TopS&S Horizontal Logo
In This Issue:   
Quick Links:  
SpotlightAttorney Spotlight 
Michele Web Photo
Michele L. Courneya
 
Michele Courneya heads up Starfield & Smith's Minneapolis, Minnesota branch office. She practices in the areas of banking, contracts, real estate and commercial law with an emphasis on SBA lending.

Michele is the former Minnesota District Counsel, Senior Franchise Counsel, Chair of the Authorization Committee and Chair of the Streamlining 504 Closing Committee for the U. S. Small Business Administration. During her 15 years with the SBA, Michele was instrumental in writing, editing, updating and automating the SBA's loan authorizations, the Agency's primary contracts with lenders. She developed and implemented internal control systems at the SBA to streamline program procedures and drafted and edited rules and regulations implementing new agency policies. In addition, she oversaw agency websites on franchises and advised on franchise eligibility issues. As a nationally recognized expert, Michele has extensive background assisting the lending community on legal issues related to all SBA programs including regulatory compliance, ethical issues, eligibility, and loan processing, closing, liquidation and litigation. Since joining the firm, she has assisted with the revisions to the SOP 50-10(5) and the new liquidation regulations.

Michele has taught seminars on loan closing, documentation, franchising and other legal issues related to SBA lending for the National Association of Development Companies (NADCO) and the National Association of Government Guaranteed Lenders (NAGGL), who named Michele "Instructor of the Year" for 2008. She is a member of NAGGL and an affiliate member of NADCO and is qualified as a designated closing attorney under the SBA 504 Program.

Michele is a member of the Minnesota state bar and admitted to practice in the Federal District Court for the District of Minnesota. She is a graduate of the University of Minnesota Law School where she received her Juris Doctor degree and the University of St. Thomas in St. Paul Minnesota where she received her B.A. in Philosophy.
 
FeaturedArticleBEST PRACTICES: SECURING LEASEHOLD IMPROVEMENTS
By Ethan W. Smith

Ethan Smith

Lenders that finance leasehold improvements or "tenant fit-out" with SBA loans must ensure that they properly collateralize their loans in accordance with SBA regulations.  Often, lenders fail to require the appropriate collateral which could jeopardize the guaranty. 

Generally, the SBA requires lenders to take a first lien security interest in the assets that they finance with an SBA loan.  SOP 50 10 5(B), p.181.  This requirement becomes difficult to comply with when the collateral being financed with the SBA loan is primarily leasehold improvements that consist of fixtures that in most instances will become the property of the landlord at the expiration of the lease.  Many lenders approach this problem by simply filing a fixture filing against the borrower's leased location.  However, significant issues exist if lenders limit their security interest in the leasehold improvements to a mere fixture filing. 

The first issue arises because many landlords refuse to subordinate their interest in fixtures.  If the landlord will not subordinate, the lender cannot comply with the SBA's requirement that it obtain a first lien on the assets financed.  Additionally, even if the landlord agrees to subordinate its lien on fixtures to the lender, there is still the very practical problem that most tenant improvement fixtures have little to no value if removed from the leased premises.  Accordingly, the real collateral value in a leasehold improvement loan could be said to be in the increased value of the leased premises themselves.  The SBA has addressed this issue by requiring lenders to secure loans that finance leasehold improvements with, among other things, a collateral assignment of the lease. 

SOP 50 10 5(B), p.202 states: '[w]hen a substantial portion of the loan proceeds are to be used for leasehold improvements or a substantial portion of the collateral consists of leasehold improvements, fixtures, machinery, or equipment that is attached to leased real estate, the lender should obtain:  1. An Assignment of Lease with a) A term including renewal options that equals or exceeds the term of the loan; and b) A requirement that the lessor provide a 60-day written notice of default to the lender with option to cure the default; and 2. A Landlord's Waiver." 

In light of this requirement, in addition to taking all available assets of the borrower, lenders must obtain collateral assignments of leases for loans that finance, or are secured by, substantial leasehold improvements.  Since most commercial leases prohibit assignments by the tenant without landlord's consent, a provision should be added to lender's form of landlord waiver whereby the landlord consents to the collateral assignment of the lease by tenant to the lender.  Taking these steps will reduce the chances of a repair or denial of the SBA guaranty for failure to properly secure the loan. 

For more information on securing SBA loans and the SBA's collateral requirements, contact Ethan W. Smith at
esmith@starfieldsmith.com, or 215-542-7070. 


  

                                                                              Back to Top

DYKDid you know...
 
Compass

...that Starfield & Smith, P.C. is retained by lenders nationwide to consult on SBA eligibility and compliance matters?

For more information about these and other services Starfield and Smith, P.C. provides its lender clients, call us at (215) 542-7070.


Back to Top 

SeminarSeminars and Events
  
Advanced SBA Loan Documentation and Closing
 
Presented by: NAGGL
Instructor: David W. Starfield
Date: May 4, 2010
Location: Fort Worth, TX

On May 4, 2010, at the NAGGL SBA Lending Technical Conference in Fort Worth, Texas, David Starfield will present the "Advanced SBA Loan Documentation and Closing" course. This session is designed to help lenders ensure that the documents they assemble comply with the SOPs, the loan authorization and sound lending practices. Topics will include key loan closing issues; tax, lien and judgment searches; third parties; loan modification issues; and more.
 
To register online, click here.
 
FeaturedStarfield & Smith, P.C. is on facebook!
Sta 
 
Become a fan of Starfield & Smith, P.C.  on facebook to receive updates, articles, and news pertaining to SBA and lending related topics. Just click on the badge above to get started!
  
Not on facebook? Sign up for free here.
 
SBA Lending Ad
 
ContactInfo Starfield & Smith, P.C.
Pennsylvania Office
501 Office Center Drive,
Suite 350 | Ft. Washington, PA 19034
phone: (215) 542-7070 | fax: (215) 542-0723
 
Minnesota Office
1516 West Lake Street, Suite 303 | Minneapolis, MN 55408
phone: (612) 208-0877 | fax: (215) 542-0723

http://www.starfieldsmith.com
 
 Loan Documentation | Closing | SBA Guaranty Repurchase
Regulatory Compliance | Franchise Eligibility
Business Consulting
 
This email is an advertisement from Starfield & Smith, P.C. and is subject to this disclaimer.
 © 2009 Starfield & Smith, P.C. All Rights Reserved