Post on 25-Feb-2016
description
Hergenroeder Rega Ewing & Kennedy, LLC
skennedy@hrslaw.com
Phone 412.208.3310Fax 412.281.6153
Review Carefully
Check Note repayment terms
Check names
Check collateral
Check equity
Check use of proceeds
SBA Authorization:
If Authorization is incorrect, prepare change letter and send
If you have any doubt about what is in the Authorization do a change letter
Change Letters:
Collect and submit timely
Loan Fee
Only get one form signed
MUST HAVE AN AUDIT TRAIL
Must comply with use of proceeds in Authorization
Must match disbursements with use within 10%
Watch out for EPC/OC. No Working Capital
1050/Use of Proceeds with copies of Checks:
Have reviewed by experienced person
Less is more, the more exceptions the less coverage
Watch out for: Use covenants Existing liens Some standard Endorsements Oil and Gas
Mortgagee Title Insurance Policy:
Should have with new construction
Look for encroachments
Look for access
Survey:
Verify balance
Determine if Open End
Watch for HELOC
Future Advances
Evidence of balance due on first mortgage:
Check all jurisdictions
Check Bankruptcy
Check Judgments
Credit Report will have
Order right away to avoid problems
POST CLOSING UCC SEARCH:
Verify Priority
Good to pre-file
Pre-Closing UCC and Other Searches:
Be certain of name
Be certain of where to file
Watch out for collateral that must be in possession of Secured Party (stocks)
Process filing takes 7-10 business days
Pre-file
UCC-1 Financing Statements:
Similar to Security Agreement
Sometimes done if business is licensed
May need to posses stock
Pledge of Stock:
Need for uncertificated stocks, investment accounts, etc.
Only way to get to the Collateral and only way to perfect security interest
Control Agreement:
Done with Stock Certificates
Sign in blank
Stock Power:
Must match term of Loan
If you don’t care do a change letter because Authorization requires the term of the lease to be as loan as the loan
May include renewal options as long as tenant can exercise unilaterally
Lease:
Subordinate Landlord lien to Bank lien
Must be able to cure default, so need notice of default and opportunity to cure
Must have access to collateral
Problem if you don’t get it
Landlord Waiver:
Rare, but sometimes required
Difficult to get
May not want it
Assignment of Tenant’s Interest in Lease:
A license is a privilege
In Pennsylvania you can take security interest but subject to Liquor Control Board
You can get interest in the ability to transfer
General Intangible under UCC-1; someone else may have a lien already
Should be mentioned in both the Security Agreement and the UCC-1
If the business closes down, you may want to remove the license
Liquor License:
Good to have so that you can work with Liquor Control Board and taxing authorities, Pennsylvania Department of Revenue
Allows lender to execute transfer documents and fill out forms
Liquor License Power of Attorney:
Whole process in SOP
Be sure you have all the Franchise Documents and all signed
Franchisor should certify that these are all the documents
Careful! May render Loan ineligible!
Franchise Offering/ Agreement:
Requires notice of default and opportunity to cure
Defer franchise fees is Loan is in default (hard to get)
Access to Franchisor’s books as they pertain to Borrower
Agreement of Franchise (to cure default):
Make sure in place
Change Endorsement
Copy of Declarations page
Mortgagee/Lender Loss Payee
Certificate of Insurance for real and personal property listing
Must have if they have employees
Workers Compensation Insurance:
Be certain Insured is correct
Owner may be other than insured
Copy of the policy
Term long enough for loan?
Be sure in correct amount
Life Insurance:
Must be signed by OWNER of the policy
Must not be assigned to anyone else
Must be correct Insured
Must be correct Amount
Must be assigned as Collateral, NOT CHANGE IN BENEFICIARY
Collateral Assignment of Life Insurance:
Check all parties
Be sure allow for Confession of Judgment whether a GP or an LP
If not all Partners must sign authority of one Partner to sign Confession of Judgment
Partnership Authorization and Partnership Agreement:
Get copy of Standby Note
Compare to be sure it is correct
Be sure you have payee on Note as Standby Creditor
Standby Creditor’s Agreement (SBA Form 155):
If no Note, tell them to draft one
Have Note endorsed as follows:
“This Note is subject to the terms and conditions of a Standby Creditor’s agreement between Payee and ____________ (Bank) dated the _____ day of _____________, 20__”
Copy of Standby Note with Endorsement:
Critical
I prefer an Affidavit
One of the first things looked at
Cash is King
In kind must be supported by appraisal (I would be sure SBA agrees)
Careful about where it comes from, there are many specific rules about this
Evidence of Equity:
Purchase of more than 51% of assets
Pennsylvania Department of Revenue clearance
Escrow/Indemnification
Verify payment of seller taxes
Compliance with Bulk Sale Provisions:
Important as this is required by Authorization under collateral where security interest is listed
Should have list of all equipment
All equipment over the value of $5,000 should have a complete description with serial number
Complete Equipment List:
Good way to track use of proceeds
HUD-1 Settlement Sheet:
Same as a Deed for personal property
Bill of Sale:
Must have EIN
If Borrower requires a license, need a copy (attorney, barber, restaurant with liquor license, dentist, doctor, etc.)
Pennsylvania contractors are required to have permits
Business Licenses, Permits, EIN, Certificate of Occupancy:
Good to have in a business acquisition
Be sure the principal or principals of the seller are bound. No good if seller is a corporation and person that can compete is an individual. They are not bound.
Non-Compete Agreement:
Protects Lender and Borrower
Must match use of proceeds
Fixed Price Contract:
Contractor’s Builders Risk and Workers Comp:
Need if you have to complete work
Collateral Assignment of Construction Documents:
Post closing
Very important for new construction and leasehold improvements
Occupancy Certificate:
New construction only
Earthquake Compliance: