10 Things Every Buyer Needs – To Close A Commercial Real Estate Loan

For nearly 30 years, I have represented borrowers and lenders in commercial real estate transactions. During this time it has become apparent that many Buyers do not have a clear understanding of what is required to document a commercial real estate loan. Unless the basics are understood, the likelihood of success in closing a commercial real estate transaction is greatly reduced.

Throughout the process of negotiating the sale contract, all parties must keep their eye on what the Buyer’s lender will reasonably require as a condition to financing the purchase. This may not be what the parties want to focus on, but if this aspect of the transaction is ignored, the deal may not close at all.

Sellers and their agents often express the attitude that the Buyer’s financing is the Buyer’s problem, not theirs. Perhaps, but facilitating Buyer’s financing should certainly be of interest to Sellers. How many sale transactions will close if the Buyer cannot get financing?

This is not to suggest that Sellers should intrude upon the relationship between the Buyer and its lender, or become actively involved in obtaining Buyer’s financing. It does mean, however, that the Seller should understand what information concerning the property the Buyer will need to produce to its lender to obtain financing, and that Seller should be prepared to fully cooperate with the Buyer in all reasonable respects to produce that information.

Basic Lending Criteria

Lenders actively involved in making loans secured by commercial real estate typically have the same or similar documentation requirements. Unless these requirements can be satisfied, the loan will not be funded. If the loan is not funded, the sale transaction will not likely close.

For Lenders, the object, always, is to establish two basic lending criteria:

1. The ability of the borrower to repay the loan; and

2. The ability of the lender to recover the full amount of the loan, including outstanding principal, accrued and unpaid interest, and all reasonable costs of collection, in the event the borrower fails to repay the loan.

In nearly every loan of every type, these two lending criteria form the basis of the lender’s willingness to make the loan. Virtually all documentation in the loan closing process points to satisfying these two criteria. There are other legal requirements and regulations requiring lender compliance, but these two basic lending criteria represent, for the lender, what the loan closing process seeks to establish. They are also a primary focus of bank regulators, such as the FDIC, in verifying that the lender is following safe and sound lending practices.

Few lenders engaged in commercial real estate lending are interested in making loans without collateral sufficient to assure repayment of the entire loan, including outstanding principal, accrued and unpaid interest, and all reasonable costs of collection, even where the borrower’s independent ability to repay is substantial. As we have seen time and again, changes in economic conditions, whether occurring from ordinary economic cycles, changes in technology, natural disasters, divorce, death, and even terrorist attack or war, can change the “ability” of a borrower to pay. Prudent lending practices require adequate security for any loan of substance.

Documenting The Loan

There is no magic to documenting a commercial real estate loan. There are issues to resolve and documents to draft, but all can be managed efficiently and effectively if all parties to the transaction recognize the legitimate needs of the lender and plan the transaction and the contract requirements with a view toward satisfying those needs within the framework of the sale transaction.

While the credit decision to issue a loan commitment focuses primarily on the ability of the borrower to repay the loan; the loan closing process focuses primarily on verification and documentation of the second stated criteria: confirmation that the collateral is sufficient to assure repayment of the loan, including all principal, accrued and unpaid interest, late fees, attorneys fees and other costs of collection, in the event the borrower fails to voluntarily repay the loan.

With this in mind, most commercial real estate lenders approach commercial real estate closings by viewing themselves as potential “back-up buyers”. They are always testing their collateral position against the possibility that the Buyer/Borrower will default, with the lender being forced to foreclose and become the owner of the property. Their documentation requirements are designed to place the lender, after foreclosure, in as good a position as they would require at closing if they were a sophisticated direct buyer of the property; with the expectation that the lender may need to sell the property to a future sophisticated buyer to recover repayment of their loan.

Top 10 Lender Deliveries

In documenting a commercial real estate loan, the parties must recognize that virtually all commercial real estate lenders will require, among other things, delivery of the following “property documents”:

1. Operating Statements for the past 3 years reflecting income and expenses of operations, including cost and timing of scheduled capital improvements;

2. Certified copies of all Leases;

3. A Certified Rent Roll as of the date of the Purchase Contract, and again as of a date within 2 or 3 days prior to closing;

4. Estoppel Certificates signed by each tenant (or, typically, tenants representing 90% of the leased GLA in the project) dated within 15 days prior to closing;

5. Subordination, Non-Disturbance and Attornment (“SNDA”) Agreements signed by each tenant;

6. An ALTA lender’s title insurance policy with required endorsements, including, among others, an ALTA 3.1 Zoning Endorsement (modified to include parking), ALTA Endorsement No. 4 (Contiguity Endorsement insuring the mortgaged property constitutes a single parcel with no gaps or gores), and an Access Endorsement (insuring that the mortgaged property has access to public streets and ways for vehicular and pedestrian traffic);

