1 Feb 2019
Postponement & Standstill Agreements. What you need to know
Borrowers often have to access funding from more than one lender, to finance their operational requirements. For example, an operating company might have a day-to-day operating lender. They may also have a senior secured lender, a subordinated lender, and any number of unsecured lenders.
Real estate owners or developers often secure project financing from various lenders, often for specific purposes. For example, a condominium developer may source construction financing for the bulk of their projected costs. They may also secure a secondary tranche of “mezzanine” financing. This typically fills the gap between debt and equity requirements, as referenced in our post entitled The Capital Stack. What You Need to Know.
Where multiple lenders are involved, Intercreditor Agreements are required, setting out the relative rights and priorities between them. The key purpose being to set out what happens in the event of a borrower default.
Why is this important for commercial real estate owners? Your lenders need certainty as to their relative rights, in relation to the various circumstances which may arise over the course of the financing. And as a property owner, you too need to know what your obligations are. What lender actions or responses can be expected in various circumstances.
Postponement and Subordination
The main provisions in an InterCreditor Agreement involving a commercial real estate project are typically a Subordination and Postponement. Typically for a lender in top or senior position (i.e. the First Mortgagee) will require any junior lender(s) to acknowledge that they rank behind the prior lender’s security interest in the property.
By signing the Postponement provision, the junior lender is acknowledging that the prior lender (often the 1st Mortgagee) has the right to be repaid first. In other words, the junior lender is agreeing that it cannot be repaid on its loan, until the prior lender’s loan is repaid.
Not only is a junior lender obligated to postpone their security, they are most often also restricted in taking action in the event of a borrower default, without the senior or prior lender’s approval. In other words, they need to “stand still” and await the prior lender’s actions. Why? In the case of borrower default, the prior lender (typically the 1st Mortgagee) wishes to be in complete control of the situation. They do not want the subsequent lenders to commence mortgage enforcement actions of their own.
The important take-away for commercial real estate owners is to understand that sourcing multiple lenders to provide financing for your project is not unusual. In so doing, your lenders will negotiate Postponement and Standstill Agreements between themselves, often requiring Borrower acknowledgement as well.