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Southeast Mortgagee Advisory Council 12 th Annual Meeting and Conference Closing Process and Closing Documents Thursday, May 30, 2013 1 Mark Eidson Jan.

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Presentation on theme: "Southeast Mortgagee Advisory Council 12 th Annual Meeting and Conference Closing Process and Closing Documents Thursday, May 30, 2013 1 Mark Eidson Jan."— Presentation transcript:

1 Southeast Mortgagee Advisory Council 12 th Annual Meeting and Conference Closing Process and Closing Documents Thursday, May 30, 2013 1 Mark Eidson Jan Weiss Haber Kathleen Burtschi Harrison Smith Kate Murray

2 TIPS AND TRICKS: TITLE & SURVEY ORCF TITLE & SURVEY CHECKLIST Legal description verbatim, if not verbatim but describes same property should be Ok. Note difference between record and survey calls. Slip Sheets identifying Exception Documents/Use Sharpie to number each one. Non-Benign items on ORCF checklist must be covered, others are recommendations for HUD to consider. (No added risk to HUD, not life safety issue) Send scanned copies of title and survey to OHP closing coordinator. 2

3 TIPS AND TRICKS HUD REVIEW HUD Form Document - Changes to forms redlined. Management Agreement - Add HUD Provisions If License to New Operator Pending – Need letter from State Agency that New Operator under review OR A leaseback to Old Operator, with a temporary management agreement to transition to New Operator. Organizational Documents: Place sticky note on HUD provisions. 3

4 TIPS AND TRICKS: HUD REVIEW AR Financing - Send UCC searches on Operator with AR financing documents submitted with Application. Mortgagor Term – Must be perpetual or as long as term of the loan. Operator Term – Must be at least as long as term of the lease. Sprinklers required by 8/13/2013 per CMS - Any Application for a 223(f) on a skilled-nursing facility must be fully sprinklered and listed as such on CMS website. 4

5 TIPS AND TRICKS: HUD REVIEW Legal Opinion  Use HUD form with few if any changes, or find another Counsel that is comfortable with form;  Don’t erase text from form;  Use redline/strikethrough so HUD counsel can tell what changed, and give rationale for change if change is not just names/addresses of parties Zoning Letter  Want local municipality to give letter; not due diligence firm  If can’t get from locality, obtain zoning endorsement to title policy 5

6 TIPS AND TRICKS: HUD REVIEW Commercial Leases If large commercial tenant, advise them early of HUD requirements (HUD Form SNDA) Section 223(A)(7)s Vet any big issues through HUD (Ex. flood plain) because HUD most likely will issue Firm. HUD general rule to is bring facilities in compliance with current HUD requirements (AR financing, DACA/DAISA) 6

7 TIPS AND TRICKS: ISSUANCE OF FIRM Loan Committee  Biggest Issues Causing Delay Poor Quality Control of Packages Responsiveness of Lender (not legal) Title/Survey Review  Done on (f) and some (a)(7s) if OGC asks  Gives Checklist on what needs revising or explaining 7

8 TIPS AND TRICKS: ISSUANCE OF FIRM After Firm – Must Submit Draft Closing Package  (a)(7): 7 business days or risk going back to closing queue  (f): 15 business days or back in queue Submit draft package, then ask for closing date, inform HUD of special closing requirements (prepayment step down) 8

9 TIPS AND TRICKS: ISSUANCE OF FIRM Uniform and Complete  Checklist on top and tab all documents in checklist order  Use Bold and Strikethrough unless document offers alternative provisions  Ask HUD counsel what documents they want redlines of 9

10 Evidence of Special Conditions Special Conditions Matrix Place in each draft package. Note evidence to satisfy condition or what is proposed to satisfy. Critical Repairs Color photos, label the pictures with depicted repair and attach invoice. Closing Statement/Cost Certification Rough preliminary numbers are better than none and acknowledgement of what’s coming (don’t just ignore the item). 10 TIPS AND TRICKS: ISSUANCE OF FIRM

11 Non-Critical Repairs If some are done, give photo/invoice and revise list of what’s remaining. Have Firm amended to reflect items to be repaired post-closing. Rate Lock Some OGC offices won’t review draft package until after rate lock. 11 TIPS AND TRICKS: ISSUANCE OF FIRM

12 TIPS AND TRICKS: CLOSING Common Special Conditions  Fidelity (Crime/Dishonesty)/Prop/PLI – Provide insurance accords  Sprinkler System – all SNF’s must be sprinklered per CMS by 8/13/2103  Legal Punchlist comments  Title and Survey Review  Minimum Lease Payments – must have 1.05 coverage 12

