SMALL BUSINESS JOBS ACT DEBT REFINANCING

Transcription

1 SMALL BUSINESS JOBS ACT DEBT REFINANCING Final Regulations 2011 NADCO

2 Webinar Presenters - NADCO Mary Mansfield, Bay Colony Development Corp., NADCO Vice Chair of Regulatory Affairs and 504 Loan Closing Instructor Mike Vanchiere, Mountain West Small Business Finance and NADCO Packaging Instructor Jan Garlitz, NADCO General Counsel and 504 Loan Closing Instructor 2

3 Webinar Presenters - SBA David Miller, SLPC Supervisory Loan Officer 3

4 4 Opportunity Knocks

5 Amount of Third Party Loan Third Party Loan Less than 50% 5 Now consistent with the permanent 504 Loan program, the Third Party Loan must be at least as much as the 504 Net Debenture Proceeds

6 Amount of Third Party Loan continued That means the Third Party Loan is no longer required to be at least 50% of the appraised value of the 504-eligible fixed assets 6

7 7 Options

8 Third Party Loan Less Than 50% Appraised Value $10,000,000 Outstanding Debt $ 5,500,000 Third Party Loan $ 2,750, Net Debenture Proceeds $ 2,750,000 Equity $ 4,500,000 8

9 Third Party Loan Less Than 50% Appraised Value $5,000,000 Outstanding Debt $2,000,000 Third Party Loan $1,000, Net Debenture Proceeds $1,000,000 Equity $3,000,000 9

10 10 Unlock Equity

11 Financing Eligible Business Expenses The Final Rule allows extra equity to be used for the financing of Eligible Business Expenses 11

12 Eligible Business Expenses Expenses of the small business incurred prior to the date of the 504 Loan application OR 12 Expenses of the small business that will become due for payment within 18 months of the date of the 504 Loan application

13 13 Eligible Business Expenses

14 Eligible Business Expenses Some examples of eligible business expenses are: Utility Bills Rent Salaries Inventory Pay off/down business line of credit 14

15 Business Expense Financing Appraised Value $1,400,000 Outstanding Debt $1,000,000 Third Party Loan $ 560, Net Debenture Proceeds $ 560,000 Equity $ 280,000 Cash Funds for Business Expenses $ 120,000 15

16 Business Expense Financing 90% Appraised Value $1,400,000 Outstanding Debt $1,000,000 90% LTV $1,260,000 Third Party Loan $ 700, Net Debenture Proceeds $ 560,000 Equity $ 140, Cash Funds for Business Expenses $ 260,000

17 Documentation for Eligible Business Expenses Both the CDC and the Borrower will be required to certify in the 504 Loan application that the funds will be used to cover business expenses of the Borrower 17 The Borrower must be able to substantiate the use of the funds for business expenses

18 Documentation for Eligible Business Expenses Copies of utility bills Copies of payroll receipts Canceled checks evidencing rent payments Business credit card bills The CDC should keep copies of these documents in its file 18

19 19 Broadened Horizons

20 Substantially All (85% or more) Requirement If the original loan is the current loan being refinanced: The substantially all requirement applies to that original loan 20 OR

21 Substantially All (85% or more) Requirement continued 21 If the original loan has been refinanced: Substantially all requirement applies to the loan that originally financed the Eligible Fixed Assets (land including building, construction/renovation or equipment) Result: the current commercial loan is eligible if it is the most recent refinancing of the original loan

22 22 Substantially All (85% or more) Requirement continued

23 Substantially All (85% or more) Requirement continued Multiple refinances that may have occurred no longer impact eligibility 23 Eligibility is now based on the original loan

24 24 Current on All Payments Within Past 1 Year

25 Current on All Payments Within Past 1 Year continued 25 Current means no payments have been more than 30 days past due according to either the original and/or the modified payment terms - including deferments Any modification of payment terms must have been entered into in writing prior to the publication of the Final Regulations in the October 12, 2011 Federal Register

26 Occupancy If the Borrower occupies 51% or more of the Project property at the date of 504 Loan application, it is eligible The borrower s occupancy of the property at the time the building was purchased or constructed is irrelevant 26

27 27 Details

28 Random Audit 28 Borrower and lender may be requested, prior to closing, to present documentation to support their certifications that the Qualified Debt meets all the requirements If Borrower and/or lender is unable to produce the documentation, each must certify that it has made a diligent search for the documents and they are not in its possession NADCO has a sample Missing Document Certification on its website

29 Random Audit continued SBA will not cancel an approved loan before disbursement because the documentation cannot be found BUT SBA will expect the lender, if it is the original lending institution (and not a lender who acquired or merged with the original lender), to be able to produce the necessary documentation 29

30 Changes to Form 1244 Page 1: Exhibit 24 Now requires only the most current debt and lien instruments Page 3, VII: Proposed Use of Funds Now includes eligible business expenses under Other Expenses 30

31 Changes to Form 1244 continued 31 Page 12, Part D: Third Party Lender Certifications Amends the certifications that must be included in the Third Party Lender s commitment letter (Exhibit 19) for the revised substantially all 85% requirements and for Same Institution Debt NADCO has a revised Sample Lender Commitment Letter-Refinancing (rev. 10/13/11) on its website

