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Hotel Lending Lawyer: What every hotel lender needs to know about hotel due diligence

Why hotel loans are different than other real estate loans -- A quick review

Underwriting a hotel loan is different than underwriting a real estate loan. Hotel lending is far more involved. In addition to the due diligence a lender would do for a real estate loan, an experienced hotel lender will want to ensure it understands everything about the hotel, its operations, occupancy, rate history, market penetration, finances, employment conditions, management, compliance with applicable laws and brand requirements. The lender has to dig and investigate issues.

Standard reports

• Are the reports provided comprehensive and detailed?
• How frequently are reports provided? (More than the typical real estate loan, updates should be provided regularly.)
• Are the reports consistent with the hotel operator's reporting requirements under its management agreement?
• Do the reports satisfy specific accounting, recordkeeping, and computerization requirements?
• In the case of a franchise, are copies of the franchisor's own inspection reports available for review?

Operating statements

Are the income and loss statements reflecting the real costs of running the hotel? Is the hotel lender looking beyond the reports? Here are some sample questions the hotel lender ought to be asking:

• Has the hotel owner deferred payments to vendors?
• Has the hotel sponsors received loans from the hotel operator, vendors or third parties, or taken other actions, to make hotel operating costs appear less than they actually are?
• Does the hotel owner own other hotels, bars or restaurants? If so, are OS&E, food and beverage and other purchases being purchased with this hotel's revenues or revenues from other hotels or sources? Or, are OS&E, food and beverage and other purchases for this hotel being made through its other hotels?

The hotel lender needs to look beyond the reports it is receiving, and look at the facts and circumstances carefully - then require that the reports be tailored accordingly.

Appraisal analysis

• Did the appraiser take into account forecasts, market volatility, and occupancy demand for this hotel's market segment?
• What is the competition in this market segment?

What is the likelihood of rate compression from higher-end hotels that could steal this hotel's business or new hotels coming on line in the market area?

Market and brand compatibility

As mentioned in an earlier part of this "What every hotel lender needs to know" series, the hotel lender must be confident that the hotel owner is selecting the right hotel brand and operator. Experienced hotel lenders and advisors will have a good idea, after the analysis is complete, if the operator, the market, the owner and the property are compatible. The wrong decision means the hotel may have to rebranded, which is exceptionally costly, particularly if the hotel owner signs a long-term, no-cut contract which the lender is required to honor through an SNDA.

Additional areas for review

• What major repairs or upgrades are needed, if any? Will the lender have sufficient reserves as part of its collateral?
• Are the hotel's workers unionized? If so, are there considerations that affect the value of the hotel or the obligations of the lender?
• If the hotel workers are not unionized, has the hotel implemented the right planning and training to ensure that unionization does not become an unnecessary reality?
• Is the hotel ADA compliant? Is the hotel subject or vulnerable to an ADA investigation or lawsuit?

No short cuts to due diligence and no replacement for hotel expertise

While this series of articles on "What every hotel lender needs to know" does not cover every issue lenders have to consider when making hotel loans, it covers some of the most basic areas of concern.

In practice, there are hundreds of questions a hotel lender, its consultants and lawyers will ask when analyzing a prospective hotel loan. One thread is pulled to find it is securely knotted. Another is pulled and the fabric begins to unravel, revealing weaknesses that lead to further questions.

Knowing what questions to ask at each juncture comes from specific hotel lending experience. A thorough analysis will let a lender know what potential weaknesses exist, and provide assurances that the lender has adequate protections and solutions in the event of default. The analysis can also reveal serious discrepancies or festering problems that will cause a lender to reject the loan. In both cases, it is time and money well spent.

Due diligence for hotel lending requires expertise, time, and resources. While there is a cost associated with doing things right up front, the costs of a bad decision can exceed millions of dollars, especially after loan default when remedies need to be exercised and solutions to problem areas are most needed.

Hotel lending lawyer series - What every hotel lender needs to know

There are a lot of hotel-specific issues that hotel loan documents have to deal with. This series is designed to provide the essentials:

What every hotel lender needs to know about HMAs and hotel franchise agreements

What every hotel lender needs to know about SNDAs

What every hotel lender needs to know about cash controls

What every hotel lender needs to know about hotel due diligence

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Guy Maisnik is a hotel lawyer with nearly three decades in commercial real estate transactions. He is a partner and Vice Chair of JMBM's Global Hospitality Group®, a member of the JMBM Chinese Investment Group™ and a partner in the JMBM's real estate department. Guy advises clients on hotel transactions, representing lenders, opportunity funds, banks, special servicers, owners, REITs and developers in hotel transactions, including senior and mezzanine financing, workout and debt restructure, strategic portfolio acquisitions, co-lender, participation and securitization arrangements, joint ventures, management agreements, buying, selling and ground leasing of hotels, complex mixed used resort development, fractional and timeshare. For troubled hotels, Guy develops and executes strategies for CMBS and whole loans, and REOs. He also assists investors with recapitalization of distressed borrowers and purchases of troubled assets. Guy has assisted major lenders in revising and structuring their hotel lending programs and documentation, including their hotel construction lending. Guy's practice is both domestic and foreign; he has advised on hotel and real estate matters throughout the United States, Canada, Mexico, South America, Middle East, Caribbean, Western and Eastern Europe, Asia and Scandinavia. For more information, please contact Guy Maisnik at 310.201.3588 or mgm@jmbm.com.

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