||||||||||||||
Net income allocated to
non-controlling interests |
| | | 8 | 8 | |||||||||||||||
Distributions to non-
controlling interests |
| | | (12 | ) | (12 | ) | |||||||||||||
Unrealized loss on cash
flow hedges |
| | (4,486 | ) | | (4,486 | ) | |||||||||||||
Unrealized gain on available
for sale securities |
| | 5,774 | | 5,774 | |||||||||||||||
Net loss allocation |
(47,627 | ) | (47,626 | ) | | | (95,253 | ) | ||||||||||||
Dissolution adjustment |
(9,337 | ) | (9,338 | ) | 53,860 | (110 | ) | 35,075 | ||||||||||||
Balance, August 26, 2010 |
$ | | $ | | $ | | $ | | $ | | ||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
6
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands)
(Unaudited) | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Cash flows from operating activities: |
||||||||||||
Consolidated net income (loss) |
$ | (99,830 | ) | $ | (225,003 | ) | $ | (58,783 | ) | |||
Adjustments to reconcile net income (loss) to cash provided
by operating activities |
||||||||||||
Amortization and accretion of interest |
(1,270 | ) | (4,866 | ) | (7,686 | ) | ||||||
Amortization of deferred financing costs |
1,634 | 1,945 | 1,469 | |||||||||
Impairment loss on available for sale securities |
3,874 | 16,302 | 73,832 | |||||||||
Provision for loss on real estate debt investments |
106,150 | 80,620 | 31,053 | |||||||||
Impairment loss on real estate debt investments held for sale |
| 101,027 | | |||||||||
Realized loss on sale of real estate debt investments |
1,187 | 9,606 | | |||||||||
Realized loss on sale of real estate debt investments held for sale |
1,220 | 17,566 | | |||||||||
Realized loss on sale of available for sale securities |
| 5,074 | | |||||||||
Realized loss on sale of real estate properties held for sale |
708 | | | |||||||||
Realized gain on sale of investments held for sale |
(2,130 | ) | | | ||||||||
Realized gain on available for sale securities |
(1,323 | ) | | | ||||||||
Realized gain on sale of real estate debt investments |
(4,307 | ) | | | ||||||||
Gain on extinguishment of debt |
| | (15,603 | ) | ||||||||
Changes in operating assets and liabilities: |
||||||||||||
Interest and other receivables |
250 | 1,842 | 1,579 | |||||||||
Other assets |
104 | (36 | ) | 455 | ||||||||
Other liabilities |
(527 | ) | (904 | ) | 442 | |||||||
Liabilities of discontinued operations |
(90 | ) | 142 | | ||||||||
Collateral support obligation |
319 | 9,757 | | |||||||||
Net cash provided by operating activities |
5,969 | 13,072 | 26,758 | |||||||||
Cash flows from investing activities: |
||||||||||||
Proceeds from sale of real estate debt investments |
9,888 | 18,817 | | |||||||||
Proceeds from sale of real estate debt investments held for sale |
70,038 | 86,481 | | |||||||||
Proceeds from sale of available for sale securities |
2,868 | 3,670 | | |||||||||
Proceeds from sale of real estate properties held for sale
discontinued operations |
| 6,721 | | |||||||||
Purchase of real estate debt investments |
| | (14,534 | ) | ||||||||
Funding of commitments on real estate debt investments |
| (1,714 | ) | | ||||||||
Real estate debt investments repaid |
| 30,168 | 78,496 | |||||||||
Available for sale securities purchased |
(13,562 | ) | (6,856 | ) | | |||||||
Real estate debt investments purchased |
(3,000 | ) | ||||||||||
Available for sale securities repaid |
296 | 3,935 | 5,296 | |||||||||
Change in restricted cash |
13,112 | (22,550 | ) | 2,770 | ||||||||
Net cash provided by investing activities |
79,640 | 118,672 | 72,028 | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
7
LEX-WIN CONCORD LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
For the Period from January 1, 2010 to August 26, 2010 (Dissolution) and the
Years Ended December 31, 2009 and 2008
(In thousands)
(Unaudited) | ||||||||||||
2010 | 2009 | 2008 | ||||||||||
Cash flows from financing activities: |
||||||||||||
Proceeds from related party notes payable |
$ | | $ | 8,360 | $ | 20,000 | ||||||
Repayment of related party notes payable |
| (18,360 | ) | (10,000 | ) | |||||||
Repayments on repurchase agreements |
(71,627 | ) | (105,540 | ) | (231,720 | ) | ||||||
Proceeds from revolving line of credit facility |
| | 80,000 | |||||||||
Repayment of revolving credit facility |
(20,801 | ) | (21,150 | ) | | |||||||
Payment to terminate derivative contract |
| (8,221 | ) | | ||||||||
Payment on collateralized debt obligation |
| | (13,111 | ) | ||||||||
Proceeds from sub-participation arrangement |
| 4,500 | | |||||||||
Payment of deferred financing costs |
| (87 | ) | (1,401 | ) | |||||||
Distributions to non-controlling redeemable preferred interest |
| (3,152 | ) | | ||||||||
Distributions to non-controlling interests |
(12 | ) | (12 | ) | (1,178 | ) | ||||||
Distribution to members |
| (1,240 | ) | (29,200 | ) | |||||||
Distribution to members upon liquidation |
(3,416 | ) | | | ||||||||
Contributions from non-controlling redeemable preferred interest |
9,500 | 1,354 | 76,000 | |||||||||
Contributions from members |
| 236 | 10,174 | |||||||||
Net cash used in financing activities |
(86,356 | ) | (143,312 | ) | (100,436 | ) | ||||||
Net decrease in cash and cash equivalents |
(747 | ) | (11,568 | ) | (1,650 | ) | ||||||
Cash and cash equivalents at beginning of period |
747 | 12,315 | 13,965 | |||||||||
Cash and cash equivalents at end of period |
$ | | $ | 747 | $ | 12,315 | ||||||
Supplemental cash flow information: |
||||||||||||
Interest paid |
$ | 7,881 | $ | 16,505 | $ | 33,798 | ||||||
Collateral support arrangement |
$ | | $ | | $ | 231 | ||||||
Non-cash investing activity: |
||||||||||||
Investment in real estate debt investment by issuance
of first mortgage seller financing on real estate property sold |
$ | | $ | 955 | $ | | ||||||
Non-cash financing activities: |
||||||||||||
Distribution of available for sale security to members |
$ | | $ | 318 | $ | | ||||||
Distribution of available for sale security to non-controlling
redeemable preferred interest |
$ | | $ | 214 | $ | | ||||||
Accrued dividend payable to non-controlling interest |
$ | 8 | $ | 12 | $ | 12 | ||||||
Accrued dividend payable to non-controlling redeemable
preferred interest |
$ | | $ | 5,720 | $ | 441 | ||||||
Adjustment of Assets and Liabilites upon Dissolution |
||||||||||||
Resricted cash |
$ | (12,257 | ) | $ | | $ | | |||||
Real estate debt investments, net of allowance |
$ | (338,008 | ) | $ | | $ | | |||||
Available for sale securities |
$ | (98,217 | ) | $ | | $ | | |||||
Interest and other receivables |
$ | (1,506 | ) | $ | | $ | | |||||
Deferred and other assets |
$ | (4,788 | ) | $ | | $ | | |||||
Repurchase agreements |
$ | 63,437 | $ | | $ | | ||||||
Revolving credit facility |
$ | 38,049 | $ | | $ | | ||||||
Collaterlized debt obligations |
$ | 347,525 | $ | | $ | | ||||||
Collateral support obligation |
$ | 10,076 | $ | | $ | | ||||||
Sub-participation obligation |
$ | 17,762 | $ | | $ | | ||||||
Deferred items and other liabilities |
$ | 5,783 | $ | | $ | | ||||||
Non-controlling redeemable preferred interest |
$ | 110 | $ | | $ | | ||||||
Non-controlling equity interest |
$ | 10,635 | $ | | $ | | ||||||
Members capital |
$ | (35,185 | ) | $ | | $ | | |||||
The accompanying notes are an integral part of these consolidated financial statements.
8
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 1 Description of Business and Dissolution
Lex-Win Concord LLC (the Company and Lex-Win) was created on August 2, 2008. Prior to the
Companys formation, its subsidiary Concord Debt Holdings LLC (Concord), a Delaware limited
liability company, was formed on March 31, 2006 to acquire real estate whole loans and subordinate
real estate debt investments such as B-notes, mezzanine loans and preferred equity, and commercial
real estate securities including commercial mortgage backed securities, collateralized debt
obligations and real estate mortgage investment conduits. Concord upon its formation was owned 50%
each by Winthrop Realty Trust (Winthrop) and Lexington Realty Trust (Lexington), collectively
the Members. In connection with the formation of Concord, Lexington contributed existing real
estate debt investments and other assets totaling $54,279,000 and repurchase agreements and other
liabilities of $32,251,000, which had been acquired in anticipation of the formation of the
venture. Concurrently with the formation of Concord, Winthrop contributed $10,864,000 in exchange
for 50% of the net equity of Concord.
Concord Debt Funding Trust is a majority owned subsidiary of the Company through its investment in
Concord and was formed November 3, 2006. Concord Debt Funding Trust issued 100,000 common shares
and 102 shares of 12% cumulative redeemable preferred shares and Concord owns 100% of the common
shares while the preferred shares are owned by individuals associated with Winthrop and Lexington.
