A Borrower’s Guide to Managing the Lending Process




Most commercial real estate borrowers will deal with a commercial bank on transactions up to $10 million, although some small life companies may welcome deals around $10 million, and CMBS lenders on smaller net-leased transactions. Getting a bank loan, of course, is a process. A CRE purchase often will involve a contract contingency for financing. So the clock is ticking, but not simply for your real estate agent, the attorney, if involved, but also for you! Suffice it to say, the deal is a long way from being done so a hands-on approach for the borrower is imperative. As a former lender, I am familiar with the internal loan drill and there can be hiccups and derailments along the way.

Thirty years ago loan officers had substantial lending authority. When I left banking my authority was $5 million. Most so-called loan officers have been schooled and equipped with only the most rudimentary tools, and frankly not qualified to assess risk. Today authority usually rests with a “committee” which includes an analyst and other bank lending officials. Remarkably, the frontline person you are dealing with is marginalized. Moreover, you may not have a qualified person doing your bidding. C’est la vie!

When I refer to managing the lending process I am suggesting that you, to the extent possible, engage yourself, as well as your real estate agent (broker), in this intricate process with ardent oversight as to requirements of the lender, compliance with the purchase and sale contract (PSA) b, and in general, closely monitor each step along the way. As a caveat, if this is not done don’t be surprised when you “get a surprise”, either delaying or jeopardizing your deal.

The following bullet-points (no order) will go a long way towards shepherding your deal to the finish line:

  • KNOW YOUR OWN FINANCIAL CAPABILITY! Check your credit so you are aware going in, prepare a personal financial statement, and assemble the last 3 years of tax returns. You will be doing everyone a favor and troubleshooting the process. The lender will require this information in any event.

  • If the purchase is an investment, I strongly recommend that you run a preliminary cash flow analysis. Generally, lenders will require a benchmark 1.2 to 1.5 debt service coverage to make the grade. The National Association of Realtors, via their RPR (www.narrpr.com) subsidiary offers easy to use software that can turn around an analysis in 20 minutes. Again, this is a preliminary run. The bank analyst will do a more sophisticated ARGUS analysis as well.

  • Shop the lenders for expressions of lender interest as well as interest rates and terms. Lenders are competitive but some will show more appetite than others.

  • Establish and fully understand the approval procedure of the lender (individual, committee)

  • Understand whether the loan is non-recourse, recourse, and the extent of any guarantees

  • While I do not recommend applying to multiple lenders, identify a backup lender

  • Again, do your best to be proactive to be able to troubleshoot the process.

  • Assist with due diligence and track compliance

  • Assess any environmental or appraisal issues at the onset

  • Be certain as to the timeline for receiving a final approval letter (usually with contingencies) will be rendered by the lender

  • Be constantly cognizant of the PSA (contract) contingencies for study periods as well as financing

  • If this is a 1031 for either party, be on your toes. Familiarity with the code is imperative

  • Make sure the designated settlement firm gets a preliminary title report to unearth any issues early on

The foregoing are just a few suggestions to put on your “checklist”.

Next: Please look for discussions involving life companies, CMBS (Commercial Mortgage Backed Securities), and alternative financing, “How do I Select a Commercial Real Estate Agent?”, “Managing the IRS Section 1031 process, “and “How to Look for Office Space?”


THE ART OF RENEWING YOUR OFFICE LEASE

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THE ART OF RENEWING YOUR OFFICE LEASE

If a firm or business rents space, rent is usually the second largest cost item after payroll. Today and throughout 2017, commercial office tenants in the Washington, D.C. Metropolitan area nearing the end of their lease term have a unique opportunity to dramatically reduce what they are paying their landlord. Costar, the leading commercial real estate database, reported DC Metro wide end of second quarter 2016 vacancy at nearly 15% with vacancy in many submarkets exceeding 20%. More than at any time in the last 10 to 15 years, Landlords are competing aggressively both to attract new tenants and to retain the tenants they have. We expect this trend to continue through next year.

To take advantage of this market, owners and chief executives of area businesses can either relocate or renew their existing lease. We will take a look at the decision to relocate in a later article. For the purpose of this article, it is assumed an office tenant leases space that still works well for its business in terms of size, location, and image. The goal of this tenant is to renew its existing lease with its existing landlord.

There is a definite art to renewing an office lease. It is not just a matter of asking the landlord for a renewal proposal, countering terms a few times, and then executing a lease amendment extending the lease term. By using these tips, tenants can achieve the lowest rental rate and the most concessions from the landlord.