7. Copies of all documents of record which are to remain as encumbrances following closing, including all easements, restrictions, party wall agreements and other similar items;

8. A current Plat of Survey prepared in accordance with 2011 Minimum Standard Detail for ALTA/ACSM Land Title Surveys, certified to the lender, Buyer and the title insurer;

9. A satisfactory Environmental Site Assessment Report (Phase I Audit) and, if appropriate under the circumstances, a Phase 2 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 requirements and deliveries the Buyer will be expected to satisfy as a condition to obtaining funding of the purchase money loan, but the items 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 greatly reduced.

Planning for Closing Costs

The closing process for commercial real estate transactions can be expensive. In addition to drafting the Purchase Contract to accommodate the documentary requirements of the Buyer’s lender, the Buyer and his advisors need to consider and adequately plan for the high cost of bringing a commercial real estate transaction from contract to closing.

If competent Buyer’s counsel and competent lender’s counsel work together, each understanding what is required to be done to get the transaction closed, the cost of closing can be kept to a minimum, though it will undoubtedly remain substantial. It is not unusual for closing costs for a commercial real estate transaction with even typical closing issues to run thousands of dollars. Buyers must understand this and be prepared to accept it as a cost of doing business.

Sophisticated Buyers understand the costs involved in documenting and closing a commercial real estate transaction and factor them into the overall cost of the transaction, just as they do costs such as the agreed upon purchase price, real estate brokerage commissions, loan brokerage fees, loan commitment fees and the like.

Closing costs can constitute significant transaction expenses and must be factored into the Buyer’s business decision-making process in determining whether to proceed with a commercial real estate transaction. They are inescapable expenditures that add to Buyer’s cost of acquiring commercial real estate. They must be taken into account to determine the “true purchase price” to be paid by the Buyer to acquire any given project and to accurately calculate the anticipated yield on investment.

Some closing costs may be shifted to the Seller through custom or effective contract negotiation, but many will unavoidably fall on the Buyer. These can easily total tens of thousands of dollars in an even moderately sized commercial real estate transaction in the $1,000,000 to $5,000,000 price range.

Costs often overlooked, but ever present, include title insurance with required lender endorsements, an ALTA Survey, environmental audit(s), a Site Improvements Inspection Report and, somewhat surprisingly, Buyers attorney’s fees.

For reasons that escape me, inexperienced Buyers of commercial real estate, and even some experienced Buyers, nearly always underestimate attorneys fees required in any given transaction. This is not because they are unpredictable, since the combined fees a Buyer must pay to its own attorney and to the Lender’s attorney typically aggregate around 1% of the Purchase Price. Perhaps it stems from wishful thinking associated with the customarily low attorneys fees charged by attorneys handling residential real estate closings. In reality, the level of sophistication and the amount of specialized work required to fully investigate and document a transaction for a Buyer of commercial real estate makes comparisons with residential real estate transactions inappropriate. Sophisticated commercial real estate investors understand this. Less sophisticated commercial real estate buyers must learn how to properly budget this cost.

Conclusion

Concluding negotiations for the sale/purchase of a substantial commercial real estate project is a thrilling experience but, until the transaction closes, it is only ink on paper. To get to closing, the contract must anticipate the documentation the Buyer will be required to deliver to its lender to obtain purchase money financing. The Buyer must also be aware of the substantial costs to be incurred in preparing for closing so that Buyer may reasonably plan its cash requirements for closing. With a clear understanding of what is required, and advanced planning to satisfy those requirements, the likelihood of successfully closing will be greatly enhanced.

How a Commercial Real Estate Broker Can Help You

Commercial real estate is a booming business; however, whether you are buying or selling commercial real estate, chances are that you are going to need a bit of help. A good real estate broker can be invaluable to you, and they can provide you with a great deal of help that no one else could ever give to you. If you want to have a successful career in the commercial real estate business, then more than likely you will need to work with a commercial real estate broker from time to time. The following are some of the great ways that a commercial real estate broker can be of help to you.

Local Land Values

Having a commercial real estate broker working with you can be very helpful when it comes to local land values. As an investor, you may not always be investing in commercial real estate that is in your area, and it can be hard to find out what the land values are in the area that you are considering investing in. When you work with a commercial real estate agent, they usually have a good grasp on local land values and can help you make good decisions based upon this information. This saves you having to do a great deal of research on your own to find out the same information.

