Your State Association Presents Lenders Learn TM Chapter 3 Loan Documentation 101 - Part 1 The Basics Program Materials Use this document to follow along with the webinar. Please test your system before the broadcast. Be sure to print enough copies for all listeners. Chapter 3 of the Lenders Learn TM secured lending guide is provided as a separate handout. Wednesday, February 10, 2016 Presenter: Robin Russell Technical Support (for faster service please submit inquiries via email or online): (Registration & Tech Support): Email- [email protected], Phone- (877)988-7526 FOR ADDITIONAL ASSISTANCE PLEASE REFER TO OUR FAQs
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Loan Documentation 101 - Part 1 The Basics · 2016-02-10 · Your State Association Presents. Lenders Learn. TM. Chapter 3. Loan Documentation 101 - Part 1. The Basics. Program Materials
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Your State Association Presents
Lenders LearnTM Chapter 3Loan Documentation 101 - Part 1
The Basics
Program Materials
Use this document to follow along with the webinar.
Please test your system before the broadcast. Be sure to
print enough copies for all listeners. Chapter 3 of the Lenders LearnTM secured lending guide is provided as a
separate handout.
Wednesday, February 10, 2016 Presenter: Robin Russell
Technical Support (for faster service please submit inquiries via email or online): (Registration & Tech Support): Email- [email protected], Phone- (877)988-7526 FOR ADDITIONAL ASSISTANCE PLEASE REFER TO OUR FAQs
Lenders LearnTM provides lenders and compliance officers with a deep understanding of secured lending. For each of the 15 core courses (30 hours total), attendees receive a copy of the slides and at least one chapter from Robin’s new 2016 Multistate Secured Lending Guide.
Once you have completed the core curriculum, you will have a 17 chapter reference. Whether your bank registers for one or all 15 webinars, you will find the information practical and valuable. See below for 2016 broadcast dates.
1: Basic Business Entities (1/21)2: The UCC for Lenders (2/3)3: Loan Doc 101: The Basics (2/10)4: Loan Doc 101: Business Collateral (2/23)5 & 6: Loan Doc 101: Perfection by Possession & Control (2/18) 7 & 8: Basic RE Loan Documentation (3/2 & 3/3)9: Oil & Gas Lending (4/6) 10: Agricultural Lending (4/18)11: Commercial Loan Documentation (5/3 & 5/4)12: Letters of Credit (5/17)13: Lending to Municipalities (8/24)14, 15, 16: Basic Bankruptcy for Bankers (11/2)17: Loan Participations (11/15)
Also Recommended: • Top Loan Documentation Mistakes (TBD),• Advanced Commercial Loan Documentation (6/1)• Understanding Commercial Loan Documents (9/20)• Understanding Real Estate Loan Documents (9/22)• Commercial Real Estate Loan Documentation (12/7)
All programs will be recorded and available for viewing after the broadcast date. If you would like to complete the Lenders LearnTM curriculum and missed the webinar, please visit the on-demand catalog to register.
ROBIN RUSSELL Robin is a fellow in the American College of Bankruptcy. She combines a depth of experience inbankruptcy restructuring and litigation with financial transactions. She has represented corporate debtors, liquidatingtrustees, bondholders, unsecured creditors' committees, bank groups, private equity funds, landlords, trade creditors andbidders for estate assets in Chapter 11 and Chapter 7 bankruptcy proceedings and has litigated fraudulent conveyanceand preference claims in bankruptcy and district court. She has also represented banks, institutional lenders andcorporate borrowers in commercial loan transactions and debt restructurings. Robin is the principal author of ThomsonReuters’ Texas Practice Guides for both Creditors’ Rights and Financial Transactions and the Texas BankersAssociation’s Texas Secured Lending Guide, Texas Real Estate Lending Guide, Texas Problem Loan Guide and TexasAccount Documentation Guide. She is a frequent speaker on banking, bankruptcy and financial restructuring relatedtopics, an elected member of the American Law Institute and has served as a Chapter 7 Trustee. Robin received herLL.M. in Banking Law from Boston University and her J.D. from Baylor University where she was Editor in Chief of theBaylor Law Review and the highest ranking graduate in her class. Prior to joining the firm she clerked for the TexasSupreme Court.
