Commercial Loans and Fun Blog

When a commercial lender underwrites a commercial loan, he will use five financial ratios - (1) the loan-to-value ratio, (2) the debt service coverage ratio, (3) the operating expense ratio, (4) the debt yield ratio, and (5) the debt ratio.  We will discuss these five ratios in more detail below.

1.  Loan-to-Value Ratio

The Loan-to-Value Ratio is the requested loan amount divided by the value of the property.  The value of the commercial property is usually established by an appraisal performed by a Certified General Appraiser or a M.A.I. appraiser.  If, however, the purchase price of the commercial property is lower than the appraised value, almost all commercial lenders will use the lower of the purchase price or appraised value in the loan-to-value ratio calculation.

Below are some typical maximum permissible loan-to-value ratios for commercial loans:

Multifamily - 75% to 80% LTV maximum
Office Buildings, Retail and Industrial Properties - 70% to 75% LTV maximum
Self Storage - 65% to 70% LTV maximum
Hospitality - 60% to 65% LTV maximum

If the capital stack includes both a first mortgage and a second mortgage/mezzanine loan, some lenders will compute a Combined Loan-to-Value Ratio, which obviously uses the sum of the first mortgage and the second mortgage/mezzanine loan in the numerator.

2.  Debt Service Coverage Ratio

When making commercial loans, most commercial lenders insist that the net income generated by the property not only equal the proposed mortgage payment, but actually exceeds the proposed payment by at least 25%.

The Debt Service Coverage Ratio is defined as the Net Operating Income divided by the Debt Service, all multiplied by 100%.  Debt Service is merely a fancy way of saying the annual principal and interest payment on the proposed loan.

Please note that this calculation is performed on an annual basis.  You can actually squeeze out a few extra dollars in the loan amount if the calculation is done on a monthly basis using monthly payments.  Sorry, Charlie.  Nice try.  This calculation has to be performed on an annual basis.

What about taxes and insurance?  Do you add these line items to the annual debt service (loan) payment before calculating the debt service coverage ratio?  No!  The taxes, insurance, and required reserves are already line items in the Pro Forma Operating Statement (projected budget for the next 12 months).  If you then added these costs to the debt service, you would be double-counting these costs.

Here are some typical minimum permissible debt service coverage ratios:

Multifamily - 1.20 to 1.25 debt service coverage ratio minimum
Office Buildings, Retail and Industrial Properties - 1.25 debt service coverage ratio minimum
Self Storage - 1.25 to 1.35 debt service coverage ratio minimum
Hospitality - 1.35 to 1.45 debt service coverage ratio minimum

3.  Operating Expense Ratio

Just about every commercial loan borrower wants to borrow as much money against his commercial property as he can.  In the debt service coverage ratio calculation, the higher the net operating income, the higher the debt service coverage ratio and the more dollars that the commercial lender will lend.  Therefore the borrower will want to show his operating expenses as low as possible, and a lender making commercial loans needs to be on his guard against a borrower supplying fraudulently low operating expense numbers.

Example:

Bad-Bad Leroy Brown owns an apartment building in Chicago, where heating expenses are a major cost.  When the commercial lender underwriting his commercial loan asks for his 2017 actual operating expenses, Bad-Bad Leroy supplies the actual numbers, but he cuts his annual heating cost from $61,765 to just $22,098.  Bad, Leroy, bad!  :-)

The Operating Expense Ratio is defined as the Total Operating Expenses divided by the Effective Gross Income of the property, all times 100%.  The Effective Gross Income is the Total Income minus a Reserve for Vacancy and Collection Loss (usually 5% of Total Income).  If the operating expense ratio is too low, it is likely that the borrower is supplying fraudulent expense numbers.

Below are the minimum acceptable operating expense ratios used by most commercial lenders:

Multifamily - 35% to 40% minimum
Office Buildings, Retail and Industrial - Varies based on the leases (NNN versus full service)
Self Storage - 25% to 35% minimum
Hospitality - 45% to 50% minimum 

4.  Debt Yield Ratio

The Debt Yield Ratio is a brand new ratio that was developed after the Great Recession in response to the huge losses suffered by CMBS bond buyers in commercial loans.  In the years leading up to the Great Recession, interest rates were falling, which allowed the buyers of major commercial properties to obtain larger and larger commercial loans in terms of the loan-to-value ratio.  As buyers were able to obtain extremely high leverage, they bid up the prices of major commercial properties to sky-high levels.

To make matters worse, conduits - the originators of commercial loans destined for securitization - started making commercial loans that were interest-only for the first two or three years.  This allowed buyers of major commercial properties to reach insane loan-to-value's of 80% to even 83%!  This further drove up the price of major commercial properties.

When the Great Recession hit, major commercial properties fell by as much as 45% and CMBS bond buyers got slaughtered.  As a result, the CMBS market completely dried up.  An entire industry essentially disappeared.

Five years later, in order to convince CMBS bond buyers to return to the market, the Wall Street guys developed the Debt Yield Ratio.  The Debt Yield Ratio is defined as the Net Operating Income divided by the Loan Amount, all times 100%.  This Debt Yield Ratio was not allowed to be less than some number on commercial loans destined for the CMBS market.  When the Debt Yield Ratio was first developed in 2012, that minimum acceptable debt yield ratio was 10.0%.  Since then this number has come down slightly.

Please note that the debt yield ratio has nothing to do with cap rates, interest rates, or even amortization schedules (interest-only versus a 25-year amortization).  It is a cold, heartless ratio, and conduits continue to use it on all CMBS loans.

