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Structuring Real Estate Loans With Foreign Borrowers, Trusts, and Tenants in Common

Documenting U.S. Assets of Foreign Guarantors, Reviewing TIC Agreements, Revocable vs. Irrevocable Trusts, and More

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, January 8, 2020

Recorded event now available

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This CLE course will enable counsel to structure real estate loans with borrowers that are foreign investors and guarantors; trusts as investors or guarantors; and tenants in common (TIC). Lending standards have evolved for handling the different borrowers. The panel will discuss issues unique to each type of borrower, as well as additional due diligence and loan document revisions needed to address those issues.


Nonstandard borrowers and guarantors present underwriting and documentation challenges for lenders. Counsel must know how to structure loans with each type of borrower and guarantor. For borrowers that include foreign investors, lenders will require foreign as well as domestic anti-terrorism, anti-money laundering, and credit/litigation searches on each investor.

To allow for suit and collection in the U.S., foreign guarantors should be underwritten based on U.S.-held assets and agree to maintain a minimum U.S. net worth and liquidity throughout the loan term. If the borrower is a TIC, then there must be a TIC agreement which may appoint a managing agent, subordinates TIC claims to the loan, and addresses the parties' relationship to each other and the lender.

Trusts require special attention. Counsel must identify the assets in the trust, determine whether the trust is revocable, and understand conditions for removal of the trustee and how death or insolvency of the trustee or beneficiaries impacts control. Beneficiaries, as well as the trustees, may have to be underwritten as principals in the transaction.

Listen as our authoritative panel prepares lender's and borrower's counsel to structure transactions where borrowers are either foreign investors and guarantors; trusts as investors or guarantors; and/or TICs. The panel will review due diligence concerns with foreign investors, the role of U.S. assets and U.S. agent for foreign guarantors, subordination and other TIC agreement provisions, the trustee-beneficiary relationship of the trustee, revocable trusts, U.S. SPE borrowers in these transactions, and more.



  1. Foreign parties as investors and guarantors
    1. OFAC, anti-money laundering, and other due diligence
    2. The requirement of domestic assets (if guarantor)
    3. Need for a domestic single-purpose entity
    4. Appointment of U.S. agent; loan document revisions
  2. Tenants in common
    1. Key provisions in the TIC agreement
    2. Need for each TIC to be an SPE
    3. Appointment of managing TIC or other designated manager
    4. Subordination of TIC agreement and TIC claims; loan document revisions
  3. Trusts as investors and guarantors
    1. Revocable vs. irrevocable trust: nailing down trust assets
    2. Role of the trustee, beneficiaries--identifying control issues
    3. Transfer and other loan document revisions


The panel will review these and other key issues:

  • What are the additional due diligence and structuring requirements for borrowers with foreign investors?
  • Why are U.S. assets and a U.S. agent for service important for loans with foreign guarantors?
  • How should TIC borrowers be structured, and what provisions are critical in the TIC agreement and the loan documents?
  • What are the key issues that arise in lending to trusts, and how should those transactions be documented?


Keegan, Gerard
Gerard C. Keegan, Jr.

Alston & Bird

Mr. Keegan is Co-Chair of the firm’s Real Estate Finance and Investment Group. He represents institutional...  |  Read More

Robins, Jon
Jon S. Robins

Klehr Harrison Harvey Branzburg

Mr. Robins' practice includes a full range of finance, equity investment and real estate activities for private...  |  Read More

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