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February 2009 Minnesota Shopping Center Association Vol 23. No 2 In this Issue Great River Centre ---- SNAPSHOT 1 Nonprofits ---- HOT SPOTS / COLD SNAPS 3 MSCA Board ------ COMMITTEE CHAT 5 Cadmus/Ladner -- MEMBER PROFILES 5 Recession --------- PROGRAM RECAP 6 Rocco Altobelli ------ RISING STAR 7 Connection Feature by Peter Berrie, Faegre & Benson, LLP Alternatives to Traditional Financing he credit markets continue to be “cool” if not frozen. the buyer is allowed to take possession of the property even Accordingly, many property owners and developers are though the seller remains the record owner. In the alternative, Tconsidering alternatives to traditional financing to allow the seller could convey the property by deed upon the initial their deals to go forward. Three such alternatives are seller- payment and take back a promissory note secured by a financing, sale-leasebacks and ground leases. The following mortgage lien on the property, just as a traditional lender describes each of these structures, when they might be would do. The payment terms would be the same whether a considered, and a few pros and cons. contract for deed or seller note and mortgage were used. Seller Financing A contract for deed requires a few considerations. First, from the buyer’s perspective, a contract for deed does not If the buyer of real property cannot secure traditional provide the same redemption rights that a mortgage would. financing, a seller might consider financing the sale. For In Minnesota, if a buyer misses a payment under a contract example, instead of the seller receiving the full purchase for deed, the seller can provide a statutory notice of price at closing, the seller would receive some cash as a cancellation and take possession of the property unless the down payment and the remainder payable over time. buyer cures the default within 60 days after the notice. With Occasionally, this transaction is structured as a contract for a mortgage, a seller must typically publish notice of a deed, which is a contract between buyer and seller pursuant foreclosure sale for six weeks prior to the sale, and a buyer to which the buyer promises to make payments over time would typically have six months after the sale to redeem its and receives the deed transferring the land only after interest in the property. Of course, the flipside is that the completing all payments. After making the initial payment, seller would prefer the abbreviated cure period under the but before making the last payment and receiving the deed, contract for deed. Snapshot Location: SWQ of Highway 101 and County Road 39, Otsego Great River Centre Month/Year Opened: October 2008 Owner/Managing Agent/Construction Contractor: Ryan Companies US, Inc. Center Manager: Connie Wasley - Ryan Companies US, Inc. Leasing Agent: Kris Schisel/Chris Simmons, NAI Welsh (952) 897-7700 Architect: RSP Architects GLA: 220,000 sf; 24,298 sf available and one 1.16 acre outlot Current Occupancy: SuperTarget, TCF and Great Clips # of Stores: Opportunity for in-line retail and restaurants Anchor Tenants: SuperTarget Market Area Served: Northwest Metro Construction Style: Fun, flowing, spirited and timeless design unite the buildings in this development for a unique shopping experience. Additional Facts/Narrative: Ideally located to serve both Elk River and Otsego, this project pairs excellent visibility and access to the heavily traveled Highway 101 with the promotional draw of SuperTarget. Available spaces range from 1,200 to 10,000 sf as well as an outlot pad of 1.16 acres. msca-online.com 1 MSCA Connection February 09 Alternatives - continued 2009 Sponsors On the other hand, with a contract for documentation was done to deed, the seller remains the owner of the inappropriately pull assets away from the ACI Asphalt Contracts, Inc. land and is at risk for buyer’s actions during seller/tenant and give far faster and easier American Engineering Testing, Inc. the period of buyer’s ownership. For remedies to the buyer/landlord. Aspen Waste Systems, Inc. example, if the buyer is improving the land, Bremer Bank, N.A. Sale-leasebacks are not always the best Brookfield Properties unless certain steps are taken (such as choice for real estate held by an operating CB Richard Ellis posting prominent notice on the property), entity. Properties that operating companies CSM Corporation the property could become subject to must continue to own or control indefinitely Cambridge Commercial Realty mechanic’s liens for the amount of the Chesapeake Companies may not be appropriate for a sale- construction work. If the buyer does not pay Chuck & Don’s Pet Food Outlet leaseback. The seller/tenant needs to these liens, the seller would have to pay Classic Asphalt Sealcoating Co., Inc. understand the real risk of losing the them or risk losing the property if the Coldwell Banker Commercial property. A sale-leaseback works better Griffin Companies mechanic’s liens were