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Documenting, closing and funding the sba loan lerch early may 2012

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Documenting, closing and funding the sba loan lerch early may 2012

  1. 1. FUNDAMENTALS OF SBA LENDING: DOCUMENTING, CLOSING AND FUNDING THE SBA LOAN Alison W. Rind Lerch, Early & Brewer, Chtd.www.lerchearly.com May 16, 2012
  2. 2. Overview Overview of 7(a) Programs Documenting SBA Loans Closing & Funding SBA Loans Servicing2 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  3. 3. I.A. Programs Available3 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  4. 4. 7 (a) Loan Programs Standard 7(a) Loan Processing Certified Lender Program (CLP) Preferred Lender Program (PLP) SBA Express  PatriotExpress  Export Express4 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  5. 5. I.B. Types of Processing5 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  6. 6. 7 (a) Loans Standard 7(a)/CLP Loans  Lender submits full credit analysis to SBA  SBA approves loan for both credit and eligibility  Normal 6-10 day turnaround PLP Loans and Express Loans  Must have preferred status  Lender approves loan for both credit and eligibility  SBA approval normally received within 24 hours6 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  7. 7. I.C. Purpose-Use of Proceeds7 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  8. 8. 7 (a) Lending Proceeds may be used by eligible businesses for following purposes:  Working capital  Furniture and fixtures  Machinery and equipment  Purchase and construction of land and building  Business acquisition  Refinancing of existing debt8 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  9. 9. Guidance on 7 (a)Debt Refinancing Long term debt with demand note or balloon payment Revolving lines of credit (both short and long term) where original lender is unwilling to renew line or borrower is restructuring to obtain lower interest rate/longer term Debt with maturity not appropriate for purpose of financing Debt that does not fit other refinancing categories, but which lender believes no longer meets needs of borrower  However applications for this exception may be processed only through9 standard 7(a) procedures. © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  10. 10. Change of Ownership SOP provides that small business applicant may use loan proceeds for change of ownership10 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  11. 11. Change of Ownership100% purchase (“either an asset purchase or a stock redemption”)One or more existing owners are redeeming stock of selling owner resulting in 100% by purchasing owners11 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  12. 12. I.D. Eligibility12 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  13. 13. 7 (a) Eligibility For profit Operating business Located in U.S. Small  Must look at affiliates to determine size Demonstrate need for desired credit Credit not available elsewhere13 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  14. 14. 7 (a) Ineligible Businesses (e.g.) Nonprofits  Businesses deriving Financial businesses more than 1/3 income engaged in lending from gambling 51% owned by non-US  Pyramid sales citizens or resident distribution plans aliens  Businesses engaged in Passive (investment) illegal activities businesses  Speculative businesses Life insurance companies14 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  15. 15. 7 (a) Ineligible Businesses (con’t) Private clubs that limit  Businesses that present membership other than live performances of a capacity prurient sexual nature Businesses owned by or derive 5% of gross persons of poor income through sales of character/on products or services of probation/parole a prurient natures Franchises exhibiting  Businesses that affiliation with defaulted on federal borrower loans or federally assisted financing resulting in a loss15 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  16. 16. I.E. Loan Terms16 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  17. 17. 7 (a) Standard Terms Standard 7(a) and CAPLines 75% guaranty (85% if loan ≤ $150K) net loan amount: $5 million SBA Express 50% guaranty, maximum loan amount: $350K Patriot Express 75% guaranty (85% if loan ≤ $150K): $500K17 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  18. 18. 7 (a) Maximum Maturity Working capital and inventory: Up to 10 years FF&E: 10 years unless useful life exceeds 10 years, then many be longer Real Estate: Up to 25 years SBA Express: 7 years if revolving line, including term out CAPLines: Up to 10 years (Builder CAPLine: 5 years)18 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  19. 19. 7 (a) Interest Rates Prime plus 2.75% (over $50K) or LIBOR Equivalent (or optional peg rate) SBA Express Prime (LIBOR equivalent) plus 4.5% (over $50K) Fixed Rates published monthly19 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  20. 20. Guaranty Fees & Annual Service Fees Loan % of Guaranteed Portion≤$150K 2%$150K-$700K 3%$700K-$5M 3.5% up to $1M, then 3.75% over $1MShort term loans .25%Ongoing fee charges20 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  21. 21. Fees Packaging Extraordinary Service Fees Out of Pocket Expenses Prohibited Fees21 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  22. 22. II.A. Credit Standards22 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  23. 23. Underwriting Lender must analyze each applicant in commercially reasonable manner23 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  24. 24. Equity Requirements Amount Source Documentation24 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  25. 25. II.B. Collateral25 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  26. 26. Adequacy of Collateral All available collateral Liens on residences Assets owned by applicant’s spouse Guaranties26 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  27. 