32 Changes to SLPC Eligibility Information for 504 Submission Page 6, VII. Temporary Debt Refinancing: Now has 13 questions which reflect the changes in the final regulations This is the checklist to see if your proposed debt refinancing Project is eligible 32

33 Steps to Process a Temporary Debt Refinance Application 33 What is it that is being refinanced? (Eligible?) How long ago was the debt incurred? (2+ years?) Is the Third Party Lender a new lender or Same Institution? Has an Appraisal been obtained? (Must have)

34 Steps to Process a Temporary Debt Refinance Application cont. Are there any eligible Business Expenses involved? Does the request meet the 85%/15% substantially all split? Does the Borrower(s) have equity in the Project Property? 34

35 Steps to Process a Temporary Debt Refinance Application cont. Who is going to provide the current version of the debt instrument(s) and lien document(s)? Who owes the debt? (EPC or OC?) Was the debt incurred for the benefit of the same EPC/OC? 35

36 Steps to Process a Temporary Debt Refinance Application cont. 36 Does the small business currently occupy at least 51% of the Rentable Property? What will the loan structure be? (Third Party Loan, 504 Loan and Borrower Contribution) Are the 504 Loan Net Debenture Proceeds the same as or less than the Third Party Loan?

37 Steps to Process a Temporary Debt Refinance Application cont. Has the debt to be refinanced been current (no later than 30 days) for the past 12 months? Do the Borrower(s) and Third Party Lender understand what is expected of them (certifications, documentation, escrow account, etc.)? 37

38 Steps to Process a Temporary Debt Refinance Application cont. 38 Did you remember to use the updated versions of the Forms related to Temporary Debt Refinancing? Did you remember to use the higher Ongoing SBA Guarantee Fee for temporary debt refinance? Did you develop a list of the items to be paid off with loan proceeds?

39 Same Institution Debt: Use of Interim Loan or Escrow Account When the loan being refinanced is Same Institution Debt, then use of an escrow account is no longer required The CDC, Borrower and Same Institution Lender can choose to use interim financing or an escrow account 39

40 Same Institution Debt Escrow Account 40 The form of Escrow Agreement and who will be the Escrow Agent must be approved in advance by SBA District Counsel <PRACTICE POINTER> Prepare the form of Escrow Agreement your CDC plans to use and submit it to your SBA District Counsel for blanket approval Also ask for blanket approval of your proposed Escrow Agent (e.g., institutional Third Party Lender, title company or CDC Closing Counsel)

41 Same Institution Debt Escrow Account continued 41 NADCO has a sample Temporary Debt Refinance Escrow Agreement that has been vetted through SBA posted on its website The Third Party Lender may be the Escrow Agent This is not a conflict of interest and really no different than wiring the Net Debenture Proceeds on a regular 504 Loan to the Interim/Third Party Lender

42 Same Institution Debt Escrow Account continued 42 Both the Third Party Loan and 504 Loan are closed: all loan documents are signed and all required lien positions on collateral are obtained The Third Party Lender can either modify its existing loan documents for the Qualified Loan (less expensive for the Borrower and preserves the lender s lien position) or create new loan documents for the Third Party Loan

43 Same Institution Debt Escrow Account continued Borrower s cash contribution, if any, is deposited into the escrow account On debenture funding date, the Net Debenture Proceeds are wired to the escrow account The wire instructions on Page 4 of the Servicing Agent Agreement are for the escrow account of the Escrow Agent 43

44 Same Institution Debt Escrow Account continued 44 A copy of the Escrow Agreement is submitted to SBA District Counsel as part of the closing package; the original Escrow Agreement is sent to the CLSC after debenture funding The Escrow Agreement is not listed on the 504 Debenture Closing Checklist (SBA Form 2286) After SBA District Counsel approves the closing package, including the Escrow Agreement, CDC must give written notice to the Escrow Agent to release the escrowed funds to pay off the Qualified Debt

45 Third Party Lender Agreement for Escrow Account 45 PROBLEM: Recital 1 provides that the Project involves the acquisition and/or improvement of the real and/or personal property Terms and Conditions 1 provides that the Third Party Loan is fully disbursed These statements are not accurate when an escrow account is used to refinance Same Institution Debt

46 Third Party Lender Agreement for Escrow Account continued SOLUTION: Add a new 21: 21. The 504 Loan and the Third Party Loan are for the refinancing of debt incurred for the acquisition and/or improvement of the Project Property, as described in the Recitals. Notwithstanding Paragraph 1 of the Terms and Conditions, the Third Party Loan will be fully advanced when the 504 Loan is funded. 46 CDC will need to gets its SBA District Counsel s prior approval of the addition

47 Same Institution Debt: Form 2416 Only with Escrow Account Third Party Lender signs Lender Certification for Refinanced Loan (SBA Form 2416)(4-11) when the 504 Loan is closed A copy of the SBA Form 2416 is submitted to SBA District Counsel as part of the closing package and the original SBA Form 2416 is sent to the CLSC after debenture funding The SBA Form 2416 is not listed on the 504 Debenture Closing Checklist (SBA Form 2286) 47