This presentation is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that neither the presenter nor your State Bankers Association is engaged in rendering legal, accounting or other professional advice or service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought — from a Declaration of Principles Adopted by the American Bar Association and a committee of Publishers and Associations.
“This information and the information provided on all accompanying financial statements and schedules is provided for the purpose of obtaining credit for the Applicant(s) or for the purpose of Applicant(s) guaranteeing credit for others. Applicant(s) acknowledge that representations made in this statement will be relied on by Creditor in its decision to grant such credit. This Statement is true and correct in every detail and accurately represents the financial condition of the Applicant(s) on the date given below. Creditor is authorized to make all inquiries it deems necessary to verify the accuracy of the information contained herein and to determine the creditworthiness of the Applicant(s). Applicant(s) will promptly notify Creditor of any subsequent changes which would affect the accuracy of this Statement. Creditor is further authorized to answer any questions about Creditor’s credit experience with Applicant(s). aware that any knowing or willful false statements regarding the value of the above property for purposes of influencing the actions of Creditor can be a violation of federal law. 18 U.S.C. & 1014, and may result in a fine or imprisonment or both.”
• The information for the Loan Committee Memo comes from the borrower and the Bank’s due diligence on the borrower.
• If a loan ultimately goes into default and is fully or partially uncollectible, the loan committee memo will be heavily scrutinized by Bank regulators in order to determine if there were flaws in the underwriting process.
• The Loan Committee Memo should identify all known risks.
Mandatory• Identify parties• Identify what obligation is being secured• Identify collateral• Contain “words of grant” granting lien on collateral• In writing• Signed by owner of collateral
Optional• Representations/Warranties• Covenants• Events of Default• Remedies• Applicable Law
Metes and BoundsA metes and bounds description is the most common type of description used for a large and/or unimproved piece of property:
A tract which embraces Lot R-2 and portions of Lots Q-2 and S-2, as one, in Block “C” of WESTOVER HILLS, an Addition near Fort Worth, Tarrant County, Texas, according to plat recorded in Volume 1365, Page 51, Deed Records of Tarrant County, Texas, more particularly described as follows:
BEGINNING at a stake in the South line of said Lot Q-2 and 106 feet from its Southeast corner and being the Southwest corner of the tract conveyed to R.E. Harding by deed recorded in Volume 1930, Page 75, Deed Records of Tarrant County, Texas;
THENCE along the line of said Harding tract North 17 degrees 43 minutes East 282 feet to a pip and North 26 degrees 47 minutes East 187 feet to a pipe at the Northwest corner of said tract in the Northerly line of said Lot Q-2;
THENCE along the Northerly line of Lots Q-2, R-2 and S-2, North 44-1/4 degrees West 70-9/10 feet to an axle at the Eastern angle point in the North line of Lot R-2, and South 66 degrees West 100 feet to a car axle at a re-entrant corner of said Lot R-2 and North 66-1/2 degrees West 100 feet to a car axle at the Westerly angle point in the North line of said Lot R-2 and West 85-9/10 feet to an iron which is 50-9/10 feet West from the Northeast corner of said Lot S-2;
THENCE south 6 degrees 28 minutes West 418 feet to an iron in the South line of said Lot S-2 and 10 feet from its Southeast corner;
THENCE Southeasterly along the Southerly lines of said Lots S-2, R-2, and Q-2, a distance of 204 feet to the PLACE OF BEGINNING.