Please note that (just about) only CMBS lenders (conduits) use the Debt Yield Ratio!

Below are some typical minimum acceptable debt yield ratios:

Multifamily - 8.0% to 9%
Office Buildings, Retail and Industrial - 8.75% to 9.5%
Self Storage - 9.5% to 10%
Hospitality - 10%

5.  Debt Ratio

The Debt Ratio is a residential lending ratio with which you probably battled when you first tried to buy a house.  You will recall that Fannie Mae would not allow your new mortgage payment to exceed 25% of your gross income or, when combined with your other debt obligation payments, exceed 33% (38%?) of your gross income.

Now in real life, 95% of all commercial lenders will NOT look at your personal debt ratios when underwriting a commercial loan.  As long as you have good credit and your net worth is at least as large of your requested commercial loan amount, commercial lenders seldom bother with personal debt ratios.

However, there is a class of commercial lender, known as a Non-Prime Commercial Lender, which may allow a negative cash flow on a commercial loan, as long as your personal debt ratios can handle the negative cash flow.

Conclusion

Commercial lenders typically use the lowest loan amount allowed by these ratios.

Example:

The CMBS lending division of Morgan Stanley is underwriting a $7 million commercial loan request on an office building in Washington, D.C.  The highest loan-to-value ratio that the CMBS market will permit is 75%, and according to this ratio, the borrower could qualify for $7.1 million commercial loan.  The maximum loan size permitted by the debt service coverage ratio is $6.95 million.  The largest permissible loan at a 9% debt yield ratio is $6.6 million.  The maximum CMBS loan that Morgan Stanley will allow is $6.6 million - the most conservative result of these three ratios.

You're a commercial real estate broker.  Your best Idaho client owns a commercial property in Louisiana, and he has a $700,000 balloon payment coming due on it.  He wants you - the guy who handles all of his commercial real estate matters - to find a commercial lender willing to make a commercial loan on this Louisiana strip center.  Basically he wants you to play mortgage broker.

Are you allowed to work as a commercial mortgage broker in Louisiana?  Do you need a Louisiana mortgage broker's license?  Hmmm.

You do a little magic on Google and locate the Louisiana mortgage licensing statutes.  The statute in question reads roughly as follows:  "In order to broker mortgage loans in Louisiana, the broker must have a Louisiana mortgage broker's license."  Well, that settles that.  Dang!  Your good client is gonna be ticked, and you could have used a quick and easy $7,000 commission - one point on a $700,000 new commercial loan.

But wait!  If you order now...  On a hunch, you look up the definition of a "mortgage loan" in the Louisiana statutes.  The statute reads roughly as follows, "A mortgage loan is a loan on a one-to-four family dwelling."  In other words, a "mortgage loan" is loan on a house, duplex, triplex, or four-plex.   The property that you are trying to finance is a strip center.  The Louisiana mortgage licensing statute does not apply.  You can broker commercial loans there all day long there without any licensing concerns, even though you reside in Idaho.  Hooray!

This licensing scheme is very common across the United States.  The mortgage loan licensing statutes will require a mortgage broker's license to broker "mortgage loans", but then a "mortgage loan" in that state is defined as a loan on a one-to-four family dwelling.

You may have noticed that I used the word, "scheme", above.  When most people think of the word, "scheme", they think of something evil, like a scheme to defraud or a scheme to embezzle.  In the law, however, scheme means a large-scale systematic plan or arrangement for attaining some particular object or putting a particular idea into effect.  An example would be a clever marketing scheme.

Back to whether most states require a mortgage broker's license to broker commercial loans, the answer is, "No!"  More than forty states have no licensing requirement at all to broker commercial loans.

Many of the remaining states are unlikely to get their panties in a bunch if you broker only the occasional commercial loan in their state.  For example, if the Idaho commercial real estate broker above happened to have another Idaho client who owned a property in Nevada, the State of Nevada is unlikely unloose the hounds of hell on him for brokering one or two loans per year in Nevada, even though Nevada is one of the few states that does require a license to broker commercial loans.  Now if the Idaho commercial real estate broker started sending out fliers to borrowers in Nevada, the State would likely consider the broker to be in violation of the law.

Several paragraphs ago I used the expression, "clever marketing scheme".  I believe that every commercial real estate office (realty sales office) should have a commercial mortgage brokerage desk.  Why?  There is no easier way to meet accredited investors than to be in the commercial mortgage business.  Almost every borrower you meet is accredited.  After all, poor people don't own office buildings and shopping centers.

Just look at my own organization.  Between C-Loans.com, CommercialMortgage.com, and Blackburne & Sons Realty Capital Corporation (private money permanent loans in the Heartland), we meet a half-dozen new accredited investors every day.  We then eventually take many of these private clients and convert them into trust deed investors.  It makes sense.  Just about all wealthy real estate investors have cash set aside in their IRA's pension plans, college savings plans, and personal savings that are ideal for investing in 9% commercial first trust deeds.

As a realty sales broker, you could sell commercial real estate to your own set of accredited commercial mortgage borrowers.  You've gotta start your own commercial mortgage brokerage desk in your office.  It's easy to do.  Start by ordering my famous nine-hour video course, How To Broker Commercial Loans.

Those of you who are not now practicing commercial mortgage brokers, as they say in the cop shows, "We're done here."  But those of you who are mortgage brokers, we need to have a serious conversation.  Please continue on.

Let's suppose you run across a do-able commercial real estate loan request.  Do you try to broker the deal to a bank that you know, or do you enter the deal into C-Loans.com?  The smart answer is that you do both!