foreclosed. If the with more fungible real estate, such as Cuningham Group Architecture, P.A. seller had taken a promissory note and single-use chain restaurants on pad sites. In Cushman & Wakefield of mortgage from the buyer, the seller’s Minnesota, Inc. addition, companies often focus more on mortgage could have priority over the Dick’s Sanitation, Inc. the purchase price that will be received, mechanic’s liens caused by the buyer, and Dougherty Funding LLC rather than the rent obligation created in Emmes Realty Services LLC the seller would not be at risk of losing the the lease. The buyer/landlord will view Exeter Realty Company property as security. these as related, and to the extent it offers Faegre & Benson LLP Sale-Leaseback Transactions a higher purchase price, it will likely recoup Fendler Patterson Construction, Inc. that higher price with rents that may be Fredrikson & Byron, P.A. Sale-leaseback transactions are an Gray Plant Mooty significantly above-market. Buyer/landlords Great Clips, Inc. approach for companies to convert real in such transactions should keep in mind the H.J. Development, Inc. estate assets into cash without disrupting risk in a bankruptcy, when a bankruptcy Inland Real Estate Corporation current operations. A typical sale- trustee could selectively reject certain JE Dunn Construction leaseback involves conveying property leases, regardless of the large purchase Jones Lang LaSalle/Rosedale Center occupied by a single user to a firm that prices paid for those properties by the KKE Architects, Inc. specializes in owning such properties, buyer/landlord just a few years before the Kraus-Anderson Companies Larkin Hoffman Daly & Lindgren Ltd. followed by a lease of the entire property bankruptcy filing. back to the user. The user receives a Leonard, Street and Deinard M & I Bank purchase price for the property, which is Ground Leases McCombs Frank Roos Associates often the rough equivalent of the present Real estate developers can use a long-term Messerli & Kramer P.A. value of the stream of rent payments that Mid-America Real Estate – ground lease to gain long-term possession the user must pay (plus a reasonable return Minnesota LLC of a development site without raising the on the investment). Midwest Maintenance & money needed to buy the site from the Mechanical, Inc. For many companies, entering into a sale- existing owner. Most often, a ground lease is Minneapolis/St. Paul Business Journal leaseback provides capital that would a lease of undeveloped land for a very Minnesota Real Estate Journal otherwise be tied up in the ownership of long term (e.g. 50 or 99 years), often with NAI Welsh NorthMarq real property, which can then be used for several renewal options. The tenant enters Olsson Associates acquiring distressed properties, expanding the ground lease and then constructs a Oppidan, Inc. the business, marketing, and similar matters. building. During the term of the ground Opus Northwest LLC But there are pitfalls to be avoided. lease, the building belongs to the tenant, Park Midwest Commercial Real but building ownership transfers to the Estate Perhaps the most significant risk for both landlord upon termination of the lease. Paster Enterprises buyer/landlords and seller/tenants is the risk RJ Marco Construction Inc. Developers should consider ground leases of recharacterization. In a RLK Incorporated as ways to finance the land acquisition cost recharacterization, the IRS or a bankruptcy RSM McGladrey, Inc. of a project, thus reducing the amount to court determines that the sale-leaseback is Reliable Property Services be borrowed for the overall project. Reliance Development Company, really a “loan” made by the buyer/landlord Developers need to be very careful in how LLP to the seller/tenant. This result could occur the ground lease is drafted because it will Robert Muir Company when the amount of “rent” payable over Robins, Kaplan, Miller & Ciresi, L.L.P strongly affect whether the project is the lease term is exactly equal to a Ryan Companies US, Inc. considered “financeable” by potential repayment of the “purchase price” plus a Solomon Real Estate Group Inc. lenders. For instance, because the terms reasonable rate of return, and (most Stewart Title Guaranty Company are so long, usually rent will adjust Sunde Land Surveying, LLC importantly) when the seller/tenant has the periodically throughout the term. But TCF Bank option to re-acquire the property at the lenders like certainty so these rent Target Corporation end of the term for a nominal amount. In adjustments may need to be subject to The Lawn Ranger, Inc. such a case, the IRS might claim that the U.S. Bank caps, or not begin until after the initial loan transaction was designed to cheat the IRS United Properties term. out of taxes; and a bankruptcy trustee Venture Mortgage Corporation trying to increase asset value of a bankrupt Certain land owners, such as universities, Wells Fargo Bank, N.A.

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