A map or plat description is the most commontype of description used for urban residentialproperty:
Lot Fifty-Six (56) in Block Five (5), Plat ofBayou Woods, Section (8), Harris County,Texas, according to the map thereof recordedin Volume 224, Page 15, of the Map Records ofHarris County, Texas.
• possession• good repair• payment of taxes• access to inspect collateral• notification of loss• access to books and records• nondisposition (unless ordinary course)• recordation of security interest on chattel paper• proper collection and settlement of accounts• no commingling of proceeds• direct payment of accounts receivable• insurance
Other Duties• authorization of secured party to file financing statement• authorization of secured party to protect collateral• advance notice of changes (name, location, form of organization)
Illustration of Perfection Requirements for Proceeds Under UCC
• If the Bank has a security interest in medical equipment which it has perfected by the filing of a financing statement describing medical equipment and the borrower exchanges some of the medical equipment for office equipment, the Bank will have a continuously perfected security interest in the office equipment.
• On the other hand, if the borrower sells the medical equipment and uses the cash to buy a car, the Bank’s perfected security interest in the car will lapse at the end of the 20 days, because there will be no notation on the certificate of title to indicate that the Bank has a security interest in the office equipment.
• The Bank has a lien on inventory, accounts and equipment.
• If the borrower sells an x-ray machine for cash and then uses the cash to buy vaccine, the Bank will have a continuously perfected security interest in the vaccine because it is inventory as described in the financing statement.
UCC Requirements for Continued Perfection of a Security Interest in
Proceeds
• The Bank’s security interest continues in collateral, notwithstanding the sale, exchange or other disposition thereof by the borrower unless the disposition was authorized by the Bank in the security agreement or otherwise.
• Bank’s security interest continues described below, in any identifiable proceeds of the collateral, including collections received by the borrower.
• The Bank’s security interest in proceeds becomes unperfected on the 21st day after the borrower receives the proceeds unless:
– A UCC-1 covers the original collateral and the proceeds are collateral in which a security interest may be perfected by filing a UCC-1 in the same office in which the original UCC-1 was filed.
– The proceeds are identifiable cash proceeds; or
– A security interest in the proceeds is perfected before the expiration of the 20-day period.
• A Form UCC-1 Financing Statement is effective for five (5) years and may be extended for additional five year periods during the six-month “window” prior to expiration of the previous five-year period.
• A UCC-1 filed in connection with a public-finance transaction is effective for 30 years.
• A UCC-1 on fixtures filed in the County Real Property Records is effective for five years.
• A deed of trust/mortgage or fixture financing statement contained within a mortgage or deed of trust it is effective for the term stated in the mortgage or deed of trust.
• A collateral description in the UCC-1 (but not the security agreement) on commercial collateral may simply state “all assets” or “all property”. The one exception is a “Commercial tort claim” which must be specifically described.
• A UCC-1 on consumer goods requires a description of the specific consumer good.
• A security interest in a consumer’s investment property requires specific identification of the account.
• If the name of the record owner is required in the UCC-1, it should be obtained through an abstract or title company or from a recent real estate tax bill or some similar document.
• A mailing or street address is not sufficient as a description.
• The following is an example of a legal description of real property:
Lot Fifty-Six (56), in Block Five (5), Plat of Bayou Woods, Section (8), in Harris County, Texas, according to the map thereof recorded in Volume 224, Page 15, of the Map Records of Harris County, Texas.
• A debtor who is an individual is located in the state of the individual’s principal residence.
• A registered organization that is organized under the law of a state is located in that state.
• A debtor that is a nonregistered organization (i.e. a general partnership) and has only one place of business is located in the state of its place of business.
• A debtor that is a nonregistered organization and has more than one place of business is located in the state of its chief executive office.
