“A Roadmap to the Use of EB-5 Capital: An Alternative Financing Tool for Commercial Real Estate Projects” By Professor Jeanne Calderon, Esq. and Guest Lecturer Gary Friedland, Esq. of the NYU Stern School of Business May 22, 2015 1 Table of Contents I INTRODUCTION ........................................................................................................................................... 3 Background Topics .................................................................................................................................... 5 Capital Stack Topics ................................................................................................................................... 6 Related Topics Outside of the Paper’s Scope ........................................................................................... 7 II Background on EB-5 Program and Immigration Process ......................................................................... 10 EB-5 Program Overview .......................................................................................................................... 10 Capital Raise – Background ..................................................................................................................... 14 The Immigration Process – the Investor’s Path to Permanent Residency .............................................. 15 Regional Center Overview ...................................................................................................................... 20 Factors that Make Certain Projects More Suitable for EB-5 Capital Investment (“Project Factors”)..... 31 III CAPITAL STACK ........................................................................................................................................ 41 Conventional Projects - Summary background of mezzanine financing and preferred equity in conventional real estate projects ........................................................................................................... 41 EB-5 Gap Financing ................................................................................................................................. 45 Escrow of EB-5 Investment Funds ........................................................................................................... 60 Bridge Financing ...................................................................................................................................... 62 Conclusion ................................................................................................................................................... 67 Appendix ..................................................................................................................................................... 70 Appendix A - Sample EB-5 Mezzanine Loan Structure ............................................................................ 71 Appendix B - Select Large-Scale Projects Database ................................................................................ 73 Appendix C - Assorted Regional Centers Database .............................................................................. 104 2 “A Roadmap to the Use of EB-5 Capital: An Alternative Financing Tool for Commercial Real Estate Projects”1 I INTRODUCTION From an immigrant’s perspective, the EB-5 Immigrant Investor Program (“EB-5” or the “Program”) represents merely one of several paths to obtain a visa. 2 The EB-5 visa is based on the immigrant’s investment of capital in a business that creates new jobs.3 However, from a real estate developer’s perspective, the immigrant’s investment to qualify for the visa creates an alternative capital source for the developer’s project (“EB-5 capital” or “EB-5 financing”). Despite the Program’s enactment by Congress in 1990, for many years EB-5 was not a common path followed by immigrants to seek a visa.4 However, when the traditional capital markets evaporated during the Great Recession, developers’ demand for alternate capital sources rejuvenated the Program. Since 2008, the number of EB-5 visas sought, and hence the use of EB-5 capital, has skyrocketed.5 EB-5 capital has become a capital source providing extraordinary flexibility and attractive terms, especially to finance commercial real estate projects. Consequently, many developers routinely consider EB-5 capital as a potential source to fill a major space in the capital stack.6 As the financing tool becomes more widely known and understood, this source of capital should become even more popular. 1 Professor Jeanne Calderon, Esq. and Guest Lecturer, Gary Friedland, Esq. of the NYU Stern School of Business 2 Immigration and Nationality Act (INA) section 203(b)(5); http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html. The term “EB-5” refers to the fifth category of the five permanent resident visas available in the employment-based preference system that prioritizes immigrants based on their skills. This paper sometimes interchangeably refers to a “visa” and a “green card”, although there are technical differences between them. http://www.uscis.gov/working-united-states/permanent- workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor 3 Technically, rehabilitation projects that preserve jobs are also eligible for EB-5 investment; however, the overwhelming majority of EB-5 projects involve new development projects that create new jobs. 4 For example, according to a 2005 report by the Government Accounting Office, only 6,024 visas under the EB-5 category were issued from its inception through 2004, despite the law’s allocation of 10,000 visas per year. “Immigrant Investors: Small Number of Participants Attributed to Pending Regulations and Other Factors”, GAO- 05-256: Published: Apr 1, 2005. This Report includes a history of the Program until 2004. The current annual quota remains at 10,000 EB-5 visas per year, as discussed on page 18. 5 For example, 1,258 EB-5 visa applications (I-526 petitions) were filed during fiscal year 2008, compared to 10,928 during fiscal year 2014. This represents an increase of 769% [(10,928-1,258)/1,258] over this 6-year period. Furthermore, the number of applications filed during 2014 alone represented more than 25% of the applications filed since the Program’s inception in 1990. http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20 Data/Employment-based/I526_performancedata_fy2014_qtr4.pdf; http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20 Data/Employment-based/I526-I829_performancedata_fy1991-2013_qtr1.pdf 6 For example, I-Fei Chang, CEO of Greenland USA, the U.S. branch of Greenland Holdings (“Greenland”), a partially state-controlled, Shanghai-based development conglomerate with more than $50 billion in assets, remarked in a recent interview that EB-5 has “now become almost a conventional way [to raise capital] for large-scale developers in America”. Crain’s New York Business, November 10, 2014 “Chinese development firm puts down roots in Brooklyn”, by Joe Anuta. http://www.crainsnewyork.com/article/20141112/REAL_ESTATE/141119948/chinese- development-firm-plants-roots-in-bklyn In 2013, Greenland acquired a 70% ownership stake in the $5 billion 3 The EB-5 investor’s motivation for making the investment accounts for the relative flexibility and favorable terms afforded by EB-5 capital compared to conventional capital sources. Unlike that of the conventional capital providers (such as banks, private equity funds, REITs, life insurance companies and pension funds), the EB-5 investor’s reason for making the investment is to secure a visa. Thus, his primary objective at the time of making the investment is to satisfy the EB-5 visa requirements. Consequently, so long as the investor believes that the investment will qualify for the visa and result in the safe return of his capital, he is willing to accept a below market, if not minimal, return on the investment.7 Furthermore, the investor might not require some of the other protections that more sophisticated, conventional real estate investors typically seek.8 Sometimes, critics refer pejoratively to EB-5 as the “visa for sale” or “cash for visa” program. 9 However, the immigrant’s investment is not a purchase of a visa, but instead an investment in a U.S. project that will create jobs with the expectation that the investor’s capital will be returned. While the investment must be “at risk”, the investor’s expectation is that he will recover his investment after it has been outstanding for sufficient time to comply with the EB-5 immigration requirements. EB-5 capital can fill any space in the capital stack and take the form of debt or equity; ranging from unsecured loans to senior mortgage loans to equity. EB-5 capital raises for individual projects have ranged in size from $500,000 to more than $600 million. During the past five years, EB-5 capital has played a key role in financing several large-scale projects, particularly in major urban areas.10 Simply stated, the Program requires that the immigrant make a capital investment of $500,000 or $1,000,000 (depending on whether the project is located in a “Targeted Employment Area”11) in a business located within the United States. The business must directly create 10 new, full-time jobs per investor12. Thus, the number of jobs that a project will create is a key determinant of the amount of the potential EB-5 capital raise. Atlantic Yards development