First of all, you get prizes if you enter a bona fide commercial loan into C-Loans.com. You get to choose TWO of the following:  (1) Free regional copy of The Blackburne List containing more than 750 commercial lenders; (2) Free Commercial Mortgage Underwriting Manual (sells for $199); (3) Free commercial mortgage marketing course (the PDF to our $199 audio course); or (4) Free copy of my commercial mortgage broker fee agreement.  Contact Tom Blackburne at 574-210-6686 after you have submitted your deal to six banks to get your prizes.

You get your choice of two of the above, just for entering that commercial loan into C-Loans.com.  And you can still submit the deal as well to your favorite bank.  Our banks will simply compete against your bank.

"But George, I am afraid that someone will steal my lead if I post it on C-Loans."  Then simply disguise the street address and borrower's name with the words, "To be disclosed later."

We still have not gotten to the most important reason for entering your commercial loan into C-Loans.com.  You might actually close the deal!  Oh my gosh, if you can close two commercial loans using C-Loans, your income will skyrocket because we will let you start buying our commercial leads, even if you are otherwise unqualified.

We sell our commercial leads for only $1 to $9 apiece, plus 37.5 bps. when the deal closes.  Its a helluva deal.  The only bad news is that we now require that you have a credit score of at least 700 and a net worth of over $700,00 in order to buy our leads.  Too many dishonest and/or poor mortgage brokers were not notifying and paying us when they closed our deals.  By the way, our own income skyrocketed within three months of imposing these tougher lead-buying standards.

Les Agisim, a mortgage broker not much different from you, has closed 51 commercial loans for C-Loans.  Jason Bengert has closed more than 40 loans for C-Loans, and so has Rick Gnafakis.  Paul Elis of PMB Capital is another big closer and a member of the Over-40 Closings Club.

Do you know why they are closing so many deals?  They started out as lead buyers, and after 5 closings we listed them on C-Loans as a Proven Broker.  Now they don't even have to pay upfront for leads.  The leads arrive daily in their inboxes.  (Advice:  If given a choice between submitting your commercial loan to a sleepy, salaried banker on C-Loans and one of our Proven Brokers, choose the Proven Broker!  They close deals.)

So I have a harsh truth:  If you have a commercial loan and fail to enter it into C-Loans.com, its like failing to buy a $1 million lottery ticket when only ten tickets are being sold.  If you could close just two loans using C-Loans, you could start buying leads.  Then, like Sheldon Sontag, you could get listed on C-Loans.  A half-dozen pre-screened commercial leads would appear magically in your email box every day for the next thirty years.  Most people don't realize that we have already been in business for almost forty years, and my two 30+ year-old sons and our executive staff will carry on after I retire.

All of these wonderful things will happen if you simply start entering all of your commercial loans into C-Loans.com.

Ninety percent of all commercial construction loans that are turned down are rejected because the developer lacked sufficient equity in the deal.  In the parlance of commercial real estate finance, he didn't have enough skin in the game.

Need Equity Dollars?

Are you a real estate developer?  Are you trying to build a project right now?  My name is George Blackburne III, and I'm the attorney that owns both C-Loans.com and CommercialMortgage.com.  I also own Blackburne & Sons, the $50 million hard money commercal mortgage company that I founded almost forty years ago.

If you need help raising equity dollars, I am available for consultation at the rate of $375 per hour, with a minimum of only $100.  I consult three times per week at precisely 1:30 p.m. ET on Mondays, Thursdays, and Fridays.  Please call my son, Tom Blackburne, at 574-210-6686 to set up a consultation

Commercial construction loans can be pretty risky.  You have the risk of cost overruns.  About twenty-five years ago I was financing a deal, and the lumber costs soared by 40% in a single week. You have the risk that the workers will go out on strike.  Labor is getting harder and harder to find these days, and I predict that you will see more and more labor slowdowns, as workers demand higher pay.

You also have the political risk that some government employee could put some last minute kibosh on the project.  Think of that poor developer who discovered that he was excavating into an ancient Indian burial ground; or perhaps the City Council increases the parking requirement at the last moment.  Then there is construction risk.  Imagine a crane falling or dropping an expensive beam.

Then you have marketing risk.  Are the condo's that are you are building going to sell at their projected sales prices?  Is your new office space going to lease at your pro forma rents?  Let's face it, a million thing can, and do, go wrong on commercial construction projects.

As a result, banks are demanding a ton of equity in their construction deals.  During the go-go days before the Dot Com Meltdown, banks were making commercial construction loans of 90% loan-to-cost.  Many got slaughtered when commercial real estate collapsed by 45% after the dot-com stocks melted down.

Eight years later, after the commercial real estate market recovered, banks were making commercial construction loans of 80% loan-to-cost.  Then the Subprime Mortgage Crisis struck, and banks once again got slaughtered in commercial construction lending.

In the wake of the Great Recession, banks regulators really clamped down on commercial construction lending.  Loan-to-cost ratios in excess of 70% were strongly discouraged.  Requiring the developer to contribute 30% of the Total Cost of a development project is a deal killer.  Commercial construction has never recovered to pre-crash levels.

The good news is that a few banks - much less than half the banks - are once again making construction loans up to 80% loan-to-cost.  This still requires that the developer contribute a whopping 20% of the total cost of the project.  The good news is that under the JOBS Act, it is much easier to raise equity dollars these days.

Need Equity Dollars?