In connection with the formation of the Company, both Winthrop and Lexington contributed their 50%
interests in Concord and WRP Management LLC (WRP Management), the entity that provided management
services to Concord Real Estate CDO 2006-1, Ltd (CDO-1and the Issuer), and a wholly-owned
subsidiary of Concord. WRP Management contracted with WRP Sub-Management LLC (WRP Sub Management)
to act as Administrative Manager to the Company. The Second Amended and Restated Limited Liability
Company Joint Venture Agreement (the Joint Venture Agreement) of Concord was amended and restated
reflect this change in legal structure and to admit Inland America Concord Sub LLC (Inland) with
a redeemable preferred membership interest in Concord. Inland committed to invest up to
$100,000,000 in Concord over a 12-18 month investment period subject to certain conditions. The
Company will hold 100% of the common membership interests in Concord and will serve as its managing
member.
On May 22, 2009, a wholly-owned subsidiary of Inland filed a legal action against the Company and
Concord generally seeking declaratory relief that Inland should not be required to satisfy the May
11, 2009 capital call made by Concord in the amount of $24,000,000 and that Inland is entitled to a
priority return of its capital. The Company filed counterclaims against Inland which state, in
general, that Inland is in material breach of their agreements with the Company and seeking to
recover all losses incurred by it as a result of such breach.
On August 26, 2010 the Company finalized a settlement agreement to resolve the action which would
provide for, among other things, no obligation on any of the parties to make additional capital
contributions to Concord, the allocation of distributions equally among Inland, Lexington, and
Winthrop and the formation of a new entity to be owned by subsidiaries of Inland, Lexington and
Winthrop named CDH CDO LLC which purchased 100% of the stock of CDO-1 from Concord.
The settlement agreement triggered simultaneous transactions that effectively changed the
organization structure, economics and governance of Concord such that Lex-Win was dissolved and
transferred 100% of its interest in Concord to its members, Winthrop and Lexington. As a result of
the concurrent transfer of the Companys equity interests in Concord to Winthrop and Lexington and
its dissolution on August 26, 2010, no balance sheet is presented as of August 26, 2010, the date
of the Companys dissolution.
9
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 2 Going Concern Considerations
The conditions that existed as of December 31, 2009, as described below are indicative of the
entitys potential inability to continue as a going concern. The financial information included in
this report does not include any adjustments that might result from the outcome of this
uncertainty.
The real estate markets have been significantly impacted by the continued deterioration of the
global credit markets and other macro economic factors. As a result of these and other factors
including increased margin calls on Concords repurchase agreements, the Company has experienced
further declines in values during the year ended December 31, 2009 to its real estate debt
investments and available for sale securities. This has generated significant impairment charges
and difficulty in executing sales of select investments pursuant to certain repurchase agreements.
The initial strategy to issue CDOs and the availability of new financing has effectively been
eliminated, making the execution of the Companys initial strategy unachievable.
Accordingly, the Company is unable to satisfy certain of its financial covenants under its loan
documents for which it has not yet received waivers and is in technical default under these loans.
In addition the Company has near-term repayment obligations under its repurchase agreements. The
Company is working with the lenders, but there can be no assurance that the lenders will grant
long-term forbearance and could exercise their remedies at any time.
In addition, a continued decline in the operating performance of the underlying collateral of
certain of the Companys available for sale securities and real estate loans may result in
borrowers inability to meet its debt service coverage, which could result in additional
impairments of loan assets. Such defaults could significantly reduce the cash flow available to
the Company for its obligations and also necessitate additional asset sales at disadvantageous
terms.
In response to the declining real estate and capital markets the Company may be unable to
consummate certain activities that would improve the Companys financial flexibility such as the
sale of encumbered assets for fair value.
Note 3 Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company, and its subsidiaries,
which are either majority owned or controlled by the Company. The Company identifies entities for
which control is achieved through means other than through voting rights (a variable interest
entity or VIE) and determines when and which business enterprise, if any, should consolidate the
VIE. In addition, the Company discloses information pertaining to such entities wherein the
Company is the primary beneficiary or other entities wherein the Company has a significant variable
interest. All significant intercompany transactions and balances have been eliminated.
Out of Period Adjustment
During 2009, the Company determined that there was an error in the recognition of fees paid to the
party which originated certain loans purchased by the Company which is recorded as a reduction of
interest income. The Company determined that interest income was overstated by approximately
$594,000 for the year ended December 31, 2008. The Company has recorded an adjustment to correct
this error in 2009 and determined that adjustment does not materially affect the financial
statements for any of the years presented.
10
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 3 Summary of Significant Accounting Policies (Continued)
Use of Estimates
The preparation of consolidated financial statements in conformity with accounting principles
generally accepted in the United States of America (GAAP) requires management to make estimates
and assumptions in determining the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the consolidated financial statements and the
reported amounts of revenue and expenses during the reporting period. Significant estimates in the
consolidated financial statements include the valuation of the Companys real estate debt
investments and available for sale securities and estimates pertaining to credit. Actual results
could differ materially from those estimates.
Cash and Cash Equivalents
All highly liquid investments with original maturities of three months or less are considered to be
cash equivalents. The Company places its cash and cash equivalents in major financial
institutions.
Concentration of Credit Risk
The Company maintains cash deposits and restricted cash deposits with major financial institutions,
which from time to time may exceed federally insured limits. The Company believes it mitigates its
risk of loss by maintaining its cash deposits with major financial institutions. To date, the
Company has not experienced any losses of its cash deposits. Real estate debt investments and
available for sale securities can potentially subject the Company to concentrations of credit risk.
Management of the Company performs ongoing credit evaluations of borrowers and valuations of the
real property and interests that collateralize the Companys investments.
Within its real estate debt investment portfolio, the Company holds 11 impaired loans with related
loan loss allowances at December 31, 2009, six of which are non-performing loans that subject the
Company to a concentration of credit risk. See Note 7.
Restricted Cash
The Company had restricted cash of $25,369,000 at December 31, 2009 which included $20,726,000 in
proceeds from the repayment of principal of real estate debt investments that the Company is
required to reinvest under the terms of its CDO indenture. The remaining balance of $4,643,000 at
December 31, 2009 represents funding of future lending commitments for certain real estate debt
investments as well as amounts held in escrow accounts as collateral.
Real Estate Debt Investments
The majority of real estate debt investments are considered to be held for investment. Such
investments are recorded at cost. Discounts and premiums on purchased assets are amortized over
the life of the investment using the effective interest method. The amortization is reflected as
an adjustment to interest income. Other costs incurred in connection with acquiring loans, such as
marketing and administrative costs, are charged to expense as incurred.
Real Estate Debt Investment Impairment
The Company considers a real estate debt investment (loan) impaired when, based upon current
information and events, it is probable that it will be unable to collect all amounts due for both
principal and interest according to the contractual terms of the loan agreement. The Company
believes its loans are collateral dependent and, accordingly, it generally utilizes the fair value
of the loan collateral when assessing its loans for impairment. If the fair value of the
collateral is equal to or greater than the recorded investment in the loan, no impairment is
recognized. Specific valuation allowances are established for impaired loans based on the fair
value of
11
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 3 Summary of Significant Accounting Policies (Continued)
collateral on an individual loan basis. The fair value of the collateral is determined by selecting the most appropriate valuation
methodology. These methodologies include the evaluation of operating cash flow from the collateral
during the projected holding period, and the estimated sales value of the collateral computed by
applying an expected capitalization rate to the stabilized net operating income of the specific
property, discounted at market discount rates. If upon completion of the valuation, the fair value
of the underlying real estate collateralizing the impaired loan is less than the net carrying value
of the loan, a specific loan allowance is created with a corresponding charge to the provision for
loan losses. The allowance for each loan is maintained at a level deemed adequate by management to
absorb potential losses.
In addition, a formula specific loss allowance may be established to cover performing loans when
(i) available information indicates that it is probable a loss has occurred in the portfolio and
(ii) the amount of the loss can be reasonably estimated in accordance with FASB guidance on loss
contingencies. Required loss allowance balances for the performing loan portfolio are derived from
probabilities of default and loss severity estimates assigned to each loan as part of the Companys
quarterly internal risk rating assessment. Probabilities of principal loss and severity factors
are based on industry and/or internal experience and may be adjusted for significant factors that,
based on managements judgment, impact the collectability of the loans.
Income Recognition for Impaired Real Estate Debt Investments
The Company recognizes interest income on impaired, non-performing real estate debt investments
using the cash-basis method.
Real Estate Debt Investments Held for Sale
The Company reports real estate debt investments held for sale at the lower of cost or fair value.
Available for Sale Securities
The Company evaluates its portfolio of available for sale securities for other-than-temporary
impairment by conducting and documenting periodic reviews of all securities with unrealized losses
to evaluate whether the impairment is other than temporary. Any credit-related impairment on debt
securities the Company does not plan to sell and is not more-likely-than-not to be required to sell
is recognized in the Consolidated Statement of Operations, with the non-credit-related impairment
recognized in other comprehensive loss. For other impaired debt securities, the entire impairment
is recognized in the Consolidated Statement of Operations.
The Company recognizes interest income on its portfolio of available for sale securities by
estimating the excess of all cash flows attributable to the security estimated at the measurement
date over the Companys initial investment in the security using the effective yield method.
