Real Estate Mezzanine Financing: Structuring and Documentation, Due Diligence, Key Provisions

Description

Mezzanine financing allows borrowers to obtain financing in addition to a mortgage loan, but mezzanine loans add complexity, with additional documents, legal opinions, and third-party reports. Mezzanine lenders require separate consent rights for various actions by the borrower, and restructuring a nonperforming loan is especially problematic given the diverging interests of the mezzanine and mortgage lenders.

Since the mezzanine lender's security interest is in the borrowing entity rather than the property, it must conduct entity-level diligence, including analyzing potential claims and agreements entered into by the property owner. Existing contracts and licenses might contain restrictions on transfer--the pledge securing the mezzanine loan or any foreclosure of the pledge could violate such limits.

The mezzanine loan agreement should track the mortgage loan agreement, with mortgage loan representations recast to refer to the mezzanine borrower and the mortgage borrower. The mezzanine borrower and the mortgage borrower should be required to comply with entity-level covenants and property-related covenants.

The mezzanine borrower's obligations are secured by a UCC pledge of equity interests in the property owner. The pledge can be perfected under Article 8 of the UCC. The mezzanine borrower's ownership interest in the mortgage borrower must be certificated so the mezzanine lender can take physical possession of the membership certificates. The operating agreement should also include Article 8 opting-in language.

Listen as our authoritative panel discusses the nuances of mezzanine financing.