48 Interim Financing: SBA Form 2288TR 48 When interim financing is used to refinance either Same Institution or non-same Institution Debt, the Interim Lender executes the SBA Form 2288TR (April 2011) when the Interim Loan is closed A copy of the SBA Form 2288TR is submitted to SBA District Counsel as part of the closing package; the original SBA Form 2288TR is sent to the CLSC after debenture funding The SBA Form 2288TR is not listed on the 504 Debenture Closing Checklist (SBA Form 2286)

49 Servicing Agent Agreement (SBA Form 1506) (10-11) 49 CDCs should use the version of the Servicing Agent Agreement for all 504 Loan closings unless the prior version (1-11) has already been signed Page 2 Use of Proceeds now includes eligible business expenses Pages 4-5 now have wire instruction boxes for Colson Services Corp. to wire funds to the Borrower s account for the payment of eligible business expenses within 18 months of the Date of the 504 Loan application

50 How to Disburse Funds for Business Expenses 50 CDCs disburse that portion of the Net Debenture Proceeds for the payment of eligible business expenses as follows: (1) The funds are wired to the Interim/Third Party Lender for reimbursement if it has advanced monies for business expenses (2) The funds are wired to the Borrower s account for the Borrower to pay the expenses as they come due

51 Documenting How Funds for Business Expenses Were Spent Borrower and CDC will need to document the actual use of the funds to pay eligible business expenses 51 <PRACTICE POINTER> Add a subparagraph to 20. of the Borrower and Operating Company Certification (SBA Form 2289) NADCO has a sample SBA Form 2289 with appropriate language on its website

52 Documenting How Funds for Business Expenses Were Spent cont Payment of Eligible Business Expenses - If the Project Costs include Eligible Business Expenses which will be paid by Borrower after the 504 Loan funds, then Borrower will use those 504 Loan proceeds only to pay business expenses which have been approved and Borrower will provide documentation (bank statements, invoices marked "paid," cleared checks, etc.) to CDC after the payment of each business expense to confirm how the monies were spent.

53 On-Going SBA Guarantee Fee 53 The total On-Going SBA Guarantee Fee for temporary debt refinancing 504 Loans are: For FY2011: 1.043% For FY2012: 1.103% The fee is entered by default into the Authorization CDC enters the fee into the Servicing Agent Agreement

54 Closing Requirements 54 Confirm whether the Authorization calls for interim financing or an escrow account Confirm that the Third Party Loan and 504 Loan are in the correct lien positions Confirm final use of proceeds and, if necessary, conform the Authorization to final Project Costs on Page 2 of the Servicing Agent Agreement Confirm that Borrower continued to pay the Qualified Debt as required until refinancing occurred

55 Closing Requirements continued 55 Obtain any required standby creditor agreements for deficiencies in paying off the Qualified Debt Follow up to obtain: Copies of all recorded modifications or releases of interim or Third Party Loan lien instruments Copies of canceled, marked as paid or released debt instruments for the Qualified Debt that has been paid off

56 Extension of Disbursement Period The SLPC has the authority to grant a three-month extension of the disbursement period on the 504 loan for good cause Otherwise, a temporary debt refinance 504 Loan must fund within 6 months for the Approval Date 56

57 What Hasn t Changed 57 The Qualified Debt must be a commercial loan, not residential The Qualified Debt must have been incurred not less than 2 years prior to the Date of application The project structure is still based on the appraised value BUT the Third Party Loan is no longer required to be at least 50% of the appraised value Substantially all still means 85%

58 What Hasn t Changed continued 58 Expansion Projects are not eligible to be refinanced under the temporary debt refinance program The 504 Loan Authorization for debt refinancing must have an Approval Date on or before September 27, 2012 All temporary debt refinancing 504 Loans must be processed through the SLPC There is no delegation of authority to PCLP CDCs

59 What Hasn t Changed continued 59 The small business must have been in operation for not less than 2 years prior to the Date of application 100% of the debt to be refinanced must have been incurred for the benefit of the small business that is the applicant The debt to be refinanced may be owed by the Operating Company or an Eligible Passive Company or both

60 What Hasn t Changed continued The debt to be refinanced must have been secured by the Eligible Fixed Assets The Eligible Fixed Assets must be collateral for the 504 Loan Job creation/retention requirements must be met 60

61 Q&A with SBA Presenter: Zola Finch, Director of Finance Programs, RMI; NADCO Past Chair David Miller, SLPC Supervisory Loan Officer 61

62 Special Thanks NADCO would like to thank the following persons from SBA who assisted in preparing this Webinar: Richard Taylor, SLPC Center Director David Miller, SLPC Supervisory Loan Officer Lisa Cookie, SLPC Loan Officer 62

63 Conclusion Thank you for your participation in this Webinar If you have any additional questions on debt refinancing, please send them to Please take a moment to complete and submit your evaluation form 63