Friday, October 24, 2014

Company MERGED or ACQUIRED? Don't forget your #CRE

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I publish a weekly video series entitled Tuesday Traffic Tips. These short, informative videos are geared toward commercial real estate brokers...brokerage advice to my colleagues in the business.

This week, my tip revolved around mergers and acquisitions and the resulting commercial real estate activity. As I've encountered several commercial real estate situations recently that were initiated by a merger, an acquisition, or a disposition, I believed it was time to reduce a few of these situations to a post so that my owner and occupant clients might benefit from the advice I've given.

Before, I delve into the world of M and A...not to be confused with MMA (although sometimes selling your company can feel like cage fighting)...let me digress.

I provide Location Advice to owners and occupants of industrial buildings in Southern California...AKA, I sell and lease commercial real estate for a living and have since 1984. I've been involved with a number of deals stemming from "excess" real estate in my four decades of brokerage. This should qualify me as some sort of an expert...if I can remember why...

Back to M and A...

Someone very wise once postulated...A merger is like a marriage, an acquisition is like the arrival of a new baby and a disposition is like a divorce...of sorts. In all of these instances, a new way of doing business emerges and some excess occurs. If you doubt, for a moment, what I am saying...consider your commercial real estate.

When a merger with another company, division or operating unit is affected, there generally is a surplus of the physical plants from which the operations are conducted.

If you acquire a competitor; their customers, billing, shipment schedules, culture, and facilities must be morphed into your existing company.

A disposition of your business can result in the assignment of an existing commercial real estate lease or the origination of a new commercial real estate lease in the case of an owner occupied building (owner of the business and the real estate).

Below are some specific examples (and suggestions) of the role commercial real estate can play in a merger, acquisition, or disposition.

Disposition of the business with long or short term leased commercial real estate. If a long term lease (longer than two years) is in place, chances are that the purchaser of your business considered the location and the remaining term of the lease. If the purchaser opts to occupy the location, generally, an assignment of the lease obligation should be requested. Any options to extend are personal and typically cannot be assigned, however. Also check and see if any personal guarantees of the lease's performance can be vacated. Generally owners of locations want as much security as possible in the performance of the lease, however, if the purchasing entity has a larger net worth, sometimes owners will vacate previous personal guarantees. If the purchaser does not intend to occupy the location, you as the occupant must deal with a term of lease that must be satisfied...without the benefit of a business to generate income. Some owners are happy to work with an occupant that is paying a rate substantially below market. This hasn't been the case for several years as lease rates have declined. Please address the lease term (and the responsibility for it) in your letter of intent.

If a short term lease (two years or fewer) is in place, this can be tricky if the owner of the location believes that the occupant (you or the business you are buying) has such an investment (distributed power, AQMD permits, ISO 9002 permits, paint spray booths, offices, freezer/cooler space, conveyor systems, etc.) in the location that moving would be too costly. The owner may attempt to negotiate a higher than market rate assuming that a move would be too costly. Be well advised to determine the buyer's desire to stay in the location and attempt to negotiate an extension. Otherwise, your buyer may negotiate a lower price for your business based upon the uncertainty of the occupancy.

Merger of two entities: We saw a great deal of this activity in the latter part of the last decade through bank consolidation. Remember when one bank merged with or was acquired by another and you would find a Wells Fargo branch next to a Wachovia branch in the same retail center?...now common ownership. A bunch of excess real estate was created and had to be purged from the market. Refer to the previous paragraph for some suggestions on how to dispose of the excess commercial real estate.

Acquisition in another market: I have a client who acquired a company in Arizona with three locations. The decision was made to keep all three locations in Arizona but there was much work to do in renewing leases, upgrading the locations, and assigning the leases to the new entity.

Strategic or PE acquisition of the business and commercial real estate: On two recent occasions, I have encountered a company that was sold...one to a strategic buyer and one company sold to a private equity group. In both cases the real estate was acquired with the operating company. In neither case was the strategic buyer or the private equity group in the business of owning commercial real estate. Also, in both cases, moving the operating company into another location would have been costly, disruptive, and inefficient. So what was the solution? In both cases, the new business owners (the strategic buyer and PE buyer) sold the commercial real estate to an arm's length commercial real estate investor along with a lease back of the commercial real estate. The operating companies stayed put, the new owners disposed of an asset (the unwanted commercial real estate) and defrayed the cost of the acquisitions.

Disposition of the business with owned commercial real estate: Frequently, in closely held businesses, owning your location can make a great deal of sense. You fix your location costs and you control the occupant (it is your company), you benefit from the location's appreciation, and there are some potential tax benefits individually. I explained in great detail the characteristics of a company that should own its location in a previous post. You can click here if you are interested in learning more about those characteristics. When you sell the business that occupies the location (even if the purchaser of your business signs a lease with you), the question you ask should be, would I want to own this location if it were vacant? Remember when you were the occupant and the owner, the dynamic is different than being the owner but not the occupant. You are now an investor who must compete with many other investors for your tenant's occupancy...are you prepared for that potential risk? As explained in a previous post, the cost of originating a new lease is staggering. If the answer is no, then there are steps that you can take to minimize the risk of owning a vacant building. First, analyze your location's monthly carrying costs...debt service, taxes, insurance, common area maintenance, miscellaneous maintenance, etc. (You should maintain a 9-12 month cash reserve of this total amount). Second, determine how marketable the vacant location is. A location advisor familiar with the current market can provide this for you. How many vacant locations similar to yours exist? What is the current appetite (including market time) for such a location? What is the current vacancy rate for locations such as yours?...like yours specifically...not a market wide vacancy of all locations. How special purpose is my location? Third, determine what the location is worth to an arm's length investor with the new lease. This amount less any debt owed against the location and less any closing costs of sale (net of any taxes) determines the proceeds that can be deployed into an alternate investment. If you choose to deploy the funds into another real estate investment, the gain may be tax deferred if the upleg purchase meets certain criteria. You may be wondering why you would sell one piece of real estate only to buy another? The simple answer is to lessen the risk. By selling a special purpose single tenant location and investing in a general purpose multi tenant location, the management is greater but the downside is more  manageable...ala selling stock in a single company and buying a mutual fund of many companies.