For nearly 30 years, I have represented borrowers and lenders in industrial genuine estate transactions. During this time it has become apparent that numerous Purchasers do not have a clear understanding of what is expected to document a industrial genuine estate loan. Unless the basics are understood, the likelihood of success in closing a industrial real estate transaction is drastically decreased.
Throughout the approach of negotiating the sale contract, all parties will have to keep their eye on what the Buyer’s lender will reasonably call for as a situation to financing the obtain. This may not be what the parties want to concentrate on, but if this aspect of the transaction is ignored, the deal might not close at all.
Sellers and their agents normally express the attitude that the Buyer’s financing is the Buyer’s dilemma, not theirs. Maybe, but facilitating Buyer’s financing really should certainly be of interest to Sellers. How numerous sale transactions will close if the Purchaser cannot get financing?
This is not to suggest that Sellers need to intrude upon the connection between the Purchaser and its lender, or develop into actively involved in obtaining Buyer’s financing. It does imply, having said that, that the Seller ought to realize what data concerning the home the Purchaser will require to generate to its lender to receive financing, and that Seller need to be ready to completely cooperate with the Buyer in all reasonable respects to generate that details.
Basic Lending Criteria
Lenders actively involved in generating loans secured by commercial true estate commonly have the similar or equivalent documentation needs. Unless these specifications can be satisfied, the loan will not be funded. If the loan is not funded, the sale transaction will not most likely close.
For Lenders, the object, normally, is to establish two basic lending criteria:
1. The capability of the borrower to repay the loan and
two. The capacity of the lender to recover the full amount of the loan, such as outstanding principal, accrued and unpaid interest, and all affordable fees of collection, in the event the borrower fails to repay the loan.
In practically just about every loan of each form, these two lending criteria form the basis of the lender’s willingness to make the loan. Practically all documentation in the loan closing procedure points to satisfying these two criteria. There are other legal needs and regulations requiring lender compliance, but these two basic lending criteria represent, for the lender, what the loan closing course of action seeks to establish. They are also a principal focus of bank regulators, such as the FDIC, in verifying that the lender is following protected and sound lending practices.
Handful of lenders engaged in industrial actual estate lending are interested in making loans devoid of collateral enough to assure repayment of the whole loan, such as outstanding principal, accrued and unpaid interest, and all reasonable charges of collection, even exactly where the borrower’s independent ability to repay is substantial. As we have observed time and once again, alterations in financial situations, no matter whether occurring from ordinary economic cycles, changes in technologies, all-natural disasters, divorce, death, and even terrorist attack or war, can change the “ability” of a borrower to spend. Prudent lending practices demand sufficient security for any loan of substance.
Documenting The Loan
There is no magic to documenting a commercial actual estate loan. There are difficulties to resolve and documents to draft, but all can be managed efficiently and correctly if all parties to the transaction recognize the reputable desires of the lender and program the transaction and the contract needs with a view toward satisfying these demands inside the framework of the sale transaction.
Even though the credit selection to challenge a loan commitment focuses mainly on the capability of the borrower to repay the loan the loan closing method focuses mostly on verification and documentation of the second stated criteria: confirmation that the collateral is enough to assure repayment of the loan, which includes all principal, accrued and unpaid interest, late costs, attorneys charges and other expenses of collection, in the occasion the borrower fails to voluntarily repay the loan.
With this in mind, most commercial real estate lenders method industrial true estate closings by viewing themselves as possible “back-up purchasers”. They are constantly testing their collateral position against the possibility that the Buyer/Borrower will default, with the lender getting forced to foreclose and develop into the owner of the house. Their documentation needs are made to location the lender, right after foreclosure, in as very good a position as they would require at closing if they have been a sophisticated direct purchaser of the house with the expectation that the lender could require to sell the property to a future sophisticated buyer to recover repayment of their loan.
In documenting a industrial real estate loan, the parties will have to recognize that virtually all industrial real estate lenders will need, amongst other points, delivery of the following “house documents”:
1. Operating Statements for the past three years reflecting earnings and costs of operations, including cost and timing of scheduled capital improvements
2. Certified copies of all Leases
three. A Certified Rent Roll as of the date of the Purchase Contract, and once more as of a date inside 2 or 3 days prior to closing
4. Estoppel Certificates signed by each tenant (or, ordinarily, tenants representing 90% of the leased GLA in the project) dated within 15 days prior to closing
five. Subordination, Non-Disturbance and Attornment (“SNDA”) Agreements signed by every tenant
6. An ALTA lender’s title insurance coverage policy with expected endorsements, including, amongst other people, an ALTA three.1 Zoning Endorsement (modified to include things like parking), ALTA Endorsement No. 4 (Contiguity Endorsement insuring the mortgaged house constitutes a single parcel with no gaps or gores), and an Access Endorsement (insuring that the mortgaged house has access to public streets and ways for vehicular and pedestrian visitors)
7. Copies of all documents of record which are to remain as encumbrances following closing, which includes all easements, restrictions, celebration wall agreements and other similar things
8. A present Plat of Survey prepared in accordance with 2011 Minimum Standard Detail for ALTA/ACSM Land Title Surveys, certified to the lender, Purchaser and the title insurer
9. A satisfactory Environmental Web site Assessment Report (Phase I Audit) and, if acceptable below the circumstances, a Phase two Audit, to demonstrate the property is not burdened with any recognized environmental defect and
10. A Site Improvements Inspection Report to evaluate the structural integrity of improvements.
To be sure, there will be other specifications and deliveries the Buyer will be expected to satisfy as a condition to acquiring funding of the acquire dollars loan, but the products listed above are virtually universal. If the parties do not draft the purchase contract to accommodate timely delivery of these items to lender, the chances of closing the transaction are tremendously reduced.