Real Estate Finance

Acquisition Debt

We regularly negotiate real estate acquisition and refinance loan with local banks, life companies, and institutional lenders. Whether it is a simple acquisition loan for a retail or commercial property, or a sophisticated credit facility for acquisition of a property portfolio, our experience from both the lender and the borrower side allows us to quickly and cost-effectively negotiate loan documents that allow the client to achieve their objectives.

Mezzanine Debt

We have experience structuring and negotiating mezzanine debt facilities, when subordinate debt is not permissible under existing loan covenants. Often times this requires an adjustment of the ownership structure of the borrower, so that there is a multi-level ownership structure that accommodates a mezzanine loan. Given that the mezzanine lender is often not in direct privity with the borrower, mezzanine debt structures tend to contain highly negotiated performance covenants and standards in addition to strict limits on equity interest transfers, sales and leasing. Due to its additional risk, mezzanine debt tends to be more expensive, so developing and negotiating an exit strategy is critical. We have experience in this niche area of real estate finance and can efficiently and cost-effective use mezzanine financing to achieve a client’s objectives.

Preferred Equity

In structuring acquisitions of real estate projects, sometimes the investor equity combined with third party debt is not sufficient to provide adequate funds for closing, and buyers can negotiate a type of investment referred to as preferred equity. We have experience negotiating preferred equity transactions both from the investor side, and from the recipient side. These transactions are complex and often times require the creation of, or modification to the buyer’s entity structure to accommodate the preferred equity position as a separate equity class. Preferred equity investments are structured as equity investments but contain some of the characteristics of subordinate debt. Preferred equity investors often negotiate performance standards, and may include change in control provisions that are triggered if these performance standards are not met. In addition, preferred equity interests often generate a higher return and are repaid prior to common equity. This results in the need to negotiate clear standards for how the preferred equity is taken out. These types of provisions in a borrower’s governing documents require scrutiny from lenders and result in significant negotiation by the borrower, the preferred equity provider, and the acquisition lender. The preferred equity structure can be a creative albeit complex solution for a buyer or borrower who is in need of additional capital. Our experience on both the borrower and lender side allows our clients to use the preferred equity approach as an alternative to traditional debt or equity transactions.

Subordinate Debt

When projects require additional capital, clients will seek additional debt which may be in the form of one or more subordinate loans. We have experience negotiating creative solutions involving subordinate debt, and have represented, borrowers, subordinate lenders, and the primary lenders in these transactions. These transactions usually involve highly-negotiated intercreditor agreements or subordination agreements between the primary lender and the subordinate lender, and like mezzanine financings, impose additional performance standards on the borrower.

Defeasance.

Certain sophisticated real estate debt products, including those offered by Fannie Mae, Freddie Mac, life insurance companies, and CMBS lenders are structured as term investments. These debt products are typically securitized and sole to investors. Consequently, unlike traditional bank debt products, they can’t be paid off by the borrower at will. Instead, when the borrower elects to sell the property encumbered by this debt, the debt is not extinguished, but continues in existence in another form, so that it no longer encumbers the real estate. These defeasance transactions are complex and require the involvement of third party service /providers who acquire governmental securities to replace the real estate secured debt. These transactions also require the delivery of a defeasance closing opinion both from the borrower side and with respect to the enforceability of the defeasance transaction documents. We have experience in representing the borrowers in these defeasance transactions and can provide cost-effective solutions for clients in these types of transactions.