Thursday, January 27, 2022

Delaware Statutory Trust vs. Tenant in Common ownership


Delaware Statutory Trusts are becoming more and more popular these days as real estate owners seek to keep the benefits of Real Estate ownership while reducing the stress of management. 

Below is a simple overview of a Delaware Statutory Trust (DST) vs. a more traditional Tenant in Common (TIC) ownership of multiple investors/ owners.                                             


                                             DST                                                                     TIC


Number of Investors           Unlimited, but typically capped at 499                Up to 35

Investment Ownership        % of beneficial ownership                                    Undivided interest 

Number of Borrowers        1 (the DST)                                                            Up to 35 (each investor)

Major Decisions                 DST Management                                                  Equal voting rights

IRS Guidance                     Revenue Ruling 2004-86                                       Rev Proc 2002-22


Overall, if you are looking to i) preserve your capital gains exemption, perhaps ii) scale to a smaller portion or a larger project, or iii) step away from the need for property management, a DST may be work looking into. 

For more information, consider contacting a Snohomish County Commercial Real Estate Broker. We will continue to post more and more information on DSTs in the coming weeks/ months so please consider subscribing. 

Our Firm:

Weitz Commercial Real Estate

 King County Commercial Real Estate office 

105 Central Way, Ste 205

Kirkland, WA 98033


Snohomish County Commercial Real Estate office

108 Union Ave

Snohomish, WA 98290


E: Scott@WeitzCommercial.com

T: (206) 306-4034

                                           


Thursday, January 20, 2022

Washington Syndication Agreements - The Basics

 

The Basics of Commercial Real Estate Syndication: 

Many investors don't have access to the purchase of commercial building either for financial reasons (typically a larger down payment will be required) or they simply don't want to manage a property, syndication have become a popular tool especially in the small to mid-size commercial market. 

In doing so, it useful also for the founders/ investors to understand the syndication agreement and how a syndicate works in a Washington State Syndication Group.  

In this article, we examine the typical elements of a syndication agreement an investor can expect to see and should review/ negotiate. 

Purpose of the Agreement

Whereas the term sheet and shareholders’ agreement governs the relationship between the founders and the investors, a syndication agreement sets out the roles and responsibilities of the investors towards each other. 

The syndication agreement has two main purposes: 

1) it is aimed to facilitate the investment process by defining the roles of investors, their objectives, investments and the framework for the negotiations.  

2) the syndication agreement sets out the guidelines for the post-investment activities of the investors.

A syndication agreement typically consists of two parts: One governing the acts of the syndicate while contemplating an investment and another governing the acts of the syndicate after the investment.

Preparing the Investment

The key pre-deal parts set out the role of the parties. These typically include who is the deal lead and how are the syndicate investors. Some of the syndicate members may also be appointed as co-leads or subject matter experts who assist the lead investor as agreed.

The lead investor has the authority to negotiate the deal on behalf of the syndicate. The underlying conditions for the authorization can be outlined in the agreement. 

Besides negotiating the term sheet, the lead investor is typically responsible for representing the syndicate when preparing the shareholders’ agreement and the investment agreement.

The Role of the Lead Investor

The lead investor leads the negotiations on behalf of the syndicate. Other team syndicate members may support the lead in the negotiations, especially if certain subject matter know-how is required.

The preparation of the investment documents is typically also the responsibility of the lead. If this activity is outsourced to e.g. an outside law firm, the deal lead is still responsible for coordinating the work of the law firm on behalf of the syndicate.

Use of Experts

Every now and then the syndicate needs external expertise. Most commonly this is legal assistance relating to the shareholders’ agreement and investment documents but can include other services as well such contractor, accounting, and other professional relationships.

The experts may be chosen by the lead investor, who is then responsible for the coordination of their work. In cost compensation, different rules may apply if the investment is closed and if it falls apart (e.g. the company may cover the costs within pre-determined budget if the investment is made, but the investors cover the costs pro rata with their planned tickets if the syndicate decides not to invest).

Remuneration to the Lead Investor

If there is compensation for the lead investors, it should be agreed upon in the syndication agreement. And even if there is no compensation, it would also make sense to write that down in the agreement.

The remuneration for the lead investor can be e.g. lead investor fee, lead investor carry or compensation for the advisory or board work.

After the Investment

The second purpose of the syndication agreement is to set a foundation on the acts of the parties after the investment is made.

Voting in Shareholders’ Meetings

One of the benefits of making the syndicate formal via a syndication agreement is that it makes the syndicate one major shareholder instead of a bunch of smaller shareholders. Therefore, to fully gain the benefits of such arrangements, the syndicate members need to act unanimously.

