Planning to buy or finance industrial or industrial Real Estate? Shopping Center? Office Building? Restaurant/Banquet property? Parking Lot? Storefront? Gas Station? Manufacturing facility? Warehouse? Logistics Terminal? healing Building? Nursing Home? Hotel/Motel? Pharmacy? Bank facility? Sports and Entertainment Arena? Other?
A Key to investing in industrial real estate is performing an sufficient Due Diligence Investigation to assure you know all material facts to make a wise speculation decision and to imagine your foreseen, speculation yield.
Health Care Reforms
The following checklists are designed to help you conduct a focused and meaningful Due Diligence Investigation.
Basic Due Diligence Concepts:
Commercial Real Estate transactions are Not similar to large home purchases.
Caveat Emptor: Let the Buyer beware.
Consumer safety laws applicable to home purchases seldom apply to industrial real estate transactions. The rule that a Buyer must examine, judge, and test for himself, applies to the buy of industrial real estate.
Due Diligence: "Such a quantum of prudence, activity, or assiduity, as is allowable to be foreseen, from, and commonly exercised by, a inexpensive and frugal [person] under the particular circumstances; not measured by any absolute standard, but depending upon the relative facts of the special case." Black's Law Dictionary; West Publishing Company.
Contractual representations and warranties are Not a substitute for Due Diligence.
Breach of representations and warranties = Litigation, time and money.
What Diligence Is Due?
The scope, intensity and focus of any due diligence investigation of industrial or industrial real estate depends upon the objectives of the party for whom the investigation is conducted. These objectives may vary depending upon whether the investigation is conducted for the advantage of (i) a Strategic Buyer (or long-term lessee); (ii) a Financial Buyer; (iii) a Developer; or (iv) a Lender.
If you are a Seller, understand that to close the transaction your Buyer (and its Lender) must address all issues material to its objective - some of which want facts only you, as Owner, can adequately provide.
General Objectives:
(i) A "Strategic Buyer" (or long-term lessee) is acquiring the property for its own use and must verify that the property is favorable for that intended use.
(ii) A "Financial Buyer" is acquiring the property for the foreseen, return on speculation generated by the property's earnings stream, and must resolve the amount, velocity and durability of the earnings stream. A sophisticated Financial Buyer will likely imagine its yield based upon discounted cash-flows rather than the must less strict capitalization rate ("cap rate"), and will need sufficient financial facts to do so.
(iii) A "Developer" is seeking to add value by changing the character or use of the property - normally with a short-term to intermediate-term exit strategy to arrange of the property; although, a Developer might plan to hold the property long term as Financial Buyer after improvement or redevelopment. The Developer must focus on whether the planned turn is character or use can be accomplished in a cost-effective manner. A developer conducting due diligence will focus on issues interesting market demand, access, use and finances.
(iv) A "Lender" is seeking to compose two basic lending criteria:
1. "Ability to Repay" - The capability of the property to create sufficient earnings to repay the loan on a timely basis; and
2. "Sufficiency of Collateral" - The objective disposal value of the collateral in the event of a loan default, to assure sufficient funds to repay the loan, carrying costs and costs of collection in the event forced collection becomes necessary.
The amount of diligent inquiry due to be expended (i.e. "Due Diligence") to investigate any particular industrial or industrial real estate task is the amount of inquiry required to respond each of the following questions to the extent relevant to the objectives of the party conducting the investigation:
I. The Property:
1. Exactly what property does Purchaser believe it is acquiring?
(a) Land?
(b) Building?
(c) Fixtures?
(d) Other Improvements?
(e) Other Rights?
(f) The entire fee title interest including all air proprietary and subterranean rights?
(g) All improvement rights?
2. What is Purchaser's planned use of the Property?
3. Does the corporal health of the property permit use as planned?
(a) Commercially sufficient way to group streets and ways?
(b) sufficient parking?
(c) Structural health of improvements?
(d) Environmental contamination?
(i) Innocent Purchaser defense vs. Exemption from liability
(ii) All approved Inquiry
4. Is there any legal restriction to Purchaser's use of the property as planned?
(a) Zoning?
(b) incommunicable land use controls?
(c) Americans with Disabilities Act?
(d) Availability of licenses?
(i) Liquor license?
(ii) Entertainment license?
(iii) Outdoor dining license?
(iv) Drive straight through windows permitted?
(e) Other impediments?
5. How much does Purchaser expect to pay for the property?
6. Is there any health on or within the property that is likely to growth Purchaser's sufficient cost to regain or use the Property?
(a) property owner's assessments?
(b) Real estate tax in line with value?
(c) special Assessment?
(d) Required user fees for valuable amenities?
(i) Drainage?
(ii) Access?
(iii) Parking?
(iv) Other?
7. Any encroachments onto the Property, or from the property onto other lands?
8. Are there any encumbrances on the property that will not be cleared at Closing?
(a) Easements?
(b) Covenants Running with the Land?
(c) Liens or other financial servitudes?
(d) Leases?