    START EARLY.

The renewal cycle should begin 12 months before the end of the lease term. The tenant should initiate the renewal process by a written request to the landlord for a renewal proposal. In no event should the tenant wait for the landlord to send a proposal. The goal in dealing with the landlord is to maximize the tenant’s options and leverage vis-à-vis the landlord even if the tenant really has no intention of moving. A relocation typically takes four to six months to complete depending on the amount of work that needs to be done to the new space. If the tenant waits until late in the lease term to begin renewal discussions with its existing landlord, the landlord will know the tenant has few options and in all likelihood wants to renew in place. The tenant should aim to complete the renewal negotiations no less than four to six months from the end of its lease. That way If renewal negotiations break down, the tenant can still relocate in an orderly and competitive manner. Another downside to waiting too long is if the tenant fails to renew or to complete a relocation before the end its current lease term, the tenant is usually penalized by the “holdover rent” provisions in its existing lease. Holdover provisions are included in almost all commercial office leases and typically require the tenant to pay 150-200% of its then existing rent if the tenant holds over past the end of its lease term.

    REVIEW THE EXISTING LEASE.

It is common for leases to include a right to renew the lease term. If so, the renewal provision usually requires the tenant to exercise that right by written notice to the landlord within a stated number of months from the end of the lease term. The method of establishing the renewal rate should also be reviewed. If the tenant did its homework when it signed the initial lease, the renewal process will include a negotiation period between the tenant and landlord. The renewal rate should be pegged to the then market rental rate including market concessions from the landlord (free rent, tenant improvement allowance, etc.). If the landlord and tenant fail to agree on the rent and concessions within the stated period, a “three broker method” is often used to set the rent. Each side picks an “expert” and the experts then pick a third who come to a binding decision on the rent package. However, some leases provide in no event will the rent be less than the existing rent, or worse, that the renewal rate will be two to three percent higher than the then existing rental rate. Even if the lease includes provisions like these, the tenant may find the landlord is willing to waive the provision, especially if the building has a lot of vacancy—it is a tenant’s market.

    MAKE THE EXISTING LANDLORD COMPETE.

The tenant must make its existing landlord believe it could lose the tenant. Landlords count on “tenant inertia”—they know relocating is disruptive to the tenant’s business and expensive. Consequently, it is not uncommon for an existing tenant to be offered a less competitive rent package than a new tenant the landlord is trying to entice into its building. This point is closely tied to the fourth and final point.

    USE A BROKER.

Yes, this article is written by a broker, but using a broker is important and essential to making the landlord compete. Tenants typically negotiate a lease every 3, 5, 7, or 10 years. Landlords, on the other hand, hire leasing agents and property managers who are negotiating leases, showing space and “in the market” every day of the week. Tenants have a real information gap:
• what is the best, most attainable rental rate,
• what should the landlord offer for improvements to the space,
• should the package offered by the landlord include free rent and how much,
• what is reasonable for rent and expense escalations.

A little research on the internet is not sufficient to close this gap. By hiring a competent broker, the tenant evens the playing field, and it informs the landlord that the tenant is committed to developing options to the tenant’s existing space. The landlord will then know it must compete with those options. The existing landlord need not and should not ever know that the tenant’s goal is really to renew its existing lease. Again, the object is to maximize flexibility and leverage for the tenant. A good broker will schedule and conduct tours for the tenant/client of available space in other buildings. This ensures the word gets out to the brokerage community, and specifically to the tenant’s existing landlord, that the tenant is “in the market”.

Finally, hiring a broker will save you time and money even taking into account the commission the landlord will pay the tenant’s broker. Not all, but most office buildings in the DC Metro area are institutionally owned—national or regional equity funds, real estate investment trusts, life insurance companies and the like. Each year these landlords budget for commissions, tenant improvements, and other concessions the landlords will need to make to lease their buildings. Based on first-hand experience, the landlord does not offer one price to a tenant with a broker and a lower price to a tenant who is not using a broker. If there is no broker, the landlord simply keeps the difference. In terms of concessions to a tenant, landlords pay what is “market” provided the tenant and its team have skillfully used the market to force the landlord to maximize the concessions by the landlord.

The only area this may be different is for a “Mom and Pop” type owner. However, even here, a good broker will be able to use the market to the tenant’s advantage.

Use these tips and watch your bottom line improve.

Rick Lane, Esquire is a former partner in a real estate and construction litigation law firm with extensive
brokerage experience representing tenants in northern Virginia, D.C., and Maryland.

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Happy New Year

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