13 Critical Repairs Many and high dollar value – often Lender will already have discussed this with Borrower and Borrower has completed repairs before Firm. Repair Escrow for Non-Critical Repairs Take escrow of 120% 223(f) and 110% 223(a)(7) of amount of repairs Have 12 months to get them done 13 TIPS AND TRICKS: CLOSING

14 Number of Beds Noted on License and Regulatory Agreement License 140 beds, underwritten for the 105 beds in use, put both numbers in Operator Regulatory Agreement. If License or Insurance Policies are set to expire in less than a month before closing – need updated license as evidence that renewal is in process and will be granted. 223(f) Cost Certification - Need Payoff and Invoices Doesn’t need to be duplicated in Closing Statement attachment 14 TIPS AND TRICKS: CLOSING

15 KEY HUD LOAN DOCUMENTS Regulatory Agreements-Borrower and Operator Mortgage/Deed of Trust/Security Instrument Note Security Agreement- Operator Control Agreements- DACA and DAISA HUD Lease Addendum 15

16 HUD’S NEW 232 DOCUMENTS Became Final on 3/14/13 for Transactions with Firm Commitments Issued on or after April 9, 2013. Transition Rules: HUD delayed the implementation date to July 12, 2013 (a)(7) HUD will work with the Lender to allow use of existing documents previously approved so long as terms and conditions remain the same. 16

17 LOAN DOCUMENTS TOP 10 SUBSTANTIVE CHANGES 1.Distributions – For profit borrowers are no longer limited to twice yearly distributions. Operator distributions are not allowed if it has negative working capital. 2.Bad Boy Act – Key Principal Liability - The new Regulatory Agreement requires the listing of certain key principals who will be liable for certain “bad-boy” acts. 17

18 3.Nonprofit Borrower Reserve - Nonprofit Borrowers have to post long-term debt service reserve to have access to residual receipts (profit). This is true even if Nonprofit elects to follow more stringent underwriting requirements of for-profit borrowers. 4.No Change to Permits - No project permits or approvals, no matter how insignificant, can be changed or altered without HUD approval. Any violations thereof must be reported to HUD within 2 days. HUD sole discretion at making decisions regarding Operator’s facility if it believes permits are at “substantial and imminent risk of being terminated.” 18 LOAN DOCUMENTS TOP 10 SUBSTANTIVE CHANGES

19 5.Litigation/Claims - Any litigation or claims against the borrower/operator/principals/facility/project must be disclosed to HUD and no claim in excess of $100,000 can be settled without HUD consent. 6.HUD Consent Amendments - HUD approval is required for any amendment to a contract that materially increases the obligations of the borrower. All contractual obligations must be disclosed to HUD. 19 LOAN DOCUMENTS TOP 10 SUBSTANTIVE CHANGES

20 7.Consultants - HUD may require the borrower to hire a consultant if there is a Project Operating Deficiency. 8.Recourse - Section 8(b) of the note provides that it becomes recourse to the borrower under certain conditions. 9.Security Interests - Tenant/Operators cannot grant security interests to landlord/borrowers to secure rent payments in third party tenant situations. Third Party Operators must pledge their assets to their Landlord/Borrower’s loan. 10.AR Limits - Limitation to what AR lenders can recover as collateral and time period their collateral retains priority in the new Intercreditor Agreement. 20 LOAN DOCUMENTS TOP 10 SUBSTANTIVE CHANGES

21 BONUS – MORE CHANGES IN HUD LOAN DOCUMENTS Required Financial Statements of Operators: Required of all operators (those in HUD inventory and new deals): Must be submitted quarterly and annually. “Operator-certified”, not audited. 21

22 BONUS – MORE CHANGES IN HUD LOAN DOCUMENTS Operator Must Notify HUD if it “Places Value of Security at Risk” G Tag or higher G Tag unresolved for 2 or more surveys Repeat violation Notify Lender/HUD of conduct, scope, remedies and timelines. 22

23 BONUS – MORE CHANGES IN HUD LOAN DOCUMENTS Healthcare Regulatory Agreement – Borrower Paragraph 38 1.Borrower entity already signing Regulatory Agreement, do not add Borrower to Paragraph 38. 2.Firm Commitment will state who signs this paragraph. Usually principals of Mortgagor entity, parent of Nonprofit Mortgagor. 23

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