Discounts attributable to previously recognized other-than-temporary impairment charges are
recognized in interest income on the effective interest method based upon the excess of all
estimated prospective cash flows over the investment balance in the loan security at the
measurement date. The Company will accrete certain impairment discounts over the remaining life of
the securities using the effective interest method.
During the period from January 1, 2010 to August 26, 2010 and the years ended December 31, 2009 and
2008, the Company recognized in interest income accretion of discounts totaling $637,000,
$1,071,000 and $1,215,000 respectively.
Deferred Financing Costs
Fees and costs incurred to obtain long-term financing have been deferred and are being amortized
over the terms of the related financing, on a basis which approximates the effective interest
method.
12
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 3 Summary of Significant Accounting Policies (Continued)
Real Estate Properties Held For Sale Discontinued Operations
Real estate properties held for sale are comprised of real property collateralizing certain loans
that was acquired by foreclosure. Real estate that is acquired by foreclosure and held for sale is
recorded at the lower of its carrying amount or fair value less cost to sell and is not
depreciated.
Impairment charges, when applicable, are recorded as a valuation allowance with a loss from
foreclosed assets held for sale recognized in the income statement. Any expenditure that
significantly improves the estimated fair value of the assets may be capitalized.
Non-Controlling Interests
Effective January 1, 2009, the Company adopted new FASB provisions on non-controlling interests
(previously known as minority interests). The adoption of this new accounting standard resulted
in (i) the reclassification of minority interests in consolidated subsidiaries to non-controlling
interests in consolidated subsidiaries, a component of permanent equity on the Companys
Consolidated Balance Sheet, (ii) the reclassification of minority interest expense to net income
attributable to non-controlling interests on the Companys consolidated statements of operations
and comprehensive income, and (iii) additional disclosures, including consolidated statements of
changes in members capital. The implementation of this standard had no effect on the Companys
results of operations. However on the Consolidated Balance Sheet as a result of the adoption, the
Company reclassified certain non-controlling interests to permanent equity from the mezzanine
section which totaled approximately $114,000 as of December 31, 2009. The remaining non-controlling
interests related to redeemable preferred interests which continue to be classified in the
mezzanine section was $5,720,000 as of December 31, 2009.
Allocations of members capital and the non-controlling redeemable preferred interest are
determined in accordance with the governing documents of Concord. At each reporting period, Concord
performs a hypothetical liquidation of the members capital and non-controlling redeemable
preferred interests as a basis for these allocations. As a result of this analysis, the Company was
allocated net losses from operations for the period from January 1, 2010 to August 26, 2010 and the
year ended December 31, 2009 of $95,253,000 and $156,306,000 and net losses of $68,709,000 were
allocated to the non-controlling redeemable preferred interest. The unpaid accrued preferred return
was $5,720,000 at December 31, 2009.
As of December 31, 2009, Concord did not distribute $5,720,000 of the total $8,427,000 accrued
priority interest payable to satisfy the 10% preferred return on Inlands invested capital and was
not in compliance with the Total Debt Limit as defined in Concords operating agreement. As a
result, Concord is required to accrue and distribute to Inland its priority return at a rate of 13%
per annum until such time as Concord is able to comply with these covenants.
Members Capital
Capital contributions, distributions and profits and losses are allocated in accordance with the
terms of the Joint Venture Agreement.
Other Comprehensive Income (Loss)
Comprehensive income (loss) is comprised of net income, as presented in the consolidated
statements of operations, adjusted for changes in unrealized gains or losses on debt securities
available for sale and changes in the fair value of derivative financial instruments accounted for
as cash flow hedges.
13
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 3 Summary of Significant Accounting Policies (Continued)
Income Taxes
Concord Debt Funding Trust is organized and conducts its operations to qualify as a real estate
investment trust and to comply with the provisions of the Internal Revenue Code with respect
thereto. A real estate investment trust is generally not subject to federal income tax on the
portion of its REIT taxable income (Taxable Income), which is distributed to its stockholders,
provided that at least 90% of Taxable Income is distributed and certain other requirements are met.
Income taxes are not considered in the accompanying consolidated financial statements since the
Company is not a taxable entity. Taxes on income, as applicable, are the responsibility of the
individual Members; accordingly, no provision for federal or state income taxes has been recorded.
The Company reviews its tax positions under accounting guidance which requires that a tax position
may only be recognized in the financial statements if it is more likely than not that the tax
position will prevail if challenged by tax authorities. The Company believes it is more likely than
not that our tax positions will be sustained in any tax examination. We have no income tax expense,
deferred tax assets or deferred tax liabilities associated with any such uncertain tax positions
for the operations of any entity included in the consolidated results of operations.
Derivatives and Hedging Activities
The Company measures its designated and qualifying derivative instruments at fair value and records
them in the Consolidated Balance Sheets as an asset or liability, depending on the Companys rights
or obligations under the applicable derivative contract. Fair value adjustments will be recorded in
accumulated other comprehensive income or earnings in the current period based on whether the
derivative financial instrument is designated and qualifies as a hedging instrument. The effective
portions of changes in fair value of designated and qualifying instruments are reported in other
comprehensive income and are subsequently reclassified into earnings when the hedged item affects
earnings.
The changes in fair value of derivative instruments which are not designated as hedging instruments
and the ineffective portions of hedges are recorded in earnings for the current period.
The Company utilizes derivative financial instruments to reduce exposure to fluctuations in
interest rates. The Company has not entered, and does not plan to enter, into financial
instruments for trading or speculative purposes. Additionally, the Company has a policy of only
entering into derivative contracts with major financial institutions. The principal financial
instruments used by the Company are interest rate swaps.
Note 4- Changes in Accounting Principles
Other-than-temporary impairments
On April 1, 2009, the Company adopted newly issued accounting guidance that amended the existing
accounting model for evaluating whether declines in the fair value of debt securities are
other-than-temporary in nature. Previously, declines in the fair value of a debt security were
generally considered to be other-than-temporary in nature unless the investor could positively
assert that it had the intent and ability to hold the security long enough to recover its amortized
cost basis. The guidance requires that an investor recognize other-than-temporary impairment for
(a) those securities that the investor has the present intent to sell or (b) those securities that
it will more likely than not be required to sell before the anticipated recovery. For those
securities that the Company does not have the present intent to sell or for which it is not more
likely than not it will be required to sell, the Company must recognize only credit losses in
earnings. Non-credit losses are recognized as a charge to other comprehensive income.
14
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 4- Changes in Accounting Principles (Continued)
For other-than-temporary impairment charges recognized in prior periods, the newly issued
accounting guidance required the Company to assess whether (a) it had the intent to sell, (b) more
likely than not would have been required to sell the related securities and (c) for those not
meeting these criteria (a) and (b), determine the decline in fair value attributable to non-credit
factors and recognize the cumulative of initially applying the newly issued guidance as an
adjustment to the opening balance of members capital with a corresponding adjustment to
accumulated other comprehensive income.
The cumulative effect of the Companys adoption of the newly issued accounting guidance resulted in
an increase to members capital of $23,294,000 and a corresponding decrease to other comprehensive
income totaling $23,294,000.
Non-controlling interests
The consolidated financial statements reflect certain retrospective revisions of prior period
amounts, resulting from the adoption and retrospective application of newly adopted accounting
guidance on related to non-controlling interests. The revisions had no impact on previously
reported net income.
Effective January 1, 2009, the Company adopted accounting guidance which establishes and expands
accounting and reporting standards for entities that have outstanding minority interests which are
re-characterized as non-controlling interests in a subsidiary. It requires consolidated net income
to be reported at amounts that include the amounts attributable to both the parent and the
non-controlling interest. It also requires disclosure on the face of the consolidated statements of
operations and comprehensive income, of the amounts of consolidated net income attributable to the
parent and to the non-controlling interest. Previously, net income attributable to the
non-controlling interest generally was reported as an expense in arriving at consolidated net
income. This adoption resulted in (i) the reclassification of minority interests in consolidated
subsidiaries to non-controlling interests in consolidated subsidiaries, a component of permanent
equity on the Companys Consolidated Balance Sheet, (ii) the reclassification of minority interest
expense to net income attributable to non-controlling interests on the Companys consolidated
statements of operations and comprehensive income, and (iii) additional disclosure relating to
non-controlling interests.
Note 5 Fair Value Measurement
On January 1, 2008, the Company adopted guidance for fair value measurements and the fair value
option for financial assets and liabilities. This guidance defines fair value, establishes a
framework for measuring fair value, and expands disclosures about fair value measurements. The
guidance applies to reported balances that are required or permitted to be measured at fair value
under existing accounting pronouncements. Accordingly, the standard does not require any new fair
value measurements of reported balances. Cash equivalents, available for sale securities,
derivative financial instruments, impaired real estate debt investments and real estate debt
investments held for sale are reported at fair value.
The accounting standards emphasize that fair value is a market-based measurement, not an
entity-specific measurement. Therefore, a fair value measurement should be determined based on the
assumptions that market participants would use in pricing the asset or liability. As a basis for
considering market participant assumptions in fair value measurements, the standards establish a
fair value hierarchy that distinguishes between market participant assumptions based on market data
obtained from sources independent of the reporting entity (observable inputs that are classified
within Levels 1 and 2 of the hierarchy) and the reporting entitys own assumptions about market
participant assumptions (unobservable inputs classified within Level 3 of the hierarchy).