27. II.C. Appraisals & Environmental Policies27 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  28. 28. 7 (a) Appraisals When collateral is new construction or involves substantial renovation, appraisal must estimate what market value will be at completion of construction Substantial renovation shall mean rehabilitation expenses of more than 1/3 of purchase price or fair market value at time of application After construction is completed, lender must obtain statement from appraiser of “as-completed” value. If value is <90% of original estimated value, appraiser must state reason for change in value, e.g., changes in market conditions or deviations from original plans28 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  29. 29. 7 (a) Business Valuation If amount being financed minus appraised value of real estate and/or equipment is ≤$250K, lender may perform own valuation of business being sold If amount being financed minus appraised value of real estate and/or equipment is >$250K or if there is close relationship between buyer and seller, lender must obtain independent business valuation from qualified source29 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  30. 30. CAPLine Collateral Requirements Working capital lines  Borrowingbase  No borrowing base Contract lines Builder CAPlines30 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  31. 31. SBA Express Collateral Requirements <$25K: No collateral >$25K: Follow same procedures as lender for similar, non-guaranteed loans31 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  32. 32. Environmental Investigations SBA requires lenders to submit Environmental Investigation Reports to SBA center processing an application (except PLP)  Iflender is processing application under preferred lender status, loan file must include all necessary environmental reports  A Reliance Letter is required even if Environmental Investigation Report is addressed to lender32 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  33. 33. II.D. Basic Loan Conditions & Requirements33 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  34. 34. SBA Authorization Comply with all provisions Insurance requirements IRS transcripts Standby agreements Assignment of lien and landlord waiver Construction loan provisions Provisions for franchises Provisions for CAPLines Modifying authorizations34 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  35. 35. Insurance Hazard insurance  Evidence of Insurance on Acord Form 27 Builder’s risk Liability insurance  Acord Form 25s Business interruption Worker’s compensation Law and ordinance Life insurance Title insurance35 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  36. 36. Landlord Waivers: Reason In some states, landlords have lien rights covering unpaid rent, superior to recorded banks liens on tangible property of tenant located on leased premises Written landlords waiver determines priority of lien rights, controls access to premises after default under lease, and allows for orderly removal or sale of collateral36 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  37. 37. Difficulty of Obtaining LandlordWaivers Unless lease terms contemplate waiver, no requirement on landlord to agree to anything Failure to obtain landlords waiver is usually not deal breaker Alternatives include requiring monthly proof from borrower that rent is paid or decreasing advance percentage to cover risk Begin discussion with landlord early so problems can be identified and resolved37 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  38. 38. III.A. Collection & Review/Due Diligence38 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  39. 39. Borrower’s Name, Authorityand Signatures Determine exact name of borrower Name used in a personal or business context may not be borrowers full and legal name In case of a corporate or partnership borrower, establish authority of corporate officers or partners, respectively, to enter into loan transaction and to execute all loan documents Use of incorrect/unauthorized name or signature may jeopardize banks ability to collect defaulted loan or banks rights in any collateral39 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  40. 40. Also Verify Each signatory of loan document is who he or she purports to be Person actually signs loan document Patriot Act Concerns40 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  41. 41. Collateral Due Diligence Security Interest  Creation  Securityagreement  Proper parties  Importance of exact entity names  Importance of organizational situs Perfection  Filing requirement41 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  42. 42. Proper Perfection ofSecurity Interests Crucial step in loan documentation process Protects against third party claims, trustee in bankruptcy, other creditors42 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  43. 43. Issues Re Proper Perfection Does Article 9 apply? What type of collateral is involved? Who is debtor? Is possession of collateral or filing required? Where to file? What should financing statement include? How to retain perfection? What impact of revised Article 9?43 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  44. 44. When In Doubt Because of technicalities involved in correct content of financing statement and severe consequences of error, seek advice if any questions or uncertainties arise When in doubt, file. Unless cost of filing is a factor, always file financing statement44 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  45. 45. III.B. Review of 3rd Party Reports45 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  46. 