Access to City Officials

If you have been working in the commercial real estate field long, you know that there are many times in this line of work when you have to deal with various city officials. At times this can be difficult, since you may not be familiar with them and you may have a hard time finding time to speak with them. When you work with a commercial real estate broker, many times you will find that they already have direct access to the city officials, which can expedite your deals much of the time.

Negotiation and Constructing Offers

Another great reason to have a commercial real estate broker is that they can do a great deal of the negotiating for you on a deal. It is usually better to have a broker as a go-between instead of dealing directly with the other person in a deal. A broker can usually more effectively negotiate the terms of a deal. They can also help you to construct offers as well so that you will be able to present a good offer on a piece of commercial property.

Exit Strategies

More than likely there will be some point in time when you will find it imperative that you get out of a commercial real estate deal. This can be hard to do on your own, but when you have a commercial real estate broker to help you, then can help you to come up with a solid exit strategy if you need it. When you get out of a deal, you need to have a great strategy that is totally legal, or you may end up losing a great deal of money. Having the commercial real estate broker there to help you can ensure that you exit the deal in a legal way that will not hurt you as well.

Referrals to Other Professionals

Commercial real estate brokers can also be of help to you by referring you to other professionals that can be helpful to you as well. This is especially great if you are new to the commercial real estate industry, you have just moved into a new area, or you are investing outside of the area when you live. It can be difficult to find good professionals to work with, such as lawyers, contractors, inspectors, and engineers. When you are dealing with a commercial real estate agent that you trust, they can refer you to other people that you can trust as well. This saves you the hassle of trying to find some of these professionals on your own without anyone’s recommendations to go on, which can be disastrous in some cases.

Lenders

Another area that a commercial real estate broker can help you with is the financing for your commercial real estate purchase. These broker work with a variety of different lenders from day to day, and if you are looking for financing for your venture, more than likely they can steer you in the right direction. They may even know of some private lenders that may be of some help to you as well.

First Grab at Targeted Properties

Having a commercial real estate broker can be very beneficial to you because they can also allow you to have first grab at some targeted properties that they know of. No doubt there are times when you find a great property, only to find out that it is already under contract and you spoke too late. If the broker knows what you are looking for, they may be able to pocket the listing so you can have the first chance at it.

When you do find a great commercial real estate broker, it is important that you hold onto them. A great broker can be invaluable and can help you out in a variety of ways that will help make you successful in the commercial real estate market. Working together with the same great broker over and over can be mutually beneficial to both of you. They will get the rewards of your business, and you will be able to enjoy the many benefits of working with an excellent commercial real estate broker that you can trust. When you find a good broker, they are definitely worth the money that you will pay out to use them.

Commercial Real Estate Agents – What You Need to Know About This Field

Within the world of real estate, there are a wide number of choices of careers. Besides the most common type – residential real estate agent or realtor – there are also jobs in commercial estate, commercial brokerages, residential brokerages, industrial brokerages, farm estate, appraisal offices, property management, land development, urban planning, research, and counseling. Here are some things you should know about commercial real estate to see if it’s right for you.

Within the world of commercial estate, there are several sub-categories. There are retail, industrial, institutional, office, resort, and investment. In big cities, this can get broken down even further. Some agents might only deal in high-rise office tower leasing, for instance.

It’s easier to get into residential estate, and it’s also easier to earn your first paycheck in that part of the field. It can take the better part of a year to get into the business and close your first deal. That being said, the payoff can be much greater than a residential deal would ever be. The properties a commercial agent handles are of a much higher price than houses are. The commission amounts, therefore, are much higher. A commercial agent is also less likely to need to divide the commission.

A commercial real estate agent can make as much as double that of a residential agent. The National Association of Realtors estimates that a commercial agent can make over $85,000 a year as compared to an average of just over $39,000 for a residential agent.

You will have to have a more insistent salesperson’s personality to be successful in commercial real estate. Many are younger and more of a go-getter than you find in other areas of estate. It is also a dominantly male field, but women can be very successful. It’s seen as more of a career than residential, which can be done part time if you wish.

The commercial field is much more corporate and less personal. You are dealing with high-powered company officers instead of young families buying their first homes. If you are in a small town, you can end up selling both types. In any larger areas, though, you will end up specializing.

It takes a license like all other types of estate property. However, commercial firms often require full college degrees in business or finance in addition to your real estate classes. Sometimes people with master’s degrees in finance go into the commercial field. This is very different from residential real estate where anyone can get their license after a few courses. You’ll find a wider range of people in the residential estate field as a result.

Information on the individual types of commercial estate is often hard to find. It is also highly specialized, so if you are interested, it may take some digging at a collegiate library. You might also be able to do some research with a commercial real estate agent. If you are able to set up an interview, you can ask questions and help narrow down which aspect you want to pursue.