Level 1 inputs utilize unadjusted quoted prices in active markets for identical assets or
liabilities that the Company has the ability to access. Level 2 inputs are inputs other than quoted
prices included in Level 1 that are observable for the asset or liability, either directly or
indirectly. Level 2 inputs may include quoted prices for similar assets and liabilities in active
markets, as well as inputs that are observable for the asset or liability other than quoted prices,
such as interest rates, foreign exchange rates, and yield curves that are observable at commonly
quoted intervals.
15
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 5 Fair Value Measurement (Continued)
Level 3 inputs are unobservable inputs for the asset or liability which are typically based on an
entitys own assumptions, as there is little, if any, related market activity. In instances where
the determination of the fair value measurement is based on inputs from different levels of the
fair value hierarchy, the level in the fair value hierarchy within which the entire fair value
measurement falls is based on the lowest level input that is significant to the fair value
measurement in its entirety. The Companys assessment of the significance of a particular input to
the fair value measurement in its entirety requires judgment, and considers factors specific to the
asset or liability.
Level 1 securities include highly liquid government bonds, mortgage products and exchange-traded
equities. If quoted market prices are not available, then fair values are estimated by using
pricing models, quoted prices of securities with similar characteristics, or discounted cash flows,
which would generally be classified within Level 2 of the valuation hierarchy. Examples of such
instruments include certain derivative financial instruments. In cases where there is limited
activity or less transparency around inputs to the valuation, securities are classified within
Level 3 of the valuation hierarchy. Securities classified within Level 3 include, for example,
residual interests in securitizations and other less liquid securities.
In October 2008 the Company adopted amendments to the guidance for fair value measurements which
provide clarification that determination of fair value in an inactive market depends on facts and
circumstances and may require the use of significant judgment to determine whether certain
individual transactions are forced liquidations or distressed sales. In cases where the volume and
level of trading activity for an asset has declined substantially, the available prices vary
significantly over time or among market participants, or the prices are not current, observable
inputs might not be relevant and could require material adjustment. In addition, the amended
guidance also clarifies that broker or pricing service quotes may be appropriate inputs when
measuring fair value, but are not necessarily determinative if an active market does not exist for
the financial asset. Regardless of the valuation techniques used, the accounting rules require that
an entity include appropriate risk adjustments that market participants would make for
nonperformance and liquidity risks. The Company has always considered nonperformance and liquidity
risks in its analysis of loans and collateral underlying its securities and the adoption of this
new guidance did not have a material impact on its consolidated financial statements.
The following is a description of the valuation methodologies used for instruments measured at fair
value, as well as the general classification of such instruments pursuant to the valuation
hierarchy.
Recurring Measurements
Cash, Cash Equivalents and Restricted Cash
The Companys cash, cash equivalents and restricted cash are generally classified within Level 1 or
Level 2 of the fair value hierarchy because they are valued using quoted market prices, broker or
dealer quotations, or alternative pricing sources with reasonable levels of price transparency.
The types of instruments valued based on quoted market prices in active markets include most U.S.
government securities and most money market securities. Such instruments are generally classified
within Level 1 of the fair value hierarchy.
Available for Sale Securities
Broker quotations within Level 1 or Level 2 of the hierarchy are obtained if available and
practicable. Management typically obtains counterparty quotations for certain of its securities
that are pledged under certain repurchase agreements. Such counterparty quotations are
predominantly based on the use of unobservable inputs that are considered Level 3 inputs. In
addition, the Company uses a third-party pricing model to establish values for the securities in
its portfolio. Management also performs further analysis of the performance of the loans and
collateral underlying the securities, the estimated value of the collateral supporting such loans
and a consideration of local, industry, and broader economic trends and factors. Significant
judgment is utilized in the ultimate determination of fair value. This valuation methodology has
been characterized as Level 3 in the fair value hierarchy as defined by FASB guidance for fair
value measurements.
16
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 5 Fair Value Measurement (Continued)
Derivative Financial Instruments
The Company has determined that the inputs used to value its derivatives fall primarily within
Level 2 of the fair value hierarchy. Currently, the Company uses interest rate swaps to manage its
interest rate risk. The valuation of these instruments is determined using widely accepted
valuation techniques including discounted cash flow analysis on the expected cash flows of each
derivative. This analysis reflects the contractual terms of the derivatives, including the period
to maturity, and uses observable market-based inputs, including interest rate curves, and implied
volatilities. The fair values of interest rate swaps are determined using the market standard
methodology of netting the discounted future fixed cash receipts (or payments) and the discounted
expected variable cash payments
(or receipts). The variable cash payments (or receipts) are based on an expectation of future
interest rates (forward curves) derived from observable market interest rate curves.
The Company incorporates credit valuation adjustments to appropriately reflect both its own
nonperformance risk and the respective counterpartys nonperformance risk in the fair value
measurements. In adjusting the fair value of its derivative contracts for the effect of
nonperformance risk, the Company has considered the impact of netting and any applicable credit
enhancements, such as collateral postings, thresholds, mutual puts, and guarantees.
Impaired Real Estate Debt Investments
All of the Companys loans identified as being impaired are collateral dependent loans and are
evaluated for impairment by comparing the fair value of the underlying collateral to the carrying
value of each loan. Due to the unique nature of the individual property collateralizing the
Companys loans, the Company uses the income or market approach, as deemed appropriate, through
internally developed valuation models to estimate the fair value of the collateral. This approach
requires the Company to make significant judgments in respect to discount rates and the timing and
amounts of estimated future cash flows that are considered Level 3 inputs.
Real Estate Debt Investments Held For Sale
At December 31, 2009, the Company had identified four loans meeting the criteria for held-for-sale
treatment. These loans are carried at their fair value of $66,311,000, which represents a decline
of $64,143,000 from the Companys cost basis of $130,454,000. This decline in fair value has been
charged to impairment loss on real estate debt investments in the Companys consolidated statements
of operations.
The Company has estimated the fair value of these investments using current market spreads
which are reflective of exit prices using market participant assumptions. These assets
fall within Level 3 of the fair value hierarchy.
17
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 5 Fair Value Measurement (Continued)
The table below presents the Companys assets and liabilities measured at fair value on a recurring
basis as of December 31, 2009 aggregated by the level in the fair value hierarchy within which
those measurements fall.
Quoted Prices in | ||||||||||||||||
Active Markets for | Significant Other | Significant | ||||||||||||||
Identical Assets | Observable | Unobservable | Balance at | |||||||||||||
and Liabilities | Inputs | Inputs | December 31, | |||||||||||||
(in thousands) | (Level 1) | (Level 2) | (Level 3) | 2009 | ||||||||||||
Assets |
||||||||||||||||
Cash and
cash equivalents |
$ | 747 | $ | | $ | | $ | 747 | ||||||||
Restricted cash |
25,369 | | | 25,369 | ||||||||||||
Impaired real
estate debt
investments |
| | 15,473 | 15,473 | ||||||||||||
Real estate
debt
investments
held for sale |
| | 66,311 | 66,311 | ||||||||||||
Available for
sale
securities |
| | 83,977 | 83,977 | ||||||||||||
Liabilities |
||||||||||||||||
Derivative financial
instruments |
$ | | $ | 12,274 | $ | | $ | 12,274 |
Changes in Level Three Fair Value Measurements
The tables below includes a roll forward of the balance sheet amounts for the period from January
1, 2010 to August 26, 2010 and January 1, 2009 to December 31, 2009, including the change in fair
value, for financial instruments classified by the Company within level 3 of the valuation
hierarchy. When a determination is made to classify a financial instrument within level 3 of the
valuation hierarchy, the determination is based upon the significance of the unobservable factors
to the overall fair value measurement.
Impaired Real | Real Estate Debt | |||||||||||
Available For | Estate Debt | Investments | ||||||||||
Period Ended August 26, 2010 | Sale Securities | Investments | Held for Sale | |||||||||
(in thousands) |
||||||||||||
Fair value, January 1, 2010 |
$ | 83,977 | $ | 15,473 | $ | 66,311 | ||||||
Transfers in/and or out of level 3 |
| | | |||||||||
Included in statement of operations: |
||||||||||||
Net impairment losses recognized in earnings |
(3,874 | ) | | | ||||||||
Provision for loan loss contingencies |
| (4,078 | ) | | ||||||||
Amortization of discount |
637 | 119 | | |||||||||
Unrealized impairment losses |
(5,774 | ) | | | ||||||||
Purchases, issuances and settlements, net |
13,248 | (17 | ) | | ||||||||
Sale of investments |
(1,545 | ) | | | ||||||||
Dissolution adjustment |
(86,669 | ) | (11,497 | ) | (66,311 | ) | ||||||
Fair value, August 26, 2010 |
$ | | $ | | $ | | ||||||
18
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 5 Fair Value Measurement (Continued)
Impaired Real | Real Estate Debt | |||||||||||
Available For | Estate Debt | Investments | ||||||||||
Year Ended December 31, 2009 | Sale Securities | Investments | Held for Sale | |||||||||
(in thousands) |
||||||||||||
Fair value, January 1, 2009 |
$ | 118,491 | $ | 65,638 | $ | | ||||||
Transfers in/and or out of level 3 |
| 11,731 | 276,243 | |||||||||
Included in statement of operations: |
||||||||||||
Accretion income on realized losses |
1,071 | | | |||||||||
Impairment losses on real estate debt
investments held for sale |
| | (101,027 | ) | ||||||||
Net impairment losses recognized in earnings |
(16,302 | ) | | | ||||||||
Provision for loan loss contingencies |
| (52,141 | ) | | ||||||||
Amortization of discount |
538 | 170 | | |||||||||
Unrealized impairment losses |
(13,468 | ) | | | ||||||||
Purchases, issuances and settlements, net |
11 | 75 | (4,857 | ) | ||||||||
Sale of investments |
(6,364 | ) | (10,000 | ) | (104,048 | ) | ||||||
Fair value, December 31, 2009 |
$ | 83,977 | $ | 15,473 | $ | 66,311 | ||||||
Note 6 Real Estate Debt Investments
Real estate debt investments, consisting of whole loans, B-note participation interests, and
mezzanine loans, are intended to be held for investment and, accordingly, are carried at the
Companys investment cost basis, net of unamortized loan purchase discounts and allowances for loan
losses when such investments are deemed to be impaired. Whole loans are loans to borrowers who are
typically seeking capital for use in property acquisition and are predominantly collateralized by
first mortgage liens on real property. B-Notes are junior positions of whole loans. Mezzanine
loans are loans that are subordinate to a conventional first mortgage loan, including B Notes and
senior to the borrowers equity in a transaction. These loans may be in the form of a junior
participating interest in the senior debt. Mezzanine financing may take the form of loans
collateralized by pledges of ownership interests in entities that directly or indirectly control
the real property or subordinated loans collateralized by second mortgage liens on the property.