Are you a real estate developer?  Are you trying to build a project right now?  My name is George Blackburne III, and I'm the attorney that owns both C-Loans.com and CommercialMortgage.com.  I also own Blackburne & Sons, the $50 million hard money commercal mortgage company that I founded almost forty years ago.

If you need help raising equity dollars, I am available for consultation at the rate of $375 per hour, with a minimum of only $100.  I consult three times per week at precisely 1:30 p.m. ET on Mondays, Thursdays, and Fridays.  Please call my son, Tom Blackburne, at 574-210-6686 to set up a consultation

George Smith Partners is a commercial mortgage banking company and life company correspondent that has been in business since the 1940's.  More precisely George Smith and Company was founded way back in the 1940's.  Management bought the company and changed its name slightly in 1992.  The bottom line is that this was already an old-old company when I first founded Blackburne & Sons way back in 1980.

The term, "correspondent", is an often missed term in commercial real estate finance (CREF).  Lots of blowhard mortgage brokers call themselves correspondents of banks, when in truth they are just mortgage brokers with a good working relationship with a few banks.

A correspondent is the exclusive eyes and ears of some commercial lender, almost always a life company, in some region or city.  All loans in the region are routed through this exclusive correspondent.  In other words, if you were to call the life insurance company (called life companies in the lingo of CREF) directly, they would tell you to call Bob Smith of Granite Commercial Lending, their correspondent for, say, Portland, Oregon.  

The most important feature about a correspondent is that a correspondent services the commercial loans that it originates for Whatever Life Insurance Company.  Therefore, I'm sorry, but unless you are servicing the loans for some commercial lender, you are not a correspondent.

Every two weeks I receive a wonderful newsletter from George Smith Partners called, FinFacts.  In this newsletter, the company provides details about recent loan closings.  These closings announcements are also called tombstones, and tombstones are an excellent way to market for commercial loans.

In this week's FinFacts, George Smith uses a number of terms of art (the language of practitioners of commercial real estate finance) that you should know.  For example, in the tombstone of some bridge loan closing, describes the prepayment penalty as follows: "2% for two years and then open thereafter."  Open obviously means free of a prepayment penalty.

The commercial loan was "priced at L + 300".  The "L" stands for LIBOR, the London Interbank Offer Rate.  It is the rate at which European banks lend reserves to each other, and it is roughly comparable to our Federal Funds Rate.  Most commercial loans tied to LIBOR use either the three-month or six-month LIBOR rate.

FinFacts talks a lot about commercial loans being sized.  Sized means the maximum loan amount that the lender would lend, and it is usually the lower of the maximum loan size allowed by the loan-to-value ratio and the maximum loan size allowed by debt service coverage ratio.  If the lender is  a conduit, the lender may also use the debt yield ratio.  The debt yield ratio typically produces the smallest loan size.  In other words, its the toughest ratio to get past.

Many commercial lenders on their commercial loans will insist on a holdback for TI's and LC's.  TI's stand for tenant improvements, which is an allowance given to new tenants to fix up the space to their liking (carpets, walls, bathroom rooms, etc.).

LC's are leasing commissions.  When a sponsor builds or renovates a commercial building, he will usually have to hire a leasing agent to find a tenant for the space.  The leasing commission can be substantial, so it needs to be built into the budget.

The landlord budgets a 4% to 6% commission for the listing agent, which is split with the tenant broker upon completion of the lease.  The split is most often 50/50, but can be as low as 90/10 in favor of the listing agent.

These three terms - fusion deals, pari passu, and A/B notes - are all important and common terms in the CMBS industry

You will recall that the term, "CMBS", is short for commercial mortgage-backed securities. CMBS loans are large commercial real estate loans that are originated by banks and conduits according to very strict, published guidelines.  CMBS loans are very large loans - typically larger than $5 million - and they are usually secured by loans on the four basic food groups - multifamily buildings, office buildings, retail buildings, and industrial buildings.

When $2 billion to $3 billion of new CMBS loans can be assembled, the commercial loans are assigned to a trust.  This trust is NOT an operating company.  The trust is not allowed to think.  Instead, the trustee of this trust has to play as dumb as a tree.  Really?  Yup.  The trust can ONLY do what the trust agreement says.

Example:

Suppose Joe Rich owns a shopping center with some excess land.  The shopping center is worth $10 million, and the CMBS loan is $6 million.  Joe Rich contacts the trust company that is servicing his CMBS loan.  "Out of my own pocket, I would like to build a three-unit extension to the shopping center.  The value of the shopping center will increase to $13 million.  The trustee replies, "Sorry, but if you add any buildings, it will constitute a violation of your loan covenants.  We will be forced to accelerate your loan (immediately demand full repayment) and apply a $1.1 million defeasance prepayment penalty."  No way!  Yes way.  The trust is not allowed to think.

The trust then issues bonds (securities), backed by the commercial loans in the trust.  These bonds are then sold by investment bankers, like Goldman Sachs or Morgan Stanley, to investors - like insurance companies, pension plans, and wealthy family trusts.  The banks and conduits, which originated the CMBS loans, get their money back, and the whole process starts all over.

The CMBS industry competes against life insurance companies for the largest and nicest commercial real estate loans in America.  If you pick out any nice skyscraper or huge shopping center in America, you can bet that the property is financed by either a life insurance company or a CMBS loan.

The life insurance companies almost always win. Think of it this way. Jennifer Aniston was a lovely lady, but when Angelina Jolie set her sights on Brad Pitt, well ... Angelina got the man she wanted. It's the same thing in commercial real estate finance.  CMBS loans have terrific terms, but if MetLife wants the loan on a particular power center, well ... MetLife will get the loan.  Fortunately for the CMBS industry, life companies only have a limited appetite.  They simply don't have enough dough to make every large commercial real estate loan in the country.

