An Introduction to Real Estate Commercial Loan Documentation

The financial stakes are much higher when you’re dealing with commercial investments rather than residential investments. With such deals, the rewards are greater, but the risk is also. So, it will pay you to understand completely the terms and wording of commercial loan documents. In this article, I’ll provide you with the necessary knowledge of the basic loan forms and language.

First, however, you should understand the types of lenders you’ll be dealing with in this market.

Mortgage bankers are the type that represents most commercial lenders. They work on behalf of a fixed number of lenders and usually have a long-standing relationship with them.

Mortgage brokers are “shoppers” or middle men. That is, they shop your loan application around to lenders and operate on a deal-by-deal basis.

My recommendationgo with mortgage bankers if at all possible. I make this recommendation for two reasons: One, they’re more likely to be well-connected within the financial community so they’ll be able to steer you to the right person for your project. Two, they’re usually cheaper than brokers. When using the services of the broker, you have to pay two feesone for the broker in addition to the lender’s fee.

Now, let’s look at the standard commercial loan documents and their wording.

The Promissory Note

A promissory note is a written promise to repay the loan. It’s spelled out in specific terms. Terms vary with the particular note, but they generally include the following items:

1.Date

2.Borrower and lender names

3.Address of lender

4.The principal sum and the interest rate

5.Term

6.Place of payment

7.Terms of repayment Terms of late payment charges

8.Promise to pay

9.Acceleration and pre-payment stipulations

10.Deed of trust or mortgage attached

11.Attorney’s fees and other boilerplate items

12.Signatures and date

Loan Priority

Priority simply stipulates who gets paid first. The lender has “first position.” This is a protection for the lender and means that the lender’s rights are subject only to the payment of real estate taxes. This means the lender has the ability to pay the taxes to protect his or her position.

There are also “junior” positionssecond, third, and so forth. If a lender is in second position, then he or she has to bring the loan up to current status or pay it off to eliminate any default on that loan. Priority is determined by the date of recordation.

Securing of the Loan Notes must be secured, and this is done by recording of the mortgage or deed of trust.

They’re liens against the property and are security instruments. Recording of a mortgage or deed of trust has two purposes.

First, it establishes the priority I mentioned earlier.

Second, it makes public the fact that the lien exists. This allows prospective lenders to establish the priority of the lien in regard to any proposed financing.

Whether a mortgage or deed of trust is involved depends on the area of the country in which you live. Eastern states tend to use the traditional mortgage format while Western states tend to use the deed of trust. Both are essentially the same; the main differences lie in who draws up these documents. In mortgage states, an attorney is usually required to prepare the document. In deed of trust states, it can be drawn up by a title company.

Both of these non-negotiable security instruments are universal to all real estate property borrowing and are often standardized. They include such information as:

1.The account number

2.Borrower’s name and mailing address 3.Beneficiary’s name and mailing address

4.Trustee’s name and address

5.The date Property description (location, town, county, state, address, etc.)

6.Note amount

7.Purpose of the document (“recitals”)

8.Terms and conditions

9.Mutual agreements (rights of assignment, damages, trespass, personal guarantees, etc.)

10.Additional security (if required)

11.Default provisions and remedies

12.Recording authority

13.Successors in interest

14.Rights of assignment

15.Signatures and date

Special Provisions

Special provisions may be added to the general terms of the mortgage or deed of trust.

Here are two examples:

Cross collateralization

A borrower has more than one property and offers them as collateral for the loan. So, the mortgage or deed of trust is recorded against all these properties. Thus, when any of these collateralized properties are sold, the proceeds go to the lender before any payment is made to the borrower.

Personal guarantee

This occurs when the borrower doesn’t have sufficient collateral to secure the note in full. He or she is required to guarantee to pay the difference of the short fall. My recommendationavoid personal guarantees at all costs since the lender, in a deafult, can require you to pay the note in full! You want to avoid any situation where you may end up without money and are still stuck with the property.

As I indicated earlier, this article is intended only as a basic introduction to commercial loan documents.

Before engaging in any deals in this market, I recommend you study the documents in detail so you have full understanding of the terms and conditions you’ll have to abide with once you put your name on the dotted line.