The following table is a summary of the Companys real estate debt investments at December 31, 2009
(in thousands):
Real Estate Debt | ||||||||
Investments, | ||||||||
Net of Allowance | ||||||||
December 31, 2009 | Loan Count | |||||||
Whole loans |
50,836 | 4 | ||||||
B-notes |
184,550 | 13 | ||||||
Mezzanine loans |
303,979 | 23 | ||||||
Loan loss allowance |
(86,035 | ) | | |||||
Discounts on loans |
(6,060 | ) | | |||||
Total loans |
$ | 447,270 | 40 | |||||
19
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 6 Real Estate Debt Investments (Continued)
The Company had $70,937,000 of impaired principal real estate debt investments with loan loss
allowances of $55,464,000 at December 31, 2009. The Company recorded a provision for loss
allowance in real estate debt investments of $106,150,000, $80,620,000 and $31,053,000 for the
period from January 1, 2010 to August 26, 2010 (Dissolution) and the years ended December 31, 2009
and 2008, respectively.
The fair value of the Companys real estate debt investments was $244,313,000 at December 31, 2009.
The following table sets forth the activity in the loan allowance for credit losses account balance
for the period from January 1, 2010 to August 26, 2010 (Dissolution) and the years ended December
31, 2009 and 2008 (in thousands):
2010 | 2009 | 2008 | ||||||||||
Balance at beginning of year |
$ | (55,464 | ) | $ | (26,021 | ) | $ | | ||||
Charge-offs (1) |
3,118 | 17,900 | | |||||||||
Recoveries |
42,421 | | | |||||||||
Valuation allowance |
(111,870 | ) | (51,343 | ) | (26,021 | ) | ||||||
Transfers (2) |
| 4,000 | | |||||||||
Dissolution adjustment |
121,795 | | | |||||||||
Balance at end of year |
$ | | $ | (55,464 | ) | $ | (26,021 | ) | ||||
(1) | The charge-offs of $17,900,000 for the year ended December 31, 2009 represent
allowances for which the Company foreclosed on and the collateral of which was sold or
obtained through foreclosure sale. |
|
(2) | Transfers represent loan allowances on real estate debt investments that were
transferred to real estate loan assets held for sale. |
Credit Risk Concentrations
As of December 31, 2009 no loan exceeded 10% of the Companys assets and for the year ended
December 31, 2009 no single loan generated more than 10% of the Companys revenue.
Note 7 Real Estate Debt Investments Held For Sale
Due to the disruption in the capital and credit markets, the continued decline in the fair value of
the Companys assets, and the covenant failures on its debt facilities, the Company was required to
identify certain assets to be sold in order to reduce its outstanding balances on its debt.
During 2009 the Company sold six loans that were designated as real estate debt investments held
for sale which resulted in losses of $17,566,000.
The Company was not able to completely satisfy its repayment obligation on the Column facility of
$60,000,000 by December 31, 2009 and identified four real estate debt investments which were sold
in 2010 and the Company recognized additional losses of $545,000 from these transactions and used
the proceeds to repay Column and satisfy the remaining accelerated repayment schedule required by
the modification.
20
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 8 Available for Sale Securities
The Company had a portfolio of loan securities (also referred to as available for sale securities)
which includes investments in CDO securities, pooled collateralized mortgage backed securities
(CMBS), and rake bonds. These bonds are accounted for as available for sale securities and,
accordingly, are marked to fair value on a quarterly basis based upon managements assessment of
fair value. The Companys portfolio of available for sale securities was comprised of purchased
beneficial interests in 36 CMBS consisting of both Pool and Rake bonds and three CDOs at December
31, 2009.
In April 2009 the Company adopted new accounting guidance on investments in debt and equity
securities related to determining whether an impairment for investments in debt securities is
other-than-temporary. As a result of the adoption, the Company recognized a cumulative-effect
adjustment to retained earnings of $23,294,000 as of April 1, 2009, with a corresponding adjustment
to accumulated other comprehensive loss.
The amortized cost and fair value of securities available-for-sale at December 31, 2009 was as
follows (in thousands):
Amortized | Gross Unrealized | Gross Unrealized | ||||||||||||||
December 31, 2009 | Cost (1) | Gains | Losses | Fair Value | ||||||||||||
CMBS |
||||||||||||||||
Rake Bonds |
$ | 60,668 | $ | | $ | (13,804 | ) | $ | 46,864 | |||||||
Pool Bonds |
59,521 | 2,176 | (25,044 | ) | 36,653 | |||||||||||
Total CMBS |
120,189 | 2,176 | (38,848 | ) | 83,517 | |||||||||||
CDO |
460 | | | 460 | ||||||||||||
Total available for
sale securities |
$ | 120,649 | $ | 2,176 | $ | (38,848 | ) | $ | 83,977 | |||||||
(1) | Amortized cost basis includes adjustments made to the cost of an investment for
accretion, amortization, collection of cash, and previous other-than-temporary impairments recognized in earnings. |
The table below shows the fair value of investments in available for sale securities that have been
in an unrealized loss position for less than 12 months or for 12 months or longer (in thousands).
Less than 12 months | 12 months or longer | Total | ||||||||||||||||||||||
Gross | Gross | Gross | ||||||||||||||||||||||
Unrealized | Unrealized | Unrealized | ||||||||||||||||||||||
December 31, 2009 | Fair Value | Losses | Fair Value | Losses | Fair Value | Losses | ||||||||||||||||||
CMBS |
||||||||||||||||||||||||
Rake Bonds |
$ | 52 | $ | (986 | ) | $ | 45,231 | $ | (12,819 | ) | $ | 45,283 | $ | (13,805 | ) | |||||||||
Pool Bonds |
4,513 | (3,126 | ) | 20,183 | (21,918 | ) | 24,696 | (25,044 | ) | |||||||||||||||
Total CMBS |
4,565 | (4,112 | ) | 65,414 | (34,737 | ) | 69,979 | (38,849 | ) | |||||||||||||||
CDO |
| | | | | | ||||||||||||||||||
Total available for
sale securities |
$ | 4,565 | $ | (4,112 | ) | $ | 65,414 | $ | (34,737 | ) | $ | 69,979 | $ | (38,849 | ) | |||||||||
21
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 8 Available for Sale Securities (Continued)
The following table presents the amortized cost and fair value of debt securities available for
sale by contractual maturity dates as of December 31, 2009 (in thousands).
December 31, 2009 | ||||||||
Amortized | ||||||||
Cost | Fair Value | |||||||
CMBS Rake Bonds |
||||||||
Due within 1 year |
$ | 36,506 | $ | 28,107 | ||||
After 1 but within 5 years |
13,089 | 9,750 | ||||||
After 5 but within 10 years |
11,072 | 9,007 | ||||||
After 10 years |
| | ||||||
Total CMBS Rake Bonds |
60,667 | 46,864 | ||||||
CMBS Pool Bonds |
||||||||
Due within 1 year |
33,736 | 17,277 | ||||||
After 1 but within 5 years |
18,609 | 10,023 | ||||||
After 5 but within 10 years |
7,177 | 9,353 | ||||||
After 10 years |
| | ||||||
Total CMBS Pool Bonds |
59,522 | 36,653 | ||||||
CDO |
||||||||
Due within 1 year |
| | ||||||
After 1 but within 5 years |
| | ||||||
After 5 but within 10 years |
460 | 460 | ||||||
After 10 years |
| | ||||||
Total |
460 | 460 | ||||||
Total available for
sale securities |
$ | 120,649 | $ | 83,977 | ||||
Interest income on the available for sale securities for the period from January 1, 2010 to August
26, 2010 (Dissolution) and years ended December 31, 2009 and 2008 was $3,523,000, $4,320,000 and
$9,496,000, respectively.
Evaluating Investments for Other-than-Temporary Impairments
The Company conducts periodic reviews to identify and evaluate each investment that has an
unrealized loss. An unrealized loss exists when the current fair value of an individual security is
less than its amortized cost basis. Unrealized losses that are determined to be temporary in nature
are recorded in accumulated other comprehensive loss for available-for-sale securities.