But wait a minute.  Suppose a 30-year-old office tower in New York City has a $300 million balloon payment coming due.  What if none of the large life companies want to do the deal?  Could the CMBS industry handle a $300 million loan?  After all, the typical CMBS offering is only on the order of $2.5 billion.  That means a single loan could represent more than 10% of the entire CMBS offering.  Yikes!  Then think about an act of terrorism.  Suppose terrorists blew up the building. The investors in that pool of CMBS loans would take an immense loss - far too large to be tolerable.

This is how the investment bankers handle big loans.  Let's use a $70 million loan as our example.  The investment banker (think Morgan Stanley) starts by taking the $70 million loan and splitting it into a $50 million "A-piece" and a $20 million "B-piece".  The A-piece would obviously get paid before the B-piece.  Only the $50 million A-piece would be added to the $2.5 billion CMBS offering, making that one large loan only around 2% of the total offering.  The $20 million B-piece would be sold to a private buyer.  This kind of structure was called an A/B Note.

The problem with the A/B Note structure, however, was two-fold. First, it only worked on loans up to around $100 million.  After that, the A-piece was simply too large to put into a single CMBS offering.  Secondly, the B-piece was often hard or expensive to sell.

Therefore the investment banks came up with the concept of pari passu notes.  Pari passu is Latin for "on equal footing."  Issuers of commercial mortgage-backed securities now often split large loans into a series of smaller notes, each note being equally entitled to a pro rata share of any payments received.  For example, a $200 million loan might be split into 5 pari passu notes of $40 million each, with each note going into a different CMBS offering.

Most CMBS offerings today are fusion deals.  A fusion deal is a CMBS offering with one very large pari passu note - perhaps as high as $120 million - and forty or so smaller deals of $5 million to $20 million.

Hey guys, if you learned something today, would you please give me a Linked In Share.  Linked in likes don't do a lot for me because, while the likes are a generous atta-boy for my hard work, they don't introduce me to new commercial real estate professionals.  Linked In shares, however, get viewed by your followers.  Thanks!!  This article was a hard one.

Did you give me a Linked In share?  :-)

Do You Happen To Need a Stalking Horse Bidder?

Are you in a Chapter 11 Bankruptcy on a nice commercial property that has some genuine equity in it?  If so, please write to me, George Blackburne III (the old man).  In the subject line, please write, "I Need a Stalking Horse Bidder."  In the body of the request, please include the following sentence, "You asked me to remind me of the word, y.o.n.i."  (This is just a memory device for me.)

My private lending company, Blackburne & Sons, has been servicing hard money loans for over 30 years now.  During that time, we have had several hundred borrowers declare Chapter 11 bankruptcy in order to hold off our foreclosure.  The purpose of a Chapter 11 is to give the borrower time to sell off or refinance assets in order to pay our loan.  Such an action - selling off or refinancing property - is called a reorganization.

Very, very few of our borrowers have ever been able to sell off their property once they have filed bankruptcy.  The reason has to do with greed.  As soon as a potential buyer learns that the borrower is in trouble, he thinks to himself, "Why should I pay retail for this property?  I'll just wait for the lender to foreclose, and then I'll buy the property from the lender at a big discount."  Ridiculously low bids are a fact of life in bankruptcy. 

Several years ago I received an email announcing the bankruptcy court-ordered auction of a beautiful office tower in San Francisco.  The flyer said the auction was subject to a $35 million stalking horse bid.  What on earth is a stalking horse bid?

Whenever you hear the term, stalking horse bid, you should immediately think of a Chapter 11 bankruptcy.  Somebody is in bankruptcy.  It reminds of that old joke, "What's the difference between a tornado and a Southern divorce?  Not much because somebody is gonna lose trailer." 

A stalking horse bid is an initial bid on a bankrupt company's assets from an interested buyer chosen by the bankrupt company.  From a pool of bidders, the bankrupt company chooses the stalking horse to make the first bid.

This method allows the distressed company to avoid low bids on its assets.  Once the stalking horse has made its bid, other potential buyers may submit competing bids for the bankrupt company's assets.  In essence, the stalking horse sets the bar so that other bidders can't low-ball the purchase price. 

The term "stalking-horse" originates from a hunter trying to conceal himself behind either a real or fake horse.

Why would a company or person want to make a stalking horse bid?  Its very purpose is to encourage higher bids.  The due diligence alone can be very, very expensive.  Think of the appraisal, the toxic report, the structural engineering report, and the legal fees involved with obtaining an estoppel agreement from all of the tenants. 

The stalking-horse bidder receives benefits for their efforts. They may be paid a fee to cover the cost of their due diligence.  The stalking horse bidder also commonly receives a “reasonable” break-up fee if unsuccessful in the auction.  On very large deals, this break-up fee can be many millions of dollars.  A breakup fee (sometimes called a termination fee) is a penalty set in takeover agreements, to be paid if the target backs out of a deal (usually because it has decided instead to accept a more attractive offer).

The stalking horse bidder may also negotiate the terms of the purchase, and it can some times choose which assets and liabilities they wish to acquire.  Most importantly, the stalking-horse bidder can negotiate bidding options which discourage competitors from bidding. 

Investopedia had a wonderful description of a stalking horse bid:

Valeant Pharmaceuticals International Inc. (NYSE: VRX) placed a stalking-horse bid for certain assets of bankrupt Dendreon. The initial offer was $296 million in cash on January 29, 2015. However, due to other competitive bids, the price increased to $400 million one week later.

