Questions a Borrower Should Ask Before Defeasing

Defeasance is the process through which a borrower is released from the obligations of its debt. The borrower purchases a portfolio of government bonds to serve as replacement collateral for the debt and to generate the cash flows required to meet the future obligations of the debt. While the process can be summarized in a few lines, in practice it is very complex, involving a large number of parties with competing interests. Having an independent, experienced advisor on the borrower’s side is important to ensuring an on-time, cost-effective, and complication-free close.

 

Things to Look Out for When Defeasing 

  • Has the defeasance consultant thoroughly reviewed the loan documents and provided a comprehensive defeasance analysis to the borrower?
  • Have all anticipated third party fees been fully disclosed to the borrower?
    • What is the consultant’s fee structure? Is it reasonable?
    • Will the consultant ask for a deposit? Chatham does not charge an upfront deposit for consulting services.
    • Will there be additional fees for Successor Borrower origination? Some consultants charge separate fees for consulting and Successor Borrower origination. Chatham charges a single low fee for both services, making it the lowest fee in the market. 
  • Will residual value be generated as a result of the defeasance? If so, is the defeasance consultant returning a significant majority of this value back to the Borrower?
  • Can the defeasance be structured to the early prepayment date, for a complete up-front savings on the last few months of interest?
  • Is the loan subject to rating agency review which will entail additional time and cost?
  • Will the securities portfolio include higheryielding, lower-cost agency securities in addition to Treasuries, if applicable?
  • How is the defeasance consultant going to purchase securities? Competitive auction or one relationship bank? A competitive auction utilizes the power of the marketplace to drive prices lower through competition. 
  • Have the changes in defeasance costs over the life of the transaction been reviewed?
    • How much will defeasance costs decrease after every monthly loan payment?
    • How will movements in Treasury yields affect defeasance costs?
  • Is the loan currently eligible for defeasance? All CMBS loans are locked out for a period of two years following securitization. Some CMBS loans are subject to a yield maintenance penalty instead of defeasance.

 

Common Mistakes Made by Borrowers When Defeasing

  • Not budgeting enough time for the defeasance process.
  • Accepting costs that are higher than market standard.
  • Failing to negotiate favorable defeasance provisions in new loans (for refinances) or Purchase and Sale Agreements (for sales).

Hiring an independent consultant is not only recommended, it's usually a critical piece to avoiding these mistakes and navigating the defeasance process without delaying loan closing. 

 

Looking for answers to some of these questions? Give a defeasance expert a call at 610.925.3120.

 

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