The Company has assessed each position for credit impairment. Securities for which the amortized
cost basis exceeds fair value are assessed to determine whether the Company has the present intent
to sell the security in which case the entire difference between the amortized cost basis and fair
value is recognized in earnings as an other than temporary impairment (OTTI). If the Company
determines that it will more likely than not be required to sell securities for which the amortized
cost basis exceed fair value then the entire difference between fair value and amortized cost basis
is recognized in earnings as an other than temporary impairment.
22
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 8 Available for Sale Securities (Continued)
For securities that the Company does not intend to sell, and does not believe it is more likely
than not that it will be required to sell, management performs additional analysis to determine
whether or not it will recover its amortized cost basis in the investment. Declines in fair value
attributable to credit events are recognized as other than temporary impairment recognized in
earnings while declines attributable to other factors are recognized in other comprehensive loss.
Factors considered in determining whether a loss is temporary or other than temporary include:
| The length of time and the extent to which fair value has been below amortized cost
basis; |
||
| Adverse conditions specifically related to the security, an industry, or a geographic
area; |
||
| The historical and implied volatility of the fair value of the security; |
||
| The payment structure of the debt security; |
||
| Failure of the issuer of the security to make scheduled interest or principal payments; |
||
| Any changes to the rating of the security by the rating agency; and |
||
| Recoveries or additional declines in fair value subsequent to the balance sheet date. |
The Companys review for impairment generally entails:
| Identification and evaluation of investments that have indications of possible
impairment; |
||
| Analysis of individual investments that have fair values less than amortized cost,
including consideration of the length of time the investment has been in an unrealized loss
position and expected recovery period; |
||
| Discussion of evidential matter, including an evaluation of factors or triggers that
could cause individual investments to qualify as having other-than-temporary impairment and
those that would not support other-than-temporary impairment; and |
||
| Documentation of the results of these analyses, as required under business policies. |
A critical component of the evaluation for other-than-temporary impairments is the identification
of credit impaired securities where management does not expect to receive cash flows sufficient to
recover the entire amortized cost basis of the security. The extent of the Companys analysis
regarding credit quality and the stress on assumptions used in the analysis has been refined for
securities where warranted by the current fair value or other characteristics of the security.
The following table presents the total other-then-temporary impairments recognized for the period
from January 1, 2010 to August 26, 2010 (Dissolution) and the year ended December 31, 2009 (in
thousands).
2010 | 2009 | |||||||
Impairment losses related to securities which the Company does not intend to
sell or is not more likely than not that it will be required to sell: |
||||||||
Total OTTI losses recognized during the period |
$ | 3,874 | $ | 24,826 | ||||
Less: portion of OTTI loss recognized in other comprehensive loss |
| (13,468 | ) | |||||
Net impairment losses recognized in earnings for securities that the Company
does not intend to sell or is more likely than not that will not be required to sell |
3,874 | 11,358 | ||||||
Plus OTTI Losses recognized in earnings for securities that the Company
intends to sell or is more-likely-than-not will be required to sell |
| 4,944 | ||||||
Total impairment losses recognized in earnings |
$ | 3,874 | $ | 16,302 | ||||
23
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 8 Available for Sale Securities (Continued)
The roll forward of the credit-related position recognized in earnings for all securities still
held as of December 31, 2009 is as follows: (in thousands)
Cumulative Other-Than-Temporary Impairment Credit Losses Recognized in Earnings for | ||||||||||||||||||||||||
Available-for-Sale Debt Securities | ||||||||||||||||||||||||
Credit | ||||||||||||||||||||||||
Credit | impairments | |||||||||||||||||||||||
impairments | recognized in | |||||||||||||||||||||||
Beg Balance | recognized in | earnings on | Reductions due | |||||||||||||||||||||
Adjustment to | earnings on | securities that | to sales or | |||||||||||||||||||||
Other | securities not | have been | maturities of | |||||||||||||||||||||
December 31, | Comprehensive | previously | previously | credit impaired | December 31, | |||||||||||||||||||
2008 Balance | Loss | impaired | impaired | securities | 2009 Balance | |||||||||||||||||||
CMBS |
||||||||||||||||||||||||
Rake Bonds |
$ | 10,938 | $ | (9,095 | ) | $ | 689 | $ | 949 | $ | | $ | 3,481 | |||||||||||
Pool Bonds |
45,896 | (15,491 | ) | | 9,705 | (3,009 | ) | 37,101 | ||||||||||||||||
Total CMBS |
56,834 | (24,586 | ) | 689 | 10,654 | (3,009 | ) | 40,582 | ||||||||||||||||
CDO |
27,875 | | | 4,959 | | 32,834 | ||||||||||||||||||
Total |
$ | 84,709 | $ | (24,586 | ) | $ | 689 | $ | 15,613 | $ | (3,009 | ) | $ | 73,416 | ||||||||||
The Company does not intend to sell nor does it believe it will be required to sell bond with
losses currently deferred in accumulated other comprehensive loss.
Note 9 Variable Interest Entities
The Company evaluated its investments to determine whether they constitute a variable interest in a
variable interest entity (VIE). The FASBs accounting guidance on consolidation requires a VIE
to be consolidated by its primary beneficiary. The primary beneficiary is the party that absorbs a
majority of the VIEs anticipated losses and/or a majority of the expected returns.
In connection with and subsequent to the formation of the Company, Concord was determined not to be
a VIE entity but rather consolidated Concord pursuant to alternative FASB guidance related to
partnerships since the Company is the functional equivalent of a general partner. On August 19,
2009, Concord received an infusion of additional capital totaling approximately $10,150,000 million
in the form of a capital contribution of $1,700,000 million made by the Company and short-term
demand notes totaling $8,360,000 million, which were subsequently repaid upon the sale of certain
of Concords assets. These proceeds, which were used to pay down debt and settle five interest
rates swaps, resulted in the reconsideration of Concords VIE status. In connection with this
reconsideration event, the Company determined that Concord is a VIE since it is not sufficiently
capitalized to finance its activities primarily due to the significant decline in the fair value of
its assets.
The Company determined that it was the primary beneficiary of this VIE since it absorbs the
majority of expected residual returns and therefore continued to consolidate Concord.
Under the accounting guidance on consolidations there is a requirement to measure the assets,
liabilities and non-controlling interests of the newly consolidated VIE at their fair values at the
date that the reporting entity becomes the primary beneficiary. However, because the primary
beneficiary of the VIE, the Company, and the VIE,
Concord, are under common control and, as discussed above, Concord was already consolidated in
prior periods, albeit under different guidance, no fair value adjustment was necessary.
24
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 9 Variable Interest Entities (Continued)
At December 31, 2009 the Company identified certain real estate debt investments with aggregate
carrying values of $21,465,000. These investments were deemed VIEs primarily based on the fact
that the equity investment at risk is not sufficient to permit the entity to finance its activities
without additional financial support. The Company has determined that it is not the primary
beneficiary of the VIEs as it does not have voting or other rights that allow the Company to
exercise control over the borrower entity nor do they have participation features which the Company
would be required to absorb expected losses or be entitled to receive expected residual returns of
the borrower entities. For the year ended December 31, 2009 no events occurred that would cause the
Company to reconsider the VIE status of these debt investments.
Note 10 Repurchase Agreements
The following table outlines borrowings under the Companys repurchase agreements as of December
31, 2009:
December 31, 2009 | ||||||||
Debt Carrying | Collateral Carrying | |||||||
(in thousands) | Vaue | Value (3) | ||||||
Royal Bank of Scotland, PLC, successor in interest to
Greenwich Capital Financial Products, Inc., matures on
February 1, 2012, interest is variable based on 1-month
LIBOR rate plus 1% or 1.23% and 2.04% respectively |
$ | 59,550 | $ | 71,530 | ||||
Royal Bank of Scotland, PLC, successor in interest to
Greenwich Capital Financial Products, Inc., matures on
January 15, 2011, interest is variable based on 1-month
LIBOR rate plus 1% or 1.23% and 1.51% respectively |
3,543 | 6,452 | ||||||
Column Financial Inc., variable interest based on 1-
month LIBOR plus 1%, the rate was 1.47% at December
31, 2008. (1) |
| | ||||||
Column Financial Inc., expiration December 31, 2010,
interest is variable based on 1-month LIBOR plus 0.85%
to 1.35%, the weighted average was 1.27%, and 1.49%,
respectively. (2) |
71,971 | 74,276 | ||||||
Total repurchase agreements |
$ | 135,064 | $ | 152,258 | ||||
(1) | In February 2009, the repurchase agreement was terminated and the asset which was
subject to this repurchase agreement was added to the multiple loan asset repurchase
agreement. The multiple loan asset repurchase agreement was modified to provide that the
interest rate, maturity date and advance rate, with respect to the asset added to the
multiple loan asset repurchase facility, would remain as it was under the specific
repurchase agreement. |
|
(2) | On April 14, 2009, the multiple loan asset repurchase agreement was modified as
discussed above. |
|
(3) | Collateral carrying value equals face value less bond discounts, unrealized gains and
losses and other-than-temporary impairment losses plus bond premiums and unrealized gains. |
25
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 10 Repurchase Agreements (Continued)
Upon the dissolution of the Company the repurchase agreement liabilities were assumed by the
Companys successor.
The fair value of the Companys repurchase agreements was $79,358,000 at December 31, 2009.