9. Leases?
(a) safety Deposits?
(b) Options to extend Term?
(c) Options to Purchase?
(d) proprietary of First Refusal?
(e) proprietary of First Offer?
(f) Maintenance Obligations?
(g) Duty on Landlord to contribute utilities?
(h) Real estate tax or Cam escrows?
(i) Delinquent rent?
(j) Pre-Paid rent?
(k) Tenant mix/use controls?
(l) Tenant exclusives?
(m) Tenant parking requirements?
(n) self-operating subordination of Lease to time to come mortgages?
(o) Other material Lease terms?
10. New Construction?
(a) Availability of construction permits?
(b) Utilities?
(c) Npdes (National Pollutant removal Elimination System) Permit?
(i) Phase 2 sufficient March 2003 - Permit required if earth is disturbed on one acre or more of land.
(ii) If applicable, Storm Water Pollution arresting Plan (Swppp) is required.
Ii. The Seller:
1. Who is the Seller?
(a) Individual?
(b) Trust?
(c) Partnership?
(d) Corporation?
(e) microscopic Liability Company?
(f) Other legally existing entity?
2. If other than natural person, does jobber validly exist and is jobber in good standing?
3. Does the jobber own the Property?
4. Does jobber have authority to transport the Property?
(a) Board of Director Approvals?
(b) Shareholder or Member approval?
(c) Other consents?
(d) If foreign individual or entity, are any special requirements applicable?
(i) Qualification to do company in jurisdiction of Property?
(ii) Federal Tax Withholding?
(iii) Us Patriot Act compliance?
5. Who has authority to bind Seller?
6. Are sale proceeds sufficient to pay off all liens?
Iii. The Purchaser:
1. Who is the Purchaser?
2. What is the Purchaser/Grantee's exact legal name?
3. If Purchaser/Grantee is an entity, has it been validly created and is it in good standing?
(a) Articles or Incorporation - Articles of Organization
(b) Certificate of Good Standing
4. Is Purchaser/Grantee authorized to own and operate the property and, if applicable, finance acquisition of the Property?
(a) Board of Director Approvals?
(b) Shareholder or Member approval?
(c) If foreign individual or entity, are any special requirements applicable?
(i) Qualification to do company in jurisdiction of the Property?
(ii) Us Patriot Act compliance?
(iii) Bank Secrecy Act/Anti-Money Laundering compliance?
5. Who is authorized to bind the Purchaser/Grantee?
Iv. Purchaser Financing:
A. company Terms Of The Loan:
What loan terms have the Purchaser, as Borrower, and its Lender agreed to?
(a) What is the amount of the loan?
(b) What is the interest rate?
(c) What are the repayment terms?
(d) What is the collateral?
(i) industrial real estate only?
(ii) Real estate and personal property together?
(e) First lien? A junior lien?
(f) Is it a particular expand loan?
(g) A complicated expand loan?
(h) A construction loan?
(i) If it is a complicated expand loan, can the valuable be re-borrowed once repaid prior to maturity of the loan; production it, in effect, a revolving line of credit?
(j) Are there retain requirements?
(i) Interest reserves?
(ii) fix reserves?
(iii) Real estate tax reserves?
(iv) guarnatee reserves?
(v) Environmental remediation reserves?
(vi) Other reserves?
(k) Are there requirements for Borrower to open company operating accounts with the Lender? If so, is the Borrower obligated to claim minimum compensating balances?
(l) Is the Borrower required to pledge company accounts as added collateral?
(m) Are there early repayment fees or yield maintenance requirements (each sometimes referred to as "pre-payment penalties")?
(n) Are there repayment blackout periods during which Borrower is not permitted to repay the loan?
(o) Is there a Loan Commitment fee or "good faith deposit" due upon Borrower's acceptance of the Loan Commitment?
(p) Is there a loan funding fee or loan brokerage fee or other loan fee due Lender or a loan broker at closing?
(q) What are the Borrower's charge repayment obligations to Lender? When are they due? What is the Borrower's compulsion to pay Lender's expenses if the loan does not close?
B. Documenting The industrial Real Estate Loan
Does Purchaser have all facts valuable to comply with the Lender's loan closing requirements?
Not all loan documentation requirements may be known at the outset of a transaction, although most industrial real estate loan documentation requirements are fairly typical. Some required facts can be obtained only from the Seller. Production of that facts to Purchaser for delivery to its lender must be required in the buy contract.
As guidance to what a industrial real estate lender may require, the following sets forth a typical closing Checklist for a loan secured by industrial real estate.
Commercial Real Estate Loan closing Checklist
1. Promissory Note
2. Personal Guaranties (which may be full, partial, secured, unsecured, payment guaranties, collection guaranties or a collection of other types of guarantees as may be required by Lender).