46. Title Insurance: Coverage Verify ownership of property Verify authority of owner to grant lien lender Identify liens, easements, covenants and other encumbrances on property Insure priority of deed of trust Identify problems regarding property boundaries and other issues shown by survey Insure access to property Insure marketability of property46 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  47. 47. Title Commitment Time to issue commitment  Cantake several weeks to complete title search and issue commitment Effective date of commitment  Lag in recording times  1 - 3 months or more Gap coverage47 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  48. 48. Exceptions from Coverage Schedule B-2 of commitment Easements, restrictive covenants, deeds, etc. Beware of restrictions on use of property Affirmative coverage Endorsements to title policy48 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  49. 49. Coverage Maintenance/Enhancement – Endorsements Insure Access: access from a particular public road Environmental liens: no liens securing environmental cleanup costs Comprehensive: any breaches of covenants or violation of easements and other encumbrances will not cause termination of lien of deed of trust49 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  50. 50. Title Instructions If terms of loan are modified to increase burdens on borrower, title update should be obtained and title policy endorsed (amended) to protect against intervening liens Counsel for bank will provide closing instruction letter to title company that tells title company what documents to have executed and recorded and what title policy must contain.50 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  51. 51. Title Instructions Failure of title company to follow written instructions will give bank a claim against title company for any losses Always obtain insured closing letter from title insurance company that will provide for claim against title insurance company if title agent fails to follow bank’s written instructions with respect to closing and disbursement of loan proceeds51 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  52. 52. Surveys Generally Show Visual image of property’s boundaries, placement of buildings, fences and other structures on property Location of recorded and observed easements and right of ways Names and widths of streets and highways abutting property Monuments (markers) found or placed52 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  53. 53. Surveys Generally Include Character and location of walls, buildings and fences within five feet of boundary lines Encroachments by or onto adjoining property, streets, easements, and record setback lines, and driveways or alleys on or crossing property Cemeteries and burial grounds disclosed in process of surveying Ponds, lakes, springs or rivers bordering on or running through property53 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  54. 54. Additional Survey Info Location drawing (not really a “survey”) Boundary survey ALTA/ACSM survey54 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  55. 55. UCC Searches Search records in jurisdiction of borrower’s formation or each jurisdiction of borrower’s residence, if an individual What information may search reveal?  Name differences  Other creditors and lien holders  Problems regarding lien priority  Description of borrower’s assets  Whether lien subordination will be necessary55 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  56. 56. III.C. Common Roadblocks56 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  57. 57. Change of Ownership In context of change of ownership, SBA takes position that it cannot finance an individuals acquisition of stock because such use of proceeds would constitute payment or distribution to or for benefit of acquiring shareholder who is associate of small business applicant. Accordingly, SOP was revised to remove provisions allowing for individuals to purchase stock of a business if individuals executed note on joint and several basis with business57 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  58. 58. Collateral Conditions Make sure borrower is or will be owner of pledged collateral What is borrower’s organizational structure? Does guarantor own collateral to be pledged? First lien in following business assets of borrower:  Equipment; fixtures; inventory; accounts; instruments; chattel paper; general intangibles; machinery, except for automobiles  Are there specific business assets to be listed?  Patents and copyrights58 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  59. 59. IV.A. Monitoring59 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  60. 60. Follow Up on Post-Closing Items File reports Verify insurance Verify taxes60 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  61. 61. IV.B. Servicing Actions61 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  62. 62. SBA Servicing of Liquidation Actions Pre-initial disbursement Post-initial disbursement Unilateral actions SBA notification E-TRAN SBA approval needed62 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  63. 63. Additional Resources SBA Servicing and Liquidation Actions 7(a) Lender Matrix  http://www.sba.gov/sites/default/files/Matrix_ SBA Standard Operating Procedures  http://www.sba.gov/about-sba- services/7481/2414163 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  64. 64. Speaker  Alison Rind is an attorney at Lerch, Early & Brewer who(301) 657-0750 represents commercial lendersawrind@ in loan transactions and otherlerchearly.com commercial matters. These include participants in SBA and other government- guaranteed lending programs. 64 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com
  65. 65. For more information Lerch, Early & Brewer, Chtd. 3 Bethesda Metro Center, Suite 460 Bethesda, MD 20814 (301) 986-1300 www.lerchearly.com Thank you for your participation65 © Lerch, Early & Brewer, Chtd. 2012 www.lerchearly.com

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