Additional Filing Locations• A registered organization that is organized under the law of the United States
and a branch or agency of a bank that is not organized under the law of the United States or a state are located:– in the state that the law of the United States designates, if the law
designates a state of location;– in the state that the registered organization, branch, or agency
designates, if the law of the United States authorizes the registered organization, branch, or agency to designate its state of location; or
– in the District of Columbia, if neither of the above applies.• A branch or agency of a bank that is not organized under the law of the
United States or a state is located in the state in which the branch or agency is licensed, if all branches and agencies of the bank are licensed in only one state.
• The United States is located in the District of Columbia.• A foreign air carrier is located at the designated office of the agent upon
which service of process may be made on behalf of the carrier.
• A registered organization continues to be located in the jurisdiction notwithstanding:
– the suspension, revocation, forfeiture, or lapse of the registered organization’s status as such in its jurisdiction of organization; or
– the dissolution, winding up, or cancellation of the existence of the registered organization.
• A debtor who ceases to exist, have a residence or have a place of business continues to be located in the jurisdiction where it last existed, resided or did business.
• Lien searches are done in the locations for UCC-1 Financing Statements in the state where the debtor is located.
• When farm products are taken as collateral the Bank should also conduct a lien search in each state in which farm products are located to look for agricultural liens.
• A lien search is done on the legal name(s) of the Debtor.
• An incomplete debtor name may result in a failure to disclose all the desired information.
Example #1: Real Name: Autoworld, Inc. Name Searched: Autoworld, Corp Result: Filings against Autoworld Inc. will be shown because Inc. and Corp. are currently considered ancillary information by most central filing offices.
Example #2: Real Name: Autoworld of Texas, Inc. Name Searched: Autoworld of California; Result: Filings against Autoworld of Texas not shown.
• Liens filed at the county level such as state tax liens and liens on fixtures.
• Liens perfected by possession, such as liens on chattel paper and certificated securities.
• Liens on special classes of collateral such as ships, aircraft, rolling stock, motor vehicles and manufactured homes.
• UCC-1 filings on the debtor in states not searched.• Nonownership of the collateral by the debtor.• A lien against the prior owner of the collateral.
• Sole Proprietorships• General Partnerships• Limited Partnerships (LP)• Limited Liability Partnerships (LLP)• C Corporations• S Corporations• Limited Liability Companies (LLC)• Real Estate Investment Trusts• Cooperative Associations• Professional Corporations• Professional Associations
• If all partner’s surnames are not in partnership name (i.e., Doe & Brown Auto) then in some states the partnership name (i.e.,John’s Auto) is considered an assumed name and an assumed name certificate should be filed.
• The entity made a decision to request a loan from the lender
• The loan will benefit the entity
• Certain officers designated by name and title are authorized to execute loan documents on behalf of the entity
• Pledging of entity assets as collateral is authorized
*Funding of any loan should not occur prior to receipt of a properly executed borrowing resolution. Otherwise, the borrowing could be challenged as unauthorized.
Has the Bank satisfied itself prior to funding that:
The borrowing under consideration is permitted
Officers who are signing have been properly authorized
Entity does not have a maximum indebtedness clause which will be violated (from another credit arrangement or board action)
All conditions precedent to borrowing have been met
Exact name on loan documents matches with documents on file related to the entity,
Liens and security interests in collateral are proper and within the powers of the entity as granted by its Board/Managers/General Partners/Principals.
Mortgage/Deed of Trust Basics• Names of real property owners exactly as they appear in the Deed• Name of Bank• Description of the debt and maturity date• A statement of consideration• Legal description of the real estate• Date• Grant of property with power of sale to the Trustee• Notarized and acknowledged signatures of the parties granting the lien• Assignment of Rents and Leases• Representations and Warranties• Due on Sale Clause• Covenants• Events of Default• Remedies
• Typically required when borrowing entity is privately owned.
• Required in scenarios where borrower credit strength is adequate.
• Considered an “unsafe and unsound practice” to make a loan to an individual without a guaranty that you would not make without the guarantor’s support
• Guaranty is a very one-sided document—in the bank’s favor.
• Guaranty should be a guaranty of payment not collection.