3. Loan business agreement (often incorporated into the Promissory Note and/or Mortgage in lieu of being a isolate document)
4. Mortgage [sometimes wide to be a Mortgage, safety business agreement and Fixture Filing]
5. Assignment of Rents and Leases
6. safety Agreement
7. Financing Statement (sometimes referred to as a "Ucc-1", or "Initial Filing")
8. Evidence of Borrower's Existence In Good Standing; including
(a) Certified copy of organizational documents of borrowing entity (including Articles of Incorporation, if Borrower is a corporation; Articles of organization and written Operating Agreement, if Borrower is a microscopic liability company; Certified copy of trust business agreement with all amendments, if Borrower is a land trust or other trust; etc.)
(b) Certificate of Good Standing (if a corporation or Llc) or Certificate of Existence (if a microscopic partnership) or Certificate of Qualification to Transact company (if Borrower is an entity doing company in a State other than its State of formation)
9. Evidence of Borrower's Authority to Borrow; including
(a) a Borrower's Certificate;
(b) Certified Resolutions
(c) Incumbency Certificate
10. Satisfactory Commitment for Title guarnatee (which will typically require, for diagnosis by the Lender, copies of all documents of report appearing on schedule B of the title commitment which are to remain after closing), with required industrial title guarnatee endorsements, often including:
(a) Affirmative Creditors proprietary Endorsement (extending coverage over procedure exclusion 7 and procedure exclusions 3(a) and 3(d) as they retell to creditor's proprietary matters)
(b) Alta 3.1 Zoning Endorsement modified to comprise parking
(c) Alta full, Endorsement 1
(d) Location Endorsement (street address)
(e) way Endorsement (vehicular way to group streets and ways)
(f) Contiguity Endorsement (the insured land comprises a particular parcel with no gaps or gores)
(g) Pin Endorsement (insuring that the identified real estate tax permanent index numbers are the only applicable Pin numbers affecting the collateral and that they retell solely to the real property comprising the collateral)
(h) Usury Endorsement (insuring that the loan does not violate any prohibitions against immoderate interest charges)
(i) other title guarnatee endorsements applicable to protect the intended use and value of the collateral, as may be considered upon retell of the Commitment for Title guarnatee and survey or arising from the existence of special issues pertaining to the transaction or the Borrower.
11. Current Alta survey (3 sets), [typically ready in accordance with 2005 Minimum approved information for Alta/Acsm Land Title Surveys, certified to the lender, Buyer and the title insurer, including items 1 straight through 4, 6, 7(a), 7(b)(1), 8 straight through 11(a) and 14 from the Surveyor's "Optional survey Responsibilities and Specifications" referred to as "Table A"].
12. Current Rent Roll
13. Certified copy of all Leases (3 sets)
14. Lessee Estoppel Certificates
15. Lessee Subordination, Non-Disturbance and Attornment Agreements [sometimes referred to simply as "Sndas"].
16. Ucc, Judgment, Pending Litigation, Bankruptcy and Tax Lien quest Report
17. Appraisal (must comply with Title Xi of Firrea (Financial Institutions Reform, recovery and compulsion Act of 1989, as amended)
18. Environmental Site Appraisal report (sometimes referred to as Environmental Phase I and/or Phase 2 Audit Reports)
19. Environmental Indemnity business agreement (signed by Borrower and guarantors)
20. Site Improvements Inspection Report
21. Evidence of Hazard guarnatee naming Lender as the Mortgagee/Lender Loss Payee; and Liability guarnatee naming Lender as an "additional insured" (sometimes listed as simply "Acord 27 and Acord 25, respectively)
22. Legal notion of Borrower's Attorney
23. Credit Underwriting documents, such as signed tax returns, property operating statements, etc. As may be specified by Lender
24. Compliance business agreement (sometimes also called an Errors and Omissions Agreement), whereby the Borrower agrees to correct, after closing, errors or omissions in loan documentation.
It is useful to come to be familiar with the Lender's loan documentation requirements as early in the transaction as practical. The requirements will likely be set forth with some information in the lender's Loan Commitment - which is typically much more detailed than most loan commitments issued in residential transactions.
Conducting the Due Diligence Investigation in a industrial real estate transaction can be time interesting and expensive in all events.
If the loan requirements cannot be satisfied, it is good to make that measurement during the contractual "due diligence period" - which typically provides for a so-called "free out" - rather than at a later date when the earnest money may be at risk of forfeiture or when other liability for failure to close may attach.
Conclusion
Conducting an sufficient due diligence investigation in a industrial real estate transaction to survey all material facts and conditions affecting the property and the transaction is of valuable importance.
Unlike owner busy residential real estate, when a house can nearly always be busy as the purchaser's home, industrial real estate acquired for company use or for speculation is impacted by numerous factors that may affect its use and value.
The existence of these factors and their affect on a Purchaser's capability to use the property for its intended use and on the Purchaser's projected speculation yield can only be discovered straight through diligent investigation and attentiveness to detail.
The circumstances of each transaction will resolve what degree of diligence is required. The level of diligence required under the circumstances is the diligence that is due.
Exercise Due Diligence.
Due Diligence Checklists - For industrial Real Estate Transactions
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