At a bankruptcy hearing, the court formally approved Valeant's role as a stalking-horse bidder. The company was entitled to receive a breakup fee and expense reimbursement if its bid was unsuccessful. The court also set a deadline for additional bids. Ultimately, the bankruptcy judge approved the sale to Valeant for $495 million, with a new deal including other assets.

Do You Happen To Need a Stalking Horse Bidder?

Are you in a Chapter 11 Bankruptcy on a nice commercial property that has some genuine equity in it?  If so, please write to me, George Blackburne III (the old man).  In the subject line, please write, "I Need a Stalking Horse Bidder."  In the body of the request, please include the following sentence, "You asked me to remind me of the word, y.o.n.i."  (This is just a memory device for me.)

You will recall that C-Loans.com is the big commercial mortgage portal.  Our home page can admittedly be distracting.  You came in search of a commercial loan for either yourself or your client, but there were all these flashing neon lights.  "Get your free list of 200 commercial lenders."  "How about a free commercial loan placement kit?"  "Need a commercial loan size calculator?"  "Want to learn the inside secrets to earning huge referral fees?"

Our home page reminds me of that hilarious scene from the 1998 Pixar Movie, A Bug's Life.  The hero has a buddy who is a moth.  The group of bugs is camped at night near a shack, and hanging from the shack is a bug zapper.  The hero cries out to his buddy, "Harry, don't look at the light!"  And the Harry cries out, "I can't help it.  It's so beautiful."  Zap.  Poor Harry.

Tons of visitors come to C-Loans.com, and instead of entering their commercial loan into the six step process, they fill out a freebie form to get one of our prizes instead.  Zap.  The prizes are great, and we probably met you when you filled out a freebie form to get a prize, but you probably failed to ever enter your commercial loan into the C-Loans System.

Therefore I am going to make you an offer that you cannot refuse.  The good news is that no horses were decapitated in the making of this offer:

When you visited our home page, you no doubt read that C-Loans.com has closed over 1,000 commercial real estate loans totaling over $1 billion.  C-Loans is a pretty successful commercial mortgage portal.

Unfortunately, when you filled out our little form to get your free debt yield calculator, you did NOT register on C-Loans.com.  You have therefore NOT submitted your commercial loan to our 750 hungry commercial lenders.  You have merely provided a lead to my own hard money commercial mortgage company, Blackburne & Sons Realty Capital Corporation.  A loan officer from Blackburne & Sons may call you if the loan amount is less than $2 million.

You therefore need to ask yourself, "Do I actually need a commercial real estate loan?"  If the answer is yes, you really-really need to register on C-Loans.com (Step 1 of 6) and then complete the subsequent five steps.

When you are finished, expect to enter Commercial Loan Heaven.  :-)  Our unmanageable list of 750 ravenous commercial lenders - most of them banks - will be filtered down to to the twenty or thirty banks most suitable to finance your particular deal. You put a checkmark next to the six most attractive banks and then press, "Submit."  Within minutes, hungry commercial lenders will be contacting you with offers.  Expect to be amazed.

We also have a special prize for you. Two prizes, actually.  If you register on C-Loans.com and submit a real-life deal to six of our commercial lenders, we will give you a choice of TWO of the following:

• Commercial Mortgage Underwriting Manual (sells for $199 on our site)
• Commercial Mortgage Marketing Course (the PDF to our $199 course)
• Mortgage Broker Fee Agreement (our fee collection course sells for $199)
• Regional List of 750+ Commercial Lenders (different from the 750 banks on C-Loans.com)

And if you close the loan with one of our commercial lenders, we will give you your choice of the following:

• How To Broker Commercial Loans (9-hour course sells for $549)
• How To Find Your Own Private Mortgage Investors (4-hour video course sells for $549)

Therefore, if you actually need a commercial real estate loan, you really-really need to register on C-Loans.com (Step 1 of 6) and then complete the subsequent five steps. Remember, Commercial Loan Heaven awaits. :-)

Once you have submitted your loan to six of our commercial lenders, simply send an email to Tom Blackburne, the General Manager of C-Loans, Inc.  In the Subject line, please write, "Two Prizes".  Would you please carbon copy me, George Blackburne III?  Thanks.  In the body, obviously indicate which two wonderful prizes you desire.

Warm Regards,

Old Man George Blackburne III

Click here to register on C-Loans.com and start the four-minute process.

Suppose ABC Rent-a-Car wants to build a commercial building on a specific, high-traffic-count lot in the City.  ABC Rent-a-Car offers to buy the land from the property owner, but the commercial property owner wants to leave this valuable commercial lot to his grandchildren and great-grandchildren. He refuses to sell.

The commercial property owner, however, is willing to lease the land to ABC Rent-a-Car on a long term basis.  ABC Rent-a-Car tries to negotiate a lease of the land for 99 years, the longest term allowed by law.

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When private investors invest in 7% to 12% first mortgages originated by Blackburne & Sons (est. 1980), they do NOT invest in a hard money mortgage fund.  Hard money mortgage funds have a lot in common with Ponzi schemes.  They rely on the fee income from new loan originations to keep the office open.  Did you know that over 90% of all hard money mortgage funds failed during the Great Recession?  Instead, a private investor with Blackburne & Sons can invest as little as $10,000 in a first mortgage personally chosen by him.  He gets to be the underwriter.  Remember, folks, we have been "crowd-funding" commercial first mortgages for almost 40 years.