Unanimous acting can be achieved by setting up a procedure in the operating agreement, where the syndicate members form their common understanding before a material decision is made and act accordingly in the actual decision making. E.g. it may be stipulated that all in all decisions that would require a qualified majority under the shareholders’ agreement, the syndicate members act as one if two-thirds of the shares held by the syndicate so vote.

Overall

A sound syndicate agreement helps to create a syndicate that is stronger than the sum of its parts. It also helps to mitigate the issues of the long cap table, when despite the number of investors they all act as one. Thus, having a syndication agreement in place can often be in the interest of both the investors as well as the founders; especially if the syndicate is large.

For more information on joining a King County Real Estate Syndication or Snohomish County Syndication, consider contacting a Puget Sound Commercial Real Estate Brokerage

Our Firm: 

Weitz Commercial Real Estate & Investing

Kirkland                                                                        Snohomish

105 Central Way, Ste 205                                             108 Union Ave

Kirkland, WA 98033                                                    Snohomish, WA 98290


...or email me, Scott Weitz at Scott@Weitzcommercial.com or text / call (206) 306-4034




Tuesday, January 18, 2022

Negotiating Tenant Improvements - King and Snohomish County Commercial Real Estate

 

The Basics - Tenant Improvement 

A tenant improvement allowance (TIA) is the amount of money the landlord or property manager is willing to spend so a tenant can renovate their new space according to their demands. Typically speaking, the improvements are aesthetic or functional, including paint, lighting fixtures, flooring, and similar items. Depending on the wording of the lease, tenant improvement allowances come in two general types – an allowance type and turnkey.

 

Allowance

With an allowance improvement, a designated amount is allocated towards making tenant improvements with expenses being paid directly by the landlord to the contractors for making physical improvements to the space. This type of TIA does not cover furniture, technology, or customized items but only things specified and mutually agreed-upon by the landlord and tenant.


It should be noted that allowance typically does not permit the tenant to make any improvements of their choosing, but is rather relegated to those items specified in the agreement with the landlord. 


The allowance is typically offered per square foot of space so, while negotiating the TIA. Its incredibly important that a tenant must be a certain/ confident that the designated amount is sufficient to accomplish their needs. Particularly, we like to team with some of the best local contractors to give a good sense of TIs that will be necessary to accomplish the tenant build out needs. We highly recommend doing this PRIOR to finalizing your lease. 


Potential Drawback: 


From a tenant's perspective, a potential biggest drawback of a traditional allowance is the responsibility of finding the architects, contractors, and sometimes even project manager to work on the improvements. Particularly, for a small business or startup, such a responsibility can absorb significant amounts of time that should be spent growing the business.  

Turnkey

For a tenant, a turnkey TIA is most entirely about the finished product. The landlord manages the entire process with the tenant approving the layout, fixtures, color palette, flooring, and most other aesthetic choices along with the finished product. The landlord is responsible for covering the expenses throughout the process.


Typically, a tenant is assigned a specified amount per square foot of space. Therefore, it is important to make sure the designated budget can successfully accomplish all of the changes and renovations desired. Any alterations that might be requested by the tenant after the agreement is signed but before the improvements are completed could trigger additional costs for the tenant.


Ultimately, a turnkey buildout is mutually agreeable for both a tenant and landlord if the costs are clearly spelled out. For them to work effectively for both parties, however, the plans should be straightforward, understandable, and financially reasonable relative to the total cost and the length of the lease. Larger, more complicated projects aren’t favored by landlords due to potential complications and slimming margins if the project spirals out of control.

 

Factors That Can Influence the Allowance

For reasons that would seem fairly obvious, TIAs more financially attractive / palatable for landlords in a longer term lease where the Landlord in confident in a long term tenancy. Typically speaking, a minimum three-year lease is needed for a TIA but, if more substantial improvements like moved walls are requested, the required minimum lease duration will usually be five years or more. 


Additionally, landlords prefer their TIA costs go towards improvements that will ultimately improve the value of the space over time. HVAC, plumbing, and lighting improvements are examples of items that are unlikely to be replaced or updated when the next lessee moves in. In other words, more aesthetic improvements like carpet, paint, and drywall are more likely to be approved than costs “above the ceiling" like HVAC plumbing and lighting.


For more information on finding the a great King or Snohomish County Commercial space for your business, consider contact a Snohomish County Commercial Real Estate Broker


Our office


Scott Weitz

Weitz Commercial

108 Union Ave, 

Snohomish, WA 98290

Scott@WeitzCommercial.com

T: (206) 306-4034