In certain circumstances, the Company financed the purchase of its real estate debt investments and
available for sale securities from a counterparty through a repurchase agreement with the same
counterparty. The Company records these investments in the same manner as other investments
financed with debt whereby the investment recorded is as an asset and the related borrowing as a
liability on the Companys Consolidated Balance Sheet. Interest income earned on the investments
and interest expense incurred on the repurchase obligations are reported separately on the
consolidated statements of operations.
Under the terms of the repurchase facility with Column, the Company was required to maintain
minimum liquidity, comprised of cash and cash equivalents, of at least $10,000,000 at all times.
The Company had failed these requirements during measurements periods in 2010 and 2009 however, the
Column facility has been satisfied in full.
In July 2009 Royal Bank of Scotland PLC (RBS) agreed to restructure its agreement with the
Company. The restructuring of the agreement required a reduction of the outstanding balance by
$11,500,000, which was satisfied on July 31, 2009 as a result of the sale of a real estate debt
investment. Under the RBS repurchase facilities the Company has a $10,000,000 minimum liquidity
requirement. At certain times during the period from January 1, 2010 to August 26, 2010
(Dissolution) and the year ended December 31, 2009 Concords cash balance declined to an amount
below the $10,000,000 minimum liquidity requirements. In addition, the RBS repurchase facility
required the Company to maintain a minimum net worth and a maximum indebtedness to tangible net
worth. The Company failed these covenants during 2010 and 2009.
Upon the dissolution of the Company the repurchase agreement liabilities were assumed by the
Companys successor.
Note 11 Revolving Credit Facility
On September 23, 2009, the Company amended and restated its agreement with KeyBank. Under the
terms of this amendment the credit line was reduced from the original $100,000,000 to the actual
outstanding balance of $73,666,000 as of the date of the agreement. Key Bank received as additional
collateral all remaining unpledged assets including cash and any previously unencumbered loans and
bonds the Company had repurchased. Under the conditions of the agreement, no distributions are
allowed to be made to the Companys members until KeyBank is fully repaid. The bank has allowed for
a maximum of $650,000 per month in operating expenses, however a mandatory monthly principal
payment of $300,000 plus an additional annual principal repayment of $10,000,000 is required or the
Company will be in default of the loan. The agreement expires on December 31, 2010 with rights for
three one year extensions through December 31, 2013 at the Companys option subject to the
satisfaction of certain conditions.
Borrowings under the facility bear interest rates based upon prevailing LIBOR plus an applicable
spread or an Alternative Base Rate (ABR), as defined. At December 31, 2009, the Companys
borrowings bear interest at LIBOR plus 300 bps.
The Company had an outstanding balance on the revolving credit facility of approximately
$58,850,000 at December 31, 2009, which was collateralized by a first priority lien on certain of
the Companys equity interests as well as first priority perfected liens in certain of the
Companys loan assets and bonds with a carrying value of $113,959,000. The weighted-average
interest rate on amounts outstanding was approximately 3.24% during the year ended December 31,
2009.
26
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 11 Revolving Credit Facility (Continued)
The terms of the restructured agreement with KeyBank require the Company to maintain a number of
customary financial and other covenants on an ongoing basis including: i) maximum leverage ratio
not to exceed 75%, ii) minimum fixed charge ratio not less than 1:50 to 1:00, iii)tangible net
worth cannot be less than twice the aggregate principal balance of all loans (minimum net worth),
iv) cannot payout any restricted payments in excess of 100% of net income (maximum payout ratio),
v) prohibition on additional indebtedness.
The Company has failed certain of its covenants during the year ended December 31, 2009, and
therefore was in default of its agreement with KeyBank. Under the default provisions, KeyBank has
the right to accelerate repayments and all amounts of principal and accrued interest immediately
become due and payable. KeyBank has not exercised such rights.
The fair value of the revolving credit facility was $48,657,000 at December 31, 2009.
Upon the dissolution of the Company the revolving credit facility was assumed by the Companys
successor.
Note 12 Collateralized Debt Obligations
CDO-1 holds assets, consisting primarily of whole loans, mezzanine loans and available for sale
securities totaling approximately $444,849,000, which serve as collateral for the CDO. The CDO-1
issued investment grade rated notes with a principal amount of approximately $347,525,000 and a
wholly-owned subsidiary of the Company purchased the G and H tranches and preferred equity
interests of CDO-1. The seven investment grade tranches were issued with floating rate coupons
with a combined weighted average rate of 0.71% and 0.95% at December 31, 2009 and 2008,
respectively, and has a maturity of December 2016. The Company has the ability to contribute
additional assets to the CDO-1 through December 31, 2011 in order to replenish the assets of the
CDO-1 to the extent that an asset of the CDO-1 is repaid prior to such date. Thereafter, the
outstanding debt balance will be reduced as loans are repaid. The Company incurred approximately
$7,774,000 of issuance costs which are being amortized over the average estimated life of the
CDO-1, estimated to be approximately 10 years or when debt is satisfied on a pro rata basis. For
accounting purposes, the CDO-1 is consolidated in the Companys financial statements. The seven
investment grade tranches are treated as a secured
financing and are non-recourse to the Company. Interest proceeds received from investments
collateralizing the CDO are distributed to holders of the CDO notes on a monthly basis.
For the year ended December 31, 2008, the Company purchased $11,200,000 of Tranche D, $5,000,000 of
Tranche E, $10,925,000 of Tranche C and $2,000,000 of Tranche F of its CDO-1 notes for $13,110,000.
The Company determined that the repurchase of the CDO-1 tranches qualified as an extinguishment of
debt pursuant to the guidance for transfers and servicing of financial instruments and recognized a
gain on extinguishment of $15,603,000. For the year ended December 31, 2008, unamortized deferred
issuance costs of $411,000 were charged against the gains.
The fair value of the collateralized debt obligations was $201,719,000 at December 31, 2009.
CDO-1 contains covenants that are both financial and non-financial in nature. Significant
covenants include cash coverage and collateral quality tests. CDO-1 was in compliance with its
financial covenants at December 31, 2009 and 2008.
The borrower of a $44,000,000 first mezzanine note owned by Concord (the Note) failed to satisfy
its obligation when the Note matured in February 2008. On March 28, 2008 Concord sold the Note at
par together with accrued interest and late charges to an unaffiliated third party. Concord
concluded that this transaction qualified as a sale pursuant to the accounting guidance for
transfers of financial assets. Concurrently with the sale of the Note, the Company entered into a
credit support arrangement with Deutsche Bank (the Bank) for which Concord, subject to certain
terms and conditions, was required to return a portion of the purchase price of the Note equal to
2.75% of any shortfall received by the buyer of the Note on the sale of the underlying real
property in satisfaction of the loan.
27
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 12 Collateralized Debt Obligations (Continued)
As consideration for the collateral support arrangement, Concord has received cumulative fees of
$1,589,000 through July 2009. Upon entering into the collateral support arrangement, Concord
determined that it meets the criteria of a guarantee pursuant to the accounting guidance for
guarantees and estimated the fair value of the guarantee at inception to be approximately $50,000.
During July 2009 the Concord received notice that pursuant to the credit support arrangement, a
collateral deficiency was realized on the aggregate net proceeds from the sale of the underlying
collateral of the Note for which Concord was allocated 2.75% of the total deficiency. Accordingly,
a collateral support obligation has been recorded for the aggregate liability amount of $9,757,000
at December 31, 2009.
On December 10, 2009, a final arbitration ruling was issued and a settlement amount for Concords
share of the shortfall of $9,598,000 plus per diem interest and expenses of $159,000 was awarded to
the Bank.
Upon the sale of the CDO-1 by the Company the collateralized debt obligation was assumed by the CDH
CDO LLC.
Note 13 Sub-participation obligation
On October 14, 2009, the Company received a principal repayment of $6,000,000 in partial
satisfaction of a loan collateralized by a hotel located in New York, NY. In exchange, the Company
granted to the borrower waivers of certain loan conditions and agreed to exercise its rights under
the loan in accordance with instructions furnished by the borrower. Concurrently with the
execution of the agreement, the borrower also purchased sub-participation interests in certain
bonds owned by the Company for approximately $4,500,000. The sub-participation obligation requires
the Company to remit to the borrower principal and interest payments received from the bonds. The
collateral for the bonds that are subject to the sub-participation obligation are controlled by the
borrower.
In addition, the Company has written certain call options giving the borrower the right to purchase
the bonds that are subject to the sub-participation obligation. The call options are exercisable
at the discretion of the borrower at anytime through the maturity date of the bonds for a specified
strike price. The Company has also written a call option for one of the bonds to an unaffiliated
third party that is only exercisable upon either the expiration of the borrowers call option or
the event of default by the borrower as specified in the option agreement. The Company has
determined that the call options are not derivative instruments, but should be marked to fair value
with changes in fair value recognized in earnings. The fair value of the call options written to
both the borrower and the unaffiliated third party were not considered material and therefore have
not been recorded at December 31, 2009.
Note 14 Derivative Financial Instruments
The Company is exposed to certain risks arising from both its business operations and economic
conditions. The Company principally manages its exposures to a wide variety of business and
operational risks through management of its core business activities. The Company manages economic
risks, including interest rate, liquidity, and credit risk primarily by managing the amount,
sources, and duration of its debt funding and the use of derivative financial instruments.