Interesting note:  Had the commercial property owner unwisely leased the land to the car rental company for 100 years, the courts would have ruled that this lease was in fact an installment sale! Title to the property would pass to the car rental company.  The maximum term of a land lease is 99 years.

The old man, however, refuses to lease the bare commercial land for longer than 75 years, which the car rental company decides is sufficient.  The parties execute a land lease for 75 years at an amount that pays the old man a return of about 8% annually on the value of the land, with a cost of living escalator every five years.  This would be a very typical deal.

The rental car company, however, insists on a land lease clause requiring any future lender to sign a Subordination, Non-Disturbance and Attornment Agreement.  After all, it's only fair. The rental car company is going to spend $2,000,000 constructing a building on the property at the rental car company's own expense.

What a deal!  The property owner gets $100,000 a year triple-net rent on his land lease AND when the lease expires, both the land and the building revert back to his heirs. (I recently ran across a wealthy family trust that has the land lease on an entire city block on Michigan Avenue - the hottest shopping strip - in Chicago.  The land lessees built skyscrapers all along that block, and these skyscapers are poised to revert back to the grandchildren of the trust settlor after 99 years.  Holy Smackeral!  We're talking about a billion dollars worth of buildings!)

Okay, let's scroll forward about ten years.  Suddenly the old man is in need of some dough.  Maybe he just got a young, new wife.  He takes his land lease to the bank and pledges it to the bank for a $900,000 loan.  When the bank pulls a title commitment (preliminary report), they find out that ABC Rent-a-Car has recorded their land lease against the title.  The bank contacts the attorney for the rental car company and says, "Hey, we want to record our mortgage against the property, and we have to be in first position.  We please need for you to subordinate your land lease to our mortgage."

Counsel for the car rental company then responds, "Okay, we'll agree to subordinate, as long as you sign our Subordination, Non-Disturbance and Attornment Agreement."  The attorneys exchange documents and cut a deal.  The new first mortgage is recorded, and the car rental company subordinates it's land lease.

The old man's young, new wife - Lola La Boom-Boom - ends up being a spendthrift and drives him into bankruptcy.  The bank forecloses on the property, which is now improved with a gleaming, modern automotive center.  The REO property manager for the bank contacts ABC Rent-a-Car and tells them, "Hey, our foreclosure just cut off your lease. You were paying only $100,000 per year for this beautiful facility, but the fair market rent for the property is now at least $200,000 per year. You'll have to start paying us $200,000 per year if you want to continue to rent the property."

"Not so fast, Bucko," replies the attorney for the car rental company.  Please check the Subordination, Non-Disturbance and Attornment Agreement that your bank executed.  Under the terms of that agreement, your bank promised not to disturb our existing lease if you foreclosed. Now that you have completed the foreclosure, we certainly agree to attorn.  Attornment is a word from feudal times that means acknowledging a new lord.  In this case, the rental car company acknowledges that all future rent is owned to the new landlord, in this case the bank.

A majority of all commercial properties today are owned by limited liability companies (LLC's).  The reason why goes back to a bizarre personal injury action in the 1970's.

About 40 years ago, a thief was climbing on the roof of a commercial building in New York City.  He was trying to break into the store to steal stuff, and he had no business being on the roof.  The roof was near the end of its useful life, and the thief fell through the roof and severely injured himself.

A lot of you guys are accredited investors, and you have been on our mailing list for over a decade (or three).  Pay attention here.  You can invest in our 7% to 12% first trust deeds with as little as $10,000.  We were crowd-funding first mortgages long before the term was ever invented.  Our private investors survived (admittedly a little banged up) three different commercial real estate crashes of 45%.  In our 38 years in business, Blackburne & Sons has seen over 2,000 (4,000?) commercial banks and S&L's go bust.  You are NOT earning 9% on the bond portion of your retirement.  Why not?

At least - it costs you nothing - get on our first mortgage investments email list.  No one will EVER call you to sell you a first mortgage.  When you finally decide to invest, you will be frustrated by how quickly our deals sell out.  The typical deal sells out in two hours.  Wake up.  You are missing a pretty attractive class of investment.

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The thief must have had unbelievable audacity because he actually sued the owner of the commercial building for negligence for failing to maintain the roof.  To the shock of commercial property owners everywhere, this miserable thief won his lawsuit and was awarded over a million dollars in damages by the brain-dead jury.

The property owner held title to the building personally, and he was personally wiped out when the judgment debtor took virtually everything the store owner owned.

From that moment on, commercial property owners across the country desperately sought a way to insulate themselves from liability.  They could not hold title as a regular "C-corp" because they would be taxed twice - once as a corporation and another time when the owners drew out their profits as dividends.  Limited liability companies had not yet been invented.

The solution was the subchapter-S corporation.  A subchapter-S corporation can only be used for new business ventures, and there is a limit of 35 shareholders.  You can therefore never take a subchapter-S corporation public.

The big advantage of the subchapter-S corporation, however, was that it was not taxed twice.  The net income of a subchapter-S corporation passes directly through to the owners of the corporation without taxation.  The shareholders only pay taxes once on the profits, as they are added to their personal income on their 1040's.

As a result, for about 15 years, title to a great many commercial properties was held by a subchapter-S corporation.

The first state to enact a law authorizing limited liability companies was Wyoming in 1977.  The form did not become immediately popular, in part because of uncertainties in tax treatment by the Internal Revenue Service.  After an IRS ruling in 1988 that Wyoming LLCs could be taxed as partnerships, other states began enacting LLC statues.  By 1996, all 50 states had LLC statutes.

