What’s the difference between a Demand Loan and a Term Loan? A recent commercial mortgage refinancing I was involved with resulted in a discussion around Demand Loans. What are they exactly, and how they might typically differ from a term loan?
A demand loan is a loan that a lender can require to be repaid in full at any time. This condition is understood by the lender and the borrower (or should be) from the outset. A term loan on the other hand is a loan which has a specific length of term. It has a set repayment schedule.
Normal loan default remedies are provided to the Lender in typical term loan documentation. Unless and until there is a default, the borrower generally continues making regular (often monthly) payments. Apart from having to typically report annually with updated rent rolls or financial statements, has little contact with the lender until loan maturity.
Robert D. Betteridge, a lawyer with Burnet, Duckworth & Palmer LLP, in a May 2008 article entitled Does Demand Always Mean Demand? indicated that in simple terms a Demand loan often has all its required terms in a few paragraphs. “The debt is acknowledged, an interest rate and payment mechanism is specified and a clear statement that the loan is payable on demand is included.” He goes on to state that “term loan documentation is necessarily more complex”. Of necessity the lender will typically need to cause repayment of the debt if certain elements of default occur, often a monetary (i.e. non-payment) event.
Increasingly however, Lenders are using hybrid loan documentation which seems to include both elements of Demand and Term loans. These hybrid loans may in fact be Demand loans in the sense that they provide the Lender “a right to demand repayment upon the occurrence of a specified event of default”.
Do Lenders really call loans?
A relatively sophisticated borrower I represented last year, secured an attractive rate from a Bank lender. However, the product was only offered as a Demand Loan. This borrower successfully negotiated a further provision. The lender’s security documentation was amended, to require the lender to specifically identify the item of default, and to set out a 10 day Notice period to cure the default, prior to being able to call the loan (i.e. Demand payment).
Was it necessary for this borrower to amend the loan security? This borrower, out of an abundance of caution, felt that it was. I have often thought it prudent to consider a commercial mortgage as a loan with a demand element. The practical reality is that many/most commercial mortgages include a borrower covenant to pay as well as security for the debt. The covenant to pay typically includes language which sets out that if default occurs, all mortgage money then owing to the lender will, if the lender so chooses, become due and payable.
My experience has been that Demand is a lever that Banks or other lenders could use if they feel that there overall investment is at risk. Its more likely to happen if the borrower’s financial situation is precarious, or if the loan security is in jeopardy. A well leased commercial real estate project provides excellent security for a lender. Lenders in these situations most often supplement their security with an Assignment of Rents to further protect themselves. This allows them to step into the shoes of the borrower/landlord, during a mortgage enforcement action, to secure rents directly from property tenants, to continue to service the mortgage payments.
What’s the take-away here?
In practical terms, if you make your monthly mortgage payments as agreed, your loan will likely not be “demanded” or “called”. It is important to understand that it’s the lender’s prerogative. Other factors come in to play of course. Consider the rate of interest. If your loan carries a rate of 6%, and market rates have fallen to 4%, your lender is not likely to call your loan anytime soon, unless they perceive undue risk. They cannot readily replace the loan they call, with a new investment opportunity paying the same rate.
Bear in mind your loan documentation may reflect a Demand/Term hybrid loan.
Courtesy of Allan Jensen – AMP – The Mortgage Source based in Ottawa, ON.