Specifically, the Company enters into derivative financial instruments to manage exposures that
arise from business activities that result in the receipt or payment of future known and expected
cash amounts, the value of which are determined by interest rates. The Companys derivative
financial instruments are used to manage differences in the amount, timing, and duration of the
Companys known or expected cash receipts and its known or expected cash payments principally
related to the Companys investments and borrowings.
Cash Flow Hedges of Interest Rate Risk
The Companys objectives in using interest rate derivatives are to add stability to interest
expense and to manage its exposure to interest rate movements. To accomplish this objective, the
Company primarily uses interest rate swaps as part of its interest rate risk management strategy.
Interest rate swaps designated as cash flow hedges involve the
receipt of variable-rate amounts from a counterparty in exchange for the Company making fixed-rate
payments over the life of the agreements without exchange of the underlying notional amount.
28
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 14 Derivative Financial Instruments (Continued)
The effective portion of changes in the fair value of derivatives designated and that qualify as
cash flow hedges is recorded in Accumulated Other Comprehensive Income (Loss) and is subsequently
reclassified into earnings in the period that the hedged forecasted transaction affects earnings.
During the years ended December 31, 2009, 2008 and 2007, such derivatives were used to hedge the
variable cash flows associated with existing variable-rate debt. The Company also assesses and
documents, both at the hedging instruments inception and on an ongoing basis, whether the
derivative instruments are highly effective in achieving offsetting changes in the cash flows
attributable to the hedged items. The Company has recorded changes in fair value related to the
effective portion of its interest swap contracts designated and qualifying as cash flow hedges
totaling an increase of $16,539,000 for the period from January 1, 2010 to August 26, 2010
(Dissolution) and a decrease of $16,539,000 for the year ended December 31, 2009. This change was a
component of other liabilities and accumulated other comprehensive loss within the Companys
Consolidated Balance Sheet.
Designated Hedges
On August 19, 2009, the Company terminated five interest rate swap agreements consisting of four
designated cash flow hedging instruments with a notional value of $54,375,000 and one hedging
derivative not designated as a cash flow hedge with a notional value of $11,000,000. The cost to
terminate the five hedges was $8,221,000. A loss of $74,000 which includes a termination fee
was recognized for the period ended December 31, 2009.
The Company has recorded changes in fair value related to the deferred loss on the cancellation of
interest rate swaps totaling an decrease of $5,870,000 for the period from January 1, 2010 to
August 26, 2010 (Dissolution), an increase of $5,870,000 for the year ended December 31, 2009, a
decrease of $63,000 for the year ended December 31, 2008. This change was a component of other
liabilities and accumulated other comprehensive loss within the Companys Consolidated Balance
Sheet at December 31, 2009.
There was no ineffective portion of the change in fair value of the designated hedges recognized
directly in earnings during the years ended December 31, 2009 and 2008 respectively. The Company
completed the restructuring as discussed in Note 1 and the deferred loss was reclassified as loss
and was recognized in earnings for the period from January 1, 2010 to August 26, 2010.
As of December 31, 2009, the Company had the following outstanding interest rate derivatives that
were designated as cash flow hedges of interest rate risk which mature in August 2016:
Interest Rate Derivative | Number of Instruments | Notional | ||||||
Interest Rate Swaps |
2 | $ | 137,887,000 |
Non-designated Hedges
Derivatives not designated as hedges are not speculative and are used to manage the Companys
exposure to interest rate movements and other identified risks but do not meet the strict hedge
accounting requirements of derivatives. Changes in the fair value of derivatives not designated in
hedging relationships are recorded directly in earnings and were equal to $683,686 of income for
the year ended December 31, 2009 and $1,478,000 of expense for the year ended December 31, 2008.
29
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 14 Derivative Financial Instruments (Continued)
The table below presents the fair value of the Companys derivative financial instruments as well
as their classification on the Consolidated Balance Sheet as of December 31, 2009 (in thousands):
Liability Derivatives | Balance Sheet | |||||
(in thousands) | Location | Fair Value | ||||
Derivatives designated as hedging
instruments under SFAS 133 |
||||||
Interest Rate Swap |
Other Liabilities | $ | 8,714 | |||
Interest Rate Swap |
Other Liabilities | 3,560 | ||||
Total derivatives designated as hedging
instruments under SFAS 133 |
$ | 12,274 | ||||
Note 15 Accumulated Other Comprehensive Loss
Accumulated other comprehensive loss reflected in members capital as of August 26, 2010
(Dissolution) and December 31, 2009 is comprised of the following:
(in thousands) | 2010 | 2009 | ||||||
Unrealized losses on cash flow hedges |
$ | (17,762 | ) | $ | (12,274 | ) | ||
Deferred loss on cancellation of interest rate swaps |
(5,201 | ) | (6,203 | ) | ||||
Unrealized gains/(losses) on available-for-sale securities |
(7,603 | ) | (13,377 | ) | ||||
Adjustment for cumulative effect of adopting new accounting pronoucement |
(23,294 | ) | (23,294 | ) | ||||
Dissolution adjustment |
53,860 | | ||||||
$ | | $ | (55,148 | ) | ||||
Note 16 Discontinued Operations
The Company was granted a decree of foreclosure from the United States District Court of Ohio on
April 15, 2009 on a mortgage loan asset with a face value of $20,900,000 and carrying value of
$12,000,000 at the date of foreclosure. As a result of the decree, the Court granted the Company a
permanent order of possession over six properties, which represented the collateral on the loan,
and a foreclosure sale occurred on October 7, 2009 at which time the Company was the successful
bidder and received title to six multi-family Ohio residential properties with an estimated fair
value of $11,202,000.
For the period from January 1, 2010 to August 26, 2010 (Dissolution), two of the properties were
sold for an aggregate net selling price of $2,818,000 and four properties were sold during the
period ended December 31, 2009 for an aggregate net selling price of $7,676,000 which included a
$955,000 short term seller financing that was repaid by the borrower on April 7, 2010.
30
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 16 Discontinued Operations (Continued)
The combined results related to discontinued operations for the period from January 1, 2010 to
August 26, 2010 (Dissolution) and the year ended December 31, 2009 were as follows (in thousands):
2010 | 2009 | |||||||
Total revenues |
$ | 159 | $ | 332 | ||||
Total expenses |
(422 | ) | (1,291 | ) | ||||
Loss on discontined operations |
(708 | ) | | |||||
Loss from discontinued operations |
$ | (971 | ) | $ | (959 | ) | ||
Note 17 Dividends
In order for the Companys consolidated subsidiary, Concord Debt Funding Trust, to maintain its
election to qualify as a REIT, it must distribute, at a minimum, an amount equal to 90% of its
taxable income to its shareholders. For the years ended December 31, 2009 and 2008 dividends were
comprised of 100% ordinary dividends. Because taxable income differs from cash flow from operations
due to non-cash revenues and expenses, the Company may generate operating cash flow in amounts
below or in excess of its dividends.
At December 31, 2009, the Companys members capital was $289,798,000 for federal tax reporting
purposes as compared to $58,780,000 for financial reporting purposes.
Note 18 Related Party Transactions
WRP Sub-Management LLC
Since January 1, 2007, WRP Management has retained WRP Sub-Management to perform accounting
collateral management and loan brokerage services.
On August 2, 2008, the Company, WRP Management and WRP Sub-Management entered into an
Administration and Advisory Agreement whereby WRP Sub-Management became the Administrative Manager
to provide day-to-day management, collateral management and administrative services for the
Company. For providing these management services, WRP Sub-Management is entitled to receive a base
management fee equal to five basis points multiplied by the total assets of the Company. The
Administrative Manager is also entitled to receive loan acquisition fees based on pre-determined
budgeted amount and reimbursement for actual out-of-pocket expenses. Related party fees and
expenses paid for the period from January 1, 2010 to August 26, 2010 (Dissolution) and the years
ended December 31, 2009 and 2008 are as follows (in thousands):
2010 | 2009 | 2008 | ||||||||||
Base management fee |
$ | 361 | $ | 533 | $ | | ||||||
Employee wages and benefits |
228 | 647 | 1,960 | |||||||||
Total related party fees and expenses paid |
$ | 589 | $ | 1,180 | $ | 1,960 | ||||||
Related party fees and expenses recorded on an accrual basis were $469,695 for the period from
January 1, 2010 to August 26, 2010 (Dissolution) and $1,108,000 and $1,637,000 or the years ended
December 31, 2009 and 2008, respectively.
At December 31, 2009, the Company owed WRP Sub-Management $163,000.
31
LEX-WIN CONCORD LLC
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Notes to Consolidated Financial Statements
(Information from January 1, 2010 to August 26, 2010 (Dissolution) is Unaudited)
Note 18 Related Party Transactions (Continued)
Note Payable to Related Parties
On December 31, 2008, Winthrop and Lexington each advanced proceeds of $5,000,000 to the Company
pursuant to short-term demand notes bearing interest at 1.36%. These notes were subsequently
repaid to each of Winthrop and Lexington in January 2009 along with accrued interest.
On August 19, 2009, Winthrop and Lexington each advanced proceeds of $4,160,000 to the Company
pursuant to short-term demand notes bearing interest of 5.44%. These notes were subsequently
repaid to each of Winthrop and Lexington in September 2009 along with accrued interest.
Sale of Assets to Winthrop
During 2009, the Company sold four real estate debt investments and four bonds with an aggregate
carrying value of $84,302,000 to Winthrop for net proceeds of $53,339,000.
32