Modernly, subchapter-S corporations have been almost entirely replaced by limited liability companies (LLC's).  LLC's are taxed just like subchapter-S corporations; i.e., only once.  Unlike subchapter-S corporations, LLC's do not have to be new ventures, and ownership is not limited to 35 shareholders.

Although LLCs and corporations both possess a lot of the same features, the basic terminology commonly associated with each type of legal entity is slightly different.  When an LLC is formed, it is said to be "organized", not "incorporated".  Its founding document is therefore known as its "Articles of Organization", instead of its "Articles of Incorporation". 

Internal operations of an LLC are further governed by its "Operating Agreement", rather than its "Bylaws".  The owner of beneficial rights in an LLC is known as a "Member," rather than a "Shareholder".  Additionally, ownership in an LLC is represented by a "Membership Interest", rather than represented by "shares of stock".  Similarly, when issued in physical rather than electronic form, a document evidencing ownership rights in an LLC is called a "Membership Certificate", rather than a "stock certificate".

Most American courts have held that LLC members are subject to the same common law alter ego piercing theories as corporate shareholders.  In other words, there are times when the acts of of the LLC are so horrific (intentionally polluting a stream with a cancer-causing pollutant) that an injured party can go after the personal assets of the members.

However, it is more difficult to pierce the LLC veil, compared to the corporate veil, because LLCs do not have many formalities (annual meetings, corporate resolutions, etc.) to maintain.  In our example of the thief above, he would probably have been unable to go after the personal assets of the retail building owner - unless perhaps the building owner set up a spring gun to impale trespassers.  As long as the LLC and the members do not commingle funds, it is difficult to pierce the LLC veil.

Membership interests in LLCs and partnership interests are also afforded a significant level of protection through the charging order mechanism.  The charging order (an order of the court instructing the LLC to pay a judgment creditor of a Member) limits the creditor of a debtor-partner or a debtor-member to the debtor's share of distributions, without conferring on the creditor any voting or management rights.

Its no wonder why most commercial property owners choose to hold title to the property as a limited liability company, as opposed to personally, corporately, or as a subchapter-S corporation.

The USDA Business and Industry Loan Program is quite similar to the SBA 7a Loan Program.  When would a borrower apply for a USDA B&I loan, rather than an SBA 7a loan?  What's the difference?

Some of the lowest wage rates and the highest unemployment rates in America can be found in rural areas.  USDA Business and Industry Loan program was therefore developed to help foster employment in rural areas, defined as communities of less than 50,000 people.   The Federal government is therefore trying to encourage companies to build factories in these underdeveloped small towns and rural areas.

"Okay, but the SBA 7a loan program should work as well as the USDA Business and Industry loan program in rural areas.  Why a different program?"

There are, in fact, some material differences.  For example, a company does NOT have to be a small business in order to qualify for a USDA B&I loan. The company could have 10,000 employees and still qualify.

Secondly, the property does not have to 51% owner-occupied in order to to qualify for a USDA loan. Suppose a company wanted to move into a large, vacant industrial building; but they only intended to occupy 25% of the space.  They would still qualify for a USDA B&I loan.

In fact, investors can even qualify for a USDA B&I loan, even if they intend to lease out 100% of the space to others!

Example:

Charlie Charger, a former football star for the Smalltown Seminoles, has just developed a coating that increases the efficiency of solar panels.  Still madly in love with his wife (a former Seminole cheerleader) and the proud father of three children, Charlie wants to develop a chemical plant right in Smalltown.  He wants to give good jobs to his friends and neighbors.

Charlie goes to Isaac Investor, the richest man in town, seeking financial help.  Isaac declines to provide venture capital, but he agrees to build an industrial plant for Charger Coatings, LLC, and then lease it to the new chemical venture at a less-than-market rate for the first three years.  Isaac could qualify for a $10 million USDA Business and Industry loan to build the plant, even though he is just an investor and even though Isaac intends to initially lease 75% of the space to outside tenants.

Non-profit organizations do not qualify for an SBA loan.  In contrast, the USDA will guarantee commercial loans to non-profit organizations.

While an SBA 7a commercial loan can be used to refinance existing debt, there must be a 20% reduction in the debt service.  In plain English, this means that the new SBA 7a loan has to reduce the borrower's loan payments by 20%.  In contrast, USDA Business and Industry Loans can also be used to refinance existing debt, but there is no requirement of a 20% reduction in debt service.

Lastly, the USDA will regularly guarantee commercial loans up to $10 million, as opposed to just $5 million for the SBA 7a loan program.  On a case-by-case basis, the USDA will guarantee commercial loans as large as $25 million.

There is something very important to appreciate when seeking either an SBA loan or a USDA loan.  Neither the Small Business Administration nor the U.S. Department of Agriculture actually makes commercial loans.  Instead, they merely guarantee a portion of the loans.  Please note the emphasis on the word, "portion".  

This means that there is a portion of these commercial loans that is not guaranteed.  Some bank has its tail flapping in the breeze, ready to get shot it off, if the loan goes bad.  Therefore some banks may be willing to take the risk, but others will not.  This is a HUGE point.

This means that seven SBA lenders could turn your deal down, only to have the eighth SBA lender (or USDA lender) approve your deal.  C-Loans.com is therefore perfect for applying for either an SBA or USDA loan.  You enter the deal once into C-Loans (about four minutes worth of work), and then you submit it to SBA lender (or USDA lender) after SBA lender until you find a lender willing to do the deal.